Chapter 3Causes of and factors driving violence
…violence against Aboriginal and Torres Strait Islander women is not a part of traditional culture. When violence occurred prior to colonisation, it was regulated and controlled, and bore no resemblance to the kinds of violence and abuse seen today. Many aspects of traditional culture and customary law were respectful and protective of women. As custodians of some of the longest surviving cultures in the world, Aboriginal and Torres Strait Islander people successfully managed interpersonal, family and community relationships for over 60,000 years prior to colonisation.
3.1Our Watch submitted that there are three sets of factors driving violence against First Nations women: the ongoing impacts of colonisation for Aboriginal and Torres Strait Islander people, families and communities; the ongoing impacts of colonisation for non-Indigenous people and society; and gendered factors — both general, and specific to the intersection of racism and sexism and the impacts of ‘colonial patriarchy’.
3.2Our Watch advised that ‘none of these factors operates in isolation’ and ‘there is no one cause of this violence’. Instead, ‘it is the combination, or intersection of these various factors that drives such high rates of violence against First Nations women’.
3.3The committee acknowledges that there are multiple factors driving the violence against First Nations women and children. This chapter focuses on the ongoing impacts of colonisation for First Nations people, families and communities, before moving to examine institutional responses.
Ongoing impacts of colonisation
3.4Professor Tom Calma AO, the former Aboriginal and Torres Strait Islander Social Justice Commissioner, has identified colonisation and related violence perpetuated by intergenerational trauma and the undermining of traditional gender structures as the root cause of domestic, family and sexual violence (DFSV).
3.5Multiple submitters and witnesses shared this view. They argued that colonisation and its ongoing effects are critical drivers of violence against First Nations women and children.
3.6The North Australian Aboriginal Family Legal Service (NAAFLS) submitted:
Aboriginal and Torres Strait Islander people had been thriving in this country for over 60,000 years before the arrival of European colonial settlers who perpetrated heinous crimes against Aboriginal peoples, cultures and lands. This truth must be acknowledged before meaningful conversation on the crisis of DFSV and missing and murdered Aboriginal women in this country can take place.
…
Settler interference in Aboriginal communities continues to result in the dispossession of land and culture, breakdown of families, rising poverty, structural racism and continued disempowerment. The policies, laws, processes and structures of the settler state that are imposed as ‘solutions’ has only worked to further embed disadvantage. Aboriginal family structures continue to be eroded by the state removal of children and over‑policing of communities. Aboriginal people are inadequately housed, impoverished, unemployed, face poor health outcomes and die in custody. These are all interrelated drivers of violence and are directly linked to settler interference.
3.7Similarly, the Aboriginal Legal Service (NSW/ACT) commented:
The killings and disappearances of Aboriginal and Torres Strait Islander women and children should be considered through the lens of settler colonialism. In Australia, settler colonialism is an ongoing and active occurrence. It began at colonisation when the State first sanctioned violence against Aboriginal men, women and children. It has perpetuated through hundreds of years of racist policies, laws and practices. It continues today in a system that prioritises the lives of non-Aboriginal people over the lives of its First Nations people.
3.8The Law Reform and Social Justice Research Hub at the Australian National University argued that historical trauma—which has morphed into intergenerational trauma—is the most common cause of violence against First Nations women:
The legacy of trauma from experiences sustained as children removed during the Stolen Generation, as the children of parents who were removed and the reality of the destitution caused by colonising policies not only increased First Nations men’s likelihood to resort to violence but also reduced women’s abilities to prevent it. The trauma and oppression that have resulted from colonialism have been transmitted forward, across generations.
Forced removal of children
3.9Submitters and witnesses commented on the forced removal of children from their families and communities, both as an historical and contemporary practice. The Victorian Aboriginal Child Care Agency submitted, for example:
The act of removing Aboriginal children began immediately after invasion, with missionaries, colonial agents, and squatters taking children into their homes who they had deemed to be orphans. This practice would become official colonial policy in 1869 when the Victorian colonial parliament passed the Aborigines Protection Act which officially established the Aborigines Protection Board. From that point on First Nations peoples began to 'live under the act' where their lives were controlled, and any form of self-determination or cultural agency was denied. Parents who attempted to stop their children from being removed were threatened with expulsion from the mission or denial of rations…[W]e are not only talking about the historical period, this in an ongoing and far-reaching process of colonisation, systemic racism and genocide.
3.10Change the Record and Djirra referenced the 1997 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children report (Bringing them home), which concluded:
The Australian practice of Indigenous child removal involved both systematic racial discrimination and genocide as defined by international law. Yet it continued to be practised as official policy long after being clearly prohibited by treaties to which Australia had voluntarily subscribed.
3.11Adjunct Professor Muriel Bamblett AO also commented on the Bringing them home report, which made 54 recommendations to support healing and reconciliation for the Stolen Generations, their families and the Australian community:
Many [of these recommendations] have not been taken up or implemented by either the Commonwealth or jurisdictions. Even Mick Dodson, when he put that report out 25 years ago, said that, if we don't do something, thenumbers of children will dramatically increase. Sadly, at that time, 25years ago, there were 379 children. Today there are 2,000 in Victoria, sothese numbers are increasing.
3.12The Women’s Legal Service NSW referred to the disproportionate number of First Nations children who are currently placed in out-of-home care in NSW:
FirstNations children in NSW are eight times more likely to be removed from their families and enter care by the age of five years compared with non‑Aboriginal children and young people.
3.13According to the NAAFLS, the Northern Territory rate of removal is 12.2 times higher for First Nations children than it is for non-Indigenous children, and there are three jurisdictions with even higher rates:
Indigenous children in the Northern Territory are 12.2 times more likely to be removed from their families by child protective services than non‑Indigenous children, the fourth highest rate across all states and territories, and higher than the national average of 9.7 times. Despite out‑of‑home care and protection laws mandating that efforts are made to place Aboriginal children with family and/or kin, the Northern Territory has the nation’s lowest placement of Aboriginal children with kin (36.9% versus 63.9% nationally). This points towards increasing systemic bias against placing Aboriginal children with their Aboriginal kin.
3.14Australian Lawyers for Human Rights similarly observed that the over‑representation of First Nations children in child protection and out-of-home care systems, compared to non-Indigenous children, is partially due to systemic racism:
This is, in part, because systemic racism proliferates all facets of Australia’s child protection systems; from the care workers who initially remove the children, to the police and teachers who make the first call to child protection to notify of alleged abuse or neglect. Like the criminal justice system, systemic racism abounds in ‘care’ and ‘protection’ systems where the State assumes the role of the parent. This reflects a form of racism that privileges white, Western ways of parenting and disregards Aboriginal and Torres Strait Islander child rearing norms.
Safe housing and safe havens
3.15Several submitters and witnesses highlighted one particular risk factor: there are few, if any, safe alternatives for First Nations women who want to leave an abusive relationship, including government and non-government supports, particularly in remote Aboriginal communities.
3.16Ms Andrea Kyle-Sailor, Community Development Worker and Cultural Adviser with the First Nations Women’s Legal Service Queensland (FNWLSQ), noted that housing, one factor that drives violence against First Nations women and children, is a critical issue:
The housing crisis is everywhere, including Palm Island…We have on average 15 people per house. We have 4,000 people and 350 homes. Ofcourse there's going to be somebody in the household that drinks. A lot of our domestic violence is attributable to alcohol and drugs.
3.17Ms Kyle-Sailor gave evidence that domestic violence (DV) orders usually require a respondent to find accommodation separate to the family home. However, ‘we don’t have a men’s shed or men’s accommodation on Palm, sothey’ve got to go live with family’ or return home in breach of the order.
3.18Mr Lachlan Withnall, Principal Solicitor, East Kimberley, with the Kimberley Community Legal Services, said:
…when there is an incident of violence and there is a police response, wefind on many occasions that it's the mother and the children, rather than the perpetrator, who are required to leave the home...[W]hat we've envisioned is that there may be an appropriate facility available in the various regions which would allow the male perpetrator to go and cool down, as it were, so that the mother and the children might remain in the home. At present, there are no men's [family and domestic violence, FDV] related residential facilities operating in the Kimberley.
3.19Other witnesses made strong submissions that First Nations women and children need greater access to safe havens. Ms Rachael Hill, Senior Partnership and Advocacy Officer from the NAAFLS, said, for example:
NAAFLS services 49 communities, excluding homelands and outstations, but only 19 have safe houses and only three are Aboriginal controlled organisations. These are chronically underfunded, understaffed and undervalued. Yet, when properly funded, they were a source of employment, a symbol of women's rights and a source of community pride—such as the Galiwin'ku Women's Space…[S]afe houses, men's programs, dispute resolutions and interpreter services [are] integral to addressing violence against women in remote Aboriginal communities.
