Following on from last month’s episode looking at medical negligence in Indigenous communities. This month Law Matters turns its lens to funding for the Aboriginal Legal Service.
The Aboriginal Legal Service (ALS) provides free legal advice and representation for Aboriginal and Torres Strait Islanders across the country, but a sharp increase in demand has left the ALS in need of more funding to continue the much needed work that it does. A request for $250 million in emergency funding was not met in this year’s federal budget.
In this episode, Legal Projects Officer at Catherine Henry Lawyers, Michael Byrne, talks to retired Judge, John Nicholson SC about his work within Indigenous communities and why the ALS provides such an important service.
In this episode you’ll find out:
- The history of the Aboriginal Legal Service
- Why jail isn’t the best place for an offender looking to improve their life
- How the Voice to Parliament, if passed, may work as a conduit between governments and services like the ALS
Disclaimer
While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. You should see a solicitor for complete advice that relates directly to your situation.
For more information:Find out more about Indigenous Issues and the Law here.
Or head to the Aboriginal Legal Service.
If you have a legal issue and live in regional NSW you can find out more at Catherine Henry Lawyers, or call the team on 1800 874 949.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Catherine Henry (00:01):
The Aboriginal legal service or the ALS offers
free legal advice andrepresentation for Aboriginal
people across the country. Giventhe over representation of
Aboriginal and Torres StraitIslander people in our gaol
system, it's a service that isobviously desperately needed.
I'm Catherine Henry of CatherineHenry lawyers. And in this
(00:22):
episode of Law Matters, legalresearcher at my firm Michael
Byrne will talk with retiredJudge John Nicholson about the
recent call by the ALS foremergency funding. And what
happens now that that requesthas not been met. It's a really
important issue, and I hope youget a lot out of this episode.
Michael Byrne (00:43):
Hi, I'm Michael Byrne. I'm a legal researcher at
Catherine Henry lawyers. A fewyears ago when I first started
my law degree, I startedvolunteering at the Aboriginal
Legal Service here in Newcastleand I've been engaged and
interested in Indigenous socialjustice issues ever since. And
I've also been inspired by thoselawyers that I worked with at
the ALS. Those who choose tohelp those who would otherwise
(01:08):
have no one else to support andrepresent them in court. When
the 2023 federal budget wasdelivered recently, many of
those lawyers would have beenleft disappointed if not stunned
when a plea for $250 million inemergency funding was left
unanswered. In response, the ALShas now chosen or rather been
(01:29):
forced to freeze their criminallaw services in 13 local courts
across the state. To provide adeeper insight into exactly what
kind of issues this freeze mightpresent for the Indigenous
people of New South Wales, wehave a very special guest
joining us today, JohnNicholson, SC, former senior
public defender and districtcourt judge, and before he
(01:51):
embarked on what could only bedescribed as an illustrious
career in the law was also aformer secretary of the
Independent TeachersAssociation. In that role, and
in all others that came beforeit, he has been a passionate
defender of those for whom thesystem in whatever form it may
take has let down and leftbehind. John has also been an
(02:12):
outspoken advocate for thebetter treatment of Aboriginal
people in our criminal justicesystem, and perhaps more than
most senior counsels from thebig city, John has spent a great
deal of time working in regionalareas and has a real empathy for
Indigenous Australians and themany challenges they face. So it
brings me great pleasure tointroduce you all to John
(02:33):
Nicholson SC, John, welcome tothe Law Matters podcast.
John Nicholson (02:36):
Hi, Michael, how are you?
Michael Byrne (02:38):
Very well, thankyou. John, I want to talk
about the ALS fundingpredicament in a moment, but
first of all, can you give us asense of why you have been so
outspoken about Aboriginal andTorres Strait Islander rights in
the judicial system inparticular? What kinds of
injustices did you become awareof both as a barrister and also
a judge? And how do you thinkthey compelled you to become so
(03:01):
vocal?
John Nicholson (03:02):
Part of my answer to this, I think it's a
two part answer in a way, it'spictured in the Uluru Statement.
Remember there, they say we arethe most incarcerated people on
the planet, yet we are notinnately criminal people.
Figures would kind of look asthough that's not quite true,
(03:26):
because only 2% of theAustralian population is
Aboriginal. But 27% of the NewSouth Wales, gaol population is
Aboriginal. And if my maths iscorrect, I'm not very good at
mathematics, but one in every 25Aboriginal males in New South
(03:48):
Wales is currently in gaol. Now,if you see that as a prison
rate, they are indeed one of themost incarcerated people in the
world. Yet, by contrast, ourIndigenous men and women, shine
on the sporting field, areprominent in the abstract
(04:10):
painting scene, are prominent instage and film work, prominent
in music, are growing instrength within the academic
world are growing in numbers insmall business areas, medicine
and the law. In other words, inmany of those fields, they are
(04:31):
also exceeding 2% of theparticipant population in them.
So what I'm saying is that ifthey were given a chance, if
they were given a fair go, andif they were given support, my
sense is that Aboriginal peoplewould be able to take a much
(04:53):
greater and much more excitingand much more inspiring role
than 27% of the Indigenouspopulation in gaol.
Michael Byrne (05:04):
Yes, I wanted to go to that insight you just
provided us. Thanks for that,John, because I recently read
your thoughts on the upcomingVoice referendum and you cite
the torment of powerlessnessthat Aboriginal people and their
leaders have often referred to.And you've spoken widely about
the structural issues thatunderlie this torment, more so
(05:26):
now than perhaps ever before. Ifthe judicial system is one of
those structures, one thatprevents Indigenous people from
overcoming this powerlessness,what exactly do you think needs
to change?
