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Chapter 15 - Social equity impacts

 

Social equity

Social justice

In pursuing its mission of achieving a just and secure society, the department is working on a social justice agenda. This agenda is founded on the principles of access and equity and the rights of all citizens to live in a just and secure society.

It accords with the Charter of public service in a culturally diverse society.

A key responsibility of the department is developing and maintaining a federal system of justice that serves individuals, families, business and the community. The department is undertaking initiatives to progress particular social justice objectives, which are documented in the performance reports section of this report. The programs and activities the department undertakes support the objective of promoting social justice.

Social inclusion agenda

The whole-of-government social inclusion agenda aims to give every Australian the help they need to access the support and opportunities our society has to offer. The department is responsible for advancing this agenda from a law and justice perspective. Law and justice issues can be both a cause and symptom of social exclusion and disadvantage. The work of areas in the department, and portfolio agencies, is aimed at minimising harmful contact with the legal system and maximising its potential to protect people and impact positively on their lives.

Legal assistance is an essential contribution to addressing disadvantage, by improving access to justice and increasing social inclusion. Legal assistance provides vulnerable Australians with the means to address issues early and avoid escalation. It also assists in addressing entrenched disadvantage, escaping domestic violence and other serious issues.

The department provides legal assistance through funding legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and Indigenous family violence prevention legal services, and legal financial assistance schemes.

The National Partnership Agreement on Legal Assistance Services includes a focus on the appropriate targeting of legal assistance to people who are, or are at risk of, being socially excluded. The agreement is currently under review to assess the quality, efficiency and cost effectiveness of Commonwealth-funded legal assistance programs.

Key initiatives aimed at further protecting and promoting human rights that the department progressed during the year included implementing the Human Rights (Parliamentary Scrutiny) Act 2011, which is designed to encourage early and ongoing consideration of Australia's human rights obligations in policy and legislative development.

The department and the Australian Human Rights Commission are working on a number of initiatives under Australia's Human Rights Framework aimed at further protecting and promoting human rights. The National Action Plan for Human Rights will also be a key mechanism for improving both the protection and promotion of human rights.

Under Australia's Human Rights Framework, small grants are provided to a wide range of community organisations to deliver practical, grassroots human rights education projects for the community and vulnerable groups. The 2011-12 round of grants awarded approximately $460,000 to fifteen non-government organisations to deliver innovative human rights education programs across Australia.

The department has been an active participant in the National Anti-Racism Partnership, which has been developing a National Anti-Racism Strategy for implementation over the coming three years. The Partnership is led by the Race Discrimination Commissioner and the Australian Human Rights Commission. The aim of the Strategy is to promote a clear understanding in the Australian community of what racism is, and how it can be prevented and reduced. The National Anti-Racism Partnership and Strategy is an initiative of Australia's Multicultural Policy, The People of Australia.

Access to justice

Access to justice is fundamental to the recognition of the rights of every Australian and is key to promoting social inclusion. The Government's Strategic Framework for Access to Justice in the Federal Civil Justice System seeks to ensure all Australians have equal access to justice.

Key access to justice initiatives that the department progressed during the year included:

  • developing the Access to Justice (Federal Jurisdiction) Bill 2011 introduced into Parliament on 23 November 2011. The Bill implements model national provisions concerning suppression orders and vexatious proceedings, enhances Federal Court powers concerning discovery, enhances Administrative Appeals Tribunal flexibility in dealing with fees and aligns jurisdictional limits for WA family law and federal magistrates. These measures will increase the flexibility of courts and tribunals to deliver access to justice
  • developing the Trans-Tasman Proceedings Regulation 2012. Once associated changes have been made to court rules in all states and territories, the agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement can enter into force, and there will be streamlined procedures for legal proceedings and enforcement of orders and regulatory fines between the two countries
  • assisting the National Alternative Dispute Resolution Advisory Council to develop a joint publication, Your Guide to Dispute Resolution, which contains readily accessible, useful information about alternative dispute resolution and gives practical tips on using ADR
  • implementing the National Partnership Agreement on Legal Assistance Services to help disadvantaged Australians resolve legal problems and disputes before they escalate and lead to entrenched disadvantage
  • enhancing legal assistance forums in each state and territory to consider opportunities for better coordination and targeting of legal assistance services
  • commencing the review of the National Partnership Agreement on Legal Assistance Services to help ensure that Commonwealth-funded legal services are delivering the most cost-effective legal assistance services to those most in need
  • refocusing the provision of legal financial assistance on disbursement assistance, with legal representation costs only provided in exceptional circumstances, to enhance support for pro bono work
  • four grants totalling $400,000 which were awarded under the National Broadband Network Regional Legal Assistance Program, part of the Government's $4 million investment to improve access to legal assistance services for people living in
    regional Australia.

