By and -

The Referendum has come and gone, and in its wake, a burning question remains for many lawyers across Australia – what now? And what can the legal sector do to support First Nations people on the road to justice? By engaging in truth-telling and elevating First Nations voices, lawyers can be the change our children need to see, Legal Aid NSW’s Melissa Burgess and Dara Read write.

After the referendum, Melissa’s 10-year-old son, a proud Buluwai boy, asked her: “Why don’t they like us mum?” An innocent enquiry with a hard, jarring answer. ‘They’ are mostly unknown to us but could be anyone and are everywhere. ‘They’ made a 10-year-old First Nations child feel unaccepted.  

While ‘they’ leave the referendum behind, unaware of the magnitude of the two letters on their ballot paper, we must all grapple with the consequences and the question ‘what next?’ That must include the legal profession.  

The failure of the referendum clearly impacted how First Nations Peoples have a voice, but not whether we have a voice. As this continent’s oldest story tellers, language holders and truth tellers we have had a voice for over 60,000 years. We will always have a voice. We will continue to use it.  

Now, though, Australia needs to consider alternative mechanisms to listen, and to hear. This is not someone else’s business; this is everybody’s business. All of us in the profession from paralegals to the NSW Attorney General and every lawyer in between, can use their voices to elevate those of First Nations Peoples in NSW.  

Even in the absence of big constitutional reform to enshrine an Aboriginal and Torres Strait Islander Voice, opportunities abound to make space for and listen to the voices of First Nations Peoples in NSW. 

We are not naïve about the barriers. The legal system remains a fundamentally colonial system. Meaningful reform requires us to be open to an alternative post-colonial reality. As Megan Davis wrote in her Quarterly Essay, Voice of Reason – On Recognition and Renewal 

“Reform is only ever about imagination. We Aboriginal people must suspend our belief that the system cannot change. We must suspend our belief that the nation cannot change. Despite all that has happened to our people, we must dream of a better day.”

As challenging as it is to continue to believe in true reform after the result, the alternative is unfathomable.

There is one clear task that the NSW Government, and by extension, legal firms and agencies, courts and tribunals in NSW, has already agreed to actively contribute to – Closing the Gap. The urgency of Closing the Gap remains. Its call to action depends not only on our ability to navigate the highly complex terrain of cross-cultural collaboration and systems change, but to enliven individual action.  

The first decade of Closing the Gap largely failed and we’re three and a half years into the Closing the Gap Partnership Agreement between Australian governments and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (the Agreement). The Productivity Commission’s 2023 draft report on the Agreement found progress on the priority reforms had been weak and business-as-usual:  

“Current implementation raises questions about whether governments have fully grasped the scale of change required to their systems, operations and ways of working to deliver the unprecedented shift they have committed to.”

This transformation requires government organisations, including legal institutions and agencies, to listen to and understand Aboriginal worldviews and the lived experience of First Nations peoples and communities, staff and clients. Services and systems must ‘work for and with’ Aboriginal and Torres Strait Islander Peoples.  

In 2019, Pat Turner, CEO of the National Aboriginal Community Controlled Health Organisation reflected on this by saying: 

“We cannot continue to approach Closing the Gap in the same old ways. The top-down approach has reaped disappointing results as evidenced by the lack of progress of previous strategies to reach their targets. We must not lose sight of the most crucial point of Closing the Gap, which is to improve the everyday lives of our people.” 

What lawyers can do

Lawyers across NSW have a critical role in hearing First Nations’ voices. At a grassroots level, lawyers can actively engage with the local Aboriginal and Torres Strait Islander communities in which they work or live. Attend and participate in cultural events and community activities; learn the history and culture of First Nations Peoples; attend cultural competency training – or organise it if it isn’t already provided in your organisation or law firm; seek out First Nations perspectives on internal policies; advocate for the voice and rights of First Nations Peoples in your local communities.  

For small or mid-tier law firms, this active engagement might involve collaborating with Aboriginal Community Controlled Organisations, providing pro-bono advice if they need it, or volunteering for organisations that work directly with First Nations People.  

Large firms could develop a First Nations Employment Strategy that prioritises the employment, retention and professional development of Aboriginal and Torres Strait Islander people, across all positions and levels, establishing a career pathway program, offering internships, Professional Legal Education placements and mentorship to support First Nations law students and young lawyers. They might establish a staff network to support First Nations staff.  

Lawyers representing Aboriginal clients can be sure to know the best practice standards for representing Aboriginal clients and have the cultural competency required. They can do their utmost to make time to meaningfully conference with their clients to allow them to share the fullness of their story with their representative. They can learn about the impacts of experiences of disadvantage and strengths-based rehabilitation by utilising the Bugmy Bar Book and related resources.  

Some among us may even have an opportunity to support First Nations People to give evidence and prepare written submissions as part of truth-telling processes and assisting with the preparation of written submissions in the not-too-distant future. 

For those on the bench, it could involve getting to know your local community and its history and utilising your discretion to make space for new approaches to justice in the courtrooms in which you preside. 

We need to empower and amplify First Nations voices from the ground up and this includes making space, and time, for the lived experience and voice of Aboriginal people in court as well. 

