Burchfield, Shelley; Baybrook, Antoinette --- "Improving Law and Justice Outcomes for Indigenous Women and Children" [2009] IndigLawB 19; (2009) 7(12) Indigenous Law Bulletin 6

Improving Law and Justice Outcomes for Indigenous Women and Children

By Shelley Burchfield and Antoinette Braybrook.

Indigenous women and children continue to experience unacceptable levels of disadvantage in law and justice outcomes across Australia. Dedicated law and policy development, combined with strategic planning for strengthened legal service provision that reflects Indigenous diversity is likely to contribute to improved responses. But, for meaningful advancement to occur, Indigenous women must be supported to develop and drive necessary change, through appropriate, cross-government engagement, resourcing and flexibility.

The Aboriginal Family Violence Prevention and Legal Service Victoria (‘FVPLS Victoria’) is one of 31 FVPLS units funded by the Commonwealth Attorney-General’s Department (‘AGD’) to provide legal assistance, counselling and prevention activities to Indigenous victims/survivors of family violence and sexual assault in both rural and remote Australia. FVPLS Victoria’s priority areas of legal assistance are family law, family violence law, child protection and victim assistance.

Whilet the FVPLS program assists men, women and children, this discussion is dedicated to the particular situation of women and children, who comprise the majority of victims/survivors of family violence and sexual assault. In the first part of this paper we demonstrate that, depite ratification and adoption of key human rights instruments providing for specific protections for Indigenous women and children, significant disadvantage in key law and justice areas continues. We then proceed to look at measures that could help to alleviate these problems.

What the Statistics Tell Us

Whilst reliable data for Indigenous family violence is lacking, and underreporting significant,^[1] it is clear that Indigenous women and children are vastly overrepresented as victims/survivors. It is also clear that family violence and sexual assault impacts upon a range of law and justice outcomes, including women’s incarceration levels and child protection interventions.

The most recent statistical report released in Victoria details, as a key finding, that ‘the vast majority of Indigenous victims of family violence were female over the age of 20 years.’^[3] Victorian police data indicates that the rate of domestic violence related assault against Indigenous women is nearly five times as high as the rate of the total female population.^[4] A 2006 report studying data from four states found that, in at least 41% of cases, Indigenous women are hospitalised as a result of spouse/domestic partner violence. This is compared with 7% for Indigenous men.^[5] Further, Indigenous women experience 38 times the rate of hospitalisation for assault as other women;^[6] they are 10 times more likely to die from assault than non-Indigenous women.^[7]

Indigenous children also experience high rates of victimisation. In Victoria, the rate of Indigenous children on care and protection orders in 2006 was 56.4 compared to 4.6 for non-Indigenous children (approximately 12 times higher).^[8] Family violence is reported as a significant feature of all child protection notifications in Victoria.^[9]

Indigenous children and women’s experience of family violence is closely implicated in their encounters with the criminal justice system. Young Indigenous women are vastly overrepresented in juvenile detention^[10] and, in 2008, the imprisonment rate for Indigenous adult women in Victoria was almost 15 times higher than for their non-Indigenous counterparts.^[11] Between 2002 and 2006, the national imprisonment rate increased by 34% for Indigenous women and by 21.6% for Indigenous men.^[12] The majority of Indigenous women in prison indicate that they are survivors of family violence or sexual assault. In a survey of Indigenous women prisoners in NSW, 70% of respondent prisoners indicated that they had been sexually assaulted or had suffered other types of abuse as children; 44% reported that they had been sexually assaulted as adults.^[13]

Law and Justice Responses to Date

Further to this statistical snapshot, poor accessibility and cultural sensitivity within key areas of the legal system remain a significant challenge for Indigenous people. In addition to inadequate legal services, dedicated law reform and legal policy development has been lacking. In late 2007, the Commonwealth AGD released a draft National Indigenous Law and Justice Strategy, noting that

Over 10 years ago Indigenous women were found to be the most legally disadvantaged group in Australia … Despite many improvements, such as the introduction of specific legal services for Indigenous women, significant disadvantages still exist. The focus of recommendations of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) related to improving justice outcomes for men, who comprise the overwhelming majority of Indigenous detainees, offenders and prisoners … Services to Indigenous women need to be targeted, culturally sensitive and more work needs to be done on assessing unmet needs.

