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Breaking the barriers: Victorian Indigenous lawyers

Cover Story

Cite as: (2007) 81(8) LIJ, p. 18


By Harriet Morley

By Harriet Morley

Solicitors, barristers and judges rightfully consider themselves champions of the law, defenders of equality and, most importantly, advocates for access to justice.

However, much of the Victorian legal profession has taken an ad hoc approach to a major domestic human rights issue in its own backyard.

An extensive LIJ investigation reveals little has been done to encourage and support Indigenous Victorians to join the legal profession.

There are no Indigenous magistrates or judges among the 245 on the Bench in Victoria, and there is only one Aboriginal barrister.

While a small number of law firms are working to encourage Indigenous people to join them as solicitors, many admit to being oblivious to the issue or at a complete loss regarding how to help.

At the tertiary level, the struggle is even harder as Indigenous law students battle financial pressures and cultural isolation.

Court of Appeal Justice Geoffrey Eames believes there is an “acute need for Indigenous people in the law”, and urges the profession to take immediate action.

“I would like to think that the bigger firms especially were able to do something about making positions available for Indigenous students and graduates,” the recently retired judge said.

Justice Eames, former Judicial Officers’ Aboriginal Cultural Awareness Committee chair, spent much of his 40-year legal career working to improve equality for Indigenous people.

He worked for the Aboriginal Legal Service in the Northern Territory in the early 1970s and sat on the Royal Commission into Aboriginal Deaths in Custody in the late 1980s.

He has since campaigned for Aboriginal rights, including the advancement of Indigenous lawyers and law students.

As the pool of Indigenous law graduates expands, Victorian law firms should introduce an annual quota of identified positions for Aboriginal lawyers, Justice Eames said.

“It is a very good thing to have more than one Aboriginal person in an organisation at the same time. That way people are not completely isolated.”

Just three of the 25 Victorian legal practices surveyed by the LIJ provide programs to redress imbalances in the employment of Indigenous lawyers. [See “LIJ Survey Law Firms”, page 24, for more information.]

The firms – Arnold Bloch Leibler (ABL), Clayton Utz and Mallesons Stephen Jaques – offer annual Indigenous seasonal clerkships.

Maurice Blackburn Cashman and Ebsworth & Ebsworth implement Indigenous support programs, but do not currently employ any Indigenous lawyers.

Of the 13 firms that declined to participate in the survey, many said such a survey was inappropriate because they did not ask staff to identify race or ethnic background.

A spokesperson for one firm said the firm did not have any identified initiatives as a result of a “lack of understanding of what programs are available”.

Another firm said it would welcome the issue of Indigenous employment programs being put on the profession’s agenda.

Justice Eames said Victorian law firms have a key role in alleviating the struggle Indigenous people face in entering the mainstream legal profession.

“I think firms are appealing now, but they are also frightening because it is a world that is not really known [to Indigenous lawyers],” he said.

“That is why I think it is a great thing if Indigenous people can get an opportunity to do work experience and summer clerkships.”

As long as Victorian law firms continue to rely predominantly on academic transcripts for entry level positions, many Kooris will miss out.

Tarwirri (formerly the Indigenous Law Students and Lawyers Association of Victoria) president Bevan Mailman said many Indigenous students came from disadvantaged backgrounds.

He said it was difficult for them to attain the top marks law firms set for seasonal and articled clerkship positions.

“Nevertheless, the struggle Indigenous students have endured to fulfil their dream of becoming lawyers has fostered within these students an incredible amount of self-determination and a desire to stand as equals,” the Bidjara man said.

“I personally think that law firms that do not take the opportunity to examine the applications from Indigenous students do themselves a disservice.”

Tarwirri’s attempts over the past 18 months to roll out Indigenous seasonal clerkship programs at the state’s top law firms have met with some disheartening responses.

One firm told Tarwirri it would not consider offering a seasonal clerkship position for Kooris because of the “low calibre of applicants”.

Indigenous lawyer Abigail Burchill said this response showed a complete misunderstanding of the benefit a summer clerkship in a firm would offer Koori law students.

“This lack of insight from the profession represents a continuing barrier to the success of Aboriginal people in the profession,” Ms Burchill, a Commonwealth Department of Public Prosecutions senior legal officer, said.

Indigenous lawyers who spoke with the LIJ said they had suffered instances of racism, and were often questioned about their Aboriginal heritage.

Many also faced added pressures and expectations to work solely on Indigenous legal issues.

Department of Justice Courts and Programs Development Unit project manager Daniel Briggs said some Indigenous lawyers, including himself, did not want to be pigeonholed into one area of legal practice.

“It can be frustrating, but it’s just a lack of awareness from people,” the Yorta Yorta man said.

“People think that this is what Aboriginal Australia needs – Aboriginal people representing their own.”

