REPORT ON ABORIGINAL WOMEN AND BIAS IN THE WESTERN AUSTRALIAN JUSTICE SYSTEM

On 30 June 1994 a report into gender bias in the law and administration of justice in Western Australia was submitted to the Chief Justice of W.A..[1] In this report particular attention was paid to bias faced by Aboriginal women.  This article summarises the report's findings in relation to Aboriginal women.

1. The Taskforce on Gender Bias

The Chief Justice's Taskforce on Gender Bias was established in July 1993 by the Chief Justice of W.A., the Hon. Mr Justice David Malcolm.  Its task was to investigate the extent to which gender bias exists in the law and administration of justice in W.A. and to make recommendations for its elimination.  The areas of inquiry were wide: the substantive law, the judiciary, the procedures of the courts and the organisation and work of the legal profession.  The Taskforce consisted of a ten-person Executive and 25 additional members, who were divided into 9 sub-committees.  The topics examined by the sub-committees were chosen on the basis of suggestions made by members on areas of particular concern and members were allocated to sub-committees primarily on the basis of interest.  It is important to note that all of the members were volunteers and were not paid for their time.  Moreover, the Taskforce was given less than one year to make its report.  The Report is thus not comprehensive and instead focuses on areas of particular concern and where concrete recommendations for reform could be made.

2. Sub-Committee on Aboriginal Women and the Law

The Sub-Committee on Aboriginal Women and the Law was established to focus on the experiences of Aboriginal women of the law and legal system.  The Sub-Committee recognised that Aboriginal women are those who know best what their concerns are and that experiences among Aboriginal women vary widely, especially between women in more remote communities and those in metropolitan areas.  The Sub-Committee thus had a majority of Aboriginal women as members[2] and, importantly, consulted a wide range of additional people, primarily Aboriginal women, about matters of concern to them.  Many of these people attended meetings of the Sub-Committee.  In order to solicit further comments, the Sub-Committee made drafts of its report widely available to Aboriginal people throughout W.A., distributing them through individual Committee members and attendees, through the W.A. Aboriginal Affairs Planning Authority and through the Aboriginal Legal Service of W.A..

In the time available the Committee focused on matters of particular concern as expressed by Aboriginal women and concentrated on practical measures that could be implemented in order to overcome the problems identified.  A large number of more detailed reports on particular problems were identified by the Committee, including, among others, the ALRC Report on Equality Before the Law (1994), the Allbrook Cattalini Research Report on Domestic Violence: Special Needs of Aboriginal Women Living in Aboriginal Communities (1992) and the Equal Opportunity Commission (WA) Review of Police Practices (1990).  The findings and recommendations of these reports were endorsed by the Committee.

In addition, the Committee endorsed the findings of the Royal Commission into Aboriginal Deaths in Custody, and considered that the much wider issues identified by the Royal Commission, including background social factors that lead to incarceration as well as the larger questions of self-government and self-determination, must be addressed before the representation of Aboriginal women in the criminal justice system and their experiences of the law can be improved.  The Committee thus recommended that "the recommendations of the RCIADIC be fully implemented as a matter of urgency, especially those recommendations that have a particular impact on Aboriginal women."[3]

3. Recommendations of the Sub-Committee

The Sub-Committee focused on eight areas identified as being of particular concern: the courts, alternative dispute resolution, community responses to family violence, restraining orders, access to legal advice and services, bail, fines, and Aboriginal-police relations.  While this article cannot detail all of the recommendations made, some of the more significant ones are the following.

3.1 Courts

The Sub-Committee considered that a permanent committee, with a membership including judicial officers, should be established to monitor the operation of the courts as they affect Aboriginal women and oversee implementation of recommendations for improvements.  More efforts must be made to ensure that Aboriginal women understand the court processes, including the provision of Aboriginal persons to assist Aboriginal women in court and the provision of appropriate education, both within and outside the school system.  Aboriginal staff should be employed at all levels of the court and legal system;  non-Aboriginal staff -- including judicial staff -- should attend appropriate cross-cultural awareness courses.