A framework document, built upon this draft, is currently being completed through a working group of the Standing Committee of Attorneys-General. Whilst the focus upon Indigenous women in the draft document is encouraging, it is critical that a strategic implementation plan, informed and driven by Indigenous women, be vigorously pursued. It is essential that Indigenous women are positioned in key law and justice decision making, as well as in policy and advisory roles.

The Human Rights Context

Human rights of Indigenous women and children are protected in a number of human rights instruments that must be relied upon as much as possible to elevate government accountability. Victoria has adopted a Human Rights and Responsibilities Charter which recognises the special importance of human rights for the Aboriginal people of Victoria and which contains provisions that may be relied upon to advance law and justice outcomes for Indigenous women and children.^[14] The ACT has a Human Rights Act^[15] and a consultation process is currently underway to determine how Australia can best protect and promote human rights nationally. At the Commonwealth level, Australia recently endorsed the United Nations Declaration on the Rights of Indigenous Peoples. Article 22(2) of the Declaration provides that

States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous elders, women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

The UN Human Rights Committee’s recent report on Australia’s compliance with the International Covenant on Civil and Political Rights expresses concern at the high levels of violence against Indigenous women and calls for strengthened efforts toward its elimination.^[16] It further states that the NT Emergency Response is inconsistent with provisions of the Covenant, was adopted without adequate Indigenous consultation and must be redesigned.^[17] The Committee urges measures to improve access to the justice system for Indigenous people.^[18]

In a welcome development, Australia has recently ratified the optional protocol of the Convention on the Elimination of Discrimination Against Women (‘CEDAW’). This means that Australian women who have experienced discrimination can now take their complaints directly to the UN (provided that all domestic remedies have been exhausted). The 2006 concluding comments of the CEDAW committee for Australia expressed concern at the ongoing inequalities suffered by Indigenous women, whose enjoyment of human rights remains unsatisfactory in many areas and recommended that Australia ‘adopt and implement targeted measures, including temporary special measures… to improve indigenous women’s enjoyment of their human rights in all sectors’.^[19] Australia’s compliance with the CEDAW convention is also due to be reviewed.

Improving Law and Justice Outcomes

Special measures are clearly required to advance law and justice outcomes for Indigenous women in Australia. But these must be strategically developed within a national, state and territory framework. Most importantly, they must be informed and driven by Indigenous women. Imposed measures are inappropriate. Channels for Government engagement with Indigenous women are needed to ensure that advice and recommendations are translated into on-the-ground change. An Indigenous representative body and a national Indigenous law and justice advisory body will provide valuable opportunity for the formation of dedicated structures.

The following are some proposals directed toward on-the-ground improvement in law and justice outcomes. They are not intended as exhaustive and are made in the context of broader community initiatives underway.

A National Indigenous Women’s Law and Justice Advocacy Body

Following RCIADIC, much of the law reform and policy development focus has been on issues related to Indigenous men. A national Indigenous women’s law and justice advocacy body would provide an Indigenous forum to provide a greater focus and engagement on those issues of high priority for Indigenous women.

Given that responsibility for many law and justice issues rest with state and territory governments, and that there is significant diversity between different Indigenous communities, funding for state and territory policy bases would be critical to the effective sustainability of a national body. Collaboration between Commonwealth, state and territory Governments, primarily through the Standing Committee of Attorneys-General and COAG should support this.

Policy /Law Reform Funding Within the FVPLS Program

FVPLS Victoria is overwhelmed with requests for input into policy development and law reform on issues critical to our client group. The capacity to respond, contribute and take initiative has been limited because, within the national FVPLS program, there is currently no core funding for policy development or law reform activity. It is critical that Indigenous organisations be supported to translate on-the-ground experience and learning into legal and policy reform – to, in turn, produce effective practical change. Advocating for improved Indigenous accessibility, cultural respect and accountability across key areas of the legal system relevant to Indigenous women and children as victims/survivors, is a prime example.