Legal assistance programs

The department administers four legal assistance programs to provide access to legal services for disadvantaged Australians. Assistance may be provided for legal information, advice, advocacy, dispute resolution, duty lawyer services in the courts, legal representation, community legal education and referral services. These legal assistance programs are:

  • The Legal Aid Program funds legal aid commissions in each state and territory to provide legal assistance services to the most disadvantaged. The commissions provide comprehensive legal assistance services to help resolve problems and disputes on matters arising under Commonwealth laws and in the area of early intervention and prevention.
  • The Community Legal Services Program supports and funds community legal services as part of the Commonwealth's contribution to the maintenance of effective systems of access to justice and legal assistance. The Program provides funding for generalist as well as specialist community legal services - 138 in total. Specialist sub-programs include services for women (including Indigenous and rural) and youth as well as child support, disability discrimination matters, welfare rights, and environmental issues. Services provided by community legal centres may include information and referral, legal advice and ongoing legal assistance.
  • The Indigenous Legal Assistance and Policy Reform Program supports and funds Aboriginal and Torres Strait Islander legal services to provide high quality, culturally sensitive legal assistance services, including duty lawyer, advice, case work and representation in criminal, civil and family law matters.
  • The Family Violence Prevention Legal Services Program supports and funds culturally sensitive family violence prevention legal services for Indigenous Australians in rural and remote Australia who are victim survivors of family violence or sexual assault.

The department also administers financial assistance schemes, under which it provides funds to individuals and organisations for legal costs and related expenses where legal aid is not available. Funds are available for legal matters under a wide range of statutory and non-statutory schemes.

Family law

The department is making progress in implementing a family law system which will contribute to a safer society. The Family Law Amendment (Family Violence & Other Measures) Act 2011 was passed by Parliament on 24 November 2011. These family violence amendments to the Family Law Act 1975 commenced on 7 June 2011. The amendments include changing the definitions of 'family violence' and 'abuse' to better capture harmful behaviour, changes to prioritise the safety of children, remove disincentives to disclosing family violence, strengthen adviser obligations, and make it easier for state and territory child welfare authorities to participate in family law proceedings where children are at risk. An education campaign on the amendments commenced in April 2012.

The department has commissioned Macquarie University to develop 'LawTermFinder', an online glossary of common terms used in the family law system, which will help provide clearer definitions of family law related terminology. LawTermFinder draws on Macquarie University's expertise in developing online glossaries or term banks in other subject areas, and utilises legal expertise from the Australian National University's Law School.

The department has commenced accepting applications under the Agreement between Australia and the Republic of Lebanon regarding Cooperation on Protecting the Welfare of Children. The Agreement establishes formal procedures to assist parents of either country whose children have been abducted by a parent to either Lebanon or Australia, or where difficulties with contact between a parent and child have arisen. The Agreement is in Australia's interests because Lebanon is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Rights for people with disability

The department has continued work to enhance the rights of people with disability through projects that will have a significant impact on their rights to access essential community services and infrastructure. These projects include:

  • identifying and progressing initiatives that will be included in Australia's National Human Rights Action plan, including:
    • a commitment to work with the states and territories to clarify and improve laws and practices governing the sterilisation of women and girls with disability, and
    • participating in a National Justice CEOs working group on Mental Illness and Cognitive Disability. The group is examining mechanisms employed within the criminal justice system to address the needs of people with a mental illness and/or cognitive disability and investigate the role that the justice system can play in supporting diversion outcomes for these groups. This project will have a strong focus on the needs of Aboriginal, Torres Strait Islander and Maori people.
  • working in partnership with other departments to progress initiatives that aim to mprove human rights of persons with disabilities, including the National Disability Strategy, the review of the Disability Standards for Education 2005 and the review of the Disability Standards for Accessible Public Transport 2002 and the National Disability Insurance Scheme
  • working on a project under the auspices of the National Forum on Emergency Warnings to the Community to develop guidelines that address the communication needs of people with disability during emergencies. The guidelines will be finalised and published in September 2012 following completion of a two-stage consultation process with a key stakeholder group consisting of representatives from disability advocacy organisations. The guidelines will support the National Disaster Resilience Strategy and National Disability Strategy principles whilst building partnerships between the emergency management community and people with disabilities.

