Communication Problems of Indigenous Persons in the Legal System Generally and in Administrative Law in Particular
KEVIN SMITH
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative Law: Protection of Individual and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Kevin Smith
State Manager, Queensland, National Native Title Tribunal
Communication problems of Indigenous Persons in the legal system generally and in Administrative Law in particular
Thank you to the Institute for an opportunity to speak on an issue that is important to me as an Indigenous person, lawyer and public servant. As will be made clear in my presentation, culture is essentially important to every Aboriginal person and Torres Strait Islander; and, at the heart of culture, is our spiritual connection to traditional land and waters. Accordingly, as a Torres Strait Islander whose ancestral lands lie to the far north east of the country, I acknowledge and pay my respect to the traditional owners of the land on which we meet today.
Like a vigilant lawyer and careful public servant, I must from the outset make a disclaimer, an admission, a confession and outline a possible defence:
1. The views expressed herein are my personal views and in no way attributable to the National Native Title Tribunal.
2. As a lawyer with predominantly criminal law experience, it is with some bemusement and considerable humility that I find myself addressing an esteemed gathering of administrative law specialist.
3. My observations on administrative law will essentially be expressed in my capacity as an Indigenous person; a capacity that at times conflicts with my two professional capacities. In preparing this paper, I must confess to a sense of frustration in reflecting upon the plethora of policies and administrative decisions that control every facet of Indigenous life and how comparatively few have been formally scrutinised or challenged - a point I will return to later.
4. I am an Indigenous Australian and by virtue of that status find it almost impossible to be apolitical. My observations on current Indigenous policy are expressed as my own. Nevertheless, I invoke Aristotle as my defence counsel; “Man is by nature a political animal”.
By way of introductory comments, I have structured my paper in three parts:
1. Why are cross cultural communication skills important for Administrators and Lawyers
2. The historical, cultural, linguistic and other factors that need to be understood
3. Possible strategies to improve communication skills as well as address access to administrative justice issues experienced by Indigenous people
1. The necessity for cross cultural communication skills
The 2001 Australian Bureau of Statistics census places the Aboriginal and Torres Strait Islander population at approximately 410 000; arguably higher considering the number of Indigenous people who are either homeless or itinerant. The 2006 ABS is likely to bear out that the Indigenous population has grown significantly and proportionately faster then the non-Indigenous population. Be this as it may, Aboriginal people and Torres Strait Islanders represent a miniscule 1.5% of the total population. Hardly, a significant potential legal client base!
This being the case, why would lawyers and administrators see any benefit in acquiring better cross-cultural communication skills? The answer, being a distressing reality, is that due to a range of complex reasons, Indigenous people are grossly over-represented in some areas of the legal system. I emphasize some areas, as in the course of researching this paper it became clear that there are areas that we are grossly under-represented.
The area where we are grossly over-represented is in the area of criminal justice. There is very little statistical information formally kept by the police and courts to get a full picture of the extent of Indigenous over-representation. However, if Queensland prison statistics are considered accurate, Indigenous inmates consistently make up between 20 to 25% of the adult male prison population. The statistics for young people are even more disturbing with Indigenous young people making up 5% of the youth population under 16 but they comprise a staggering 40 to 50 % of the Queensland youth detention population at any given time.
One can assume that the true figures of contact with the criminal justice system, including those people charged but acquitted or convicted with non-custodial sentences, would reveal that Indigenous people are significantly over-represented in the system, actually and proportionately.
Another area of law that reveals disproportionate representation is the area of child protection – Queensland departmental figures reveal that 20% of all children on child protection orders are Indigenous. In this regard, I recall my time as the CEO of the Brisbane Aboriginal and Torres Strait Islander Legal Service when the service sponsored an Indigenous child protection programme. During that time, I was constantly reminded of the alarming connection between Indigenous disadvantage - here manifested by inappropriate and poor parenting skills resulting in child abuse and neglect - and criminal justice. The service not only dealt with common clients on child protection and juvenile justice orders but simultaneously acted for their parents and sometimes grandparents on unrelated matters. I will return to the intergenerational nature of Indigenous disadvantage.
Other burgeoning areas involving Indigenous clients are the areas of anti-discrimination on race related grounds and family law.