3.20With specific reference to Katherine, Ms Hill added:
…they have one safe house there that services everyone that comes in from those communities, and that's not enough. Some of these safe houses won't have young boys over the age of 10. Somums are expected to leave community because of that violence but leave that child with that perpetrator in the community. Then Territory Families would see that as putting that child in danger.
3.21Information provided to the inquiry referred also to the position of First Nations women released from prison without safe housing options and other support services. Australia’s National Research Organisation for Women’s Safety (ANROWS) noted that many of these women return to unsafe housing, which places them and their children at risk, and perpetuates the cycle of violence.
3.22Ms Dixie Link-Gordon, Program Coordinator at the NSW Aboriginal Women’s Advisory Network, similarly advised that there is ‘very limited support’ for First Nations women in prison and following their custodial release. Sheoutlined the two services available in Sydney:
…these women may not necessarily have been engaged in some sort of healing [while incarcerated]…We have two very small services that do that for women in metropolitan Sydney. They try to do some stuff at Nelly's place and Women's Justice Network. They are very small, very under‑funded organisations that try to provide that post release stuff for women coming out of custody…We just don't have it.
3.23In Central Australia, Mrs Rachel Neary, Coordinator of the Kunga Stopping Violence Program (Kunga) at the North Australian Aboriginal Justice Agency (NAAJA), highlighted the Kunga program, a voluntary through-care program at the Alice Springs Correctional Centre:
The [20-day therapeutic] program covers themes of grief, loss, trauma, pain and anger, and, when women complete the program, they have access to ongoing case management support for up to two years post release.
Government responses
3.24The National Partnership Agreement on Remote Indigenous Housing (2008–2018) funded states and the Northern Territory to provide housing for Indigenous people in remote communities, to address overcrowding, homelessness, poor housing conditions and severe housing shortages in remote Indigenous communities.
3.25From 2018, the Commonwealth government continued to fund new housing in the NT only, under the National Partnership for Remote Housing NT (2018–2023). Over five years, the government provided $550 million, with a one-year extension of $111.7 million in 2023–24 (Remote Housing Agreement).
3.26In the Federal Budget 2024–2025, the Commonwealth government committed $839.4 million over five years from 2023–24 (and $2.1 billion over ten years from 2024–25) to accelerate housing delivery in remote Northern Territory communities and increase investment in homelands. The NT Government has committed to match the Commonwealth’s remote housing investment, bringing the total investment to $4.0 billion.
3.27Specifically in relation to safe havens, Ms Seranie Gamble, Executive Director of the Domestic, Family and Sexual Violence Reduction Division at the Department of Territory Families, Housing and Communities (NT), advised that there are no additional commitments from the NT Government. The territory government is, however, working to transition existing safe houses to Aboriginal community control: ‘there's active work being done to look at how we can provide those services more effectively in remote communities’.
Harmful institutions and structures
3.28The Australian Human Rights Commission (AHRC) submitted:
The disproportionate level of violence faced by First Nations women and girls is not a result of a deficit located within First Nations cultures in Australia and around the world. Rather, it is the result of systemic exclusion, inequalities [and] intersecting discriminations including racism and sexism.
3.29The AHRC identified harmful institutions and structures as ‘structural forces’ that help to create intersectional discrimination. In the context of this inquiry, submitters and witnesses particularly commented on the harm caused by police forces, and prosecutorial and coronial processes.
3.30The AHRC submitted, for example, that policing and justice systems throughout Australia have engaged in discriminatory treatment of First Nations women and children. It argued that this treatment has manifested as a range of acts and omissions that undermine the equal enjoyment of human rights:
Within this, there are clear and documented instances where discrimination has taken the form of substandard investigations into missing and murdered First Nations women and children.
3.31The National Justice Project (NJP), a not-for-profit human rights legal service that works to eradicate institutional discrimination, concurred:
Systemic prejudice, bias and racism against First Nations peoples in the justice system is rife. The failures to properly investigate the deaths or disappearances of First Nations women and children are a very clear and direct denial of justice for communities and families. These failures leave loved ones without closure.The justice system, including the police and the criminal and coronial jurisdictions, has a responsibility to protect First Nations women and children, to investigate violence and harm, to hold perpetrators accountable, and to identify preventative actions. The realisation of justice is critical in order to honour and commemorate lives lost to violence. Without justice, closure is not realised and commemoration is fraught.
3.32Later sections of this chapter outline the experience of three families (two in New South Wales and one in Western Australia). The cases are heart-breaking. The committee acknowledges that there are, tragically, many more families whose loved ones have been murdered or disappeared, and intends no disrespect by focusing on these few families.
WARNING: Please be aware that the following sections of this chapter contain the names of deceased people and content that is confronting and may be distressing to some readers.
Police forces
3.33In 1991, the Royal Commission into Aboriginal Deaths in Custody reported that, historically, relations between First Nations and non-Indigenous Australians have been influenced by racism:
What Aboriginal people have largely experienced is policies nakedly racially-based and in their everyday lives the constant irritation of racist attitudes. Aboriginal people were never treated as equals and certainly relations between the two groups were conducted on the basis of inequality and control.
But there was one aspect of the relations between Aboriginal people and non-Aboriginal people which was very important for all the others and where the relationship was at its worst; that is, the relations between Aboriginal people and the police forces of the dominant society.
Police officers naturally shared all the characteristics of the society from which they were recruited, including the idea of racial superiority in relation to Aboriginal people and the idea of white superiority in general; and being members of a highly disciplined centralist organisation their ideas may have been more fixed than most; but above and beyond that was the fact that police executed on the ground the policies of government and this brought them into continuous and hostile conflict with Aboriginal people. Thepoliceman was the right-hand man of the authorities, the enforcer of the policies of control and supervision, often the taker of the children, therounder up of those accused of violating the rights of the settlers. Muchpolice work was done on the fringes of non-Aboriginal settlement where the traditions of violence and rough practices were strongest.
3.34The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that ‘it should not be supposed that issues of racism within police forces are a thing of the past’. Further:
Given the long and difficult history between the First Nations people and the executive arm of government, it is perhaps not surprising that ongoing issues of racism, both overt and subliminal, continue to impede a constructive, co-operative, and compassionate relationship. This ongoing distrust has a deleterious effect upon both the reporting and response to First Nations issues relating to missing and murdered women and children.
Western Australia: lived experience
3.35The NJP, with permission, shared the experience of the Mullaley family, whose beloved son and grandson was murdered in Western Australia:
On 19 March 2013, [mum] Tamica was attacked by her then partner, Mervyn Bell (‘Bell’), on her way home from an event, following an argument with Bell. Bell stripped Tamica of her clothes and left her bashed and bleeding by the side of a road in Broome, Western Australia. A witness at the scene provided a fitted sheet to Tamica for cover and called police to report the domestic violence incident.
When police arrived at the scene, they treated Tamica as a problem rather than a victim. This treatment continued when her father, Ted Mullaley arrived to assist her. Instead of providing medical care and considering Tamica’s welfare, police continued to escalate the situation, which resulted in a physical altercation, with the police arresting both Ted and Tamica at the scene.
Baby Charlie was present when the police arrived and as the police confrontation escalated Baby Charlie was handed to witnesses. At no point during the incident did police attempt to ensure the welfare of Baby Charlie, despite arresting his mother and legal guardian and taking her away. Baby Charlie was simply left at the scene.
Following her arrest, Tamica was taken to hospital to treat her extensive injuries, a lacerated kidney and ruptured spleen, which was the result of the assault by Bell. Ted accompanied Tamica as a support person to ensure that she was taken to hospital and properly treated.
While Tamica and Ted were at the hospital, Bell returned to the scene and abducted Baby Charlie. When Ted found out, he went straight to police to report the abduction, but the police refused to take his reports seriously and threatened him with retribution if he made more reports. It took nine hours for WA Police to initiate a search for Baby Charlie. By that time, Bell had taken Baby Charlie hundreds of kilometres away and had tortured him.
Fourteen hours after the abduction, Bell brought Baby Charlie’s body into a Karratha roadhouse and he was pronounced dead shortly after. Bell was found guilty of Baby Charlie’s murder and convicted in 2014.
In the year after Baby Charlie was murdered, WA Police persisted with the charges against Ted and Tamica. Tamica was found guilty of assaulting a police officer and Ted was found guilty of obstruction for the events that occurred on 19 March 2013. In 2022, following years of advocacy, the WA Attorney-General pardoned these charges in a public apology that acknowledged WA Police and Government failures and mistreatment of the Mullaley Family.
The events of 19-20 March 2013 and the subsequent investigations into those events, reveal the multiple ways in which the Mullaley Family [was] subject to interpersonal, institutional, and structural racism at the hands of the WA justice system.
3.36Disappointingly, the WA Police Force declined to speak to the inquiry in Perth, depriving itself of the opportunity to respond to these issues and other matters raised throughout the inquiry.
