03 January 2013

Indigenous Legal Needs

Reading the sobering 188 page Indigenous Legal Needs Project: Northern Territory Report (2012) by Fiona Allison, Chris Cunneen, Melanie Schwartz and Larissa Behrendt. The report [PDF] presents key findings and recommendations based on research conducted in 2011 by the Indigenous Legal Needs Project (ILNP) in the Northern Territory (NT).

The ILNP involves identification and analysis the legal needs of Indigenous communities in non-criminal areas of law (including discrimination, housing and tenancy, child protection, employment, credit and debt, wills and estates, and consumer-related matters) and an understanding of how legal service delivery might work more effectively to address identified civil and family law needs of Indigenous communities.

The report is based on focus groups (149 Indigenous community members in Darwin, Wadeye, Katherine, Bulman, Tennant Creek, Alice Springs, Papunya and Alpurrurulam) and 60 interviews with legal and related stakeholders.

The authors comment that
identified issues generally followed those used in other large scale legal needs projects ... with additional questions relating to specific Indigenous concerns (for example, stolen generations, stolen wages, Basics Card). Some matters such as police complaints, native title or intellectual property were omitted from the questionnaire for practical reasons, in particular due to the size of the document and the time it takes to complete. Consistent with other civil law needs analyses, family and domestic violence was treated as a criminal matter rather than civil law. Some civil law issues not identified in the questionnaire arose in focus group discussions and in stakeholder interviews.
They go on to state that
In determining the priority areas for non-criminal law matters for Indigenous people in the NT, we have considered the responses of focus group participants in both questionnaires and discussion and the views of stakeholders and organisations delivering services to the focus sites. We also note that some areas of legal need such as child protection have such serious consequences (loss of children) that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem, the associated consequences and the views of stakeholders also influence our determination of priority areas. We also note some areas of legal need are influenced by gender. It should be noted that we do not assess whether there is an effective legal remedy available for the areas of legal need which have been identified.
There were two areas of law raised in the focus group questionnaire in which more than 25% of all participants indicated that they had experienced a legal problem in the last two years. These were:
• housing (54.1%)
• neighbourhood disputes (27%).
On the basis of focus group participant responses, we identify housing as a priority area. Issues involving neighbourhood disputes were particularly seen as a priority area of concern by Indigenous women.
There were a further four areas of law that were identified by more than 18% of respondents has having caused them some problem in the same time frame. They were:
• discrimination (22.6%)
• accident and injury (22.3%)
• employment (19.6%)
• credit and debt issues (18.4%).
We note further below the importance of discrimination and credit and debt as priority areas from the above list.
In relation to social security, 73.2% of all focus group participants were in receipt of Centrelink payments and of these 29.1% identified a potential legal problem. We identify social security as a priority area because of the significant proportion of people who are dependent on Centrelink payments, the majority of whom are also subject to Income Management.
In relation to family matters between 6.8% and 12.2% of participants identified problems with child contact etc., or child protection matters. We view child protection in particular as a priority area: legal needs relating to child protection have such serious consequences that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem and consequences also influence our view that it is a priority area, particularly, also because of the identified lack of legal assistance to parents. We also note that focus group participants identified this area as a priority in discussion, even though they may not have identified family law as an issue that they personally were dealing with.
Credit and debt, and consumer issues are also considered a priority. Overall, 18.4% of focus group participants said that they had had legal action threatened against them in the last two years for failure to pay a bill or repay a loan. Difficulty in repaying loans was the most prevalent credit and debt issue identified by focus group participants. Consumer issues were identified by stakeholders in particular as an area of unmet legal need. It is difficult to distinguish consumer issues from credit and debt because of the intertwined nature of these areas in the experiences recounted. On the basis of both participant responses to issues relating to debt and loan repayments as well as the stakeholder information relating to consumer issues we identify these areas as a priority.
Discrimination emerged as a priority issue in both focus groups and stakeholder interviews conducted in the NT. Overall, nearly a quarter of all focus group participants (22.6%) identified having experienced discrimination. There is a level of acceptance in relation to discrimination, a lack of knowledge about rights, and difficulties in ‘naming’ an incident as discrimination, potentially leading to under-reporting of this issue. Because discrimination impacts on all areas of social life from health services, to housing, to employment, to education, and because there appears to be a large unmet legal need in this area, we regard it as a priority legal need.
We raise the potential for considering wills and estates as a possible priority area because of unmet legal need: very few Aboriginal people have wills and many people indicate a desire to have assistance to complete a will.
Another way of considering priority legal areas in civil and family law is by gender. In many of the legal issues discussed in this Report there were pronounced gender differences both in the identification of issues and in the likelihood of seeking legal advice or assistance. In relation to housing, neighbourhood disputes and social security, Aboriginal women were more likely to identify an issue or problem but much less likely than men to seek assistance. The issue was particularly pronounced in relation to neighbourhood disputes and social security (women were half as likely as men to seek advice in relation to neighbourhood disputes, and four times less likely than men in relation to social security).
In relation to victim’s compensation, employment, family law and child protection, and credit and debt, Aboriginal men were less likely than women to seek assistance. The issue was particularly pronounced in relation to victim’s compensation and credit and debt (men were four times less likely as women to seek victim’s compensation, and nearly five times less likely than women to seek advice in relation to credit and debt).