I should pause at this moment to disavow those who might think that these areas of practice largely lie in the human rights area and consequently there is no necessity to communicate with Indigenous people in the commercial law area. Native title, Land Rights legislation and Indigenous cultural heritage Acts directly impact upon town planning, mining and resource law, and a failure to understand Indigenous communication issues, whether you represent or oppose the Indigenous interest, may have significant ramifications for your client with resulting professional negligence and/or ethical consequences for you as lawyers!
Turning specifically to administrative law, a perfunctory glance of the list of Commonwealth Acts that are relevant to native title law alone reveal no less than 68 Acts traversing the areas of land and environment, heritage, local government, marine and minerals (see A Guide to Australian Legislation Relevant to Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2000). If one takes into account the 71 Queensland Acts on the same topic, one gets an appreciation of the range and volume of potential administrative decisions made under an Act that could affect Indigenous people.
Oddly, in researching this paper looking for case law, policies and/or programmes to provide practical examples of how Indigenous People have pursued administrative justice, I was confronted with a concerning paucity of material.
After dusting off the Administrative Law textbooks and looking at later editions, it seems as though Indigenous people have not availed themselves of administrative justice as much as one might have expected having regard to the legislative and administrative control that various governments have exercised over their lives.
Notably the cases have involved litigation surrounding the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth ) see: R v Toohey (Aboriginal Land Commissioner);Ex Parte Northern Land Council (1981) 151 CLR 170; AG (NT) v Kearney (1985) 158 CLR 500; Re Maurice; Ex Parte Attorney-General (NT) (1987) 17 FCR 422; Northern land Council v Aboriginal land Commissioner (1992) 105 ALR 539) and seldom used judicial review grounds: see New South Wales Aboriginal Land Council v ATSIC (1995) 59 FCR 369 where the Land Council successfully argued unreasonableness.
There is also a raft of FOI challenges but my research seemed to suggest that the only time Indigenous people used this remedy was to challenge another aboriginal entity. It is though we fight among ourselves over policies and programmes that were only ever intended to be supplementary! In doing so we have failed to scrutinise, let alone challenge, the discriminatory and unfair administrative decisions of mainstream agencies.
I hasten to say that I am not suggesting that this is the extent of cases that demonstrate how Indigenous people have employed administrative law remedies. There is a growing body of native title jurisprudence arising from judicial review of the Native Title Registrar’s decision to not accept claims to the register of native title claims as will as challenges to the registration of Indigenous Land Use Agreements.
There are two notable features of the litigation; firstly, when Indigenous people have invoked judicial redress via administrative review they have often been resourced by Indigenous Legal Services or Land Councils and, secondly, somewhat understandably, the bulk of the decisions relate to decisions concerning land.
It does beg the question, why aren’t there challenges to the raft of non-land related issues that would affect Indigenous people on a daily basis; social security, access to health, housing, education, employment, infrastructure etc?
I would submit, a very clear picture is emerging; here, arguably, we have the most over-governed people on the planet, literally subjected to generations of numerous state and federal acts and subordinate legislation, hundreds of policies and realistically thousands of administrative decisions per annum, seemingly “satisfied” – if satisfaction is measured by lack of formal judicial review – with their lot in life. I don’t think anyone with the slightest insight into the malaise that we call Indigenous Affairs could say this is the case!
Aboriginal people and Torres Strait Islanders are adversely represented across the full spectrum of social indicators: low literacy and numeracy levels; high unemployment and underemployment; short life expectancy; high incidence of preventable diseases; overcrowded housing; the list goes on and on. Is it a question that people in this stratum of society fight to survive on a daily basis with the assertion of legal rights being the last thing on their minds? If bureaucratic negligence or error is any way associated with this predicament, then a grave injustice remains concealed.
Assuming that there is a level of administrative injustice that is occurring it appears that the real issue is one of access to appropriate remedies. In this regard many learned commentators have highlighted that public benefit amounts to very little if there is not access (see Rodopoulos, L “No Access, No Public Benefit – NESB and Indigenous Communities” paper delivered at the Australian Institute of Administrative Law Forum 1992; Tracey, D “Access to Administrative Law: The ARC Multicultural Project; Brown, A.J “Administrative Justice for Aboriginal People – Can it be done?” Aboriginal Law Bulletin 1993)
Denis Tracey in the above article makes the following candid observation:
“I worked for the Commonwealth Ombudsman for seven years in Adelaide, Perth, Melbourne and, for short periods, Canberra. In that time I gained the very strong impression that most of the people who approached the office were much like us. They tended to be fairly well-educated, fairly articulate, fairly confident. Often approaches were made on behalf of clients by lawyers, accountants or other professionals. Two categories in particular- Aboriginals and recent migrants- were conspicuously absent. In seven years I would have investigated literally thousands of complaints involving virtually the full range of Commonwealth administration. I dealt with complainants in writing, by phone and face-to-face. I do not recall ever knowingly handling a complaint from an Aboriginal…”
These comments were made in the early 1990’s; I wonder if much has changed? I suspect not. I say this not to be derisive or provocative rather I draw on my personal experience that unless Indigenous people have:
1. knowledge of their rights;
2. confidence in the Institutions; and
3. resources to prosecute,
there is unlikely to be any change in the status quo with the consequence that rights will continue to be trammelled.