3.2 Alternative Dispute Resolution

The Sub-Committee considered that alternative dispute resolution processes must be incorporated as alternatives to litigation for the resolution of disputes involving Aboriginal people because the adversarial justice system is not solving many such disputes.  An Aboriginal Alternative Dispute Resolution Project has already been established in W.A. for the resolution of disputes relating to inter-family feuding;  there needs to be an exploration of such a system for the resolution of family violence disputes.

3.3 Community Responses to Family Violence

More control needs to be given to Aboriginal women and their communities than current laws and practices do.  The Taskforce endorses the recommendations of the reports by Audrey Bolger, Aboriginal Women and Violence (1990), and by Allbrook Cattalini Research (above) and makes additional recommendations.  Some of these recommendations are:

- A committee of Aboriginal men and women, and chaired by a judge, needs to be established to follow up and implement the Taskforce's recommendations.

- The Justice Ministry should appoint community-based panels of key Aboriginal women to assist in the apprehension and control of offenders against Aboriginal women and children.

- Aboriginal women counsellors, preferably trained through Aboriginal counselling initiatives (some of which already exist), should be appointed and funded by relevant government departments to counsel Aboriginal women who have been assaulted.

- Aboriginal women educators need to be employed in community education programmes on sexual abuse and family violence.

- Government-funded safe places for victims of family violence need to be established, as do government-funded programmes to deal with offenders as alternatives to imprisonment.

3.4 Restraining Orders

A number of problems were identified with the application and enforcement of restraining orders.  The Sub-Committee recommended that the application process needs to be made much easier, recommended a better method of serving restraining orders on Aboriginal men, and that the Police Department make more serious efforts to enforce them.  The Taskforce Sub-Committee on Restraining Orders also recommended such measures, with specific suggestions for a separate unit within the court system to explain to all parties what a restraining order means.[4]

3.5 Access to Legal Advice and Services

The Sub-Committee considered that greater efforts must be made by government departments to ensure that information on legal issues and the rights of Aboriginal women are produced and are accessed by Aboriginal women.  Such efforts may entail the redesign of presentation of existing information and must entail the provision of such information outside the metropolitan areas.  More Aboriginal people, but especially women, should be encouraged to obtain law degrees and be supported in their studies (the Sub-Committee noted approval of existing programmes in these areas).  The representation of Aboriginal clients by non-Aboriginal lawyers should be improved.  A separate unit should be created within the Aboriginal Legal Service to focus on women's issues, and a separate Aboriginal Women's Legal Service should be established in order to fully serve the needs of Aboriginal women.

3.6 Bail

The Sub-Committee considered that there should be more care taken in explaining the conditions and default provisions of bail and a discretion provided to the court when deciding whether to order forfeiture of bail.

3.7 Fines

The Sub-Committee considered that a disproportionate number of Aboriginal women are being imprisoned for non-payment of fines. It thus recommended that a review of the whole fines system be undertaken and alternatives be devised and implemented, both for the imposition of fines in the first place and as penalties for fine defaults.

3.8 Aboriginal-Police Relations

This topic was of serious concern to the Sub-Committee and those whom it consulted, if only because it affected nearly every other aspect that the Committee considered.  The evidence provided to the Committee indicated that problems identified in the RCIADIC report and the 1990 report of the WA Equal Opportunity Commission on this matter still exist.  The Committee made recommendations in relation to the recruitment and support of Aboriginal women as police officers, recruitment and training of non-Aboriginal police officers, policing strategies, and methods of complaint and pursuit of grievances against police.

4. Other Sub-Committees' Recommendations

In addition to the separate Sub-Committee on Aboriginal Women, three other sub-committees made specific recommendations in relation to problems faced by Aboriginal women.  The concurring recommendations of the Sub-Committee on Restraining Orders has already been mentioned.

The Sub-Committee on Punishment of Women reviewed statistics on the sentencing process and treatment of prisoners, separately identifying and comparing statistics relating to Aboriginal and non-Aboriginal women and men.[5] The Committee noted that women are less likely than men to be involved in criminal activity, but also that Aboriginal women are the most over-represented group arrested and sentenced in proportion to their size of the population.  The data showed differences in the sentencing of women and men which the Sub-Committee considered warranted further research in order to see if it was due to gender bias.  On the other hand, the Committee did find gender and race bias in the preparation of pre-sentencing reports.  The Committee repeated the recommendation that alternatives to imprisonment be devised for fine defaulters.