3.37In subsequent media, the WA Police Minister, the Hon Paul Papalia MLA, stated:
“I don’t believe the inquiry is actually making much of a contribution. They’re looking at something that happened 10 years ago…The Western Australian Police Force has completely changed its approach (since then)”.
3.38Unfortunately, the failure of the WA Police Force to engage with the inquiry deprived the committee of a meaningful opportunity to assess what reforms have been implemented by the WA Police Force.
3.39The lack of engagement with the inquiry by the WA Police Force sharply contrasted with the assistance provided to the committee in New South Wales, Queensland and the Northern Territory. In good faith and with all due respect, the committee hopes that this is a cause for reflection on the part of the WA Police Minister. If the issues considered by the committee in this inquiry are to be addressed, it requires the cooperation and commitment of all levels of government working together – a commitment to learn from the experiences of others and to implement reforms for the common good.
New South Wales: lived experience
3.40In New South Wales, the Jumbunna Institute for Indigenous Education and Research (Jumbunna) represents the families of three children murdered by a serial killer at Bowraville over a six-month period (September 1990 – February 1991) (the Bowraville murders):
We have seen firsthand the pain and trauma felt by the families and communities in relation to the way in which these murders have been investigated…[R]acist stereotypes held by investigating police officers in the initial investigation (Original Investigation) (including Aboriginal people as inherently criminal, as deficient parents, as, in short, inferior to non‑Indigenous people) poisoned the efficacy of the Original Investigation in 1990 and 1991…[T]he racism and associated deficiencies of the Original Investigation have plagued every subsequent attempt by police and the families to achieve justice in this case.
3.41The Bowraville murders have been the subject of multiple judicial proceedings, coronial inquiries, criminal trials and media coverage, as well as two separate NSW parliamentary inquiries, including the NSW Legislative Council Standing Committee on Law and Justice inquiry into the family response to the murders in Bowraville. According to Jumbunna, the report of that committee:
…demonstrates exactly how implicit bias within a state institution can destroy prospects of justice and continue to traumatise generations. In this case, the direct consequence of the racism at the heart of the Original Investigation has been that the sole suspect (the suspect), whom police believe committed the murders, has never been criminally tried for all three crimes before a jury presented with the evidence that was available at the time of the murders. A senior criminal barrister has stated that there is a reasonable prospect that a properly instructed jury would convict the suspect on that body of evidence. This has led to a community perception that a serial killer of three children has walked free.
3.42Jumbunna especially noted section 100 of the Crimes (Appeal and Review) Act 2001 (NSW), which allows the NSW Court of Criminal Appeal to order the retrial of a person acquitted for a life sentence offence in certain circumstances. Jumbunna submitted that the failure to define a key legislative term has frustrated justice:
…the suspected serial killer of children obtained a permanent statutory protection against being retried. It is unthinkable that a case involving the multiple murder of white children in the eastern suburbs of Sydney would have been selected with such attenuated risks. The meaning of ‘adduced’ would have been resolved in advance. For the families and community it is deeply frustrating that a law which was supposedly amended to change the legal status of the Bowraville cases, has now been interpreted in a manner which forecloses their capacity to finally achieve justice.
3.43Professor Larissa Behrendt AO, Professor of Law and Director of Research at Jumbunna, emphasised the contradiction between First Nations peoples’ protection and over-representation in the criminal justice system:
The experience of the Bowraville families is an important and potent case study in how Aboriginal and Torres Strait Islander people, when they are victims of crime, are not supported by the same system that is so quick to lock them up…[T]his has been a case where the families and the victims have been ill served by both the police and the court system; but also their experiences in trying to get some changes of legislation and other approaches that they've made would argue that in many instances they've also been let down by the political process as well.
3.44Multiple submitters and witnesses highlighted cases throughout Australia where First Nations women and children have been murdered or disappeared and, they argued, the police response has been inadequate and/or demonstrated systemic racism.
The legal system
3.45In 2017–2018, the Law Council of Australia (Law Council) conducted a comprehensive, national review into the state of access to justice in Australia (the Access to Justice project). Its final report made numerous findings in respect of First Nations people, including:
A history of marginalisation and discriminatory justice responses has affected Aboriginal and Torres Strait Islander peoples’ confidence in the justice system. Many are now reluctant to engage with it. To address existing distrust, and to bridge cultural and communication divides, ongoing, regular cultural competence training—informed and led by Aboriginal and Torres Strait Islander people and organisations—is required across the justice sector.
3.46ANROWS agreed that many First Nations people view the legal system as a ‘direct source of harm to themselves, their families and their communities’. First Nations families described how the system’s failure to deliver justice for their loved ones has created, and creates, distrust, pain and suffering.
3.47Ms Leonie Duroux, sister-in-law of one of the murdered Bowraville children, submitted that, over 30 years, the families have been constantly retraumatised by ‘the ones that refuse to do what they can to ensure that justice is done’. MsDuroux specifically referenced the NSW Court of Criminal Appeal decision (see paragraph 3.42):
The date for the judgement to be handed down was set on the date of the anniversary of [one child’s] disappearance. In the back of my mind I kept hoping we were going to get across the line, because 'surely they weren't that heartless'. It was delivered in a manner that gave no thought to the families, particularly to the parents. How dare they expect the families, butparticularly [her] family to travel mostly hours to be there on that day, so that they, in their superiority, could deliver this news in a way nobody really understood what was going on. [Another child’s] mum didn't know what had happened, except she knew it wasn't good. [That child’s] dad took off into Hyde Park. While they said they cared, they clearly didn't. There was absolutely no care taken. Clearly actions speak louder than words. Court dates can be changed, things can and do get rearranged. Hearings get vacated and things get slotted in. They should never [have] delivered this news on the 13 September. When is something going to change, when are the families going to stop receiving lip service?
3.48Mr Marbuck Duroux, nephew of the murdered youth, described the ongoing (intergenerational) trauma that has affected him, his family and his community in their never-ending quest for justice:
All my life I have been watching my family fight for justice and I’m worried this is going to become my fight for an uncle I have never even had the chance to meet.Something should have already been done and something needs to be done before they see it happen again and before it is ignored all over again…I’ve grown [up] in a broken community and at times a broken family and for the most part this is a consequence of trauma from these murders.
3.49Mr Elijah Duroux, younger brother of Mr M. Duroux, and also a nephew of the murdered youth, similarly described the resultant trauma but emphasised that the families will never cease in their efforts to achieve justice:
The ongoing problems, setbacks and obstacles that our families have faced have been unbearable at times…[W]hilst there is still a breath in my or my brother or the next generations of these families for that matter, we will never give up…I’d like to say thanks to the NSW Government for nothing.
3.50The Law Council submitted that First Nations women and children frequently cannot access justice. Echoing MsJacqueline McGowan-Jones, Commissioner for Children and Young People (WA), the Law Council highlighted that this discourages women from relying on the justice system as a tool to avert violence, leaving them and their children vulnerable and at risk:
The interactions of First Nations women and children within the legal system are foundational to their trust in the justice system broadly and their access to justice services when they experience violence. This is relevant to their right to an effective remedy and to perpetrators being held accountable.
Prosecutorial processes
3.51The committee received evidence from the Director of Public Prosecutions (DPP) in four jurisdictions: New South Wales, Western Australia, Queensland and the Northern Territory. The committee appreciates and thanks the DPPs for their assistance in understanding how they communicate with and assist First Nations families who interact with the criminal justice system.
3.52Dr Hannah McGlade, Associate Professor of the Law School at Curtin University and member of the United Nations Permanent Forum on Indigenous Issues, advised that ‘many Aboriginal women who do come forward to police…never see any charges laid’. Dr McGlade indicated that this is due to women being persuaded not to proceed with charges, particularly in small communities.
3.53Mr Lloyd Babb SC, DPP in the Northern Territory, said that there are multiple and complex reasons why witnesses who do proceed subsequently disengage with the legal system:
…the pressure, coming from either the offender or the offender's family, on victims of domestic violence to not give evidence is enormous, particularly if the victim is still in a relationship with the offender…[I]f you're coming from a small remote community where most people are known to each other there might be pressure from the broader community to not cause trouble. Then there's just a general fear of the criminal justice system from people who probably have good reason to be concerned about involvement with the criminal justice system, where most of their involvement has been negative.
3.54DPPs explained their approach to victims of crime and family support services. In Western Australia, DPP Mr Robert Owen advised that there is a multiagency and well‑coordinated response to provide victim support to a deceased person’s family: the Office of the Director of Public Prosecutions (ODPP) is responsible for explaining prosecutorial aspects. However, Mr Owen recognised that there are some structural gaps in the provision of support services, such as in continuity between the point of charge and time to trial (a 12 to 18-month period):
…if somebody disengages because they haven't heard from someone in the justice system and they have concerns about the accused who may be on bail, they have concerns about what to do in court or they have concerns about any pressures they may be feeling or are being felt by family members around them for intrafamilial prosecutions, those sorts of issues don't manifest in conversations with my office where somebody will explain that to me. They'll just ring up and say, 'I don't want to do this anymore.'…When something is presented to us, we may try to engage services to ensure the best possible chance of this witness giving true and frank evidence in court to facilitate the justice system. There's only so much that we can do as a prosecuting agency and independent participant in the justice system, and more can be done there to inform victims of their rights and support them in a continuous way.