Of the 12,104 practising lawyers in Victoria, only 16 are Indigenous, according to Tarwirri and Law Institute of Victoria (LIV) statistics.

A small number of Victorian law firms are working positively to encourage members of the minority group to enter the profession.

ABL offers identified seasonal clerkships, and will this year host a free resume skills course for senior Indigenous law students.

Among Indigenous lawyers to work for the firm was prominent Aboriginal lawyer and director of the Cape York Institute Noel Pearson, who started at ABL as an articled clerk.

ABL senior partner and Reconciliation Australia co-chair Mark Leibler AC urged Victorian firms to do something constructive to back the growing number of Koori law students and lawyers.

“All firms can make a significant difference in this area by developing, lodging with Reconciliation Australia and carrying through a reconciliation plan, which could very well include initiatives to open up career opportunities for Indigenous people in the law,” he said.

ABL launched a Statement of Commitment to Reconciliation in May.

Final year Indigenous Monash University law student Matt Hansen completed a summer clerkship at ABL in February this year.

“I found out what it was like to work in a major firm and what they expect of you. I realised getting your name into the mainstream is very important,” Mr Hansen, who has secured articles at Holding Redlich next March, said.

“There is no point pushing hard to get Indigenous students to study law if there is nothing for them when they graduate.”

ABL public interest law partner Peter Seidel said the firm worked at a grassroots level to help address issues of inequality.

“ABL has a long history of assisting in empowering Indigenous people on the ground, including setting up systems that address the fundamental issue of inequities in access to education, which will establish the building blocks for the next generation of Indigenous lawyers to come through,” he said.

This year, Clayton Utz introduced an annual seasonal clerkship for Indigenous law students.

A Clayton Utz spokesperson said seasonal clerkships were becoming increasingly important to securing graduate positions.

“We hope that by offering Indigenous students this opportunity we will contribute to their greater participation in the profession,” she said.

“We recognise that many Indigenous students come from rural communities and do not necessarily enjoy the same networks and opportunities as students in metropolitan areas.”

According to LIV membership statistics, almost 3500 legal practices operate in Victoria.

LIV president Geoff Provis said the few firms with Indigenous programs deserved credit for their work.

“Other large firms that have the resources should seriously look to take on Indigenous summer clerks and implement mentoring programs,” he said.

Also this year, Mallesons Stephen Jaques employed its first Indigenous law student under the federal government’s National Indigenous Cadetship Project, while the College of Law Victoria offered its first identified position to an Aboriginal graduate.

Victorian Department of Justice Indigenous Issues Unit (IIU) director Andrew Jackomos said the IIU would launch a new Indigenous cadetship program later this year to help Aboriginal law students break into the mainstream profession.

Victoria Legal Aid (VLA) has taken on six Indigenous articled clerks since 2001, under an Indigenous seasonal and articled clerkships program.

VLA CEO Tony Parsons said former LIV president the late Tina Millar was the driving force behind the program.

While the above examples indicate pockets of positive effort in redressing imbalances, it comes from just six organisations – of which only three are firms.

Australian National University law professor Margaret Thornton said law firms must embrace formalised affirmative action policies.

The author of The Liberal Promise: Anti-discrimination legislation in Australia said affirmative action required employers to address historic discrimination, exclusion and under-representation of minority groups. [See “Law allows for affirmative action”, page 33.]

“There is no legal impediment preventing Victorian law firms from devising trail-blazing, non-paternalistic initiatives in the interests of social justice for Indigenous people,” she said.

Mr Jackomos called for all sections of the legal profession to improve levels of affirmative action, cultural awareness and diversity.

“Law firms are in a position to set an example for the rest of the community. We do have very talented Indigenous graduates who are coming through, who only need to be given a break,” the Yorta Yorta man said.

“The problem is it’s not an even playing field. Many of our [Indigenous] law graduates come from backgrounds of severe disadvantage and they haven’t had the opportunities that many other law graduates have had.”

VLA CEO Tony Parsons said affirmative action was often required to break down the status quo.

“It’s classical. It’s been seen with women – the legal profession is a boys club. And now, women are making increasing contributions. Indigenous law graduates are in precisely the same position,” he said.

Under the Victorian Charter of Human Rights and Responsibilities and the federal Equal Opportunity (Commonwealth Authorities) Act 1987, positive discrimination is a form of affirmative action allowed in employment to redress an imbalance in peoples’ access to opportunities.

One firm that responded to the LIJ survey said it did not have a diversity employment policy and added: “We do not have a policy to positively discriminate on the basis of race, gender, sexual orientation or religion when hiring. We are an equal opportunity employer”.

State Attorney-General Rob Hulls said awareness of Indigenous culture and workplace diversity was important, and the government was mindful of the need to support Kooris in the legal profession.