A Strategic Approach to Legal Service Provision

Combined with broader approaches, culturally appropriate and targeted legal and support services are integral to advancing human rights and safety for Indigenous women and children. It is generally the case that legal problems relating to family violence and sexual assault are particularly complex; these are often compounded by the personal hardships of the victim/survivor. The experience of FVPLS Victoria is that Indigenous women will access legal services as victims/survivors where there is confidence in a culturally safe and trusted environment.

Strategic development and strengthening of Indigenous women’s legal services across Australia, which recognises Indigenous diversity, has been lacking but is required. The role of the FVPLS program, the Aboriginal and Torres Strait Islander Legal Services (‘ATSILS’) and the Indigenous Women’s Project funding should be clarified and refined to ensure optimum outcomes for Indigenous women and children across key legal areas.

In 2005, the Commonwealth Joint Committee of Public Accounts and Audit (‘the Joint Committee’ expressed concern at ‘the myriad programs and services that provide legal services to Indigenous women’.^[20] It recommended that the Indigenous Women’s Project (‘IWP’) funding be incorporated into the FVPLS program.^[21] This has never occurred and Indigenous women in Victoria have had no access to IWP funding since 2001.

Extending the FVPLS Program to Urban Areas

A key element in strengthening legal services for Indigenous women, as identified by the Joint Committee, is the extension of FVPLS Services to urban areas to meet State and Territory diversity.^[22] According to 2006 ABS census data, approximately 48% of Victoria’s Indigenous community lives in metropolitan Melbourne. Other states with a relatively high proportion of Indigenous people living in major cities include South Australia (48% of the total state Indigenous usual residence count), and New South Wales (42%). Indigenous regions with the largest populations were Sydney (41,800), Brisbane (41,400) and Coffs Harbour (40,000). The 2006 census indicated that, ‘[a]s in previous censuses high Indigenous population growth occurred in more urbanised locations’.^[23] In 2004, the inner Melbourne local Government area of Darebin was one of the 5 top locations for Indigenous family violence in Victoria, based on police data, and three Melbourne metropolitan locations were in the top 5, based on SAAP data.^[24]

Indigenous women experiencing family violence are often on the move so geographic flexibility in service provision is critical. In the experience of FVPLS Victoria, Indigenous women are, on the whole, reluctant to access mainstream services in relation to family violence and sexual assault. Disclosure of these issues outside of a culturally safe environment is unlikely. For this reason, restricting funding to limited rural/remote geographic areas significantly weakens the FVPLS program; it also discriminates against urban Indigenous women and children who are affected by family violence and sexual assault. Clearly, funding is required in rural/remote locations, particularly where there are large Indigenous communities,^[25] but to ensure equality before the law and, optimum legal services for Indigenous women in Australia, the FVPLS program must be extended.

The Victorian Aboriginal Legal Service and other ATSILS across Australia, with their significant and important focus on criminal defence work, are not always accessible to Indigenous women and children in urban areas due to situations of actual and perceived conflict. Indigenous women experiencing family violence or sexual assault must be assured of the right to access dedicated, culturally sensitive, safe and confidential legal assistance and supports regardless of their location and independent of the service that may be accessed by perpetrators, their family or friends.

The FVPLS program itself is likely to be strengthened through the extension of funding to urban locations. It would enhance the capacity of FVPLS programs in all States and Territories by creating a stronger infrastructure to support the rural/remote units as well as provide services to Indigenous victims/survivors in urban areas. This would enhance capacity to further develop expertise in relevant areas of law, including in the critical child protection and family law jurisdictions. A stronger State or Territory base for the FVPLS units would also strengthen capacity for systemic advocacy and other prevention and education activity.

Counselling/Healing Services

High levels of family violence and sexual assault, in respect of both adults and children, contribute to psychological distress amongst Indigenous women and compound the ongoing impact of trauma resulting from systemic racism and discrimination. The FVPLS program nationally includes some funding for counselling and sexual assault services but, again, this is not available in urban areas. Dedicated programs offering culturally appropriate and accessible counselling/healing options for Indigenous women and children are required, urgently, Australia wide.