3.55DPP Ms Sally Dowling advised that the NSW ODPP has a Witness Assistance Service (WAS), which provides a high level of support to First Nations witnesses and complainants:
WAS officers are included in all important legal decision-making made during the life of the prosecution and, in particular, that they're at all important conferences with the complainants and have input into the way in which our office communicates and reaches out to Aboriginal witnesses and complainants.
3.56In the Northern Territory, where the DPP also operates a WAS, the NAAFLS highlighted that such services need to be adequately resourced:
…the DPP website forewarns that “[g]iven the large volume of cases going to court, the Witness Assistance Service cannot have an officer allocated to every case”. Lack of funding and supports for programs such as WAS only entrench disadvantage for Aboriginal victim-survivors.
3.57Queensland DPP Mr Todd Fuller KC commented that, about 2009, the Queensland government decided to fund certain organisations to provide victim support (such as the Queensland Homicide Victims’ Support Group). Heexplained that the ODPP engages directly with individuals to determine their support needs and refer them to the right organisations:
From our perspective, it's about identifying what the need is with respect to the victims and their family, and identifying what groups can assist with respect to that. Then it's actually a cascading level of information. There are some people who have a significant distrust of government organisations and want to minimise their interaction and contact with respect to us. There are others who have a healthy relationship with the police such that they want to receive their information and engage through that. And there are others who have their own support networks or engagement that they wish for us to provide that information through.
3.58Ms Dowling referenced the NSW ODPP’s Prosecution Guidelines (2021) and the Victims Right of Review Policy (2021), which set out a framework for interactions with victims of crime:
The overarching objective is to ensure that victims of crime are dealt with with dignity, compassion and respect, and that they understand the decisions that are being made about them and for them in the prosecution process. It is mandatory under our prosecution guidelines that victims' views are sought in relation to important prosecution decisions and that the way in which we communicate with them is acceptable to them…It is critically important that the complainants who we are working with feel ownership of the process, that they understand what is going on, that they feel that they have agency and that they are treated with dignity.
3.59MsDowling outlined the NSW ODPP’s three-stage decision-making process, including in respect of decisions that there be no further proceedings. Sheadvised that ‘no decisions of that level of significance are made without the victim's views—or those of the next of kin, if it's a homicide’.
3.60Similarly, Mr Owen referred to the WA DPP Policy and Guidelines for Victims of Crime (2022), which sets out victim rights, including a right to review where a prosecution has been discontinued or significantly changed. He detailed when and how the ODPP informs victims of these rights, including, for example, when charges are downgraded, which evidence indicated is a matter of great concern to the families of victims:
If the phone is the only mechanism available, then it may be the first instance of how a victim or a secondary victim, as it relates to homicide, may be aware of the contemplation of our decision. That is a very complex conversation to have in respect of a downgrading charge because, not only legally but probably more importantly for the victims, it is a very sensitive conversation to have, and trauma informed practices require best practice to be in person at the very least…When I say 'best practice', I'm talking in person, but there is best practice in how we can operate in our current framework…The conversation…will occur by the prosecutor reaching out to remote and regional areas to find the appropriate victims and facilitate conversation through video link conversations at police stations.
3.61Mr Lloyd Babb SC, Director of Public Prosecutions (NT), reflected that it can be hard to effectively communicate with people who are grieving and emotionally involved in a particular prosecution:
Communication with the family is essential though and should always take place. It's part of my guidelines to my staff that no decisions about downgrading charges can be made without the views of the family being taken into account. They're not always determinative, in that the job of the Director of Public Prosecutions is to make that decision about whether there is a reasonable prospect of success...[T]he best that can be done sometimes is to make sure that you try and communicate well and in person.
Coronial processes
3.62Some submitters and witnesses commented on the harm caused to First Nations families by coronial processes. Dr Amy McQuire described this process as ‘incredibly violent’, one that dehumanises women and ultimately fails to provide grieving families with the answers and the closure that they need:
I speak so often about Monique Clubb because the reason police did not continue her investigation and ended it, basically, within a month, is because they believed she was a drug addict and had overdosed in the park in Beenleigh. That was totally counter to anything her family were saying— and the search and rescue officers. Yet that inquest was so focused in on her deficiency…Thepolice could basically tick a box, the coroner said she was likely deceased and potentially died after she'd left the park that day—but there was no follow-through; there was nothing after that. Because inquests are one of the few places families can go to get truth and to get answers, those hopes are often totally dashed.
3.63Mrs Debbie Kilroy OAM, Executive Director of Sisters Inside, commented that the families are ‘invisibilised, disappeared and forgotten’ in the coronial process, with the courts operating as ‘alibi courts’:
The coronial courts, day-in and day-out, for me, are alibi courts. Coronial courts are full of lawyers and barristers that represent not only individual police but also the police service of that jurisdiction…Families do not have a right to legal representation. They're told that they have to use the counsel assist to the coroner. The counsel assist to the coroner is just that—they're there to assist the coroner. They're not there to be instructed or to represent the family…When you can expose the failures of the racial and gendered violence of policing in these inquests, they have years—because the inquest takes years—to rewrite policies and change policies in light of the evidence that has been produced…When they come to the coroner's court, they can say, 'That's fixed up now', the coroner ticks it off and we move on, in the pretence that no other Aboriginal woman would be disappeared or murdered again—which is a farce, because it's happening regularly.
3.64Dr David Singh, Co-Director of the Institute of Collaborative Race Research, shared this view:
…the coronial process is often used as a means to exonerate the state. It's not about finding justice for the family or finding out what happened to their loved ones. The state moves in particular ways, in very muscular ways, toexonerate its ways of having failed the family…[T]he state moves very quickly to exonerate itself, and it has appropriated the coronial process as a means to do that.
New South Wales: lived experience
3.65The NJP, with permission, shared the experience of the Smith family, whose loved ones were killed in New South Wales nearly 40 years ago. MonaLisa Smith (known as Mona to family and friends) was a First Nations Muruwari Kunya girl. Jacinta Rose Smith (known as Cindy to family and friends) was a First Nations Wakamurra girl:
On 5 December 1987, cousins [Cindy and Mona]…were last seen by their friends and family in Bourke, New South Wales (NSW).
According to police records, at approximately 4am, Cindy and Mona were found by motorists at the site of a crashed car, along the highway heading out of Bourke.
…
Lying next to Cindy, drunk, unhurt, with his arm over her body, was 40‑year-old non-Indigenous man, Alexander Ian Grant (‘Grant’). Theposition of Cindy’s body when she was found, along with other evidence from the scene, suggest that Grant had sexually interfered with her body, either after she had passed away or as she was dying.
The manner and cause of Mona and Cindy’s deaths are yet to be determined by the State Coroner. An inquest is set to be resumed in the latter half of 2023, 35 years after the girls passed away.
…
On 8 November 1988, a coronial inquest into Mona and Cindy’s deaths was initiated but later adjourned due to pending criminal charges against Grant. The families expected that they would be updated when the inquest was resumed. However, for 35 years the inquest lay dormant. In July 2022, after relentless petitioning by the family and submissions from NJP and with [the] assistance of barrister Julie Buxton, the NSW State Coroner agreed to re-open the coronial inquest.
3.66The NJP submitted that the Smith family and the Bourke community have been traumatised by the violent deaths of the two teenagers, and also by the lack of action that would give them the answers that they need:
The 35 years of inaction on this case have left the girls’ families and the broader community of Bourke with immense uncertainty relating to many aspects of the alleged accident, the investigation and the decision making of the DPP. [Both girls’ families] believe that if the investigation by the NSW Police had been performed properly, more serious charges may have been laid against Grant and more questions relating to the circumstances of their deaths may have been answered. While the Coronial inquest will be resumed [in mid to late 2023], it will be affected by time, fading memories, and years of evidence which may have gone missing or been destroyed. Thetrauma for the girls’ families and community that has been created and exacerbated by years of unanswered questions and inaction cannot be understated.
3.67In November 2023, the NSW State Coroner, Magistrate Teresa O’Sullivan (theCoroner), resumed the coronial inquest. The findings of the coronial inquest were brought down on 23 April 2024.
3.68For the sake of convenience for the reader, this report sets out in depth in this section the findings of the Coroner in relation to this important case. Many of the findings and recommendations are relevant for other sections of this report and will be cross-referenced as relevant.