Again, wearing my Indigenous hat, I fear that the political landscape has moved to a point where these three conditions are not readily realisable. As the land rights and native title cases highlight, unless agencies are prepared to assist Indigenous People so as to address these important threshold issues then it is likely that Indigenous people will not access these rights. My experience is that education or community awareness programmes have to be culturally appropriate to achieve the learning objectives. These types of services are best delivered by or co-facilitated by Indigenous people. When armed with the requisite knowledge, it really is a matter of whether Indigenous people have confidence that they will receive a fair hearing – in the eyes of many Indigenous people statutory authorities are part of government and hence part of the problem. Finally, the not for profit sector to which this huge responsibility invariably falls to advocate is in parsimonious times; as such there is little prospect of resources being made available by government to have its decisions challenged.
On the last point, the Joint Committee of Public Accounts and Audit report Access of Indigenous Australians to Law and Justice Services released in June 2005 noted that all Aboriginal and Torres Strait Islander Legal Services (ATSILS) continued to use the bulk of their resources addressing the chronic issue of reducing the risk of Indigenous clients being incarcerated. The consequence being that there are few residual resources for family and civil law. The findings have resulted in some additional resources being provided to ATSILS to fund family law and some civil law cases. However, it is doubtful whether these scant resources will be allocated to seeking administrative law redress for Indigenous clients except in those areas that are directly related to the criminal justice system. In this regard seeking judicial review of parole board classifications and making complaints to anti-corruption bodies like the Crime and Misconduct Commission (Qld) against police behaviour is likely to absorb what scant funds are available.
There does not seem to be any brighter prospects of securing alternative funds from mainstream legal aid offices. For instance, the civil law scheme under the Qld Legal Aid Office has largely been used in personal injury litigation although the guidelines include public interest grounds which presumably include administrative law remedies (see the ToR for the Review of the Civil Law Legal Aid Scheme Legal Aid Queensland). It remains to be seen whether funding would be provided to pursue a range of administrative remedies.
Naturally, funding only becomes an issue if there is a need for administrative review. After the abolition of ATSIC, the Federal Government’s indigenous programme was restructured with the range of services being administered by 11 agencies under a policy of “mainstreaming”. The government set up a departmental secretaries group to oversee the policy with the Office of Indigenous Policy Coordination providing central coordination to some 29 Indigenous Coordination Centres spread throughout the country. One of the core duties of these ICCs is to act as solution brokers, which will result in Shared Responsibility Agreements (SRAs).
From recent media reports all is not well. The Australian (20 April 2006) recently reported upon an ANU report that discussed the views of secretaries in light of the policy changes. The report captured the following sentiments:
“most of the secretaries said their departments had few, if any, staff in the coordination centres and they could not see this changing in the near future as they did not have the resources to base even a single officer in each ICC”
One secretary said asking the indigenous coordination centre staff to be “solution brokers” was impossible, because they were not senior enough
One secretary indicated they would have had virtually nothing to do with indigenous affairs in the old days, but were now spending up to 10% of their time on such issues
Those statements do not instil confidence; particularly noting that some 179 SRAs have been negotiated to date. Anyone involved in complex cross-cultural agreement-making is cognisant of the issues of securing informed consent for the agreement with a view to ensuring the outcomes are fair, achievable and durable. There are bound to be issues with these agreements having regard to the pace in which these SRAs have been struck coupled with the competency and capacity issues highlighted above. The question will really be whether Indigenous people have a forum to air grievances. It also begs the question, being, does the candour of the secretaries reflect a new age of accountability and transparency ushered in by various departmental reviews or is it an expression of confidence that there will be no challenge?