John Nicholson (05:41):
The powerlessness, where the
administration of justice isinvolved, the theory is, that
all people are equally entitledto its administration. That in a
sense would mean that all of usare entitled to the lawyer, we
would want to run our case. Butthe reality is, that's not
(06:02):
right. For the wealthy it is,for the wealthy people, they can
get any lawyer they want,provided they're prepared to pay
for it. But for people who arepoor and can't afford a lawyer
of their choice, they areentitled to have a lawyer
provided for them by the state.Poor people's access to justice
is diminished because thegovernment doesn't provide a
(06:24):
lawyer of choice. What itprovides is a lawyer of
competence. That's the Legal Aidsystem. Now, we might talk later
about how the ALS came about.But importantly, ALS lawyers,
were lawyers of choice that manyIndigenous people were willing
(06:44):
to make. They preferred the ALSlawyer, rather than being given
a Legal Aid lawyer. That's a lotto do with their ethnicity. And
it's a lot to do with thebeginnings of the Aboriginal
Legal Service. Now, in 13 localcourt areas, the Indigenous
(07:06):
people have been denied a lawyerof their choice, they've been
denied access to the competenceof the Aboriginal Legal Service.
They wanted and can't now haveAboriginal lawyers appearing for
them. That may bring about aquality difference between the
(07:32):
substitute lawyer and the ALSlawyer. Where that difference
means that the Indigenous personis offered a practitioner of
inferior quality, thatconstitutes a further diminution
of their access to legaljustice.
Michael Byrne (07:50):
And just on that, in terms of an access to what is
considered to be a preferableoutcome and judicially equal
outcome, I wanted to talk aboutyour thoughts on the core
functions of a judge and atleast in the minds of the
general public is to punishthose who have broken the law,
to sentence the Rule Breakers,and send them off to prison. I
(08:14):
was interested to hear yourthoughts on the so you've taken
something of a reformer stanceagainst this punitive sort of
mindset and you've spoken aboutthe various advantages of
keeping many offenders, whereverpossible, out of gaol and away
from the prison system and thisrelates particularly to
Indigenous offenders. Can youelaborate on some of those ideas
(08:38):
and thoughts for us?
John Nicholson (08:39):
The starting point is probably best explained
this way. If you speak to thetop brass of the prison system,
many of them will tell you thatthe people that they have in
custody, a lot of them don'tbelong there. If you speak to
the social scientists, who havestudied the prisoners, most of
(09:01):
them will tell you the very fewex prisoners come out of gaol a
better person than when theywent in. If you speak to the
released prisoners, most of themwill tell you that they've come
out damaged in one or morefacets of their life being.
Prison is really not aneffective mechanism for reducing
(09:27):
crime, or for creatingrehabilitated people. If you ask
me about my own view, I wouldsay absolutely not. Something
like 90% of Aboriginal prisonerscurrently in prison have been
there more than once. That canhardly be a healthy
(09:49):
rehabilitative location. But ifyou take your time and you
interact with prisoners, andgive them an opportunity to
demonstrate to the court thatthey can rehabilitate. This was
particularly prominent in thedrug courts, where women and men
in the drug court would comeback week after week,
(10:14):
demonstrating the progress theyhad made in handling the
reduction of drug abuse. And theresearch shows that that
interaction between the judge onthe one hand and the support
staff as well, and the offenderon the other, produce results
(10:37):
that don't damage the man and dosolve the rehabilitation
problem. It's also available inother areas other than drugs and
there's mechanisms within thesentencing system, which I used
a lot of requiring a fellow whowas a good prospect of
(11:01):
rehabilitating, but hadcommitted a sentence which
otherwise would require prisonto have him return to court
periodically, say every six oreight weeks through a year or
six months to demonstrate whathe had done to assist his
rehabilitation. And thatincludes going to probation
(11:25):
officers, following instructionsfrom them. It may include
recommendations from the judgehimself to do this or do that
get a job or find a sport or aninterest, and we can keep people
out of gaol that way.
Michael Byrne (11:45):
You're listening to the Law Matters podcast. My
name is Michael Byrne. Today I'mtalking to the retired Judge
John Nicholson about the Voice,the funding crisis currently
facing the Aboriginal LegalService and the many other
issues faced by IndigenousAustralians in our criminal
justice system. I was hoping wecould circle back to the funding
(12:07):
issue currently facing the ALS.For those who don't know, the
New South Wales and ACTAboriginal Legal Service was in
fact the first free legalservice in Australia. And since
its very humble beginnings in asmall shop front in Redfern 53
years ago, they've providedfree legal representation to
thousands of IndigenousAustralians. John, how important
(12:32):
broadly speaking, would you saythe ALS has been to the
Aboriginal communities of NewSouth Wales and the ACT?
John Nicholson (12:39):
You just mentioned that it was 53 years
ago. And the establishment ofthe ALS occurred in Redfern and
Regent Street was their firstoffice. It came about because of
weekly harassment of Aboriginalpeople in the pubs in the
(12:59):
Redfern area, particularly theEmpress. Police would be waiting
outside to arrest people forbeing drunk and then they would
charge them with resist arrestand there were a couple of other
charges that were almost alwaysdealt with. And that harassment
had been going on for severalyears. And so it was set up in
Regent Street for assisting theAboriginal population there with
(13:26):
legal representation. That legalrepresentation mainly came from
volunteer barristers andsolicitors, who were appalled by
what they were hearing. And theywould go down to the prison
cells and interview theprisoners. They would speak to
the prisoners about what was thebest course of action for them.
(13:47):
And sometimes they would appearon sentence or fight a charge.
That combination of thevolunteer lawyers and the good
work that they were doing, wasseized on by the Aborigines as a
basis for setting up their ownservice. And that service
(14:08):
started in Redfern, basicallyfor the locals, and now has
spread throughout Australia. Itreally is an amazing expansion
of a concept.