Mr Hulls said the state government had initiated various programs under the Victorian Aboriginal Justice Agreement (VAJA), including Koori Tertiary Scholarships and funding for Tarwirri.

“However, it will take time for a critical mass to permeate through the system, including finding employment in private firms,” he said.

Victorian Aboriginal Legal Service (VALS) CEO Frank Guivarra, of Torres Strait Island and Aboriginal descent, said positive discrimination in the legal profession would be considered a gesture of reconciliation.

Ironically, VALS does not employ any Indigenous lawyers.

Mr Guivarra said this was due to the disparity in salary range between itself and private practice, as well as VLA.

When pressed as to why he could afford to employ non-Indigenous solicitors, but not one Indigenous lawyer, Mr Guivarra said VALS could not compete with other organisations.

“At the end of their articles there is no guarantee of employment here,” he said.

For those Aboriginal lawyers who do make it into legal practice, some are hit with a new and unexpected hurdle: having their heritage and history questioned.

Koori Courts project manager and Palawa woman Rosie Smith said some colleagues mistook her for an Anglo-Saxon person because of her light skin.

“People couldn’t understand why I would want to fight for [Aboriginal] community rights when I could quite easily blend in,” she said.

Commonwealth DPP Indigenous lawyer Abigail Burchill said many Kooris faced constant questioning about their Aboriginality.

She often wished for darker skin to prevent her colleagues doubting her background.

“I think there was curiosity in the office because people thought ‘here is this person and they don’t look Indigenous’. For them I think that was a big thing,” the Tarwirri treasurer said.

“The irony is identifying as an Aboriginal person when you’re not black [skinned], and it would be difficult to be black if your history is in Victoria.

“My grandmother said her children married white people because there were very few Aboriginals in Echuca [where I come from] who were not already related.”

The Aboriginal Development Commission Act 1980 defines an Aboriginal person as someone who is a member of the Aboriginal race of Australia, identifies as an Aboriginal and is accepted by the Aboriginal community as an Aboriginal.

While some Indigenous lawyers face the frustration of having to justify their Aboriginality, others are confronted with instances of racism.

IIU director Andrew Jackomos said racism existed in the justice system and called for it to end.

“There are degrees of racism in the justice system and one of the jobs of the VAJA is to make the justice system more culturally friendly for Kooris,” he said.

“I have personally experienced racism ... and there should be zero tolerance.”

Internationally, moves to advance the rights of Indigenous people are strengthening.

The United Nations launched a Declaration on the Rights of Indigenous Peoples last October.

The Declaration addressed cultural and identity rights to education, health and employment.

It also outlawed discrimination against Indigenous people and promoted their full participation in all matters that concern them.

Two years ago, American retailer Walmart tried to increase racial and gender diversity among the top 100 firms that do legal work for the company, according to reports on http://www.law.com.

The company rolled out a policy for each law firm to employ at least one “person of colour” and one woman among its top five lawyers.

Tarwirri coordinator Aislinn Martin said Australian law firms should seek Indigenous awareness training from national or local consultants on Indigenous issues.

Training would raise awareness about Indigenous culture and facilitate an understanding between employers, staff and Indigenous Australians, Ms Martin said.

Last year an LIV policy statement, “Indigenous Australians in the Legal Profession and Justice System” was launched.

The policy was developed by the LIV’s Indigenous Issues and Reconciliation Committee.

It recognised the responsibility of the legal profession to redress disadvantage and inequity experienced by Indigenous Australians in the pursuit of justice.

LIV CEO Mike Brett Young said the policy and the LIV’s decision to house Tarwirri were moves towards advancing the contribution of Victorian Indigenous lawyers.

“What we are trying to do here is help Aboriginal lawyers move into the mainstream profession,” he said.

Mr Jackomos said the government, under the VAJA, provided $63,000 a year out of its six-year $31 million budget to fund Tarwirri.

Although the LIV houses Tarwirri, Mr Jackomos questioned whether the LIV could do more to support Kooris entering the legal profession.

Mr Brett Young said it was the responsibility of the whole profession to help Indigenous lawyers become a larger representative group in law firms.

He urged Victorian firms to broaden their employment strategies and look at taking positive steps to address the issue.

“The large number of Indigenous graduates means that law firms can select from a pool of talented Indigenous lawyers,” Mr Brett Young said.

“Firms offering identified summer clerkships for Indigenous law students is a realistic first step into the true integration of an Indigenous program.”

Monash University’s Indigenous Student Services coordinator Nareida Wyatt is blunt about her employer’s efforts to support Indigenous law students.

“It is embarrassing and pathetic that we do not have any scholarships to offer Indigenous law students,” she told the LIJ.

Her criticism of Monash is echoed by many Indigenous lawyers who feel the Victorian tertiary sector has not done enough for Aboriginal students.

