NLA Letter to the Select Committee for Measuring Outcomes for First Nations Communities

Thank you for the opportunity to provide recommendations to the Senate Select Committee on Measuring Outcomes for First Nations Communities. 

We value the leadership and expertise of First Nations community-controlled organisations and their peak bodies, in particular the National Aboriginal and Torres Strait Islander Legal Services (NATSILS) and First Nations Advocates Against Family Violence (FNAAFV), who provide essential services to First Nations communities in the legal assistance sector. We also acknowledge the importance of First Nations people with lived experience contributing to this Senate Committee who have provided self-determined and community-led solutions over decades. 

We acknowledge the importance of recommendations from our sector colleagues working with First Nations communities and the many other inquiries, investigations and research reporting on this issue. 

National Legal Aid (NLA) represents the directors of the eight state and territory legal aid commissions (LACs) in Australia. LACs are independent, statutory bodies established under respective state or territory legislation. They are funded by Commonwealth and respective state or territory governments to provide legal assistance services to the public, with a particular focus on the needs of people who are economically and/or socially disadvantaged. 

NLA brings together the practice experience of the eight Australian state and territory LACs. In 2022-23, LACs provided over 1.7 million legal services to people across the country. LAC services include:

• legal advice and information;
• legally assisted family dispute resolution (FDR);
• ‘at court’ duty lawyer and social support services;
• representation in contested proceedings and as Independent Children’s Lawyers and separate representatives for children;
• referrals to other legal and non-legal service providers where appropriate; 
• community legal education (CLE);
• training for community service providers; and
• specialist training for legal practitioners.

The recommendations made in this letter draws on the experience of LACs working with First Nations clients.

National Legal Aid provide key recommendations for the Senate Committee below.  

Closing the Gap must be strengthened as a mechanism for First Nations rights

The National Agreement on Closing the Gap (CtG) recognises whole of government responsibility to act on the inequality and injustice faced by First Nations Peoples in Australia.

It is a critical framework for addressing the systemic inequality and injustice faced by First Nations Peoples across Australia. It recognises the government’s responsibility to enact meaningful change and uphold key principles such as First Nations self-determination, the role of community-controlled organisations, and government accountability.  

CtG is important for the work of Legal Aid Commissions, in recognising the urgent need to act on First Nations over-representation in the prison system and the out-of-home-care system.

However, despite its promise, CtG has been plagued by significant limitations in governance, implementation, and accountability, which has hindered its effectiveness.

NLA reiterates the importance of not only maintaining and extending CtG targets but enforcement and accountability of CtG. This will then shift the focus from rhetoric to measurable action to ensure better outcomes for First Nations communities are met. Without this, CtG risks being symbolic as opposed to transformative. 

Recommendation 1: Invest in and appropriately allocate resources and decision-making powers to First Nations community-controlled organisations to ensure self-determination is realised

First Nations community-controlled organisations are underfunded with limited control over First Nations policy and programs.

In ensuring self-determination is realised, governments must transfer resources and decision-making powers to First Nations community controlled organisations. In the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the facilitation of self-determination is expressed through: internal autonomy or self-government, including ways and means for financing autonomous functions; participation in decision making in matters which affect the rights of First Peoples; and the right to determine and develop priorities and strategies for development in programs affecting them, and to administer these in First Peoples’ institutions. 

In terms of Indigenous data sovereignty, if First Nation Peoples and organisation controlled the data collection and analysis, this would strengthen the principles of CtG and allow government agencies to meet their targets by ensuring communities drive the narrative rather than relying on government interpretation. 

Recommendation 2: Greater accountability for commitments towards a self-determined child protection system for First Nations families and children

The CtG Target 11 aims to reduce the detention rate of First Nations children and young people by at least 30% by 2031. However, achieving this target requires comprehensive reforms that address the root causes of overincarceration, such as poverty, inadequate access to education, housing and healthcare, and the breakdown of cultural and family structures.  

a) Greater accountability on progress towards Priority Reforms

A fully self-determined approach to the welfare of First Nations children that removes the imposition of non-First Nations frameworks was recommended in the Bringing them Home report and has been reiterated in many reviews and by First Nations advocates. This ‘must be driven by the cultural authority of Aboriginal and Torres Strait Islander families and communities, who know best what is needed for their children to thrive’. The Productivity Commission’s recent report found that that while some progress has been made on Priority Reform 2, which relates to the amount of government funding going through Aboriginal and Torres Strait Islander community-controlled organisations, ‘efforts are slow (or ad hoc) and do not reflect the systemic changes that are necessary to transform service systems and improve outcomes’. It also found significant deficiency in accountability mechanisms, including a lack of opportunity for First Nations people to raise concerns. 

b) Whole of government accountability

The need to expand access to culturally safe, community-led early family support services is paramount, particularly given that ‘holistic prevention can only be achieved through with a whole-of-government approach’ (Reviewing Implementation of the Aboriginal and Torres Strait Island Child Placement Principle). Yoorrook Justice Commission raised concerns about the lack of whole of government accountability towards progress on achieving Target 12. We agree with Yoorrook’s recommendation that the governance model for implementing target 12 of the Closing the Gap Agreement be reviewed, with a view to broadening the responsibility to achieve this target beyond the Department of Families, Fairness and Housing. 

