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Law Society NT Logo

National Human Rights Action Plan

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The Law Society Northern Territory has made the following submission to the Law Council of Australia regarding the National Human Rights Action Plan

The Law Society Northern Territory (The Society) welcomes the opportunity to make a submission to the National Human Rights Action Plan (NAP).

The Society represents approximately 600 lawyers in the Northern Territory including Government and private lawyers. The mission of the Society is to enhance access to justice, improving the law and maintaining individual rights. Importantly the Society is charged with considering proposed changes in the law and aiding such amendments and reforms thereof that are likely to benefit the public. In doing this the Society focuses on evidence based interventions and ensuring legal needs are addressed.

The Society has conducted consultations with its Social Justice Committee (The Committee)in developing this response to the NAP.

This submission provides targeted comments on Northern Territory(NT) specific initiatives and does not address all aspects of the NAP.

A number of groups within our society are particularly vulnerable to disadvantage and human rights abuses. This submission focuses on three NT specific key groups:

  1. Aboriginal people
  2. People in prison
  3. Asylum seekers

Summary

The Society has identified the following issues: There needs to be a national commitment to

  • a genuinely new approach to consultation including effective Aboriginal participation and genuine input and consent
  • specifically subject the Stronger Futures in the Northern Territory Bill 2011 and the two related bills to the Racial Discrimination Act 1975
  • language awareness and communication training, on the use of interpreters by legal and related services,
  • consistent policies for the use of interpreters and protocols for how interpreters are be used in legal interpreting
  • Police powers to enter premises without warrant based only on a reasonable suspicion that there is alcohol should be removed.
  • rigorous evaluation of the Sworn Community Engagement Officers trial program
  • reducing the incarceration rate in the NT, which is significantly higher than any jurisdiction and more than four times the national average per 100,000.[1]
  • assessment and review of the level of need and efficacy of housing initiatives
  • the establishment of a multi-purpose administrative review tribunal as recommended by the NT Law Reform Committee
  • the urgent establishment of a Remote Tenancy Legal Advice Service in the Northern Territory
  • the urgent establishment of a legal advice and support service for asylum seekers in the Northern Territory

65 ? Stronger Futures Consultations

The Society has had the benefit of considering the Aboriginal Peak Organisations of the NT Response to Stronger Futures. Additionally the Society has observed the many criticisms of the consultation process failing to be reflected in the final report.

The Society is also very concerned about the quality of the consultations observed in the Stronger Futures process by legal service providers. In addition the Society notes the absence of key issues from the community information packs. Consultations need effective Aboriginal participation, input and consent which cannot be evidenced in this case.

The Law Society is therefore concerned that the consultations involved in Stronger Futures ought not be relied on as a basis for a policy decision without the further input and consent of those affected.

81 ? Freedom of Discrimination: Racial Discrimination Act 1975

The Society welcomes the repeal of the Northern Territory Emergency Response Act 2007 (NTNER Act) and the reinstatement of the Racial Discrimination Act 1975 (RDA). It is essential that all powers exercised under all future action taken by the government must be expressed as subject to the RDA. We note that neither the Stronger Futures in the Northern Territory Bill 2011, which follows the reinstatement of the RDA, nor the two related bills[2] refer to the RDA. The Society notes that to give effect to the Minister?s undertaking that the RDA will apply, an express statement that declares that the RDA will prevail is required in the legislation, notwithstanding anything to the contrary in the Stronger Futures as well as all future legislation.

82 ? Stronger Futures

We attach a copy of our submission on the Stronger Futures framework which the Society sent to the Committee Secretary of the Senate Standing Committees on Community Affairs on 3 February 2012.

In summary the Society seeks

  • Recognition of the legal needs created by the framework and adequate funding to ensure those needs are met
  • Recognition that community engagement includes ability to exercise legal rights and access justice
  • Recognition that Natural Justice and Procedural Fairness dictate that administrative decisions ought be reviewable
  • The modification of the framework to allow access to the existing decision making review mechanism available through Centrelink
  • Express provision subjecting the framework to the Racial Discrimination Act 1975
  • The urgent establishment of a Remote Tenancy Legal Advice Service

88 ? Northern Territory Aboriginal Interpreter Service (NTAIS)

The Society applauds the provision of capacity building funding to the NTAIS by the Australian Government and the Northern Territory. The development of well-resourced Aboriginal Interpreter Services significantly enhances the ability of governments and service providers to engage properly with Aboriginal people who do not speak English as a first language. However, the provision of professional Aboriginal Interpreter Services will not in and of itself address the issues of miscommunication that currently exist between government and Aboriginal people who do not speak standard English as a first language.