Tarwirri president and Federal Court research associate Bevan Mailman urged Victorian universities to take more responsibility for helping Indigenous people overcome social disadvantage.

“A first step is to acknowledge that such institutions have a responsibility to foster true equality through creating opportunities for all,” he said.

Of the five Victorian universities to offer law (Deakin, La Trobe, Melbourne, Monash and Victoria), the LIJ found only Melbourne funded its own scholarships for Indigenous law students.

The $2000 Alastair Nicholson Law Scholarship is awarded annually for significant academic achievement by an Indigenous undergraduate law student.

The University’s Deborah and Colin Golvan prize, worth $1000, also goes to a new Indigenous law student each year.

In addition to this limited university financial support, only a small number of government scholarships for Aboriginal law students exist.

For example, in Victoria, the Department of Justice IIU provides up to four Koori Tertiary Scholarships (KTS) at any one time.

The awards, worth $30,000 each, were launched under the VAJA. Since 2001, 14 KTS have been allocated to Indigenous law students.

At a federal level, two John Koowarta Reconciliation Law Scholarships are awarded annually.

The $5500 prize, introduced in 1994, was a joint initiative of the Law Council of Australia and the federal government.

Improving levels of financial support for Indigenous law students is paramount, Deakin University Institute of Koorie Education (IKE) director Wendy Brabham said.

“Providing appropriate levels of financial support is a crucial factor in encouraging Indigenous people to undertake studies in law,” she said.

A Monash University study found while there were increasing Indigenous law student enrolments, the more telling statistics were the low graduation numbers.

The study, titled A Report into the Professional Development Needs of Native Title Representative Body Lawyers Final Report April 2005, found Indigenous law enrollees jumped from 50 in 1990 to 362 in 2004.

However, of the 4520 graduating law students nationwide in 2003, only 36 were Indigenous, including six from Victoria.

Personal barriers such as cultural and academic isolation also contribute to university drop out rates.

“Alienating” is the word that came to mind when Yorta Yorta woman Abigail Burchill recalled her time at Melbourne University in the early 1990s.

“It is extremely intimidating. Culturally it is very alienating; there is nothing really organised to identify with the people who are there,” she said.

Ms Burchill added that Aboriginal history had an adverse effect on the way Kooris related to their studies.

“I think the biggest problem is confidence. Our history is that we were told we were never going to achieve anything.

“We were highly regarded for our sport-ing abilities, but not for any academic achievement.

“I was told ‘don’t set your sights on law, you’re not going to do law’.”

Monash Aboriginal law student Ian Taylor, from the Kimberley region in Western Australia, said his university experience was isolating because of a lack of contact with other Indigenous people.

Mr Taylor was thrown a lifeline this year when he became the first person to complete the Victorian Bar’s new Indigenous seasonal clerkship program.

He said the four-week placement gave him the confidence to complete his degree.

LIV president Geoff Provis urged universities to target Indigenous secondary school students to enrol in law, as a way of increasing graduate numbers.

“There are not that many Indigenous lawyers, so any projects that would encourage young Indigenous people to take up law would benefit the profession,” he said.

Mallesons Stephen Jaques partner in charge Ros Grady agreed, and said that universities should promote themselves to Indigenous secondary students.

“Further discussion among schools and universities about how law courses are promoted to Indigenous people and how effectively students are supported during their studies will be important, so that there is an increased pool of Indigenous people at university to apply for positions at firms,” she said.

Deakin University has set the benchmark for assisting Indigenous law students, according to former Melb-ourne University arts/law graduate Bevan Mailman.

“University departments such as the Institute of Koorie Education (IKE) at Deakin University lead the way in supporting Indigenous students. Other universities need to do more,” he said.

Deakin is the only Australian university to offer a Bachelor of Law through a community-based mode of delivery for Indigenous Australian students, Deakin Universitylaw lecturer and Wotjabaluk man Syd Fry said.

Fourteen Indigenous law students have graduated from Deakin University since the program’s inception in 1995 – the most Aboriginal law graduates of any Victorian university.

The community-based delivery degree means students spend six two-week blocks on campus and the rest of the course is taught via correspondence.

As a result, many students do not need to relocate from their communities and alter their established networks like on-campus students have to, Mr Fry said.

“The thing that makes it really work is that they [the students] don’t lose contact with their family and they don’t lose sight of who they are. They can maintain their cultural integrity without having to give up too much,” he said.

“I admire them for really committing themselves, particularly with the com-munity pressures that they have.”

This year, Aboriginal Elder Uncle Jim Berg visits during the intensive study blocks on the Deakin Geelong campus to help mentor students.

Solicitors seeking the services of a Victorian barrister have more than 1700 from which to choose.