The issues that were added toglue were reduction of
incarceration rates and qualityrepresentation for Aboriginal
(14:31):
legal people. What's theirimportance? You identified it
almost in the question, many,many thousands of Aboriginal men
and women have gone to theAboriginal Legal Service as
their solicitor of first choice.These days, not only in respect
of criminal matters, but inrespect of civil matters, in
(14:52):
respect of care and protectionmatters, in respect of tenancy
matters, so that they'veexpanded the usefulness that
they can be to the Aboriginalcommunity. They don't charge,
more importantly they are insympathy with their customs,
(15:13):
with their culture and withtheir vulnerable environment.
They also have played a veryuseful part in the development
of the law. And recently, theyhave gone even up to the high
court to have decisions madet.They have frequently been to the
(15:34):
Court of Criminal Appeal in NewSouth Wales and no doubt in the
other states, to arguepropositions which have come to
advance the development of thecriminal law. So, the Aboriginal
Legal Service has played aterrific part within the legal
system as a legal entity, butalso in the societal system as a
(16:00):
social resource and anappropriate legal resource for
First Nations people.
Michael Byrne (16:08):
And one of the reasons of course, John, the ALS
asked the federal government soresolutely for more funding was,
of course, because of thesignificant increase in those
seeking their legal help. Andnow that the funding has not
been granted, if these, asyou've mentioned, the 13 ALS
offices across New South Walescan no longer afford to offer
(16:28):
their services. I mean, you'vealready spoken about your
personal preference foralternative sentencing options.
I mean, given that so manyIndigenous defendants will now
be attending their local courthearings without the guidance of
their choice of solicitor, doyou think it now means that even
more of these defendants will besentenced to prison?
John Nicholson (16:48):
That's difficult to say, in one sense, it may
cause problem. The very firstproblem it might cause is that
the offender might not turn upto court. That would aggravate
his situation, particularly inrural areas. The field officers,
which are linked to theAboriginal Legal Service often
(17:11):
go out and get a fella who'sdecided not to turn up to court
today. So the very first thingis, will these people turn up to
court, most of them will, butsome of them won't. And that
some of them that don't willaggravate their position. The
first thing that would happen isan arrest warrant would issue.
(17:32):
So there's that. The otherthing, which I just referred to
earlier, is what happens inthese 13 towns, the new client,
it's only the new clients thatare being impacted at the
moment. The new client comes tothe Aboriginal Legal Service and
they say, sorry we can't appearfor you now we just haven't got
the resources. What does he do,then? Presumably, the legal
(17:57):
persons at the Aboriginal LegalService would be recommending
one of three or four law firms.Does the customer go there to
them? Or does he get shy andthink I'll do it myself? If he
does it himself, he may be hisworst enemy in the courtroom.
(18:20):
Very often, particularly withAboriginal people, there's a
risk of gratuitous concurrence,they could be asked questions by
the prosecutor and they justagree, because that's partly
what happens in their culture.And that may aggravate the
situation. In the absence ofrepresentation, they in my view,
(18:44):
are very, very vulnerable,because they've not assisting
the court in looking for a wayto deal with them more
leniently. Some judges willexercise their discretion to do
so but others will not. Ifthey're represented, there's
this problem I mentioned earlieris it may be that some of the
(19:07):
representative lawyers will befantastic. But some of them will
be quite possibly starting outlawyers. I don't mean this in
any offensive way but the bottomof the pile lawyers, lawyers
learning to get to where theywant to go. And again, that may
be a real problem for thecustomer. So in those places,
(19:35):
this is a classic impact ofdimunition of access to justice.
And in those cases, the resultsbecause when you've got that
dimunition, justice is not beingperfect, and it can well be a
little unfair. Now they thenhave the opportunity of
(19:55):
appealing if it's in the localcourt. What does somebody do if
they're on an indictable matterfor goodness sake? I suppose
they look to Legal Aid, butagain, what if they don't want
to go to Legal Aid, then theymay appear in those courts on
their own and again disaster mayhappen.
Michael Byrne (20:17):
From reading some of the media that's come from
the ALS and other news outlets,I think the message has been to
perhaps seek legalrepresentation from Legal Aid,
but as you say, there will be acommon and natural hesitancy for
people to go and do that, won'tthere?
Well, not only that, but LegalAid doesn't have offices, I
(20:39):
don't know about these towns,but in many towns in the bush.
So what happens is one of thelaw firms this week, it might be
a Bob's and Bob's next week, itmight be Joe and Joe's. One of
the legal firms will take overthe Legal Aid work for a period
and they will be also overtaxedand overworked for the period of
(21:04):
time that they've got thesecases coming. And to add them to
whatever cases they've got,these additional five or six
cases that come in daily in thesmaller towns, new cases, is
going to tax them and quality ofservice.
Even without the current fundingcrisis, the over incarceration
(21:27):
of Indigenous Australians isstill and has and for a long
time been an intractableproblem. I mean, from a purely
statistical point of view, it'ssteadily been getting worse. Do
you think state and federalgovernments have simply given up
on keeping IndigenousAustralians out of gaol? And if
they haven't, do you thinkthere's any reason to believe
(21:49):
they have the answers?
John Nicholson (21:51):
I'm not quite with you on the rate of
incarceration has been going upand up and up. In the last
couple of years, it certainlywent up between 2006 and 2016.
