Prioritising representation for first remand Aboriginal and Torres Strait Islander clients

As we take steps to improve our cultural awareness, and to work towards becoming a culturally safe and anti-racist organisation, I know many of us are looking for concrete action we can take in our day-to-day work.

I’ve worked in and around the criminal justice system for almost 20 years and I often feel overwhelmed and frustrated at the ongoing disproportionate number of Aboriginal clients who are facing remand. Particularly when there has not been meaningful progress on implementing 30 year old recommendations from the Royal Commission into Aboriginal deaths in custody.

Like me, you may wonder what difference you can make.

This is why we have introduced changes to our criminal law duty lawyer guidelines which give us all the opportunity to build on our growing cultural awareness and to take action in our everyday work, in line with our Reconciliation Action Plan.

The Victoria Legal Aid Board has approved a guideline change to prioritise the making of bail applications for first remand Aboriginal and Torres Strait Islander clients if that is what they instruct you to do, even if the prospect for success is remote.

Changes to bail laws in recent years mean that more people are facing remand for relatively minor offending. The impact on Aboriginal and Torres Strait Islander clients and communities, is stark.

As just one example, our own data shows that around 10 per cent of our remand clients identify as Aboriginal or Torres Strait Islander, while that figure is five per cent for our mentions duty service.

As we all learn more through our Cultural Learning strategy about the factors which contribute to these disproportionate statistics, I believe it is vitally important that we move beyond learning, into action. The guideline change means that our duty lawyer services will be a strong and consistent voice resisting the disproportionate remand of Aboriginal and Torres Strait Islander people.

Of course, for many of you this is already your practice and I’m pleased the guidelines will now explicitly support that practice. For others, you may find yourself torn between the desire to run a bail application and concern that doing so unsuccessfully will make it harder for the client to get bail in the long run, because of the requirements to establish ‘new facts and circumstances’.

As we have since 2007, we are continuing to advocate for changes to S18AA of the Bail Act 1977 to change the way it applies to duty lawyer bail applications. But in the absence of this reform, I think we can do more to avoid Aboriginal people appearing unrepresented at first remand.

As long as you have given your client advice about the impact of s18AA, the duty lawyer guidelines now make clear that, for Aboriginal and Torres Strait Islander clients who give you instructions to run a bail application, you should prioritise that application.

I understand that these changes may lead to duty lawyers being called upon to make more bail applications and we will be carefully monitoring the impact on your workload. For our in-house lawyers, our workload guidance continues to apply.

Prioritising bail applications for Aboriginal clients represents our chance to make a difference. A message I took from the recent Sir Zelman Cowan oration by Professor Larissa Behrendt is that all of us, in our individual roles, have to do the best we can to make a change.

You won’t win every bail application for an Aboriginal client, but that’s not the test of whether it is the right thing to do.

To support you in implementing this change we will provide new professional legal education materials and resources to implement this change.

We will continue to advocate for reform of bail legislation and summary offences. But this is a change we can make right now to our practice, in direct recognition of the continuing disproportionate remand, imprisonment and deaths in custody of Aboriginal people.

I really want to thank all of you who do this work every day. I hope you feel that this guideline change recognises the importance of what you do.

More information

Read more about duty lawyers at court for criminal charges, including the updated guidelines.