Solicitors seeking the services of an Indigenous barrister in Victoria have only one choice: Hans Bokelund.

The sole Indigenous Victorian barrister signed the Bar roll in May this year.

He follows in the footsteps of the first Victorian Indigenous barrister to sign the Bar roll – Mick Dodson in 1981 – and Linda Lovett in 2006.

Neither Professor Dodson nor Ms Lovett still practise at the Victorian Bar.

Mr Bokelund, a Darumbal/Wakka Wakka man, said in the past the Bar was considered to be an ivory tower, dominated by white Anglo-Saxon males.

“Now there are trends of women coming to the Bar and I want to pick up the momentum of having Indigenous people at the Bar,” he said.

For Victoria’s first Indigenous female barrister Ms Lovett, a Bunurong woman, joining the Bar in May 2006 was both rewarding and demoralising.

After just six months, Ms Lovett relocated to Western Australia where she works for the Perth and Kalgoorlie offices of the Aboriginal Legal Service of Western Australia representing Indigenous people.

Speaking from Perth, Ms Lovett said financial and cultural difficulties contributed to her departure.

“When I was at the Bar I always tried to encourage other Indigenous lawyers to go to the Bar,” she said.

“I still recommend it. However, I would need to tell them how expensive it is to try and live off your savings, which was something I was not fully aware of at the time.”

Ms Lovett recalled she received 98 per cent of her briefs from VLA, where she completed her articles in 2003, and 2 per cent from private lawyers.

Victorian Bar Indigenous Lawyers Committee chair Colin Golvan SC said the Bar offered Indigenous lawyers a mentoring program, a seasonal clerkship, a reserved place in the Bar readers course and opportunities for the readers course fees to be waived.

In an attempt to attract more Indigenous barristers, the Victorian Bar Indigenous Barristers Fund was launched on 7 May this year.

The Victoria Law Foundation contributed $25,000 to the fund and Victorian Bar Council chair Michael Shand QC called on corporations and barristers for donations.

Speaking at the launch, Indigenous lawyer Abigail Burchill said: “The fund tries to address the inequalities that many Aboriginal people face entering the legal profession, including the Bar.

“Yes, anyone can go to the Bar, but the absence of Aboriginal barristers in Victoria speaks volumes about the institutional barriers that face Aboriginal people today.”

Professor Dodson, a Yawuru man, officially launched the tax deductible fund, and said Victoria was playing “catch up” after the NSW Bar launched a similar trust in 2005.

The NSW Bar currently has four Indigenous barristers, and its trust has provided financial assistance to six Aboriginal barristers.

Mr Shand said the purpose of the Victorian fund was to help Indigenous people pursue a career at the Bar.

When asked what he thought of the fact that there was only one Indigenous barrister at the Victorian Bar, he said: “We wish to encourage more Indigenous members of the Bar”.

Mr Golvan said the Victorian Bar wanted to work with the LIV to inform solicitors of new Koori barristers to help raise their profile and assist them in securing briefs.

Mr Bokelund agreed and said the profession should be proactive in finding ways to help brief Indigenous barristers, as it has been with initiatives to brief female barristers since 2003.

LIV CEO Mike Brett Young welcomed the opportunity to be involved in such initiatives. He also urged the state government to put the issue on its agenda.

“The government has briefing policies in relation to women lawyers. Perhaps it is time that they look at this area as well,” he said.

However, state Attorney-General Rob Hulls, who has publicly campaigned to improve equality for women barristers, would not comment on the Indigenous barristers’ briefing proposal.

He said the government was more focused on getting Indigenous lawyers through their law degrees and supporting their enrolment in the Bar readers course.

Under VAJA 2000, the current state Labor government recommended the appointment of Aboriginal people to the Bench in Victoria.

Seven years later Victoria’s judiciary still does not include an Indigenous magistrate or judge, despite multiple applicants.

There are 127 magistrates and 118 judges sitting in Victoria across the Supreme, County, Magistrates’ and Children’s Courts and the Victorian registries of the Federal, Federal Magistrates and Family Courts. [See “LIJ Survey Courts”, page 26.]

State Attorney-General Rob Hulls said the government was committed to long-term programs and partnerships with Kooris and other stakeholders to help Indigenous lawyers enter the judiciary.

“It is unrealistic to expect that the issues driving Indigenous disadvantage for the past 200 years, such as dispossession of land and culture, splitting families and entrenched socio-economic disadvantage, can be overcome in just seven years,” he said.

IIU director Andrew Jackomos said the state government repeatedly asked him to recommend Indigenous lawyers who might be potential candidates for the Bench.

He could not say why the nominees had been deemed inappropriate, but predicted an Aboriginal judicial appointment would be made in the next two years.

The LIJ found Indigenous candidates had shown an interest in being appointed to the Bench, but were overlooked.