Then it sort of settled down andit now may be coming down. The
(22:12):
actual incarceration rate hascome down in New South Wales
from about 14,000 to about12,500. Now, I would imagine
that in that group of people orthat cohort, the Aboriginal
population is generally about athird of prisoners would have
(22:32):
also come down. So in the lastcouple of years, it has been
coming down. Very cautiously andvery slowly, things are
beginning to happen. The firstand the major one was in about
2002, with an idea coming fromCanada, Circle sentencing. Nowra
(22:53):
and magistrate Doug Dick was thefellow who presided at the first
circle sentencing court. Whilethere was an eligibility
requirement, both in terms oflocale, that is you had to come
from the area, and from theoffences that had been committed
or offence that had beencommitted an Aboriginal person
(23:15):
was able to get before a circlesentence in Nowra. A year later
Dubbo got a circle sentencingcourt. And I understand that
Toronto might have one, in theNewcastle area. And today there
are 12 Circle sentencingmagistrates courts in New South
(23:35):
Wales. Now, the circlesentencing court operates this
way that the magistratepresides, but you've got elders
in the community, you may haveif it's a victim crime, the
victim's family, and even thevictim there, you have the
accused there and if necessary,his family, and they work
(23:57):
through a sentence. And again,this is labour intensive, and it
often requires the offender toreturn to the court to announce
his progress. So that's onesystem. Last year the Walama
court, a district court versionof restorative justice for
(24:19):
Aborigines was set up, again,because it's in a pilot stage at
the moment, but it has acapacity for 50 offenders. So it
has 50 offenders. It works withthem through the weeks and then
they report back. And thesejudges and the support staff in
(24:43):
the court take great notice ofwhat progress has been made. And
then hopefully a reasonableoutcome will occur. Now as I say
that's a pilot scheme. Itstarted in 2022. If it is
successful, the research forinstance shows are very
successful the circle sentencingprogrammes were and if the
(25:07):
research supports this, thenthat also will result in other
courts being created in otherparts of the state. So that's
the next. And then the thirdthing that I want to draw your
attention to, is a grant to theALS. So it was given $28.2
(25:31):
million to invest in someAboriginal community led
initiatives relating to Closingthe Gap, right. And there were
three sets of programmes thatwere coming from that. The first
was a bail advocacy service. Itwas a pilot service, they're
(25:54):
just exploring it in Sydney andNewcastle. The idea was that
rather than have these fellas ingaol on remand, which is gaol
time, before your trial is run,or your sentences heard, they
were keen to see if we could putthem on bail. I had an
(26:15):
association with a place inGlebe called Rainbow Lodge.
Rainbow Lodge was a halfwayhouse for paroled prisoners. But
I know that it has taken two ofthese bailed people into its
group while they're awaitingtrial. And while those two
fellas are there, they've got todo the programmes that all the
(26:38):
other fellas have got to do. Butthey're free to go up to the
shops, they're free to see theirpartners. They're free to do
other things. But they have toreside at the rainbow Lodge. So
that's a big step in seeking toreduce incarceration,
particularly when the percentageof people who are in custody,
(27:01):
that is in incarceration, but inremand custody, I think is
something like 20% of theprisoners. It's a fairly solid
number. The second thing thatthis $28.2 million is related
to, is a child and familyadvocacy service in Western New
South Wales. So it's aimed atavoiding Aboriginal children
(27:22):
being removed from theirfamilies, and into home care.
Now, that's an interestingproject for the Aboriginal Legal
Service to be doing, right. Soit's associated with law, but
it's associated with preventingpeople getting to a position
where they're charged. And thenthe third thing that this $28.2
(27:44):
million is allocated for is whatI call a post release programme,
which is a programme very, likethe Rainbow Lodge programme that
I just mentioned, where in thiscase, children will be offered
therapeutic pathways to leadthem away from the criminal
system, and providing holisticopportunity for them to
(28:09):
rehabilitate. Remember what Isaid earlier that if people
aren't charged, but are attendedto in programmes, then we can
reduce the incarceration rate ofAboriginal people. And that's
what's happening here. So Ithink that there is progress
being made. And some of thatprogress is being driven in more
(28:32):
recent years. I mean, Closingthe Gap has been going on for
quite a lot of years now. Butit's only in the last three or
four years that it has focusedparticularly on incarceration,
and they now have money, federalmoney being given for the
(28:55):
purpose of reducingincarceration, hopefully,
through justice reinvestmenttype programmes.
Michael Byrne (29:01):
Yeah, that's so promising to hear.
John Nicholson (29:03):
So yes, I think things are improving. But as I
said to you, very slowly, verycautiously.
Michael Byrne (29:09):
We've spoken briefly today about the upcoming
referendum, with recent polls,and these are the most recent
polls suggesting that supportfor the Voice at least in some
states has now fallen below 50%.Do you get any sense that it's
now or never aren't issues likeunderfunded legal services and
(29:30):
the over incarceration ofIndigenous Australians, which,
you know, I should add, alsoacutely affects Indigenous
children. Are they exactly thekinds of things that are
representative voice toParliament will help to address?
John Nicholson (29:44):
I see this lack of funding as being a typical
issue that might well be raisedwith the Voice so that they
could collect the evidence thatwas needed to present to the
parliament or to present to theexecutive arm of government, and
(30:08):
say, we can't do this. Forinstance, the ALS client base in
the five years since 2018, it'sdoubled. Problem is that the
funding hasn't doubled. And aVoice could collect this
information, take it to thegovernment or the parliament and
(30:30):
say, we need some assistance.The other thing is I'm actually
pretty optimistic about thevoice. Because in the circles
that I move in, and thosecircles include very knockabout
robust people, you know, the onething that they have a soft spot
for, is Aboriginals andAboriginality. And possibly,
(30:53):
that's because of the sportsmenthat are on the field or because
they're mate, or because the guynext door who plays soccer with
them, is there. But I'm veryoptimistic, and I don't think we
we will lose. You remember, the'67 referendum, 93% of the
(31:13):
people voted in favour of it.And it is the only referendum
that has involved Aboriginalpeople. And guess what? It's the
only referendum that got 93% ofthe vote.