Similar comments to that of the secretaries were made recently by John Hartigan, CEO and Chair of News Limited at the third annual Australian National University Reconciliation Lecture at Parliament House. His view was that the bureaucracy was not working, with government agencies lacking the capacity, capabilities or cultural sensitivity needed:
It’s hard to get accurate figures but everyone I’ve spoken to tells me that about 70 cents in the dollar is consumed by administration.
Interestingly he went on to say that while there was debate and disagreement about ATSIC, it was clear a national body was needed.
The new body must develop robust policy, negotiate effectively with government, set new benchmarks for living standards and be plugged into government at the highest level (The Australian 31 May 2006).
It is noteworthy that the above criticisms have come from powerful people within the public and private sector.
While Indigenous communities are left to negotiate directly - and in all probability unrepresented - with governments then awareness of the range of administrative remedies available to them is critical; it is the very least that is required. The difficulty remains, who will facilitate this educative process and will there be resources to pursue rights that are breached?
2. Historical, Cultural, Linguistic and other Factors
If effective communication is the core skill through which we discharge our professional responsibility as lawyers and public law administrators, then a basic understanding of some key historical, cultural and linguistic factors is crucial when dealing with Indigenous clients or Indigenous recipients of public policy.
Before we consider those factors some definitional clarification is useful:
· In many statutes “Aboriginal/Aborigine” is generally defined as a person of the aboriginal race of Australia. A “Torres Strait Islander” is a descendant of the original inhabitants of the Torres Strait. In the course of researching this paper I came across a number of references to the acronym “ATSI” people. While this term appears in many government policy and programme papers as a convenient short hand reference, please do not use it as many people find the term offensive as it harks back to a time when we were deemed to be some homogeneous group; tantamount to a denial of our own distinct cultural identity and the rich diversity of Indigenous cultures.
· The term “Indigenous Australians” is frequently used. While many Aboriginal people and Torres Strait Islanders don’t think too much of this term it is less offensive then the aforementioned “ATSIs”
· The test for Aboriginality has three elements:
1. Biological descent
2. Self identification ( internal)
3. Community identification ( external)
This definition has received judicial endorsement; see Gibbs v Capewell (1995) 128 ALR 577. The same definition is also internationally recognised; see the Draft Declaration on the Rights of Indigenous Peoples. It is important to note that the definition is cumulative. There are many examples where non-Indigenous people have been “adopted” into a tribe but applying this definition, that person would not meet the biological descent element and hence could not be deemed Indigenous.
Historical Factors
There are a number of crucially important historical factors that must be borne in mind when communicating with Indigenous Peoples. They are particularly important in the current debate when Indigenous Affairs is being redefined in this country. Some commentators, Indigenous included, would have us believe that the current levels of Indigenous disadvantage are caused by poor education, low employment, poverty, welfare dependency etc. This characterisation sits well with an assimilation agenda that says “your circumstances are solely of your own making but if you stop whinging about the past, study hard, get a good job, buy a house…you can become successful like the rest of us!”
There are some noted examples of Indigenous people who have done just that and written the saddest suicide notes about their inability to overcome “generational” grief (read the recently published posthumous biography of Rob Riley: an Aboriginal leader’s quest for Justice Beresford, Q 2006 if you want an insight). The problem with this convenient thesis is that it incorrectly characterises the “effects” as “causes”.
The true cause of the current state of Indigenous disadvantage lies in the litany of woes starting with colonisation and the administrative and legal sanctioning of systematic dispossession of traditional lands, prohibition of cultural expression, forced cohabitation in penal (missionary) settlements, the forced removal of children and government control over every facet of the human condition (aboriginal people living on missions needed the superintendent’s permission to leave the mission boundaries, marry, work, retain wages, associate with family members, etc). I commend to you Rosalyn Kidd’s The way we civilise: Aboriginal Affairs – the untold story for a legal and administrative overview of Indigenous Affairs in Queensland.
The Australian Constitution served as an important tool in ensuring States maintained control over such affairs until the 1967 Referendum. Prior to this time Aboriginal People where effectively made invisible by; putting them on missions; depriving them of voting rights; not counting them on the census, etc, etc. All of these deliberate abuses take their toll resulting in the “effects” referred to above that leads to a state of chronic disadvantage.
I confess to a mixture of anger and humour when I hear people with a straight face say that these things occurred over two hundred years ago and how could modern day Australia be held accountable but in the same breath they think it is perfectly reasonable to have an Indigenous party bear the burden of proof in native title litigation to the extent of proving substantially uninterrupted connection to country from the time of colonisation ( the latter being an element in proving connection as set out in Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538).