3.69In considering the findings, there are many themes which are consistent with other case studies considered by the committee during the course of this inquiry and with the testimony provided in camera by First Nations’ witnesses who have lost family members. These include: (a) failures in the initial investigation; (b)poor communication with family members; (c) the continuing fight for justice by the families over many years; (d) the failure of key institutions to secure justice for the families until decades after the relevant events; and (e) evidence of acts of racial bias (whether conscious or unconscious).
3.70In relation to the initial police investigation, the Coroner found:
The summary of the failings…makes it clear beyond any doubt, that the initial police investigation suffered from what can only be termed very serious deficiencies. Moreover, those failings had a major impact on the investigation and the prospects of any future criminal prosecution. Thatnecessarily follows because vital evidence was not collected or secured from the scene.
3.71In relation to the consequences of the failings in the initial police investigation, the Coroner noted:
Ultimately, however, despite the best efforts of those officers, the failures in the hours, days and weeks following the accident to investigate the matter thoroughly and to secure critical exhibits…had an irreparable impact on the investigation and the evidence available for use in any criminal prosecution.
3.72In relation to whether there was any potential systemic racism or cultural bias in the conduct of the initial police investigation, the Coroner found:
I accept the submissions…as to the existence of racial bias within the NSW Police Force at the relevant time, and that it did in fact impact upon the investigation in the deaths of Mona and Cindy.
…
The uncomfortable truth, to my mind, is that had two white teenage girls died in the same circumstances, I cannot conceive of there being such a manifestly deficient police investigation into the circumstances of their deaths.
It is very plain, however, that there was a paucity of indigenous cultural training available to officers within the NSW Police Force at the relevant time; moreover, the unconscious racial bias outlined above was simply representative of the ill-informed, and frankly racist social views of many within the Australian community at the relevant time.
3.73In relation to the efforts made by the families of Mona and Cindy to seek a review of the investigation (with the support of the National Justice Project which should be acknowledged and admired), the Coroner found:
Given the deficiencies in the initial police investigation which have not been catalogued or acknowledged until this inquest, the perseverance and strength of the Smith families in pursuing justice in the form of answers and a thorough investigation (albeit many years too late) cannot be overstated…The families' concerns have been squarely vindicated by the evidence received during this inquest…I find it somewhat troubling that these issues were not formally acknowledged by the [then Police Commissioner] until certain concessions were made in closing submissions on 20 December 2023.
3.74In responding to overtures for a further inquest, it is noted that the then Police Commissioner did not believe that a further inquest would be capable of finding new information. The then Attorney General believed that a further coronial inquest would not be capable of finding any new information not already known, or in providing any meaningful information or closure for the families. However, in commenting on the conclusion reached by the then NSW Attorney‑General, the Coroner noted:
This conclusion is based on the perfunctory and piecemeal reviews conducted by police over the years, apparently based on limited information considered at the relevant times.
3.75This led the Coroner to recommend:
That the Commissioner of the NSW Police Force develop guidelines for the review of investigations relating to deaths that are the subject of a request for advice from the NSW Attorney General to the Commissioner of the NSW Police Force, where the Attorney General is considering an application for the holding of a fresh of further inquest into the death/s.
Such guidelines should include:
(a)the methodology of the review;
(b)transparency of the review process;
(c)the involvement of any experts (including independent experts as required); and
(d)consultation with the family of the deceased.
3.76In relation to cultural sensitivities, the Coroner stated:
It is absolutely plain that during the initial police investigation, Mona and Cindy's families were not dealt with in a respectful or appropriate manner; nor was there any apparent appreciation of the attendant cultural sensitivities.
3.77The Coroner considered making a recommendation in relation to training in cultural competence. However, the Coroner noted the following submissions from the NSW Police Force (contained in a witness statement dated 21 April 2024):
Amongst other matters, the statement emphasised the Aboriginal Community Liaison Officer (ACLO) Program; detailed the Aboriginal Strategic Direction (ASD), a working document which outlines NSWPF plan to strengthen relationships with and support the Aboriginal and Torres Strait Islander communities within NSW. It also details programs and positions administered under the ASD (2024), which includes in the Eastern Region, 26 ACLOs and six Aboriginal Engagement Officers (being inspectors with local responsibility for engagement with Aboriginal Communities).
The statement…also set out the cultural awareness packages operative within NSWPF…
Ultimately, having regard to this evidence I have formed the view (including because the matter was not further explored during the inquest), that the recommendation that I had contemplated is not necessary or desirable.
3.78Finally, it is worthwhile quoting the concluding words of the Coroner. Again, these words resonate with evidence from First Nations' families who have suffered great trauma and have also fought for justice for their loved ones in similar circumstances. The Coroner concluded by saying:
My final words of thanks and praise go to Mona and Cindy's family. Without their tireless advocacy, it is doubtful that this inquest would have been re-opened. I will conclude by again expressing my sincere condolences to those who knew and loved Mona and Cindy and I also express my thanks to them for participating in this process and for sharing their memories of their loved ones.
Cultural sensitivity
3.79Some jurisdictions have improved the way in which coroners perform their statutory functions. The Law Council described the NSW Coroners Court’s Aboriginal Coronial Information and Support Programme, which employs First Nations support workers to support families throughout the process, and its First Nations Protocol:
The protocol aims to ensure that First Nations families are provided with an opportunity to raise cultural considerations relevant to the conduct of the coronial investigation and inquest, such as appropriate naming conventions for deceased First Nations people or the opportunity to conduct ceremonies or hearings on country. The goal of the protocol is to ensure that the work of the coronial jurisdiction does not perpetuate cycles of grief and loss.
3.80The NJP submitted that ‘any improvements are inconsistent and long overdue’. It expressly argued that Western Australia is the jurisdiction most in need of reform, with ‘the worst [coroners] in our nation’:
Unlike most other jurisdictions WA coroners run culturally unsafe inquests which almost always offend First Nations families and worse, they consistently refuse to make meaningful recommendations for systemic change…Their refusal to examine and make recommendations about systemic failures and push for reform is offensive to First Nations peoples, it goes against the Royal Commission into Aboriginal Deaths in Custody recommendations and appears to the relatives of the deceased to simply protect the institutions of the state.
3.81The Mullaley and Smith families—with lived experience in Western Australia and New South Wales, respectively—called for national reform of coronial systems, arguing that First Nations communities deserve trauma-informed and more culturally responsive systems. In addition, the Smith family suggested that improvements could be to provide for independent assistance and better communications from coroners:
First Nations-led development and implementation of respectful and culturally safe protocols for investigating First Nations deaths, and for these to be applied consistently across all Australian States/Territories. Thisincludes, but is not limited to: a) A First Nations liaison officer at the Coroner’s Court to assist First Nations families where there has been a death, to explain the role of the Coroner’s Court to them and guide them through the court processes, especially where they are not legally represented; b) Communication with the family at key points of the investigation and coronial process to keep them informed and allow them to ask questions.
3.82Ms Christine Robinson, Chief Executive Officer of Wirringa Baiya Aboriginal Women’s Legal Centre, is the non-government service provider representative on the NSW Domestic Violence Death Review Team. She highlighted that families might be more prepared to share information with the team, if it had another First Nations appointee:
…how we have those conversations with the victims and their families to actually obtain more information is crucial…We only get to hear bits and pieces of who is happy to talk. We know that the DV review team is very under-resourced as it is. It also needs to probably have an Aboriginal person in there as part of the team. Aboriginal people feel more comfortable speaking to Aboriginal people; they will tell their truth and they will talk more about the situation and how things came to pass. I think that is one of the things. We're not unpacking it enough. As an Aboriginal woman, weunderstand the subtle racism and discrimination. I don't think non‑Aboriginal people understand it to our level.
3.83Mrs Kilroy and Sisters Inside suggested that a National Indigenous Agency (NIA) be established to ‘prevent, investigate and prosecute the historical and current the [sic] Enforced Disappearances and Murders of First Nations Women and Children’. Their submission encompassed the range of powers and functions that should be provided to the new agency, including:
The NIA should have the responsibility of conducting all coronial investigations and have statutory standing to appear at inquests, alongside Families, at mandatory coronial inquests into the suspected Enforced Disappearances and Murders of First Nations Women and Children.
Accessing the legal system
3.84The Access to Justice project (see paragraph 3.45) reported that First Nations people experience multiple intersecting legal problems; however, legal services are not equipped to meet the demand:
The need for funding for criminal, family and civil matters is acute. Meeting this need, including through better resourcing of Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Services (FVPLS), must be a priority.
3.85Ms Julianna Marshall, Acting Chief Executive Officer of the Central Australian Women’s Legal Service, gave evidence that women’s legal services have a unique safety role as gendered specialist services:
We operate as crisis centres and we address long-term underpinning causes of increased vulnerability to domestic and family violence...We work with women and other services, including child protection, housing and safe houses across the territory, to respond to and mitigate risks of serious injury and homicide.