Michael Byrne (31:26):
But we can only hope that a result like that
even close to a result like thateventuates here, John Nicholson,
thank you so much for yourgenerous insights today and for
taking the time to speak to LawMatters.
Catherine Henry (31:44):
Thank you, Michael Byrne for hosting this
episode of Law Matters and aspecial thanks to to Judge John
Nicholson for taking the time totalk about these important
matters. I'm Catherine Henry ofCatherine Henry Lewis and we
work closely with the AboriginalLegal Service in regional areas
of New South Wales. If you oryour family would like to find
out more, please get in touch.This podcast was produced by Pod
(32:06):
and Pen Productions.
The Aboriginal legal service or the ALS offers
free legal advice andrepresentation for Aboriginal
people across the country. Giventhe over representation of
Aboriginal and Torres StraitIslander people in our gaol
system, it's a service that isobviously desperately needed.
I'm Catherine Henry of CatherineHenry lawyers. And in this
(00:22):
episode of Law Matters, legalresearcher at my firm Michael
Byrne will talk with retiredJudge John Nicholson about the
recent call by the ALS foremergency funding. And what
happens now that that requesthas not been met. It's a really
important issue, and I hope youget a lot out of this episode.
Michael Byrne (00:43):
Hi, I'm Michael Byrne. I'm a legal researcher at
Catherine Henry lawyers. A fewyears ago when I first started
my law degree, I startedvolunteering at the Aboriginal
Legal Service here in Newcastleand I've been engaged and
interested in Indigenous socialjustice issues ever since. And
I've also been inspired by thoselawyers that I worked with at
the ALS. Those who choose tohelp those who would otherwise
(01:08):
have no one else to support andrepresent them in court. When
the 2023 federal budget wasdelivered recently, many of
those lawyers would have beenleft disappointed if not stunned
when a plea for $250 million inemergency funding was left
unanswered. In response, the ALShas now chosen or rather been
(01:29):
forced to freeze their criminallaw services in 13 local courts
across the state. To provide adeeper insight into exactly what
kind of issues this freeze mightpresent for the Indigenous
people of New South Wales, wehave a very special guest
joining us today, JohnNicholson, SC, former senior
public defender and districtcourt judge, and before he
(01:51):
embarked on what could only bedescribed as an illustrious
career in the law was also aformer secretary of the
Independent TeachersAssociation. In that role, and
in all others that came beforeit, he has been a passionate
defender of those for whom thesystem in whatever form it may
take has let down and leftbehind. John has also been an
(02:12):
outspoken advocate for thebetter treatment of Aboriginal
people in our criminal justicesystem, and perhaps more than
most senior counsels from thebig city, John has spent a great
deal of time working in regionalareas and has a real empathy for
Indigenous Australians and themany challenges they face. So it
brings me great pleasure tointroduce you all to John
(02:33):
Nicholson SC, John, welcome tothe Law Matters podcast.
John Nicholson (02:36):
Hi, Michael, how are you?
Michael Byrne (02:38):
Very well, thankyou. John, I want to talk
about the ALS fundingpredicament in a moment, but
first of all, can you give us asense of why you have been so
outspoken about Aboriginal andTorres Strait Islander rights in
the judicial system inparticular? What kinds of
injustices did you become awareof both as a barrister and also
a judge? And how do you thinkthey compelled you to become so
(03:01):
vocal?
John Nicholson (03:02):
Part of my answer to this, I think it's a
two part answer in a way, it'spictured in the Uluru Statement.
Remember there, they say we arethe most incarcerated people on
the planet, yet we are notinnately criminal people.
Figures would kind of look asthough that's not quite true,
(03:26):
because only 2% of theAustralian population is
Aboriginal. But 27% of the NewSouth Wales, gaol population is
Aboriginal. And if my maths iscorrect, I'm not very good at
mathematics, but one in every 25Aboriginal males in New South
(03:48):
Wales is currently in gaol. Now,if you see that as a prison
rate, they are indeed one of themost incarcerated people in the
world. Yet, by contrast, ourIndigenous men and women, shine
on the sporting field, areprominent in the abstract
(04:10):
painting scene, are prominent instage and film work, prominent
in music, are growing instrength within the academic
world are growing in numbers insmall business areas, medicine
and the law. In other words, inmany of those fields, they are
(04:31):
also exceeding 2% of theparticipant population in them.
So what I'm saying is that ifthey were given a chance, if
they were given a fair go, andif they were given support, my
sense is that Aboriginal peoplewould be able to take a much
(04:53):
greater and much more excitingand much more inspiring role
than 27% of the Indigenouspopulation in gaol.
Michael Byrne (05:04):
Yes, I wanted to go to that insight you just
provided us. Thanks for that,John, because I recently read
your thoughts on the upcomingVoice referendum and you cite
the torment of powerlessnessthat Aboriginal people and their
leaders have often referred to.And you've spoken widely about
the structural issues thatunderlie this torment, more so
(05:26):
now than perhaps ever before. Ifthe judicial system is one of
those structures, one thatprevents Indigenous people from
overcoming this powerlessness,what exactly do you think needs
to change?
John Nicholson (05:41):
The powerlessness, where the
administration of justice isinvolved, the theory is, that
all people are equally entitledto its administration. That in a
sense would mean that all of usare entitled to the lawyer, we
would want to run our case. Butthe reality is, that's not
(06:02):
right. For the wealthy it is,for the wealthy people, they can
get any lawyer they want,provided they're prepared to pay
for it. But for people who arepoor and can't afford a lawyer
of their choice, they areentitled to have a lawyer
provided for them by the state.Poor people's access to justice
is diminished because thegovernment doesn't provide a
(06:24):
lawyer of choice. What itprovides is a lawyer of
competence. That's the Legal Aidsystem. Now, we might talk later
about how the ALS came about.But importantly, ALS lawyers,
were lawyers of choice that manyIndigenous people were willing
(06:44):
to make. They preferred the ALSlawyer, rather than being given
a Legal Aid lawyer. That's a lotto do with their ethnicity. And
it's a lot to do with thebeginnings of the Aboriginal
Legal Service. Now, in 13 localcourt areas, the Indigenous
(07:06):
people have been denied a lawyerof their choice, they've been
denied access to the competenceof the Aboriginal Legal Service.