After joining the Victorian Bar last year with hopes of becoming a magistrate, Linda Lovett was disillusioned by a lack of encouragement.

“I wanted to become a magistrate and asked a few people in Victoria about it, but they said there were other people who could give more to the position than I could,” Ms Lovett said.

“It was then I decided to [leave Victoria to] work for my people.”

However, she has not given up on the idea of becoming a magistrate and intends to learn as much as she can before looking to join the Bench.

Australasian Institute of Judicial Administration executive director Professor Greg Reinhardt said the heads of each jurisdiction needed to support the advancement of Indigenous people to the Bench.

“Heads of the jurisdictions do need to keep their eyes on Indigenous people coming through the ranks and put their names forward,” he said.

The LIJ sought comment from Victorian Supreme Court Chief Justice Marilyn Warren on Indigenous appointments to the Bench.

Chief Justice Warren was initially unavailable due to work commitments. A second inquiry coincided with the Chief Justice being on leave.

VALS CEO Frank Guivarra said it was disappointing the Victorian judiciary did not include an Aboriginal solicitor or barrister.

He encouraged the state government and Koori lawyers to recall the work of the late Bob Bellear, Australia’s first Aboriginal appointed to the NSW Bench in 1996.

“He was an extraordinary man. If we could get even one or two Indigenous people to aspire to be like Bob Bellear, what a great thing that would be,” Mr Guivarra said.

Indigenous people are also significantly under-represented in the role of associate in Victoria’s courts, the LIJ survey found.

Of the 77 associates working in Victorian courts or national courts that sit in Victoria, just one research associate is Aboriginal.

Only the Federal Court offers an affirmative action program to employ Indigenous lawyers.

Five Aboriginal lawyers have been emp-loyed under the Court’s Indigenous Research Associates Program, established in 2001.

Federal Court Native Title Registrar Louise Anderson said the positions invol-ved attending court and completing research across the spectrum of the Court’s jurisdiction.

“The intention of the program is to provide Indigenous law graduates with improved opportunities in the legal profession through exposure to the general work of the Court,” Ms Anderson said.

Supreme Court Judicial Manager Paul O’Halloran said the Supreme Court did not have a similar program for Indigenous associates.

He said the Department of Justice (DOJ) had refused to fund the Court’s proposed Indigenous Associates Program earlier this year.

IIU director Andrew Jackomos said the employment of Indigenous associates was not the VAJA’s responsibility alone.

He said the IIU did not have the funds to match the Supreme Court’s 100 per cent funding request.

“When they put their contribution on the table, I’ll match it,” Mr Jackomos said.

Victorian County Court CEO Neil Twist said his jurisdiction adopted the DOJ Wur-cum barra program – an Indigenous employment strategy to improve diversity in the workplace.

However, no Indigenous lawyers cur-rently work at the County Court.

An area of potential growth for the employment of Indigenous lawyers is in Victoria’s Koori Courts system, according to major legal figures.

Moves to expand the specialist Court’s model from the Magistrates’ to the County Court are underway, and Aboriginal law graduates should be a part of the development, Justice Geoffrey Eames said.

Mr Twist said a 12-month investigation was in progress to determine whether the Koori Court would work in his jurisdiction.

Koori Courts manager and Aboriginal lawyer Rudolph Kirby said the proposal would give young Indigenous law graduates a good grounding in the Victorian judicial system and help them establish legal networks.

Mr Hulls said there was great potential for the courts to provide employment opportunities for Koori law graduates.

But he added: “Many Indigenous law graduates would prefer to gain as broad an experience as possible across the legal system.”

Five adult Koori Courts and one Children’s Koori Court have been introduced across Victoria since 2002 under the VAJA.

New Koori Courts are expected to open in Mildura next month and Swan Hill in June 2008.

Whatever the success of the Koori Courts, the need for all jurisdictions to do more to foster relations with Indigenous lawyers is strong.

Mr Jackomos said the judicial system must review its employment strategies to redress imbalances in the appointment of Indigenous lawyers.

“Individual units within justice, and this applies across the public sector – commonwealth and state, must understand Indigenous employment needs to become a part of core business. It shouldn’t be an add-on,” he said.

Changing the mindset of many in the legal profession who believe there are not enough Indigenous lawyers to warrant action is a major challenge, LIV CEO Mike Brett Young believes.

“It will take a positive and realistic approach to address some of the attitudes which are restricting the capacity for Indigenous lawyers to enter the profession,” he said.

A new national Indigenous law students and lawyers association, to be announced next month, is expected to play a key role in changing these attitudes [see “Indigenous association spreads its wings”, page 30].

Tarwirri president and Bidjara man Bevan Mailman said the body would address the barriers Aboriginals face in the Australian legal profession.