In spite of this challenge, Aboriginal people and Torres Strait Islanders rise to the occasion because ours is an oral tradition. And just like traditional laws and customs have been handed to successive generations enabling us to discharge the onerous burden of proof in native title matters so to have the deplorable acts committed against us in the name of nation building been recounted and passed on. That too is a heavy burden carved into the collective psyche of Indigenous Peoples.
The important point that we have to remember as lawyers and administrators is that when we approach an Indigenous client, we come as representatives of legal and bureaucratic institutions, the very symbols of past (in some cases, current) oppression. Unless we go the extra yard to build rapport words like “we are here to help you” will ring hollow.
This image is particularly reinforced in remote communities when the judge, prosecutor and defence counsel all fly in and out on the same plane, stay in the same motel and share every meal together. Similarly, black fellas have plenty of stories of white govvy officers lifting off the flight tarmac as quickly as they descended upon it all in the name of “consultation”.
Cultural
Culture is an oft-quoted term used in modern times so before I talk about Indigenous cultures, it is useful to have a brief discussion about culture generally. Cultures can be based on regions or nations, professions/occupations or organisations. Generally, culture is construed as shared values or behaviours that ensure inclusion with compliance secured by threat of exclusion. Put simply culture can be described as “the way we do things”. For instance, lawyers have a number of rules that govern the way things are done which many non-lawyers would consider plainly anachronistic; but for lawyers, however, it would be folly to wilfully breach those norms. This is the context in which I would like you to understand our discussion on culture – and to be wary of the dangers and futility of imposing value judgements on the validity of others cultures.
According to Aboriginal Australia by George Helon, (1998) there are seven hundred and sixteen Aboriginal and Torres Strait tribes in Australia. At the time of colonisation anthropological evidence suggests that there were over 200 distinct languages spoken across Australia which reflects the vast diversity of Indigenous cultures. While the colonisation process has had an adverse impact on the languages spoken and some cultural practices, a number of those tribal groups have continued with their distinct legal, social and governance processes and systems intact.
Hofested, Bond and Hall have undertaken considerable work on dimensions of culture as outlined below. I have attempted to use this frame to explain the differences between Indigenous cultures as compared to Western Cultures:
Some specific examples of cultural mores
· Avoidance of direct eye contact with a person in authority is intended to demonstrate politeness and respect particularly in relation to persons of authority. To non-Indigenous people this behaviour could be considered as evasive, rude or disrespectful
· Silence is positively valued to share information and allow time to digest and respond. Silence can be misconstrued as concocting a story or recent invention. Similarly, silence can indicate a lack of authority to speak on a matter of cultural significance or simply that the person misunderstands the question.
· Gratuitous concurrence is agreeing with the speaker to build a relationship with the speaker or avoid conflict.
The Pinkenba case (see Aboriginal Witnesses in Queensland Criminal Courts Criminal Justice Commission, June 1996) graphically highlights the danger of misinterpreting these mores. This was a case involving the prosecution of six police officers on deprivation of liberty charges resulting from the officers “detaining” three Aboriginal youths, driving them to an industrial area on the outskirts of Brisbane and abandoning them, to teach them a lesson. The following court transcript excerpt is taken from defence counsel’s cross examination of an Aboriginal boy after he remained silent to a question:
Counsel:.. I’d suggest the reasons to you, because you don’t want everyone to know the little criminal that you are, do you? That’s the reason, isn’t it? Isn’t it? Isn’t it? Your silence probably answers it, but I’ll have an answer from you. That’s the reason, isn’t it?
Bench: D__, I am asking you to answer the question. Ask the question again, please, Mr__.
Counsel: I’m suggesting to you that you don’t want the court to know the little criminal you are. Isn’t that right?--- Yes
The charges against the officers were subsequently dismissed on the basis that the youths “consented” to being transported kilometres from their homes and left at the industrial estate.
· Taboo relationships or topics can prevent Indigenous people from speaking about: people (certain relationships such as uttering the name of an in-law in their presence or the name of a deceased); things (places or objects of cultural significance); or topics/knowledge (men and women have very different and equally important roles to play in Indigenous communities and as such possess knowledge on matters that cannot be shared across sexes). The consequence of breaching these protocols is very serious.