They wanted and can't now haveAboriginal lawyers appearing for
them. That may bring about aquality difference between the
(07:32):
substitute lawyer and the ALSlawyer. Where that difference
means that the Indigenous personis offered a practitioner of
inferior quality, thatconstitutes a further diminution
of their access to legaljustice.
Michael Byrne (07:50):
And just on that, in terms of an access to what is
considered to be a preferableoutcome and judicially equal
outcome, I wanted to talk aboutyour thoughts on the core
functions of a judge and atleast in the minds of the
general public is to punishthose who have broken the law,
to sentence the Rule Breakers,and send them off to prison. I
(08:14):
was interested to hear yourthoughts on the so you've taken
something of a reformer stanceagainst this punitive sort of
mindset and you've spoken aboutthe various advantages of
keeping many offenders, whereverpossible, out of gaol and away
from the prison system and thisrelates particularly to
Indigenous offenders. Can youelaborate on some of those ideas
(08:38):
and thoughts for us?
John Nicholson (08:39):
The starting point is probably best explained
this way. If you speak to thetop brass of the prison system,
many of them will tell you thatthe people that they have in
custody, a lot of them don'tbelong there. If you speak to
the social scientists, who havestudied the prisoners, most of
(09:01):
them will tell you the very fewex prisoners come out of gaol a
better person than when theywent in. If you speak to the
released prisoners, most of themwill tell you that they've come
out damaged in one or morefacets of their life being.
Prison is really not aneffective mechanism for reducing
(09:27):
crime, or for creatingrehabilitated people. If you ask
me about my own view, I wouldsay absolutely not. Something
like 90% of Aboriginal prisonerscurrently in prison have been
there more than once. That canhardly be a healthy
(09:49):
rehabilitative location. But ifyou take your time and you
interact with prisoners, andgive them an opportunity to
demonstrate to the court thatthey can rehabilitate. This was
particularly prominent in thedrug courts, where women and men
in the drug court would comeback week after week,
(10:14):
demonstrating the progress theyhad made in handling the
reduction of drug abuse. And theresearch shows that that
interaction between the judge onthe one hand and the support
staff as well, and the offenderon the other, produce results
(10:37):
that don't damage the man and dosolve the rehabilitation
problem. It's also available inother areas other than drugs and
there's mechanisms within thesentencing system, which I used
a lot of requiring a fellow whowas a good prospect of
(11:01):
rehabilitating, but hadcommitted a sentence which
otherwise would require prisonto have him return to court
periodically, say every six oreight weeks through a year or
six months to demonstrate whathe had done to assist his
rehabilitation. And thatincludes going to probation
(11:25):
officers, following instructionsfrom them. It may include
recommendations from the judgehimself to do this or do that
get a job or find a sport or aninterest, and we can keep people
out of gaol that way.
Michael Byrne (11:45):
You're listening to the Law Matters podcast. My
name is Michael Byrne. Today I'mtalking to the retired Judge
John Nicholson about the Voice,the funding crisis currently
facing the Aboriginal LegalService and the many other
issues faced by IndigenousAustralians in our criminal
justice system. I was hoping wecould circle back to the funding
(12:07):
issue currently facing the ALS.For those who don't know, the
New South Wales and ACTAboriginal Legal Service was in
fact the first free legalservice in Australia. And since
its very humble beginnings in asmall shop front in Redfern 53
years ago, they've providedfree legal representation to
thousands of IndigenousAustralians. John, how important
(12:32):
broadly speaking, would you saythe ALS has been to the
Aboriginal communities of NewSouth Wales and the ACT?
John Nicholson (12:39):
You just mentioned that it was 53 years
ago. And the establishment ofthe ALS occurred in Redfern and
Regent Street was their firstoffice. It came about because of
weekly harassment of Aboriginalpeople in the pubs in the
(12:59):
Redfern area, particularly theEmpress. Police would be waiting
outside to arrest people forbeing drunk and then they would
charge them with resist arrestand there were a couple of other
charges that were almost alwaysdealt with. And that harassment
had been going on for severalyears. And so it was set up in
Regent Street for assisting theAboriginal population there with
(13:26):
legal representation. That legalrepresentation mainly came from
volunteer barristers andsolicitors, who were appalled by
what they were hearing. And theywould go down to the prison
cells and interview theprisoners. They would speak to
the prisoners about what was thebest course of action for them.
(13:47):
And sometimes they would appearon sentence or fight a charge.
That combination of thevolunteer lawyers and the good
work that they were doing, wasseized on by the Aborigines as a
basis for setting up their ownservice. And that service
(14:08):
started in Redfern, basicallyfor the locals, and now has
spread throughout Australia. Itreally is an amazing expansion
of a concept.
The issues that were added toglue were reduction of
incarceration rates and qualityrepresentation for Aboriginal
(14:31):
legal people. What's theirimportance? You identified it
almost in the question, many,many thousands of Aboriginal men
and women have gone to theAboriginal Legal Service as
their solicitor of first choice.These days, not only in respect
of criminal matters, but inrespect of civil matters, in
(14:52):
respect of care and protectionmatters, in respect of tenancy
matters, so that they'veexpanded the usefulness that
they can be to the Aboriginalcommunity. They don't charge,
more importantly they are insympathy with their customs,
(15:13):
with their culture and withtheir vulnerable environment.