“A national Indigenous legal body will provide a unique legal voice that is able to capture the real concerns of Indigenous Australians at a grassroots level,” Mr Mailman said.

Co-founder of the Indigenous Law Students and Lawyers Association of Victoria (ILSLAV), now called Tarwirri, Justice Eames welcomed initiatives to support the issue of Indigenous Australian lawyers being put on the national agenda.

“ILSLAV has been the greatest initiative. It is going to be a tremendously important organisation and the message of ILSLAV is going to be spread all over the country,” Justice Eames said.

Indigenous lawyer Abigail Burchill said while a national association was an important step towards redressing inequalities in the Victorian legal profession, more action was needed.

“The under-representation of Aboriginal people in the legal profession is no accident,” she said.

“We need help and encouragement to overcome the barriers preventing us getting started in the closed-shop that is the legal profession.”

A telling story

Working and studying in Victoria

Non-Indigenous

Indigenous

Practising lawyers

12,104 a

16 *

Articled clerks

556 †

3 *

Barristers

1703 ‡

1 *

Magistrates

127 §

0 *

(Magistrates’ and Children’s Courts and the Victorian Registry of the Federal Magistrates Court)

Judges

118 §

0 *

(Supreme and County Courts and the Victorian Registries of the Federal and Family Courts)

Judges’ associates

77 §

1 *

(Supreme and County Courts and the Victorian Registries of the Federal and Family Courts)

Tertiary law students

7132 #

52 #

Victorian population

4,932,422 ¤

30,141 ¤

This is the first time this body of statistics has been collated. In each instance the LIJ gathered material from the most recent source.
§ LIJ survey of Victorian courts, March 2007
¤ Australian Bureau of Statistics 2006 Census
a LIV 2006 Annual Report
# Monash University study, A Report into the Professional Development Needs of Native Title Representative
Body Lawyers Final Report April 2005
† Supreme Court of Victoria Board of Examiners data, June 2007
* Tarwirri data, June 2007
‡ Victorian Bar data, June 2007

LIJ survey law firms

The LIJ surveyed 25 Victorian law firms for their views on employment practices relating to Indigenous lawyers and law students. The views of those firms which responded are printed below.

Firm

Identified Indigenous places

Indigenous support programs

Comment

Arnold Bloch Leibler

Yes

In 2007, ABL took on its first Indigenous law student under its new Indigenous seasonal clerkship program

Yes

Firms should ensure they adopt trans parent equal opportunity practices that give a fair chance to people from all backgrounds.

Blake Dawson Waldron

No

No

We pride ourselves on the diversity of people within the firm.

Clayton Utz

Yes

In 2007, Clayton Utz introduced an annual seasonal clerkship position for an Indigenous law student.

Yes

With seasonal clerkships becoming increasingly important in securing graduate positions, we hope that by offering Indigenous students this opportunity we will contribute to their greater participation in the profession.

DLA Phillips Fox

No

DLA Phillips Fox does not specifically recruit Indigenous students for clerkships. The firm said it was not aware whether any Indigenous students had applied.

No

Universities could devise schemes to encourage more Indigenous students to enter into law.

Ebsworth & Ebsworth

No

Yes

Ebsworth & Ebsworth does have a policy and supports Indigenous people in the legal profession.

We currently have one Indigenous legal professional working in our Brisbane office

Harwood Andrews

No

No

Harwood Andrews does not have a policy for employing or retaining Indigenous lawyers, probably through a lack of understanding of what programs are available.

Maddocks

No

No

Maddocks would welcome the LIV putting this issue on the agenda as a challenge for the broader legal industry to build the presence of Aborigines or Torres Strait Islanders in the profession.

Mallesons Stephen Jaques

Yes

In 2007, Mallesons took on its first Indigenous law student in its Sydney office under the federal government’s National Indigenous Cadetship Project.

Yes

We welcome diversity among our staff and do not distinguish between employees of any racial groups

Maurice Blackburn Cashman

No

Yes

Maurice Blackburn Cashman welcomes anybody wishing to work for the firm to apply for a position regardless of age, gender, religion or cultural background.

Indigenous Australians are strongly encouraged to apply for a seasonal and articled clerkship at our firm.

Minter Ellison

No

No

We do not have a policy to positively discriminate on the basis of race, gender, sexual orientation or religion when hiring. We are an equal opportunity employer.

Slater & Gordon

No
But in 2005 Slater & Gordon offered two $2500 bursaries to Indigenous students facing financial hardship at James Cook University in Queensland.

No

The Slater & Gordon Foundation provides access to the justice system and legal education among minority groups.

Victoria Legal Aid

Yes

From 2001, six Indigenous graduates have completed articles under a formal Indigenous seasonal and articled clerkships program.

Yes

For groups in the community who don’t have opportunities, affirmative action is often required to break down the status quo.