There continues to be a significant issue with Government officials and service providers lacking basic language awareness skills. This lack of awareness means that service providers often fail to identify the frequency and depth of miscommunication that occurs, particularly in remote Aboriginal communities. In the legal context, this lack of awareness is demonstrated across the board, by police officers, members of the judiciary, lawyers and corrections staff. This was referenced in a speech by the Chief Justice Trevor Riley at the Opening of the legal year address in both Darwin and Alice Springs with the following example:

An interpreter obliged to interpret the exact words ?I find you guilty? can result in the offender and the gathered community to conclude that the interpreter has made the finding. Resulting in difficulties for the interpreter when he she returns to the community.

Additionally service providers often fail to seek the services of an interpreter because they overestimate a client?s level of English proficiency. A further implication of the lack of appreciation for language complexity is that even when service providers do obtain the services of an interpreter, they expect the interpreter to act as an interpreting machine, where words go in one ear and come out magically in the desired language. See ?Talking in Language: Indigenous language interpreters and government communication? (Commonwealth Ombudsman, April 2011) for a recent discussion of these issues.

The lack of understanding about the nature of language, intercultural communication and interpreting means that many service providers act in ways, or use interpreters in ways, that make accurate interpreting very difficult. Service providers often fail to implement basic strategies, such as briefing interpreters, that would significantly increase the effectiveness and accuracy of interpreting, whilst at the same time blaming interpreters when interpreting issues arise. The way in which interpreters are used can have a significant impact on the quality of interpreting that can be provided.

The Society welcomes and has provided assistance to the Supreme Court of the Northern Territory?s conference ?Language and the Law? 25-27 May 2012 which is open to the broader service community which will consider these issues.

Thus, in order to truly alleviate the pervasive issues associated with miscommunication with Aboriginal people in the Justice system, a number of other steps need to be put in place. These include;

  1. Language awareness and communication training, on the proper use of interpreters by legal users (police, lawyers, courts, corrections etc). This training should be built into regular induction processes and regular refreshers should be required.
  2. Consistent policies should be developed across government for the use of interpreters. These policies need to be widely disseminated and easily accessible. Currently there are no consistent policies across departments. The policies should include user friendly guidelines on how to assess the need for an interpreter, so that service providers do not continue to overestimate clients; ability to speak English.
  3. The development of protocols for use of interpreters in legal interpreting contexts, to assist police, the Courts and the legal profession. In particular, the courts should be encouraged to adopt practice directions on the use of Aboriginal Interpreters, and the Police General Orders should be modified to encourage better use of Interpreters. The Police General Orders should incorporate a robust system of assessing a suspect or witness? level of English.

89 ?Sworn Community Engagement Officers and excessive police powers

The Society supports the two year community policing trial in order to prioritise and address causes of crime, increase community safety as well as build relationships of trust and confidence between law enforcement and the community. It is important that police is perceived as supporters of remote communities and their inhabitants.

The Society is concerned that the important partnership fostered by such an initiative is severely undermined by the use of excessive police powers that arose as part of the Northern Territory Emergency Response (NTER). In particular the power to enter and search people?s houses and vehicles in alcohol protected areas without warrant based upon a ?reasonable suspicion? that there is alcohol (see s12 NTER declaring that proscribed areas were ?general restricted areas? for the purposes of the Liquor Act (NT)). Anecdotally it was reported that these powers were exercised freely to the detriment of the relationship with the police within the community. There remains uncertainty about whether the sweeping and discretionary powers of police will continue to apply to remote communities under the Stronger Futures in the Northern Territory Bill. The Society hopes to see the abolition of these broad powers and that search powers without warrant should be the same in all parts of the Northern Territory.

In light of these conflicting messages it is important that these interventions be reviewed and evaluated.

93 ?Justice (Corrections) and Other Legislation Amendment Act 2011: Community Based Orders and Community Custody Orders

The Society welcomes the introduction of Community Based Orders and Community Custody Orders as new sentencing options in the Sentencing Act. The Territory?s prison population has grown steadily over the last 20 years. According to the Australian Bureau of Statistics, the Northern Territory has by far the highest incarceration rate in the country, at more than four times the national average and increasing faster than any other jurisdiction[3].

We are particularly concerned about the fact that Indigenous people are substantially over-represented in the criminal justice system. Statistics demonstrate that they are incarcerated at higher rates than non-Indigenous people. The NT is the only jurisdiction which has experienced an increase in this category in the last year. The Society is concerned about the impact of prison on physical and mental health as well as the high rate of re-offending. Resourcing of community based options must be a priority as in the NT there has been a reduction in the number of offenders on community based orders[4].