3.86Ms Marshall emphasized that the women’s legal services should be recognised and resourced as a ‘drop in’ service:
…for true accessibility we need to fully fund the services to run drop-in models, because it's those women who aren't engaged with other services that need to have a really clear access point. Maybe that's just walking in, assomewhere safe to sit down. It may be as a crisis is actually unfolding, onthe lawns down the street, and we will assist with a response to that. Itmay be a purposeful visit, having known that our services can assist with such a broad range of legal and sociolegal supports.
3.87The Australian Lawyers Alliance submitted that women’s legal services—including First Nations women’s legal services—have a special focus on empowering and supporting women through the pursuance of their legal rights, combined with a specialist and thorough understanding of the nature and dynamics of domestic and family violence (DFV). Further:
Aboriginal and Torres Strait Islander women’s legal services offer this support in culturally safe and accessible ways. Adequate and sustainable funding is essential for these services in particular, so that the staff are not burnt out and are still able to provide culturally safe services. Providing that extra layer of service takes additional staff capacity, time and resources.
3.88The FNWLSQ observed that there is a lack of specialist legal services for First Nations women, as well as identified First Nations positions within generalist DFV legal services. Itssubmission cautioned, however, that care must be taken to appreciate the additional burden of expectations place upon First Nations staff:
Marginalised staff members of generalist services may feel peer pressure to conform with generalist expectations or may feel extra pressure to represent or be ambassadors for the groups to which they belong and they may bear the brunt of microaggressions and other forms of bigotry in the workplace. Expecting First Nations lawyers to take on the responsibility of making generalist legal services culturally safe by virtue of their presence imposes an unfair burden on those lawyers, and may eventually have physical and psychological consequences.
3.89The FNWLSQ added that First Nations people are underrepresented in the legal profession. In 2020, only 85 solicitors in Queensland (0.7 per cent of the profession) and 632 solicitors in Australia (0.8 per cent of the profession) identified as Aboriginal or Torres Strait Islander:
This makes it difficult for both generalist and First Nations specialist domestic and family violence legal services to recruit and retain First Nations solicitors. Hence, the same systemic inequities and injustices that have led to the epidemic of violence against First Nations women and children may limit their access to justice.
Regional and remote areas
3.90According to submitters and witnesses, First Nations legal services are especially absent in regional and remote areas. The FNWLSQ advised that, even where there are offices, there are no ‘solicitors staffing these offices, leaving First Nations women with no legal assistance or representation except by remote services located hundreds of kilometres away’.
3.91The North Queensland Women’s Legal Service (NQWLS) highlighted that access to good quality legal advice, support and services is critical to assisting First Nations women to leave abusive relationships or to support those who stay:
What we hear is that women and girls living in rural, regional and remote locations do not have ready access to these services and stay longer in abusive relationships or return to them because of their feelings of [being overwhelmed]. Conflict[s] of interest and services not being adequately funded to meet the demand appear to be the main drivers of this issue. Sometimes there is no appropriate service at all to assist with a woman’s specific issues, or there are only one or two services, and they could be at capacity or assisting the other party.
3.92Ms Grace Dudley, Systemic Change Advocate with the Kimberley Community Legal Service, said that there are complex and different barriers for First Nations women in regional Australia that require particular responses and reform:
…we speak to the need for localised and culturally appropriate solutions to family violence in the region. We're calling for better crisis accommodation, better housing options for victim survivors, more education options for perpetrators and First Nations men, and the need for more immediate and culturally safe police responses to family violence in remote communities. Addressing family violence in this remote region will require a long-term commitment, investment, time and community-based solutions.
Access to non-legal services
3.93Submitters and witnesses commented also on the difficulty for First Nations women and children in accessing non-legal services in regional and remote areas. The Ngaanyatjarra Pitjantjatjara Yankunytjayjara (NPY) Women’s Council advised that it can be difficult to get a timely police response, if at all:
Due to the nature of community, police and locality there is at times over one (1) hour or more (one-way) trip to communities in the NPY region and urgent emergency responses are also influenced by police capacity and competing safety priorities. Women can be waiting for up to six (6) hours for a crisis police response, or in the extreme, have no police response at all due to capacity – this however is not an anomaly.
3.94Carrie’s Place highlighted that, due to remoteness, First Nations women might not even seek police assistance: ‘police stations may be situated far from the town which can make reporting seem futile and in the context of DFV can often be too late’.
3.95The NAAFLS concurred that many communities do not have a local police station or access to police services, and highlighted particularly a severe lack of support services:
Very few remote communities have local mental health services or domestic violence rehabilitation or healing programs…Police based in remote communities are often required to leave for days at a time to respond to violence in neighbouring communities and escort women to shelters in regional hubs. Nurses are also expected to travel hundreds of kilometres to service remote communities. The only option for many remote community members to access services is to travel to Darwin or Katherine which is difficult as some communities have very limited to no options for public transport. Once in town they need to find temporary accommodation that is both limited and expensive, leaving most victim-survivors and perpetrators without access to support. Ensuring adequate access to support services in remote communities would provide victim-survivors access to safety and assist in preventing and reducing the impacts of DFSV.
3.96The NAAFLS contended that First Nations workers should be embedded within remote communities to provide more immediate assistance and referrals: ‘NAAFLS recommends Aboriginal Community Controlled Organisations lead approaches to women’s safety services in remote communities’.
3.97Similarly, the Aboriginal Legal Service (NSW/ACT) argued:
Aboriginal women and children are exposed to all forms of violence at disproportionate levels. This includes violence perpetrated within community by Aboriginal family members and partners; however, it also includes violence committed by non-Aboriginal perpetrators. The high levels of violence experienced by Aboriginal women and children is multifaceted and requires nuanced responses…[W]hen considering the Aboriginal family and domestic violence within Aboriginal communities, the Government should support and empower local solutions.
An increase in Aboriginal community-controlled domestic violence programs and services would ensure Aboriginal women have access to alternative, culturally safe domestic violence services. However, to create effective solutions Aboriginal communities need meaningful support from all sectors of the Government: access to data on violence, ongoing funding and genuine support in rolling out local initiatives. We submit that the Government invest in and support Aboriginal community-led initiatives to address domestic and family violence.
3.98The Victorian Aboriginal Legal Service (VALS) agreed that Aboriginal organisations should be adequately funded to deliver culturally safe services:
Specialist Aboriginal organisations like Djirra are imperative for delivering services that assist victims of family violence. Organisations like Dardi Munwurro that support Aboriginal men with behavioural change and healing programs are also imperative for addressing underlying behaviours that lead to family violence and equipping men with conflict resolution tools. Without appropriate funding, programs delivered by organisations such as the above two cannot continue to service the large cohorts of people that want to access the service. Aboriginal organisations are consistently underfunded in contrast to generalist organisations.
3.99Ms Antoinette Gentile, Acting Chief Executive Officer of Djirra, agreed that its holistic model enables the organisation to provide effective wrap around and critical supports to women experiencing violence:
That women feel safe to trust us in the most challenging time in their lives demonstrates the success of our programs, including our signature intervention and early intervention programs: Sisters Day Out, Dilly Bag and Young Luv.
3.100Ms Gentile noted that, in the past two years, demand for Djirra’s services has significantly increased but she emphasised that the sector remains chronically underfunded, which places First Nations women’s safety and lives at risk:
Specialist family violence services like Djirra cannot wait for…[the] additional funding needed to provide frontline specialist legal, early intervention and case management services. The expansion of these services is particularly needed for regional areas, where there are fewer choices for women seeking safety and less funding available to ensure access to culturally safe early intervention prevention and response services for First Nations women and children. Aboriginal women matter to us, and we must matter to governments.
3.101Ms Gentile noted that the Federal Budget 2024–2025 did not provide any funding certainty for services such as Djirra, as recommended in the recent independent review of the National Legal Assistance Partnership 2020–2025 (NLAP). She noted that FVPLS are currently funded at 20 to 30 per cent less than Legal Aid Commissions (LACs):
…can you imagine what it must be like for Aboriginal people who are experiencing this level of disrespect? It tells us that we are not important enough to care. With all due respect to non-Aboriginal people who experience what our women do, we just go, 'We're invisible.' As Antoinette Braybook [the Djirra Chief Executive Officer] would say, 'We are invisible to everyone', because governments perpetuate that story that we are not enough, not good enough. We know what we need. We know how to work with our women, and, unfortunately, we need resources from government to be able to do that, and the lack of that tells us that we don't matter.
