Aboriginal Family Violence Prevention & Legal Service Victoria (FVPLS Victoria)

Submission to

TheCommonwealth Attorney General’s Department on

The National Human Rights Action Plan Baseline Study

1 September 2011

Introduction

As a key legal service provider for Aboriginal and Torres Strait Islander victims/survivors of family violence and sexual assault,theAboriginalFamily Violence Prevention & Legal Service Victoria (FVPLS Victoria)makes this submission to the Commonwealth Attorney General’s Department. We welcome the opportunity to comment on Australia’s National Human Rights Action Plan Baseline Study. Family violence rates in the Aboriginal and Torres Strait Islander communities nationally are disproportionately high.We are primarily concerned with advancing the human rights, legal rights and broader safety and well-being outcomes for this client group in legal services.

This submission is specifically focused on the experiences of Aboriginal and Torres Strait Islander children and families, informed by on the ground experience of legal services in the in the national FVPLSprogram.It calls for significant strategic strengthening of legal and associated services for Aboriginal and Torres Strait Islander women and children nationally.

About FVPLS Victoria

FVPLS Victoria is one of fourteen FVPLSs funded by the Commonwealth Attorney General’s Department to provide legal and support services to Aboriginal and Torres Strait Islander victims/survivors[1] of family violence and sexual assault in thirty-one rural and remote locations across Australia. FVPLS Victoria was incorporated in October 2002. The national FVPLS program was established in recognition of the gap in access to legal services for Aboriginal and Torres Strait Islander victims of family violence - predominantly Aboriginal and Torres Strait Islanderwomen and children.

Comments about the National Human Rights Action Plan Baseline Study

With respect to this reference to the CommonwealthAttorney General’s Department, we are concerned that theBaseline Study does not present a comprehensive picture of the current status of human rightsforAboriginal and Torres Strait Islander victims of family violence and sexual assault.

The Baseline Study refers to a number of key initiatives that contribute to access to justice for Aboriginal and Torres Strait Islander communities. Many of these initiatives stem from the National Indigenous Law and Justice Framework endorsed by all Australian governments. However, the Baseline Study fails to identify current gaps in service delivery orcapture the negative human rights experiences of Aboriginal and Torres Strait Islander victims of family violence and sexual assault. It is critical that these issues be addressed in the National Human Rights Action Plan.

This submission aims to:

  • Identify relevant statistics and other research on key human rights issues impacting Aboriginal and Torres Strait Islander victims of family violence and sexual assault;
  • identify issues that National Action Plan should address torecognize current gaps in service delivery within Aboriginal and Torres Strait Islander communities to assist victims of family violence and sexual assault;
  • propose target action items and assign responsible entities to strengthen the Governments’ commitment to improving human rights and general disadvantage within these communities;
  • propose target action items that will improve collaboration between Aboriginal and Torres Strait Islander communities and the Government to address significant gaps in service delivery for Aboriginal and Torres Strait Islander victims of family violence and sexual assault; and
  • identify how proposed target action items will create positive outcomes to contribute to the advancement of human rights.

Evidence of Human Rights Violations for Aboriginal and Torres Strait Islander victims of Family Violence and Sexual Assault:

The Baseline Study fails to capture or document negative human rights abuses suffered by Aboriginal and Torres Strait Islander victims of family violence. It simply states that “Aboriginal and Torres Strait Islander women report higher levels of physical violence during their lifetime than do non-Indigenous women, and are much more likely to experience sexual violence and to sustain injury”.[2] This is a clear oversight. The current statistical data indicates that:

  • Aboriginal & Torres Strait Islander women are 40 times more likely to be victims of family violence compared with non-Indigenous women;[3]
  • Aboriginal & Torres Strait Islander women are 35.1 times more likely to be hospitalised due to family violence than are non-Indigenous women;[4]
  • in 2008-09 Indigenous women were 31 times more likely to be hospitalized for injuries caused by assault than non-Indigenous women;[5]
  • hospitalisation rates for family violence related assault were highest among Indigenous females aged 25-34 years (15.9 per 1000);[6]
  • 18.3 per cent of Indigenous women experience physical or threatened violence in the previous 12 months compared with 7 per cent of non Indigenous women;[7]
  • Aboriginal women reported three times as many incidents of sexual violence compared with non-Aboriginal violence as well as higher levels of physical violence;[8]
  • one in three Aboriginal people have a relative who is a victim, or are witness to an act of interpersonal violence on a daily basis;[9] and
  • a higher proportion of Indigenous people (19.5 per cent ) than non-Indigenous people (10.8 per cent) aged 18 years and over had been a victim of physical or threatened violence in the previous 12 months.[10]

The Baseline Study also fails to acknowledge extensive consultative work already undertaken in the area of family violence including a 2010 reportby the Australian Law Reform Commission (ALRC) on family violence.[11]

The ALRC put forth a number of recommendations including the need to:

  • Provide cultural awareness training for police, prosecutors, the legal profession, judicial officers, and victim referral and support services;
  • prioritizing the provision of, and access to, culturally appropriate victim support services such as legal advice (including specialized legal advice and representation for Indigenous women), counseling and other support services but ensuring victims are able to choose whether to access cultural-specific services;
  • ensuring the provision of professional translating and interpreting services where required andrequested; and
  • introducing or re-introducing Indigenous-specific victim liaison, support and advocacy positions throughout the legal system, including within the police, the courts and service providers.