Offenders who are eligible for the Community Based Order and the Community Custody Order will now have the option to remain in the community and engage in employment or community work. The Justice (Corrections) and other Legislation Amendment Act 2011 is designed to support the rehabilitation of offenders and consequently contribute to decrease prison numbers and recidivism in the NT.

The Society is concerned however that rehabilitation services and other programs are not currently available and will suffer the same challenges experienced across the Northern Territory ? the challenge of attracting and retaining a skilled workforce. Adequate resourcing of these programs must be a priority.

149 ? Initiatives to Tackle Homelessness

The right to adequate housing is a basic human right. Improving housing outcomes, connecting people to services and reducing homelessness must be a strategic priority of all Australian Governments. Nationwide housing affordability, in terms of both homeownership and private rental, is becoming increasingly limited. Due to the increasing demand for affordable accommodation more people are in ?housing stress? (spending 30% or more of income on accommodation) than ever before.

The inability to access affordable, appropriate housing leads to increasing demand for public housing and impacts negatively on health and education outcomes, and that as a consequence affordability has to be a priority for the Australian Government but also for the Northern Territory Government.

The following are social housing and local government issues unique to the NT:

Indigenous factors

Housing in the NT is largely shaped by a significant Indigenous population ? 30% compared to a national average of 2% - and by the general remoteness of the Territory?s Indigenous communities and outstations. This remoteness factor, which leads to increased construction and maintenance costs, coupled with a lack of rental options in Indigenous communities, a backlog of community housing maintenance, poor life skills, and young and growing population means that Territory Housing is impacted like no other State or Territory social housing provider in Australia.

Homelessness

Homelessness is becoming an increasing problem in the NT with greater numbers of people gravitating towards urban centres to visit family and access services. A lack of available short and medium term accommodation options exerts additional pressure on service providers and infrastructure. We are aware that the NT Government is expanding options for managed accommodation in regional centres and working with Commonwealth, through initiatives such as Homelessness National Partnership Agreement and A Place to Call Home, to support those most at risk of homelessness.

These initiatives need to be evaluated and the level of demand regularly assessed.

Proposal to establish the Northern Territory Remote Tenancy Legal Advice Service

The Society applauds the end of compulsory five-year leases acquired under the original NTER legislation. We welcome the Australian and Northern Territory Government?s approach to voluntary lease arrangements.

In addition to this the Society calls for the urgent establishment of a Northern Territory Remote Tenancy Legal Advice Service, which has unfortunately not been put in place.

The reforms to remote housing, which started in 2009, see all the tenants in Aboriginal community controlled housing in the Northern Territory become tenants of the public housing authority. This has resulted in residents entering a new legal relationship ? that of landlord and tenant with many Aboriginal people entering tenancy agreements for the first time. Navigating this relationship has caused confusion, disputes and problems for the already disenfranchised. While tenants in Darwin have access to free legal assistance through the Darwin Community Legal Service Tenants Advice Service, this service is inadequately funded to assist people outside of Darwin. The Aboriginal and Torres Strait Islander Legal Service (ATSILS) and NT Legal Aid Commission (NTLAC) have provided some assistance to ?bridge the gap? where possible; however have been unable to assist people to the level of demand.

It is thus essential and overdue that remote tenants have access to an independent advice service and appropriate support.

The Society and a number of Northern Territory Legal Services have been lobbying for an NT Remote Tenancy Legal Advice Service since August 2009. We have been working with NT legal services and relevant organisations to co-ordinate the proposal.

The Society?s proposal germinated from several meetings with staff of Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and Territory Housing discussing the details of the remote housing reforms. At these meetings all parties were in agreement that there existed an urgent need for an independent advice service to assist people with their new legal rights and obligations, and in correspondence with both FaHCSIA and Territory Housing the Society requested that funding be made available for such a service.

In October 2009 the Society provided a written proposal to both the Northern Territory and Commonwealth governments detailing the funding commitment required to provide such a service. In response to a request from Territory Housing, at a meeting on 9 August 2010, a revised proposal was formulated.

The revised proposal was provided to Territory Housing at a meeting on 29 September 2010. It was agreed that the proposal would be passed onto FaHCSIA. It was further agreed to provide a response to the Society following FaHCSIA?s consideration of the proposal. To date no response has been received from Territory Housing or FaHCSIA.

On 9 August 2011 the Society sent a letter to Territory Housing requesting an urgent written response regarding the proposal. The Society once again raised this issue at the NT Jurisdictional Forum convened by the NT Government in December 2011. The Society has not had any formal response from the Territory Government to date.

We are frustrated at the lack of response from both governments in a context where each apparently agree that a Remote Tenancy Legal Advice Service is urgently required.