c) Incorporating measurements that ensure children in OOHC have ongoing connection to their culture, community and family 

There are five elements of the Child Placement Principle (CPP), including Prevention, Partnership, Placement, Participation and Connection. However, CtG currently only measures placements (excluding Permanent Care orders) and connection to family. We recommend that the CtG: 

• change the definition and counting rules for OOHC to include children on permanent care orders
• include measurements that support the other elements of the CPP (e.g. investment in early intervention and prevention and progress towards self-determination).

d) Funding for community-controlled organisations and initiatives involving Aboriginal people in the justice system 

Funding for community-controlled organisations to assist victim-survivors of domestic and family violence is also critical to reducing the rate of young people in out of home care. 

Culturally specific, community-led diversion programs and initiatives, such as First Nations Family Led Decision Making, should be prioritised as alternatives to detention. In addition to initiatives that involve Aboriginal people in decision-making processes in both the criminal justice and care jurisdictions, such as, for example, the Walama List, Youth Koori Court and Care Circles (in NSW). For further information on this we also provide Attachment A: NLA Submission to Inquiry into Australia’s Youth Justice and Incarceration System. 

Recommendation 3: Raise the age of criminal responsibility to at least 14 in all Australian jurisdictions, in line with international child rights standards and recommendations of First Nations community

Across Australia the minimum age of criminal responsibility (MACR) is set at between 10 and 12 years of age. NLA strongly supports raising the MACR to at least 14 years old. There are a number of compelling reasons for raising the MACR to at least 14 years old. They include:

1. the cognitive and emotional development of children, including underdeveloped consequential thinking and impulse control, and the impact of trauma;
2. the stigmatising and criminogenic impact of the criminal justice system and custody on young children;
3. the overrepresentation of children experiencing mental health issues and with cognitive disabilities under 14 years old in the criminal justice system; 
4. the overrepresentation of Aboriginal children under 14 years old in the criminal justice system; 
5. the overrepresentation of children in out of home care under 14 years old in the criminal justice system; 
6. the limitations of the presumption of doli incapax;
7. recommendations from numerous organisations and inquiries in Australia; 
8. compliance with international standards; and 
9. the availability of alternatives to criminal law responses for children under 14 years old. 

NLA recommends a national co-ordinated approach to the raising the MACR to at least 14 years old.

In Victoria, the Yoorrook Justice Commission called for transformational change to the youth justice system in Victoria, starting with immediately raising the age of criminal responsibility to at least 14 years old without exceptions. Yoorrook described raising the age as the ‘simplest and most urgent reform’ to keep First Nations children out of the criminal justice system in the first place. 

In the experience of Victoria Legal Aid, most of the First Nations children remanded post bail reforms are presenting with unmet high support needs and are involved in the child protection system. Victoria Legal Aid data reveals that all First Nations children remanded into Victoria’s Weekend Online Remand Court (WORC) to date presented with one or multiple complex needs including cognitive disabilities, neurodiversity, physical disabilities, significant trauma backgrounds (including being victim-survivors of family violence), unstable housing, acute mental health concerns and ongoing experiences of drug and alcohol addiction. Many of these young people had active child protection involvement, NDIS packages, or were under the supervision of Youth Justice. In many cases, the child’s unmet support needs were a part of the circumstances leading to their arrest or were a factor underpinning the police decision to refuse bail at the station. For example, children were experiencing severe drug addiction, challenges complying with Youth Justice Supervised Bail due to disabilities or disadvantage, disengagement with school and unsafe or unstable housing. The urgent need for focused attention on the service responses that children and young people need to live well in the community – including implementation of service responses to reduce the criminalisation of children living in out of home care – is evidenced by the circumstances of children appearing before WORC. 

Recommendation 4: Strengthening governance and accountability in Closing the Gap

CtG lacks effective governance and accountability including monitoring, implementation and evaluation to transform government. There is limited data or tracking of progress, which severely limits accountability of targets. These issues have been documented in detail by the Productivity Commission study report ‘Review of the National Agreement on Closing the Gap’, Volume 1 and affirmed by the experience of Legal Aid Commissions engaged in CtG working groups. Widescale improvements in oversight and governance need to be implemented in CtG to ensure governments are accountable to CtG targets. 

Recommendation 5: CtG must address the driving factors of disadvantage

CtG does not adequately address the driving factors of disadvantage for First Nations Peoples. This includes the ongoing impact of colonialism and assimilation, and recent policy developments such as lowering the age of criminal responsibility in the Northern territory, and over policing of First Nations communities. These driving factors lead to overrepresentation in the justice system and the out of home care system. CtG needs to connect driving factors to progress indicators, otherwise it does not effectively account for the impact of driving factors and hinder potential success of CtG.