The Sub-Committee established to consider the two issues of "Women's Access to Justice" and "The Environment of the Courts" reiterated that Aboriginal women do not have equality of access to the legal system and noted particular problems relating to language and culture.[6] This Sub-Committee effectively endorsed some of the recommendations made by the Sub-Committee on Aboriginal women in this area.  It recommended: that "the particular difficulties and needs" experienced by Aboriginal women need to be recognised and accommodated in all courts' procedures, planning and practices; that "special attention be given to the needs of women in country or remote areas"; that the judiciary be educated on Aboriginal women's perspectives in courtroom situations; that greater information on the court and legal system be provided; and that support in the court, such as from paralegal staff, be provided to assist women with court procedure.

5. Conclusion

The commissioning and production of this Report is both encouraging and frustrating.  It is encouraging because it is a high-level recognition that women experience gender bias in the law, in the legal system and in the administration of justice in W.A.  Indeed, the Chief Justice accepted that fact when he commissioned this report and specifically asked for a report on the extent of such bias and how it might be eliminated.  It is also encouraging that the specific difficulties faced by Aboriginal women -- difficulties stemming not only from their gender but also from their race and, often, economic class -- were considered worthy of separate, more focused attention.  Moreover, the Chair of the Taskforce was understanding not only of such problems but also of the need for Aboriginal women themselves to define these problems and recommend measures for their elimination.  It is encouraging that the views of Aboriginal women are being repeated and disseminated in this way.

But it was also a frustrating task as it only could scratch the surface of the larger issues involved, in terms of both the scope and depth of inquiry.  Moreover, actual implementation of any reforms depends not just on the Chief Justice but on the Western Australian government, which decides on policy priorities and allocates money accordingly. Not only was money not allocated for the production of this report, but the Taskforce noted that there were many other initiatives in various areas that have been recommended in past reports but still not acted on by the government. Of note, for example, is the actual allocation in an earlier budget of a substantial sum of money for the production of materials on domestic violence issues but which was then shelved by this government.  When the same problems are identified in separate reports, and it is clear that nothing has really even been attempted by way of solutions in the intervening period, that is frustrating.  It makes one suspect that there is not the will on the part of the government to do anything more than commission reports on the problems (perhaps, especially, reports that do not cost the government a lot of money!).

However, it must be acknowledged that the Chief Justice did well with what was made available to him.  And perhaps the fact that this report was not able to focus on the more fundamental issues and only able to focus on some practical suggestions for reforms will be an advantage.  There are various precise, particular suggestions for improvements in this report -- improvements that could at least significantly reduce the many difficulties faced by Aboriginal women due to bias in our legal system, even if not eliminate all aspects of them.  The more particular and quantifiable the recommendations, the harder it is to argue against their implementation. It may be thought of as tinkering with a fundamentally flawed system, but reducing to any extent the bias experienced by Aboriginal women can only lead to a better outcome in terms of justice.  I thus suggest that the Taskforce Report needs to be read and that we all need to insist loudly that its recommendations be implemented.[7]

Notes:

[1] Report of the Chief Justice's Taskforce on Gender Bias, 30 June 1994 (hereinafter, Taskforce Report).

[2] There were two non-Aboriginal members: The Hon Mr Justice Wallwork of the Supreme Court of W.A. (who was also Chairperson of the Executive Committee of the Taskforce) and myself.

[3] See Taskforce Report, at p. 114.

[4] See Taskforce Report, at pp. 176-177.

[5] See Taskforce Report, at pp. 226-231.

[6] See Taskforce Report, at pp. 42-46.

[7] Copies of the Taskforce Report can be obtained from: Ms. Di Hodgen, Ministry of Justice, 16th Floor, Westralia Square, 141 St. George's Terrace, Perth, WA 6000. Tel: (09) 264-1123 Fax: (09) 264-1439