Indigenous-specific programs and services

Indigenous Legal Assistance and Policy Reform Program

The Indigenous Legal Assistance and Policy Reform Program funds Aboriginal and Torres Strait Islander legal services to provide high quality, culturally sensitive legal assistance services, including duty lawyers, advice, case work and representation in criminal, civil and family law matters. The majority (88 per cent) of service outlets are located in regional, rural and remote locations. Outreach service models are employed to ensure legal assistance services are available at court circuits and bush courts.

Funding is also provided to the Aboriginal and Torres Strait Islander legal services to undertake law reform and advocacy activities that identify and aim to lessen the adverse or disproportionate impact of laws, policies and practices that have the effect of discriminating against Indigenous Australians. The Aboriginal and Torres Strait Islander legal services also deliver a range of community legal education activities such as information sessions, advice brochures and outreach visits to remote communities, to advance and protect the rights of Indigenous people under Australian law.

The Indigenous Law Centre at the University of New South Wales is funded to produce the Indigenous Law Bulletin and the Australian Indigenous Law Review. These publications are designed to advance the legal rights of Indigenous Australians through public policy and law reform and community education.

Funding is available for Indigenous test cases that meet relevant eligibility criteria. The aim of test case funding is to benefit Indigenous Australians through the review and resolution of ambiguities in law that may be discriminatory and that have not previously been tested before a court.

The Australian Government also funds relevant national projects and conferences relating to Indigenous justice. The National Aboriginal and Torres Strait Islander Legal Services Forum is funded to conduct quarterly national meetings and undertake advocacy and law reform work.

Indigenous Justice Program

The department provides funding through the Indigenous Justice Program to help respond to the disproportionately high rates of Indigenous offending and incarceration. Funding is provided across four key areas: prisoner through care, youth prevention and diversion, restorative justice, and community patrols. In 2011-12, the department funded forty-five projects, including twelve Petrol Sniffing Strategy projects.

Prisoner Through Care projects provide rehabilitation services to incarcerated Indigenous youth and adults and positive pathways on release to support successful reintegration in the community. Youth prevention and diversion projects seek to reduce the number of at risk Indigenous youth coming into adverse contact with the criminal justice system. Restorative justice projects funded under the Program provide cross-cultural mediation and conferencing to prevent escalation of disputes and foster healthy dispute resolution behaviour in local communities. This helps to reduce adverse contact with the criminal justice system. Community patrols assist vulnerable Indigenous Australians, including intoxicated people and the homeless.

Petrol Sniffing Strategy

The department continued its involvement in the Australian Government's Petrol Sniffing Strategy to address the negative effects of substance misuse and petrol sniffing in Indigenous communities. This cross-agency approach includes demand reduction activities in the areas of education, justice and community support, and supply reduction activities such as the rollout of low aromatic fuel. The department's role is to fund activities for youth under the Indigenous Justice Program. Projects are in designated regions of Central Australia (Western Australia, South Australia and the Northern Territory), the East Kimberley in Western Australia, and Mornington Island and Doomadgee in Queensland. The department funded 12 projects in 2011-12.

Community night patrol services in the Northern Territory

The department funds community night patrol services across eighty communities in the Northern Territory. The services focus on increasing both personal and community safety and reducing the number of people being processed through the criminal justice system. The services assist people who are at risk of either causing or becoming the victims of harm in order to break the cycle of violence and crime in communities. The approach is to minimise harm by providing non-coercive intervention strategies to prevent antisocial and destructive behaviour.

Northern Territory Aboriginal Interpreter Service

In 2011-12, the Northern Territory Aboriginal Interpreter Service received total funding of $1.9 million, including $1.3 million under the ongoing appropriation and $0.6 million under the Closing the Gap in the Northern Territory initiative. Closing the Gap funding supports the service to meet the increased demand associated with the Northern Territory Emergency Response and, in particular, matters relating to law and justice measures. It also contributes to training and professional development for Aboriginal language interpreters.