Other keyfindings are included in past reports by the Aboriginal and Torres Strait Islander Social Justice Commissioner,[12] submissions made to the United Nationals Convention on the Elimination of Discrimination Against Women (CEDAW) Action Plan,[13] concluding observations by the CEDAW Committee on Australia[14]and relevant recommendations made during Australia’s Universal Periodic Reviewat the United Nations.[15]

In addition to these sources, in 2010 FVPLS Victoria released a three-part policy paper seriesthat provide a number of recommendations to advance law and justice outcomes for Aboriginal and Torres Strait Islander victims of family violence and presents a comprehensive picture of policy concerns.[16]

Issues that the National Action Plan Should Consider:

Issue1:
The Commonwealth Government must take all steps within its capacity to comply with and enforce international human rights instruments to which it is a signatory with respect to the human rights and access to justice of Aboriginals and Torres Strait Islanders, paying particular attention to the provisions relating to protecting and advancing the rights of Aboriginal and Torres Strait Islander women and children.
Action:
  • Consultation with Aboriginal and Torres Strait Islander women (in all communities throughout Australia – urban, rural and remote) to allow special measures to be adopted that address the significant ongoing disadvantage of Aboriginal women and children
  • Adopt special measures that address the significant ongoing disadvantage of Aboriginal women and children
Outcome: The Commonwealth Government will uphold its human rights obligations by strengthening access to justice for Aboriginal and Torres Strait Islander women and children and ensuring Aboriginal women have a voice and ownership of law and justice issues.
Responsibility: Commonwealth Attorney General’s Department.

The Government has demonstrateda greater commitment tohuman rights by signing onto the relevant human rights instruments[17]designed protect women and children against violence and stipulate respect for Indigenous cultural rights. However, the Government has failed to implement measures to address disproportionate levels of violence against Aboriginal and Torres Strait Islander women and to ensure legal equity, in line with the spirit of the above-mentioned human rights instruments.

For example, the CEDAW Committee put forth a number of recommendations to implement special measures to advance the human rights of Aboriginal and Torres Strait Islander women. The failure of the Government to do the following is inconsistent with the spirit of CEDAW:

  • Fund a comprehensive national Aboriginal and Torres Strait Islander Women’s Legal Service Program;
  • fund FVPLSs for Aboriginal and Torres Strait Islander women in urban areas;
  • fund Aboriginal and Torres Strait Islander community-controlled women’s organisations and FVPLSs for dedicated research, policy and law reform activity; and
  • support an Aboriginal and Torres Strait Islander women’s law and justice advocacy body.

Aboriginal and Torres Strait Islander women require practical measures to strengthen access to justice and to be given a voice to have ownership of law and justice issues that affect the community.The difficulty of pursuing and enforcing international human rights obligations is intertwined with the significant barriers to access to justice for Aboriginal & Torres Strait Islander people. It is critical that Aboriginal and Torres Strait Islander people inform the manner in which Indigenous rights are incorporated nationally.

Issue 2:
The Commonwealth Government must demonstrate a commitment to and provide for a budgetary allocation for culturally appropriate Aboriginal and Torres Strait Islander women’s legal services to assist victims of sexual assault and family violence in addition to current funding for Aboriginal Legal Services and Family Violence Units.
Action:
  • Provide additional funding to the national FVPLS program for statewide services including metropolitan areas should be provided through a joint Commonwealth/state funding arrangement
  • The Commonwealth Government should acknowledge thenational FVPLS program as a primary rather than supplementary provider of legal services to Aboriginal and Torres Strait Islander victims/survivors of family violence and sexual assault and Aboriginal and Torres Strait Islander women and children
  • That consideration be given to establishing an Aboriginal and Torres Strait Islander women’s legal services in every state and a national Aboriginal and Torres Strait Islander women’s legal program in consultation with Aboriginal and Torres Strait Islander women
Outcome: Additional funding of the national FVPLS program will significantly strengthen the program overall and result in more effective on-the-ground change in Aboriginal and Torres Strait Islander communities.
Responsibility: Commonwealth Attorney General’s Department and Department of Justice through COAG and SCAG.