They also have played a veryuseful part in the development
of the law. And recently, theyhave gone even up to the high
court to have decisions madet.They have frequently been to the
(15:34):
Court of Criminal Appeal in NewSouth Wales and no doubt in the
other states, to arguepropositions which have come to
advance the development of thecriminal law. So, the Aboriginal
Legal Service has played aterrific part within the legal
system as a legal entity, butalso in the societal system as a
(16:00):
social resource and anappropriate legal resource for
First Nations people.
Michael Byrne (16:08):
And one of the reasons of course, John, the ALS
asked the federal government soresolutely for more funding was,
of course, because of thesignificant increase in those
seeking their legal help. Andnow that the funding has not
been granted, if these, asyou've mentioned, the 13 ALS
offices across New South Walescan no longer afford to offer
(16:28):
their services. I mean, you'vealready spoken about your
personal preference foralternative sentencing options.
I mean, given that so manyIndigenous defendants will now
be attending their local courthearings without the guidance of
their choice of solicitor, doyou think it now means that even
more of these defendants will besentenced to prison?
John Nicholson (16:48):
That's difficult to say, in one sense, it may
cause problem. The very firstproblem it might cause is that
the offender might not turn upto court. That would aggravate
his situation, particularly inrural areas. The field officers,
which are linked to theAboriginal Legal Service often
(17:11):
go out and get a fella who'sdecided not to turn up to court
today. So the very first thingis, will these people turn up to
court, most of them will, butsome of them won't. And that
some of them that don't willaggravate their position. The
first thing that would happen isan arrest warrant would issue.
(17:32):
So there's that. The otherthing, which I just referred to
earlier, is what happens inthese 13 towns, the new client,
it's only the new clients thatare being impacted at the
moment. The new client comes tothe Aboriginal Legal Service and
they say, sorry we can't appearfor you now we just haven't got
the resources. What does he do,then? Presumably, the legal
(17:57):
persons at the Aboriginal LegalService would be recommending
one of three or four law firms.Does the customer go there to
them? Or does he get shy andthink I'll do it myself? If he
does it himself, he may be hisworst enemy in the courtroom.
(18:20):
Very often, particularly withAboriginal people, there's a
risk of gratuitous concurrence,they could be asked questions by
the prosecutor and they justagree, because that's partly
what happens in their culture.And that may aggravate the
situation. In the absence ofrepresentation, they in my view,
(18:44):
are very, very vulnerable,because they've not assisting
the court in looking for a wayto deal with them more
leniently. Some judges willexercise their discretion to do
so but others will not. Ifthey're represented, there's
this problem I mentioned earlieris it may be that some of the
(19:07):
representative lawyers will befantastic. But some of them will
be quite possibly starting outlawyers. I don't mean this in
any offensive way but the bottomof the pile lawyers, lawyers
learning to get to where theywant to go. And again, that may
be a real problem for thecustomer. So in those places,
(19:35):
this is a classic impact ofdimunition of access to justice.
And in those cases, the resultsbecause when you've got that
dimunition, justice is not beingperfect, and it can well be a
little unfair. Now they thenhave the opportunity of
(19:55):
appealing if it's in the localcourt. What does somebody do if
they're on an indictable matterfor goodness sake? I suppose
they look to Legal Aid, butagain, what if they don't want
to go to Legal Aid, then theymay appear in those courts on
their own and again disaster mayhappen.
Michael Byrne (20:17):
From reading some of the media that's come from
the ALS and other news outlets,I think the message has been to
perhaps seek legalrepresentation from Legal Aid,
but as you say, there will be acommon and natural hesitancy for
people to go and do that, won'tthere?
Well, not only that, but LegalAid doesn't have offices, I
(20:39):
don't know about these towns,but in many towns in the bush.
So what happens is one of thelaw firms this week, it might be
a Bob's and Bob's next week, itmight be Joe and Joe's. One of
the legal firms will take overthe Legal Aid work for a period
and they will be also overtaxedand overworked for the period of
(21:04):
time that they've got thesecases coming. And to add them to
whatever cases they've got,these additional five or six
cases that come in daily in thesmaller towns, new cases, is
going to tax them and quality ofservice.
Even without the current fundingcrisis, the over incarceration
(21:27):
of Indigenous Australians isstill and has and for a long
time been an intractableproblem. I mean, from a purely
statistical point of view, it'ssteadily been getting worse. Do
you think state and federalgovernments have simply given up
on keeping IndigenousAustralians out of gaol? And if
they haven't, do you thinkthere's any reason to believe
(21:49):
they have the answers?
John Nicholson (21:51):
I'm not quite with you on the rate of
incarceration has been going upand up and up. In the last
couple of years, it certainlywent up between 2006 and 2016.