Prisoners as Survivors of Family Violence and Sexual Assault

The majority of Indigenous women in prison are survivors of family violence or sexual assault and many women enter prison with poor psychiatric and psychological health.^[26] Increasing accessibility to legal, counselling/healing, support and advocacy services to Indigenous women victims/survivors through the FVPLS program may also help prevent the increase in the numbers of Indigenous women entering the criminal justice and prison systems.

Improved funding for Indigenous services dedicated to support of Indigenous women in the criminal justice system, both before and after release from prison, is also required. Culturally appropriate alternatives to prison for Indigenous women must be developed.

Conclusion

It is hoped that the strengthening of culturally appropriate legal and associated supports, together with dedicated structures for law and justice policy development, will translate into more equitable access to services and urgently needed on-the-ground change. To achieve this, though, government support and engagement will be needed at all levels.

Antoinette Braybrook was born on Wurrundjeri country - her grandfather and mother are from the Kuku Yalangi in far north Queensland. Antoinette is the CEO of FVPLS Victoria and sits on the Victorian Aboriginal Justice Forum and the Victorian Indigenous Family Violence Partnership forum.

Shelley Burchfield was previously the principal solicitor at FVPLS Victoria and is now undertaking a short term Legal Services Board funded policy project aimed at strengthening law and justice outcomes for Indigenous victims/survivors of family violence and sexual assault in Victoria. Shelley has worked in the community legal sector for over 15 years, focusing particularly on family violence, victim assistance, prisons, corrections and refugee law.

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^[1]2 Kyllie Cripps, ‘Indigenous Family Violence: A Statistical Challenge Injury’ (2008)International Journal of Care for the Injured 39S5, S25-35.

^[3] Department of Justice, Measuring Family Violence in Victoria: 1999-2006 Vol 3), 1.

^[4] Steering Committee for the Review of Government Service Provision (‘SCRGSP’), Parliament of Australia, Overcoming Indigenous Disadvantage: Key Indicators (2007), 113.

^[5] Australian Institute of Health and Welfare, Family Violence among Aboriginal and Torres Strait Islander People (2006), 54.

^[6] Ibid 55.

^[7] Ibid 66.

^[8] Australian Bureau of Statistics (‘ABS’) The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples (2008), 3.

^[9] See <www.childrenscourt.vic.gov.au> at 28 February 2009.

^[10] Australian Institute of Criminology, Juveniles in Detention in Australia, 1981-2006 (2007), 30.

^[11] ABS June Quarter 2008 Corrective Services (2008) 13, 15.

^[12] SCRGSP,above n 3, 121.

^[13] Rowena Lawrie, ‘Speak Out Speak Strong – Researching the Needs of Aboriginal Women in Custody’, (2003) 24 Australian Indigenous Law Review, 29.

^[14] Charter of Human Rights and Responsibilities Act 2006 (Vic).

^[15] Human Rights Act 2004 (ACT).

^[16] Concluding Observations of the Human Rights Committee Australia Ninety-Fifth Session Geneva Advanced CCPR/C/AUS/CO/5,unedited version 2 April 2009, para 17.

^[17] Ibid, para 14.

^[18] Ibid, para 25.

^[19] Concluding comments of the Committee on the Elimination of Discrimination Against Women Thirty-Fourth Session CEDAW/C/AUL/CO/5 3 February 2006, para 31.

^[20] Joint Committee of Public Accounts, Access of Indigenous Australians to Law and Justice Services (2005), 67.

^[21] Ibid, 67.

^[22] Ibid, 4.

^[23] ABS, Population Distribution Aboriginal and Torres Strait Islander Australians (2006), available at <http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4705.0Main+Features12006?OpenDocument> .

^[24] Clare Joseph, Frank Morgan, Anna Ferrante and Harry Blagg, Expansion of Family Violence Prevention Legal Service Program Report Crime Research Centre University of W.A (2004) 26.

^[25] ABS 2006 census data indicates that 81% of the Indigenous population counted in the Northern Territory and 41% in Western Australia lived in Remote/Very Remote areas.

^[26] Human Rights and Equal Opportunity Commission (‘HREOC’), Social Justice Report (2002), Chapter 5, HREOC, Ending Family Violence and Abuse in Aboriginal and Torres Strait Islander Communities Key Issues 2001- 2006, (2006), 12, 13.