3.102The Chief Executive Officer of VALS, Ms Nerita Waight, explained that the funding not provided in the Federal Budget 2024–2025 will require VALS to continue to restrict service delivery:
…it means that we will continue to implement our two-stage test: first, you must not earn over $42,000 per annum—that is pre-tax, by the way—and, second, you must have significant merit. Those barriers are incredibly hard for us to introduce. We know that there are so many Aboriginal community members who require legal help and are deserving of it, but we just don't have the resources to deliver those responses because we don't receive needs-based funding. The calculation method, the structure of the NLAP, doesn't allow for meaningful legal assistance. That means that it affects your most vulnerable. It also means that you can't be centred out there in community. We shouldn't be engaging in approaches that result in postcode justice. Aboriginal people should be able to access legal help where they are; they shouldn't have to travel 400 kilometres to access that.
3.103Ms Patty Kinnersly, Chief Executive Officer of Our Watch, expressed strong support for those organisations working on the front line, noting the desperate and immediate need for more funding:
It's not about taking funding off primary prevention to move to response or to give primary prevention more money and less to other things. It's actually about us needing more money in the pie, and it needs to happen as soon as possible.
3.104Chapter 5 further discusses the issues of funding for Aboriginal community‑controlled organisations.
Responses within the judicial system
3.105Submitters and witnesses advised that there are cultural and communication divides between First Nations and non-Indigenous people, which manifest in judicial responses to missing and murdered First Nations women and children.
3.106The NAAFLS broadly noted that ‘the adversarial court process is intimidating for victim-survivors’, with its clients routinely describing the court process as a ‘secondary victimisation’. The NAAFLS expressed concerns about the lack of trauma-awareness in the court process:
We do not feel that the courts are adequately sympathetic to Aboriginal victim-survivors. There is little to no acknowledgment of witness vulnerability and/or the many reasons why a victim-survivor may not wish to commence criminal proceedings or may be fearful of sharing the truth. Hesitation by an Aboriginal victim-survivor is used by lawyers as proof of guilt or dishonesty rather than shame or distress.
Language barriers
3.107Dr Diana Eades, a socio and anthropological linguist, submitted that there are several linguistic and cultural issues for First Nations people interacting with the legal system. In the first category, many people do not speak English as a first language, leading to the risk of miscommunication.
3.108The NAAFLS submitted that, despite language being a known barrier for Aboriginal people, little has been done to improve service delivery:
…for many Aboriginal people, English is a second, third or sometimes even fifth language. A report by the Equal Opportunity Commission found that 20% of remote Aboriginal people had difficulty understanding or being understood by service providers, including lawyers. Without interpreter services, Aboriginal people are being locked out of participating in court proceedings.
3.109The Domestic Violence Legal Service and the Northern Territory Legal Aid Commission particularly noted the need for more accessible legal services for respondents to applications for domestic violence orders (DVOs). Their submission endorsed the Darwin Local Court’s Respondent Early Assistance Legal Service (REALS):
REALS provides respondents with an opportunity to be an active participant in proceedings. It helps them to better understand the Court process and ultimately if a DVO is made, the conditions of the DVO and the penalties for the contravention of a DVO. This improves the likelihood that the order is able to be practically complied with and reduces the likelihood of inadvertent breach.
3.110The NQWLS highlighted that language barriers are also a significant concern for its First Nations clients when they interact with the Queensland Police Service:
Time and time again we hear about poor outcomes when police attend domestic disturbances where victims speak limited or no English and/or are suffering trauma. There is no doubt these women and girls find it difficult to give coherent statements, or to understand complex court processes. Indigenous language interpreters are not readily offered or in fact available, especially in regional or remote areas.
3.111Dr Warren Mundy, independent reviewer of the NLAP (see ‘Commonwealth government response’ from paragraph 3.128) explained the different funding arrangements for interpreter services:
NIAA funds broader Indigenous interpreting services, and training and accreditation services to improve Aboriginal and Torres Strait Islander access to qualified interpreters. There are also specific services, like the Aboriginal Interpreter Service (AIS) which offers interpreter support in all major towns and remote bush court circuits in the Northern Territory. TheAIS has multiple sources of funding…[I]nterpreter services for Aboriginal and Torres Strait Islander peoples are chronically underfunded. This is so despite the broadly recognised significance of these services in improving access to justice outcomes for Aboriginal and Torres Strait Islander peoples.
3.112The NAAFLS concurred with Dr Mundy’s view of funding for interpreter services, submitting that demand for the AIS is greatly outstripped by supply:
…it is far too difficult to obtain interpreting services in Aboriginal languages and it is common for friends or family members of our clients to informally interpret due to interpreter unavailability. We are aware of other organisations such as police failing to use interpreters when speaking to remote community members who cannot understand English, which leads to confusion and can reinforce police-related trauma.
Cultural barriers
3.113Dr Eades submitted that ‘cultural issues are central to any consideration of the law’s engagement with First Nations people’. However:
Some of the cultural beliefs and practices of the law are shared within the wider western society, but they are not necessarily shared with Aboriginal societies. The disjunction between the culture of the law and the culture of Aboriginal societies is at the heart of how the law listens to and understands or misunderstands what Aboriginal people say.
3.114 Dr Eades illustrated this argument with reference to the law’s reliance on interviews with a question/answer method that does not accord with First Nations culture:
…interviews are not a speech event typically found in Aboriginal societies, where information is often provided in a reciprocal way and less directly. When Aboriginal people want to find out substantial, complex and sensitive information, such as details about an event or a situation, or why someone has done something, they typically talk around a topic, engaging in conversation (or yarning) rather than talk structured by direct questions.
…
[A]s information is given and sought in Aboriginal societies as part of a relationship, trust and connectedness are essential in the sharing of substantial information. Because of the importance of the relationship to the sharing of complex and sensitive information, many Aboriginal people can feel uncomfortable or unable to share information with someone they do not (yet) have an established relationship of trust with.
3.115Dr Eades endorsed the development of strong bicultural communication abilities between First Nations people and actors within the legal system, asoccurred with the NSW Police Force in the reinvestigation of the Bowraville murders (Strike Force ANCUD).
3.116In evidence, the NSW and WA DPPs referenced specifically the ‘Mildren directions’, a set of jury directions developed by former NT Justice Dean Mildren AM RFD KC to assist a jury in assessing the evidence at trial of First Nations people.
3.117Ms Dowling advised that the Mildren directions are available in some jurisdictions—Queensland, WA and the NT—but are not given as a matter of course in New South Wales. She considered that having those directions available would greatly assist with the fair assessment of evidence:
There are a number of different ways to approach it that could be mandatory directions, such as those in the Criminal Procedure Act relating to so-called counterintuitive behaviours in sexual assault matters. It could be by way of judicial directions to be contained in the bench book or a combination of those. It could be by way of further amendments to the Evidence Act. There are a number of legislative pathways and practice pathways.
3.118Mr Owen noted that the Aboriginal Benchbook for Western Australian Courts references the Mildren directions and the ‘Anunga Guidelines’, a set of nine guidelines formulated in 1976 by Justice William Forster to ensure that the confessional statements of Aboriginal accused persons are obtained fairly.
Awareness and safety training
3.119Other submitters and witnesses commented on the extent of cultural awareness and cultural safety training by actors within the courtroom.
3.120The NSW DPP Ms Dowling advised that all staff attend compulsory cultural awareness training (a one-day course). However, the ‘training that we currently offer is what I would call an entry-level set of basic training’. She added ‘we do offer a lot more training; however, it's not currently compulsory’.
3.121In Western Australia, ODPP staff undertake a full-day training course that is expanded by daily engagement with First Nations people over a period of time. Mr Owen said ‘you can’t replace experience, just like you can’t rely solely on formal training’.
3.122Mr Owen stated his strong commitment towards ensuring that proceedings are conducted in a culturally sensitive and culturally safe manner:
…if we acknowledge and accept the past injustices and that there's mistrust between the Aboriginal community and the justice system, in particular my office, then I want to rectify that...[T]he justice system is open, it's equal, and everybody should be entitled to access it on equal footing. We know that's not the case, and I can do what I can do in the confines of my own office in the prism of what a white Anglo-Saxon male can think is a solution, although I know that's not the solution.
3.123In the context of further training, Ms Dowling said that trauma informed practice is something that she intends to progress within the NSW ODPP in the next 12 months:
It's taken some time to get cultural awareness training rolled out right across the office, and of course there are budget issues in terms of providing that training to almost a thousand people. However, a trauma informed approach to prosecution practice is the only way, in my view, to adequately represent the needs of all our vulnerable witnesses.
3.124Some stakeholders called for more culturally appropriate and safe courts. TheLaw Council noted that the Access to Justice project canvassed multiple measures to reduce barriers for First Nations women and children experiencing violence:
These included increased cultural awareness and competency training (including through bench books and more active learning experiences delivered by elders); measures to increase the diversity of justice system personnel, including judicial officers; increased access to cultural liaison officers; expanded access to interpreters, and measures to accommodate complex communication needs; and increased adoption of therapeutic jurisprudence.