There are serious inequities in the funding of the national FVPLS program as compared to other key Aboriginal and Torres Strait Islander services.United Nations Human Rights Committees have urged the Australian Government to adopt measures to improve the safety and human rights of Aboriginal and Torres Strait Islander women however, current funding policy for Aboriginal and Torres Strait Islander women’s legal programs do not reflect this.

Aboriginal and Torres Strait Islander women are more likely to seek assistance in relation to family violence and sexual assault from a dedicated Aboriginal Legal Service – either through the Family Violence & Prevention Legal Services or Aboriginal Legal Services. Our experience indicates Aboriginal and Torres Strait Islander women often do not want to access Aboriginal Legal Services for legal assistance in situations of family violence or sexual assault. Moreover, Aboriginal women are often conflicted out of Aboriginal Legal Services because of their major criminal practice.[18]

Dedicated independent Aboriginal and Torres Strait Islander controlled legal services for Aboriginal and Torres Strait Islander women and children are fundamental to improved safety and on-the-ground change.Aboriginal and Torres Strait Islander women require intensive support through trusted and women/gender sensitive organisations to engage and sustain legal processes – and this is the case in urban, rural and remote communities. Our specialized services are best placed to determine the most strategic way to deliver effective local services.A more holistic and strategic approach to funding Aboriginal and Torres Strait Islander family violence and sexual assault services Australia-wide will benefit rural and remote communities as well as other un-serviced communities.

Culturally appropriate and trusted legal representation is also critical to Aboriginal and Torres Strait Islander women engaging with and sustaining legal processes.A plethora of government and non government reports and the experience of FVPLSs confirm that Aboriginal and Torres Strait Islander women are not accessing mainstream services. Aboriginal and Torres Strait Islander women must be given options as to whether they prefer to access a dedicated Aboriginal service or mainstream services.

Aboriginal and Torres Strait Islander community controlled organisations are best placed to educate and advocate both on the individual and systemic levels to achieve real on-the-ground change. Aboriginal and Torres Strait Islander law and justice policy has focused more upon criminal justice and Aboriginal and Torres Strait Islander men. Greater attention to women’s law and justice policy is urgently required. Law and justice initiatives (including RCIADIC) have to date had significant focus on the criminal justice area. The Aboriginal and Torres Strait Islander Social Justice Commissioner has made specific comment in this regard.[19]

Issue 3:
The national FVPLS program only funds services in identified rural and remote areas andfails to address Australia-wide disadvantage, particularly service inurban communities.
Action: The nationalFVPLS program fund FVPLSs to service urban communities in addition to existing funding to support regional rural/remote locations.
Outcome: A comprehensive and holistic strategy to address disadvantage of Aboriginal and Torres Strait Islander women and children Australia in urban communities.
Responsibility: Commonwealth Attorney General’s Department.

The national FVPLSprogram only funds services in identified rural and remote areas andfails to address Australia-wide disadvantage. Aboriginal and Torres Strait Islander women in urban areas are being discriminated against as a result of Commonwealth Government funding policy for the FVPLS program.[20] This policy fragments and weakens responses to family violence and sexual assault in Aboriginal and Torres Strait Islander communities. The national FVPLSprogram must be extended to service urban communities.

Funding FVPLSs to service urban areas will significantly strengthen the national program overall.There is significant diversity amongst Aboriginal and Torres Strait Islander communities across the states and territories and to be effective, initiatives to address family violence and sexual assault must fully acknowledge and address this diversity. These initiatives should be lead by Aboriginal and Torres Strait Islander women at local levels. FVPLS Victoria’smodel of a Melbourne head office supporting regional offices in rural locations hasproven effective and increased our capacity to secure funding from other sources such as the Victorian Government and Victoria Legal Aid inorder service urban areas. It is encouraging that the Commonwealth Attorney General’s Department has supported this model and implemented a similar model across the national FVPLS program. This however does not address the need for the Commonwealth to fund service delivery of FVPLSs to urban areas.

A comprehensive and holistic strategy to address disadvantage of Aboriginal and Torres Strait Islander women and children Australia-wide that incorporates diversity is required. The question for the Commonwealth should be – how to develop a program for the most effective family violence and sexual assault services to Aboriginal and Torres Strait Islander communities in each state and territory – not how to quarantine resources to areas of ‘highest relative need’.

The Commonwealth Government’s refusal to fund dedicated Aboriginal and Torres Strait Islander services in urban areas is also based on misconceptions about the nature of urban Aboriginal and Torres Strait Islander communities. For example, in Victoria 48% of the Aboriginal and Torres Strait Islander community live in metro Melbourne however, the Commonwealth will not fund FVPLS Victoria for any urban work - despite established high demand for urban services. (FVPLS Victoria has secured alternative limited term funding for urban services). Whilst Aboriginal Legal Services are located in urban areas, this does not abrogate the need for FVPLS services or dedicated legal services for Aboriginal and Torres Strait Islander women and children in urban areas – for reasons mentioned above (conflict and lack of accessibility).