The Kina Case (CA221/93 Court of Appeal Queensland) is yet another example that was considered by the CJC in the abovementioned Inquiry. This case involved the constant physical and sexual abuse of the accused at the hands of her deceased husband. On the relevant occasion, after sexual advances where declined by the accused the deceased threatened to sexually molest her teenage niece who was residing with them. Later that evening, the accused stabbed her husband to death. After a young, white male legal representative took her statement at the Women’s Prison that did not make any reference to these material facts, the trail lasted a day with no evidence being led by the defence resulting inevitably with a conviction of murder. After five years in prison, an appeal set aside the conviction on the grounds of a miscarriage of justice. Fitzgerald P and Davies JA specifically referred to the problems in communication as follows:
In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of:
These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice.
Linguistic
Verbal communication is central to our work as advocates and administrators – it is vital to obtaining instructions, giving advice and advocating a client’s case as well consulting with clients in the development of policy and implementing programmes. Building rapport is crucial.
If there is one important point that needs to be understood in this part of the presentation is the concept of Aboriginal English. The issue that arises is that Aboriginal English sounds very similar to Standard English with the real danger that speakers of both engaged in a conversation could be under the mutual misapprehension that they are being perfectly understood.
Diana Eades in her authoritative text “Aboriginal English and the Law” provides an excellent resource for all lawyers and administrators in this area. Eades work has been the basis of a number of reports and publications including the CJC Report referred to above; the Aboriginal English in the Courts – a handbook printed by Queensland Department of Justice and Attorney-General and the Equal Treatment Bench Book recently launched by the Queensland Supreme Court. I commend people to read these texts. I also acknowledge that these texts have been heavily drawn upon in this part of the presentation.
Aboriginal English is not a recognised language that will allow an interpreter to be called. Aboriginal English is not a Lingua Franca or Pidgin although it started out that way on missions as a means of inter tribal communication. Due to prohibition upon speaking traditional languages Aboriginal Pidgin English slowly changed to become more a variety of English. This is a difficult thing as it closely resembles English to the degree that non- Aboriginal listeners may feel comfortable with their level of understanding which could cause problems
I provide the following not as an exhaustive list of the numerous linguistic issues that one must be aware but merely to demonstrate the point of the practical problems that arise. Again, I commend the cited text to you for more comprehensive examination.
The Aboriginal English in the Courts hand book contains a useful glossary of Aboriginal English words that have special meanings. Due to the special kinship relationships, nuclear family terms do not convey there usual meanings. For instance, mother refers to the biological mother and her sisters – the words “big” or “small” conveying the older or younger sister in relation to the biological mother. The same applies with Father. Uncle and Auntie often refer to respected elders regardless of their biological relationship as do terms such as sister and brother (used more an urban context to express solidarity).
Other Factors
There may be other factors that impact upon effective communication such as the following:
In conclusion, it is clear that the historical, cultural, linguistic and other factors will have a direct impact on how lawyers and administrators interact with Indigenous clients and it is critical to have a basic understanding of those factors to ensure effective representation or consultation.
3. Strategies
The following are strategies to address cross-cultural communication with Indigenous people. I have also proffered some preliminary strategies that might address access to administrative justice issues. On the latter, I very much welcome views from the floor.
General strategies
Administrative Justice Strategies
Specific strategies to ensure that Indigenous people have equal access to administrative justice may be more difficult to develop. Strategy development will need to be based on a number of assumptions:
Identifying and defining the problem is the hard bit. If there is good will, strategies abound:
1. A key starting point would be for review agencies and government departments to start capturing data that relate to the types of complaints Indigenous people are making. I know that this will be a sensitive issue around Indigenous people’s preparedness to disclose details but if the purpose is explained in a culturally appropriate manner then we may all be surprised with what is forthcoming.
2. There needs to be a firm commitment to data collection which should be formalised through the annual parliamentary reporting processes.
3. Using the networks referred to above, forge partnerships with interest groups to assist in tailoring and delivering culturally appropriate information services around rights and remedies.
4. Possibly, a pro bono programme could be established to advance individual claims.
5. The emphasis, however, should be on a coordinated approach not to increase litigation but to ensure the learning’s are captured to inform policy development, programme implementation and service delivery.
If the above strategies are adopted then when this forum meets in 5 to 10 years time, we as lawyers will feel more at home by having an evidence-based discussion on issues such as access – who knows, such strategies might prove instrumental in obviating the necessity to seek administrative justice at all.