From crisis to crime: the escalation of civil and family law issues to criminal matters in Aboriginal communities in NSW

Schwartz, Melanie, and Cunneen, Chris (2009) From crisis to crime: the escalation of civil and family law issues to criminal matters in Aboriginal communities in NSW. Indigenous Law Bulletin, 7 (15). pp. 18-21.

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Abstract

The issue of appropriate legal and social supports is critical to the question of Indigenous overrepresentation in the criminal justice system. This article discusses this relationship, arguing that the overwhelming emphasis on communities' criminal law needs distracts from other equally important, though perhaps less urgent, practical concerns. The authors argue that more attention needs to be paid to specific areas of civil and family law, by both legal aid and Aboriginal legal services, to prevent these unaddressed issues from escalating into offending behaviour.

There has been very little research conducted into the civil and family law needs of Aboriginal and Torres Strait Islander people in Australia. This is the case notwithstanding the fact that it has been long recognised that Indigenous people in Australia have a high level of complex legal needs[1]. The legal needs research that has been conducted has been largely focussed on the area of criminal law. This is due to the degree of over representation of Indigenous people in the criminal justice system; the real sense of urgency that this engenders translates into a prioritisation of issues involving Indigenous communities and crime.

Indeed, the demand for assistance in criminal matters means that Aboriginal and Torres Strait Islander Legal Services (ATSILS) predominantly provide legal aid services for criminal matters (89 per cent of case and duty matters in 2001-2 compared with only 2 per cent family matters and 2 per cent violence protection matters)[2]. Decreasing levels of funding to ATSILS means that they no longer offer civil law services in NSW and provide only limited services in other jurisdictions. And while a growing demand for child protection, civil and family law matters has been identified, ATSILS report being unable to service this demand due to insufficient funding[3].

However, an exclusive focus on criminal law issues in research gives rise to a number of significant problems. A sound understanding of the non-criminal law needs of Indigenous people is essential in ensuring access to justice. Inaccessibility of family and civil law services compromises the ability of Indigenous people to realise their full legal entitlements across a range of central arenas such as housing, consumer rights, credit and debt, employment law, negligence and corporations law. Improved access to legal services for Indigenous people, particularly in remote communities, and particularly in relation to civil law, is likely to ultimately assist in the necessary infrastructure for economic and social development. Such developments in community capacity are likely to lead to less offending.

There is also a danger that civil or family law issues can escalate to criminal acts, resulting in charges and a perpetuation of the cycle of criminal overrepresentation[4]. In research exploring the civil and family law needs of Aboriginal people in NSW conducted across eight communities in 2008[5], this dynamic - where unaddressed civil and family law problems became criminal law issues - was evident across a range of legal areas. At the heart of the research are the opinions and experiences of focus group members in those communities[6], and what follows is a brief discussion of five legal spheres where criminal escalation was acknowledged to occur.

Item ID: 15480
Item Type: Article (Refereed Research - C1)
ISSN: 1328-5475
Date Deposited: 06 Jul 2011 05:39
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law @ 50%
18 LAW AND LEGAL STUDIES > 1801 Law > 180104 Civil Law and Procedure @ 50%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9404 Justice and the Law > 940401 Civil Justice @ 50%
94 LAW, POLITICS AND COMMUNITY SERVICES > 9401 Community Service (excl. Work) > 940102 Aboriginal and Torres Strait Islander Development and Welfare @ 50%
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