Native title

The Commonwealth's vision for native title is for faster, better outcomes with a focus on economic development for Indigenous communities. It is recognised that native title agreements are a valuable opportunity to establish and continue productive relationships between Indigenous people, government and industry. The native title system can make a significant contribution, whether through a determination of native title or through benefits paid under a native title agreement, in ensuring sustainable intergenerational benefits for Indigenous communities. The department is supportive of the Indigenous Economic Development Strategy as a positive contribution by government to improve economic and social outcomes for Indigenous Australians. Resolution of native title issues enhances spiritual well-being and cultural identity, provides recognition of people's ongoing connection to land and facilitates reconciliation with the wider community.

Other social justice issues

The department has been working on a data standardisation project across all four Commonwealth-funded legal assistance programs. It has been working closely with representatives from all four programs. The work of the data standardisation group is integral to the evaluation framework being developed under the review of the legal assistance programs and will help build an evidence base in the sector.

In support of the National Partnership Agreement on Homelessness, the department funds a range of legal assistance services, which target the precursors of homelessness and provide early intervention and prevention support for problems that trigger homelessness, including domestic and family violence, mental illness, tenancy, credit and debt problems, and family breakdown.

The Community Legal Services Program funding includes $2.24 million over four years specifically to enhance access to legal assistance for people at risk of, or experiencing, homelessness.

Social and community services sector wage increases

On 22 June 2012, Fair Work Australia issued an Equal Remuneration Order that grants increases to the minimum wage rates of workers in the social and community services (SACS) sector. There are 150,000 workers in this sector who will benefit from increases of between 23 per cent and 45 per cent that will be phased in over nine years. Significantly, around 120,000 of these workers are women and the increases represent an advance for equal pay for women.

The Australian Government has committed around $3 billion to pay its share of the increases for eligible SACS employers delivering Commonwealth-funded programs and for eligible SACS employers it funds through Commonwealth-state agreements. This recognises the valuable contribution that the workers in this sector make in areas often described as 'caring' jobs, including working with Indigenous youth in remote communities, providing community legal services, counselling families in crisis, and working with victims of family violence.

The department's programs in scope for SACS funding are the Community Legal Services Program, Family Relationships Services Program, Family Violence Prevention Legal Services Program, Indigenous Justice Program, and Indigenous Legal Aid and Policy Reform Program. The date for affected employers to pay the first minimum wage increase is 1 December 2012 and annually thereafter for eight years until 1 December 2020. The Government is working to develop mechanisms to provide funding supplementation to employers that will enable them to meet their obligations by these dates.

The Australian Government has also committed to fund SACS back-pay to eligible employers in Queensland for obligations arising from the Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulation 2012 (No. 1). This Regulation requires certain employers in Queensland to back pay SACS workers for the period 27 March 2011 to 29 February 2012 in recognition of higher minimum wage rates awarded by the Queensland Industrial Relations Commission.


 

Our people

Judicial complaints legislation

balancing respect for judicial independence with community expectations about judicial accountability

A significant milestone in development of reforms to federal judicial complaints handling was achieved in 2011-12. The department developed legislation to implement a key priority of the Attorney-General - to provide a clear, accountable and effective system for handing complaints about federal judicial officers. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill and its companion, the Courts Legislation Amendment (Judicial Complaints) Bill, were introduced into Parliament on 14 March 2012.

An effective system of judicial complaints handling is important for public confidence in the administration of justice in our courts and in the role of the judiciary.

The Judicial Complaints Bill supports a largely non-statutory complaints framework within the courts where the Chief Justices of the Federal Court and Family Court and the Chief Federal Magistrate manage complaints about judicial conduct that are referred to them. The Parliamentary Commissions Bill provides a standard mechanism for investigating an allegation about judicial conduct where Parliament is called upon to consider removal of a judge from office under the Constitution.

'Development of the legislation was a great challenge as it raised complex issues involving judicial independence, parliamentary process and practical administrative and governance arrangements', said Loren Cousins, a Senior Legal Officer in the department's Federal Courts Branch.

'Because the legislation has implications for the Commonwealth Legislature, Judiciary and Executive, we consulted broadly with the federal courts, parliamentary officers and across government, which was an interesting experience', Loren said.

Judicial complaints handling is an area of strong interest for stakeholders and the general public. Thomas Browne, a Legal Officer in the Branch, has been involved in the department's contribution to two Parliamentary committee inquiries into the legislation after the Bills were introduced.

'The diversity of perspectives arising from submissions to the inquiries highlighted for me the importance of appropriately balancing respect for judicial independence with community expectations about judicial accountability, which I am proud to think this legislation will promote', Tom said.

The department is continuing to work closely with the courts to implement the reforms.