187 ? Freedom from Discrimination: Funding to Community Legal Centres Providing Legal Help and Information to People in Custody

And

206 ? Access to Justice: Funding to Community Legal Centres Including Those With a Primary Focus on Providing Legal Information and Help in Relation to Refugee and Immigration matters

The Society welcomes the provision of funding to legal assistance providers by the Australian Government. In the Northern Territory access to justice is often more resource intensive than in other parts of the country. This is due in part to the geographical spread of the population and the long distances between homes, Courts and services, and partly due to the demographics of our population which includes many Indigenous people.

The NAP includes many initiatives and aims to create an inclusive society where all are valued, and have the opportunity to participate fully, regardless of factors such as race, socially or economically position. Items 187 and 206 of the NAP emphasise two of the most vulnerable groups in our society: people in prison and asylum seekers.

Natural justice and procedural fairness principles dictate that those subject to legislative provisions ought to have access to legal representation to assist them to address any concerns.

It is predicted that the Wickham Point Immigration Detention Facility will hold 1200 detainees by June 2012. Darwin is uniquely positioned in Australia to provide immigration legal services to asylum seekers who are in detention. This arises principally from the location of immigration detention facilities in Darwin itself, as opposed to in remote locations in Australia or offshore.

Conversely there is no immigration legal service in Darwin or elsewhere in the NT similar to those operating interstate. Only a legal service providers offer limited legal and advocacy assistance taking into account a range of service delivery requirements to the region and their existing budgetary constraints.

The backdrop against which this assistance is provided is also of note. Larger jurisdictions have a significant profession which includes a large pool of pro bono practitioners. Importantly the private profession is made of approximately 35 firms the bulk of whom are sole practitioners, many elect not to absorb this work for commercial reasons. The Society?s Pro Bono Clearing House faces challenges specific to the region in meet the eligible calls for assistance as the small pool of practitioners are already stretched.

The level of legal need is higher in the Northern Territory than in other parts of the country. Legal Assistance Providers including those providing legal information and help in relation to refugee and immigration matters are under-resourced and advocacy assistance to asylum seekers in the NT is limited. To achieve improvements in access to justice in the Northern Territory, a significant increase in funding for legal assistance services is required. Conversely any shortage of funding and services in the Northern Territory has a disproportional impact on disenfranchised people?s access to justice.

It is thus essential and overdue that asylum seekers have access to an independent legal advice service and appropriate support in the Northern Territory.

Administrative review

Another impediment to accessing justice in the NT in relation to review of administrative decisions is the absence of a multi-purpose administrative review tribunal.

There have been two reports by the Northern Territory Law Reform Committee considering whether the Northern Territory should move towards a multi-purpose administrative review tribunal (the report of July 1991 is attached to report no 29 of 2004). Both reports recommended the establishment of such a tribunal. The Society supports these recommendations and adds further that in the context of burgeoning of multijurisdictional regulation the need for such a tribunal cannot be over-emphasized. These reports may be found at:

http://www.nt.gov.au/justice/policycoord/lawmake/lawref.shtml

It has at times been suggested that the low number of administrative review matters in the Local Court (or the Supreme Court) reflects an absence of a need for such a tribunal. The 2004 NTLRC report rejects this argument as illusory. The report concludes that the plethora of modes of reviewing administrative decisions amounts to ?a statutory labyrinth [that] effectively deprives the ordinary citizen of the means of challenging an administrative decision by simple, direct and inexpensive means.? Anecdotally this conclusion is borne out by Northern Territory lawyers expressing reluctance to encourage clients to review administrative matters due to the complexity and lack of uniformity of the process.

It is for this reason that the Society strongly urges the Stronger Futures measures in relation to income management be reviewable under the Centrelink procedures.

Conclusion

In conclusion the Society is pleased to comment on the National Human Rights Action Plan. We are pleased that the Australian Government is taking steps to improve the lives of the most vulnerable people in Australia. The Society urges greater legislative and policy commitment to support community involvement, engagement and connectedness including assistance in exercising legal rights and obligations. This includes funding for legal assistance and also appropriate and accessible review mechanisms.

The Society is of the view that policies that purport to support individuals should also endeavour through legislative means to ensure that people are supported to the fullest extent including legal needs. In other words individuals should not be disadvantaged in attempts to access justice only because of their socioeconomic position.

We call urgently for a Remote Tenancy Legal Advice Service as well as funding for legal advice and assistance for asylum seekers in the Northern Territory.

We look forward to contributing further to this process if required. We encourage the Australian Government and the Northern Territory Government to commit significant resources to the legal assistance sector in the Northern Territory.



[1] Australian Bureau of Statistics, 4512.0 Corrective Services in Australia, September quarter 2011 p 4

[2]Social Security Legislation Amendment Bill 2011 and Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011.

[3] Op Cit p 7

[4] Ibid p 8

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