Then it sort of settled down andit now may be coming down. The
(22:12):
actual incarceration rate hascome down in New South Wales
from about 14,000 to about12,500. Now, I would imagine
that in that group of people orthat cohort, the Aboriginal
population is generally about athird of prisoners would have
(22:32):
also come down. So in the lastcouple of years, it has been
coming down. Very cautiously andvery slowly, things are
beginning to happen. The firstand the major one was in about
2002, with an idea coming fromCanada, Circle sentencing. Nowra
(22:53):
and magistrate Doug Dick was thefellow who presided at the first
circle sentencing court. Whilethere was an eligibility
requirement, both in terms oflocale, that is you had to come
from the area, and from theoffences that had been committed
or offence that had beencommitted an Aboriginal person
(23:15):
was able to get before a circlesentence in Nowra. A year later
Dubbo got a circle sentencingcourt. And I understand that
Toronto might have one, in theNewcastle area. And today there
are 12 Circle sentencingmagistrates courts in New South
(23:35):
Wales. Now, the circlesentencing court operates this
way that the magistratepresides, but you've got elders
in the community, you may haveif it's a victim crime, the
victim's family, and even thevictim there, you have the
accused there and if necessary,his family, and they work
(23:57):
through a sentence. And again,this is labour intensive, and it
often requires the offender toreturn to the court to announce
his progress. So that's onesystem. Last year the Walama
court, a district court versionof restorative justice for
(24:19):
Aborigines was set up, again,because it's in a pilot stage at
the moment, but it has acapacity for 50 offenders. So it
has 50 offenders. It works withthem through the weeks and then
they report back. And thesejudges and the support staff in
(24:43):
the court take great notice ofwhat progress has been made. And
then hopefully a reasonableoutcome will occur. Now as I say
that's a pilot scheme. Itstarted in 2022. If it is
successful, the research forinstance shows are very
successful the circle sentencingprogrammes were and if the
(25:07):
research supports this, thenthat also will result in other
courts being created in otherparts of the state. So that's
the next. And then the thirdthing that I want to draw your
attention to, is a grant to theALS. So it was given $28.2
(25:31):
million to invest in someAboriginal community led
initiatives relating to Closingthe Gap, right. And there were
three sets of programmes thatwere coming from that. The first
was a bail advocacy service. Itwas a pilot service, they're
(25:54):
just exploring it in Sydney andNewcastle. The idea was that
rather than have these fellas ingaol on remand, which is gaol
time, before your trial is run,or your sentences heard, they
were keen to see if we could putthem on bail. I had an
(26:15):
association with a place inGlebe called Rainbow Lodge.
Rainbow Lodge was a halfwayhouse for paroled prisoners. But
I know that it has taken two ofthese bailed people into its
group while they're awaitingtrial. And while those two
fellas are there, they've got todo the programmes that all the
(26:38):
other fellas have got to do. Butthey're free to go up to the
shops, they're free to see theirpartners. They're free to do
other things. But they have toreside at the rainbow Lodge. So
that's a big step in seeking toreduce incarceration,
particularly when the percentageof people who are in custody,
(27:01):
that is in incarceration, but inremand custody, I think is
something like 20% of theprisoners. It's a fairly solid
number. The second thing thatthis $28.2 million is related
to, is a child and familyadvocacy service in Western New
South Wales. So it's aimed atavoiding Aboriginal children
(27:22):
being removed from theirfamilies, and into home care.
Now, that's an interestingproject for the Aboriginal Legal
Service to be doing, right. Soit's associated with law, but
it's associated with preventingpeople getting to a position
where they're charged. And thenthe third thing that this $28.2
(27:44):
million is allocated for is whatI call a post release programme,
which is a programme very, likethe Rainbow Lodge programme that
I just mentioned, where in thiscase, children will be offered
therapeutic pathways to leadthem away from the criminal
system, and providing holisticopportunity for them to
(28:09):
rehabilitate. Remember what Isaid earlier that if people
aren't charged, but are attendedto in programmes, then we can
reduce the incarceration rate ofAboriginal people. And that's
what's happening here. So Ithink that there is progress
being made. And some of thatprogress is being driven in more
(28:32):
recent years. I mean, Closingthe Gap has been going on for
quite a lot of years now. Butit's only in the last three or
four years that it has focusedparticularly on incarceration,
and they now have money, federalmoney being given for the
(28:55):
purpose of reducingincarceration, hopefully,
through justice reinvestmenttype programmes.
Michael Byrne (29:01):
Yeah, that's so promising to hear.
John Nicholson (29:03):
So yes, I think things are improving. But as I
said to you, very slowly, verycautiously.
Michael Byrne (29:09):
We've spoken briefly today about the upcoming
referendum, with recent polls,and these are the most recent
polls suggesting that supportfor the Voice at least in some
states has now fallen below 50%.Do you get any sense that it's
now or never aren't issues likeunderfunded legal services and
(29:30):
the over incarceration ofIndigenous Australians, which,
you know, I should add, alsoacutely affects Indigenous
children. Are they exactly thekinds of things that are
representative voice toParliament will help to address?
John Nicholson (29:44):
I see this lack of funding as being a typical
issue that might well be raisedwith the Voice so that they
could collect the evidence thatwas needed to present to the
parliament or to present to theexecutive arm of government, and
(30:08):
say, we can't do this. Forinstance, the ALS client base in
the five years since 2018, it'sdoubled. Problem is that the
funding hasn't doubled. And aVoice could collect this
information, take it to thegovernment or the parliament and
(30:30):
say, we need some assistance.The other thing is I'm actually
pretty optimistic about thevoice. Because in the circles
that I move in, and thosecircles include very knockabout
robust people, you know, the onething that they have a soft spot
for, is Aboriginals andAboriginality. And possibly,
(30:53):
that's because of the sportsmenthat are on the field or because
they're mate, or because the guynext door who plays soccer with
them, is there. But I'm veryoptimistic, and I don't think we
we will lose. You remember, the'67 referendum, 93% of the
(31:13):
people voted in favour of it.And it is the only referendum
that has involved Aboriginalpeople. And guess what? It's the
only referendum that got 93% ofthe vote.
Michael Byrne (31:26):
But we can only hope that a result like that
even close to a result like thateventuates here, John Nicholson,
thank you so much for yourgenerous insights today and for
taking the time to speak to LawMatters.
Catherine Henry (31:44):
Thank you, Michael Byrne for hosting this
episode of Law Matters and aspecial thanks to to Judge John
Nicholson for taking the time totalk about these important
matters. I'm Catherine Henry ofCatherine Henry Lewis and we
work closely with the AboriginalLegal Service in regional areas
of New South Wales. If you oryour family would like to find
out more, please get in touch.This podcast was produced by Pod
(32:06):
and Pen Productions.
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