What the state government can do

The Attorney General and the Premier can ensure their doors are open to proposals from Aboriginal leaders and community representatives about how the governance and lawmaking of NSW can incorporate a First Nations Voice.  

Along with the Minister for Aboriginal Affairs, they can consider, in close conversation with First Nations leaders and their federal counterparts how truth-telling processes can be established and supported in NSW and seek advice on treaty processes.  

In turn, government solicitors can engage with Aboriginal academics, lawyers, public policy specialists and communities to present rigorous and compelling legal research and policy advice about how these processes can be established and facilitated.  

And we the voters can signal support for courageous leadership around truth-telling and treaty.  

In the meantime, non-Indigenous people need to be able to critically reflect on and analyse internal organisational systems and processes and be open to finding that ‘tried and true’ ways of doing things may very well be inherently culturally biased or even discriminatory. Like child protection risk assessment processes that can incorporate cultural biases and contribute to an overrepresentation of Aboriginal children being removed. Or recruitment processes that don’t place sufficient weight on cultural knowledge or ‘miss’ opportunities for an Aboriginal employee to advance their career.  

This reflection and analysis is particularly important for government agencies with responsibility for shaping public policy and delivering government services in NSW. Closing the Gap Priority Reform three, Transforming government organisations, is crucial to unlocking the labyrinth of Aboriginal overrepresentation in the justice and child protection systems. As a signatory to the Closing the Gap Agreement, the NSW Government, including government agencies and institutions in the justice sector, has a positive onus to collectively and collaboratively accelerate effort and action to close the gap. 

The Legal Aid NSW experience

Arguably, independent statutory agencies such as Legal Aid NSW have an advantage. They can be nimble and, with appropriate resourcing, can expand existing services and implement new services more swiftly than larger bureaucracies.  

Our clients’ lived experiences guide us every day – through their instructions as legal representatives, but also through our engagement and partnership with Aboriginal and Torres Strait Islander communities and community organisations. 

Through initiatives like the Civil Law Service for Aboriginal Communities, the Family Law Service for Aboriginal Communities, and supporting the Youth Koori Court and the Walama List Pilot Program in the District Court, we see the tangible impact of cultural sensitivity and a deep commitment to empowering First Nations people and communities.  

Each of these initiatives place a significant amount of emphasis on shared decision-making between Aboriginal community members and Western organisations – a factor relevant to the underlying principles of Closing the Gap. While Aboriginal people do not necessarily have final veto power at the conclusion of these services, their perspectives still employ an element of influence – much like the functions of how the Voice would have operated. 

Front-line services

Specialist frontline services are where government Closing the Gap reform is translated into action. At Legal Aid NSW for example, our frontline services are where grandmothers can get help to keep their grandchildren with them on Country instead of in out-of-home care; where a young person can challenge a school suspension and disrupt the school to prison pipeline; where psychological reports can be obtained, social support wrapped around First Nations clients, and plans implemented for a young person to serve a community-based sentence and stay out of detention; where defendants connect with Elders and culture and a First Nations voice heard in sentencing proceedings to increase engagement and reduce recidivism; where social housing evictions can be stopped to prevent homelessness; where reparations for a First Nations person experience as a member of the Stolen Generations can alleviate financial disadvantage.  

These and other front-line services and programs help deliver justice in our NSW community and make concrete contributions to close the gap.  

The future is coming

The referendum result is rooted in some hard truths we wish our kids never had to know. But when we hear them and their entire school belt out the lyrics ‘We are one, but we are many’ in traditional Aboriginal language at their annual school concert, or see them participate in a daily Acknowledgment of Country at their school assembly, witness their non-Indigenous friends ask about Aboriginal culture with genuine interest, see them on Country learning and absorbing its richness, and hear them staunchly and fearlessly call out racism when they see and hear it, it is not so difficult to dream of a better day.  

Until that day comes though, we will tell our kids about the ‘they’ who are willing to listen and learn through truth-telling and the ‘they’ who are doing something to bring about the systems and societal change we need to see. And we will imagine our children having very different conversations with their children not too many years from now.  

Disclaimer: The views expressed in this article reflect those of the authors and not of Legal Aid NSW. 

About the authors 

Melissa Burgess is a proud Buluwai woman raised on Dharug Country. Melissa has worked in the criminal justice system for over 17 years including as a criminal solicitor at both the Aboriginal Legal Service (NSW/ ACT) and Legal Aid NSW. Melissa is the Acting Executive Director of the Criminal Law Division of Legal Aid NSW.  

Dara Read is a Senior Lawyer who has worked at the North Australian Aboriginal Justice Agency, NT Legal Aid and Legal Aid NSW including as a Solicitor in Charge of the Civil Law Service for Aboriginal Communities. She has also worked for the Commonwealth and NSW Governments in legal policy and project management and as a Senior Adviser to a former Attorney General.  

Note from the authors 

We appreciate and recognise that First Nations people have varied perspectives on the referendum. 

We use the terms ‘First Nations’ and ‘Aboriginal and Torres Strait Islander Peoples’ interchangeably in this article, they refer explicitly to the Indigenous Peoples of Australia. We use the term ‘Peoples’ to signify that Aboriginal and Torres Strait Islander Peoples are not one people or Nation, but a collective of peoples and Nations.