3.125TheCentral Australian Aboriginal Congress argued that the courts also need to focus on the needs of First Nations men, who are themselves impacted by multiple layers of disadvantage within a complex and diverse cross-cultural environment. The congress argued that, ultimately, the focus should be on ‘minimising the risk of future violence by (overwhelmingly) men towards the women and families in their lives’:
…all courts dealing with those accused of Aboriginal family violence should: (a) be culturally safe; (b) involve senior Aboriginal community members to assist with understanding the factors driving offending behaviours and in determining effective sentencing; and (c) include access to specialist therapeutic advice to assist with understanding any mental health or other issues related to offending and to ensure referral of offenders to appropriate services such as drug and alcohol treatment or mental health services [see Chapter 5].
3.126Ms Rachael Ozanne-Pike, Lawyer with the NQWLS, remarked that Queensland’s seven Specialist Domestic and Family Courts are quite different from the mainstream courts, one key difference being their ‘justice groups’, which work intensively with First Nations men, including beyond court:
One of the big issues is that, after someone has served their period of incarceration—or maybe they've just been sentenced with no actual period of incarceration—for domestic violence offences, that's it. There's often no ability to wrap any services around them or anything like that. They're just out into the community again…To get the change and to keep women and children safe, we need to work on the perpetrators as much as we work on looking after the victims.
3.127Mr Brendan Thomas, Deputy Secretary of the Transforming Aboriginal Outcomes Division at the NSW Department of Communities and Justice, described three programs in NSW that have been developed to improve the relationship between First Nations people and the criminal justice system (Aboriginal courts, the Koori Youth Court and the Walama Court List):
…each of those involves judicial officers sitting with significant Aboriginal people, with elders and other respected people, and sharing authority with those people to make decisions…They are examples of where the justice system is trying to bring family and community into the decision-making, listen to people properly, slow processes down so you're not jumping to conclusions as quickly, take some time to make proper decisions and listen to people in making those decisions.
Commonwealth government response
3.128The NIAA and the AGD recognised that multiple factors are driving the violence against First Nations women and children: ‘it is therefore critical that national policies and plans are responsive to the multifaceted experiences and adaptive to the [women and children’s] circumstances’.
3.129Their submission referenced theWiyi Yani U Thangani(Women’s Voices) project, which was led by the former Aboriginal and Torres Strait Islander Social Justice Commissioner, Ms June Oscar AO. The multi-year project aims to elevate the voices of First Nations women and girls and in 2020 released its first report titled Wiyi Yani U Thangani (Women's Voices): Securing our Rights, Securing our Future (the Securing our Rights, Securing our Future report).
3.130The Securing our Rights, Securing our Future report captured the needs of First Nations women and girls, the principles they think should be enshrined in policy and program design, and their recommendations for measures to effectively promote the enjoyment of their human rights.
3.131The NIAA and the AGD acknowledged that the Securing our Rights, Securing our Future report emphasises the importance of self-determined and First Nations women-led responses to achieve systemic change (also see Chapter5), a finding endorsed by several submitters, including the NAAFLS:
Aboriginal women in leadership know what decisions and directions are best for, and will be accepted, by their communities. Prioritising their recommendations is critical if we want to effectively address DFSV. Theexperience of non-Indigenous women experiencing DFSV cannot be used as a valid point of consultation; the experiences for both groups are significantly different.
3.132In 2022, Ms Oscar hosted the Wiyi Yani U Thangani(Women’s Voices) First Nations Women’s Safety Policy Forum (First Nations Women’s Safety Policy Forum). Over 150 First Nations community members, practitioners, researchers, specialist experts and government participants considered how to address the root causes and drivers of violence.
3.133The First Nations Women’s Safety Policy Forum issued a Delegate Statement, which reiterated the findings from the Securing our Rights, Securing our Future report on the need for First Nations women-led solutions:
We, the delegates, call on all Australian governments to take urgent and ongoing action to invest in the solutions of First Nations women to end violence, and ensure commitment to our human rights. It is the responsibility of all levels of government to ensure our rights are protected by listening and acting on the solutions put forward by First Nations women, victim-survivors and specialist community-controlled organisations
…
First Nations women have always been central to providing care and doing remarkable, and often unrecognised work, to keep family and kin safe. Women are at the forefront of social change, establishing and running holistic organisations grounded in culture and community, to respond to immediate harms whilst enabling healing and implementing violence prevention measures. When First Nations women are invested in, children thrive, economies grow, communities are cohesive, and harms and violence are minimised.
National Plan to End Violence against Women and Children
3.134As noted in Chapter 1, the National Plan to End Violence against Women and Children 2022–2032 (theNational Plan) aims to end DFSV against women and children over the next 10 years.
3.135To support this objective, the Commonwealth (Albanese) government has committed $3.4 billion to delivering the National Plan. Most recently:
Through the 2024-25 Budget, the Australian Government committed $1.1billion to ending violence against women and children (bringing total investment since October 2022 to $3.4 billion), bringing the total number of funded activities in the national plan to 99.
3.136The NIAA and the AGD highlighted funded measures for the period 2022–2023 to 2024–2025. These measures were categorised as: support for First Nations victim-survivors of FDSV; prevention, early intervention and response initiatives; building justice sector capability; and sector strengthening measures. The first category included, for example:
2022–2023: funding was provided to support additional frontline service and community workers for vulnerable people ($169.4 million over four years), to recognise the higher rates of violence and increased complexity of remote service delivery in the Northern Territory ($10.7 million), and to extend ACCO delivery of culturally appropriate services family violence services in the Northern Territory ($3.79 million over five years).
2023–2024: additional funding to extend the Family, Domestic and Sexual Violence National Partnership ($159 million for two years).
2024–2025: the Commonwealth government committed $44.1 million for additional legal assistance funding, $24 million of which was directed towards First Nations legal services (Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services).
3.137In the third category of funded measures—building justice sector capability—the Commonwealth government has committed $12.6 million over five years from 2022–2023 for a nationally coordinated approach to education and training on DFSV for community frontline workers, health professionals, and the justice sector:
This includes funding for continued judicial education on family and domestic violence through the National Domestic and Family Violence Bench Book and the Family Violence in the Court Training program, as well as development of new training for legal practitioners on coercive control [see Chapter 4].
3.138It is also noted that the Commonwealth government is funding the development of a National Bench Book on Aboriginal and Torres Strait Islander Peoples and the Legal System:
This Bench Book intends to improve access to and delivery of quality, culturally appropriate justice and legal assistance services to First Nations peoples, by better informing judicial officers and legal professionals about the cultural and legal issues faced by First Nations peoples in the justice system and promoting best practice.
3.139Chapter 4 sets out the Commonwealth government’s funding commitments to enhance the effectiveness of police responses to DFSV.
National Legal Assistance Partnership 2020–2025
3.140The NIAA and the AGD referred to the NLAP, which delivers Commonwealth funded legal assistance to First Nations women through legal service providers (LACs, Community Legal Centres, and ATSILS) based on need, capability and service priorities.
3.141The NIAA and the AGD stated that the ATSILS are the First Nations-controlled providers of culturally appropriate legal assistance services, with funding a shared responsibility for federal, state and territory governments. Over the life of the NLAP, theCommonwealth government will have contributed $456million in baseline funding:
The includes additional funding for ATSILS provided as part of the 2024-25 Budget of $3.7 million for a one-off indexation boost and $11.7 million for workforce stabilisation.
3.142Commonwealth legal assistance is also provided through various other funding mechanisms. Through the First Nations Justice package, for example, additional funding has been provided to ATSILS to provide culturally-appropriate legal assistance to First Nations families in coronial inquiries ($13.5 million).
3.143As indicated earlier (see paragraph 3.111), in 2023–2024, Dr Mundy independently reviewed the NLAP, delivering his final report to government on 28 May 2024. This report made a number of recommendations concerning legal assistance funding, including:
the need to address unmet geographic need;
the need for complete national geographic coverage by FVPLS;
new funding arrangements must address National Agreement reforms;
self-determination must feature in services’ funding decisions;
the NLAP funding model should be abandoned; and
the AGD should administer legal assistance funding to ensure better coordination and reporting.
3.144Dr Mundy remarked that legal assistance schemes have previously been investigated—including in 2014 by the Productivity Commission — however:
…there has been relatively little change in the last decade. This has led to the neglect of Australia’s legal assistance sector…This Independent Review presents an opportunity to generate meaningful reform for the legal assistance sector. In particular, it is a starting point for implementing the recommendations of the Productivity Commission’s recent review of the National Agreement on Closing the Gap as they relate to the legal assistance sector. There is not much point to a Review if its work and recommendations do not lead to transformational change.
3.145In response to this review, the NIAA and the AGD advised:
Commonwealth, state and territory governments are carefully considering the findings of the review, alongside submissions to the review. Further consultation across government and the legal assistance sector will inform negotiations about future legal assistance funding arrangements.