LIJ survey courts

The LIJ surveyed the Victorian Courts and the Federal Courts with Victorian registries for their views on employment practices relating to Indigenous lawyers and law students.

Court

judges/magistrates

Judges/Indigenous

Associates

Indigenous associates

Indigenous support programs

Supreme Court of Victoria

35

0

48

0

Nil

County Court of Victoria

58

0

63

0

The Court is part of the Department of Justice Indigenous employment strategy, the Wur-cum barra program.

Magistrates’ Court of Victoria .

108

0

N/A

N/A

Programs are offered through the Department of Justice Indigenous Issues Unit

Children’s Court of Victoria

8

0

N/A

N/A

Nil

Federal Court of Australia

Victorian Registry

15

0

10

1 in Melbourne 5 since 2001

The Court offers an Indigenous Research Associates Program.

Family Court of Australia

Victorian Registry

10

0

4

0

Indigenous employees are Victorian Registry welcome to study a Certificate III in Business.

Federal Magistrates Court

Victorian Registry

11

0

N/A

N/A

Nil

However, the Court will Victorian Registry. consider future scholarships or support programs for Indigenous lawyers.

Indigenous association spreads its wings

Victorian Indigenous legal body Tarwirri is taking its message nationwide.

The association for Indigenous law students and lawyers works to ensure its 118 members attain the same graduation and workplace participation rates as others.

A national Indigenous legal body, to be announced at next month’s second National Indigenous Legal Conference, is set to adopt the Tarwirri model.

The Indigenous Law Students and Lawyers Association of Victoria (ILSLAV), established in 2001, was renamed Tarwirri last November.

Tarwirri, meaning rare brolga [a native crane], is symbolic of the country’s Indigenous lawyer shortage.

This year, the association has worked to introduce Indigenous seasonal clerkship programs at Victorian law firms, the College of Law Victoria and the Victorian Bar.

Tarwirri also helped roll out university information sessions hosted by Aboriginal lawyers, resume skills seminars for senior Indigenous law students, and community education programs across rural Victoria.

The Law Institute of Victoria (LIV) announced it would house Tarwirri last September, after the association received state government funding to appoint a full-time coordinator.

Tarwirri president and Bidjara man Bevan Mailman urged Indigenous students and lawyers to be actively involved in the association.

“Tarwirri is here to support any position that seeks to address current imbalances within the legal profession,” he said.

It has played a significant role in founding similar state bodies in New South Wales and Queensland this year.

Tarwirri coordinator Aislinn Martin worked to reinvigorate the now 60 member NSW Ngalaya Aboriginal Corporation in February.

The Indigenous Law Students and Lawyers Association of Queensland was also incorporated in May.

Key figures behind Tarwirri’s introduction were recently retired Court of Appeal Justice Geoffrey Eames, Australia’s only Aboriginal judge from NSW, the late Bob Bellear, and Victoria’s first Indigenous female barrister Linda Lovett.

“ILSLAV has been the greatest initiative. It is going to be a tremendously important organisation and the message of ILSLAV is going to be spread all over the country,” Justice Eames said.

Ms Martin called on non-Indigenous legal practitioners to join the 35 Tarwirri associate members, who help tutor, mentor and support Koori members.

Tarwirri membership is free for Victorian Indigenous and non-Indigenous law students and lawyers. For further information, contact coordinator Aislinn Martin on ph 9607 9474, email amartin@liv.asn.au, or visit http://www.tarwirri.com.au.

Stand Strong

“As Indigenous people we are survivors and we are a very proud people. It is something we are masters at.

[But] this trait, combined with a lack of confidence and a sense of displacement at university or work, can be devastating because we can silently struggle to function in these environments.

We are in a unique and finite period because opportunity and goodwill offers real gain for our community.

Grab on to it and listen to the stories of people who have graduated.

Those stories will tell you that we have all struggled, we sometimes grapple with a chronic lack of confidence and question why we are here.

But persevere, pass and now work to make a difference.

You are never alone and there is an abundance of assistance to see that you graduate.

It takes a lot of hard work on your part, but we are working hard to support you.

There are no limits to what you can achieve.”

Abigail Burchill is an Indigenous Commonwealth Department of Public Prosecutions (DPP) senior legal officer. She entered the legal profession under an Indigenous summer clerkship program at the Commonwealth DPP Melbourne office in 1991.

Law allows for affirmative action

Responding to the LIJ survey, some Victorian law firms queried the effectiveness of affirmative action. Australian National University Professor of Law Margaret Thornton answers those concerns.

Australian liberal democracy assumes formal equality between all citizens.

This means that everyone should be treated the same regardless of race, sex or other characteristic of identity. If a person is treated less favourably in the same or similar circumstances in an area such as employment, a complaint alleging unlawful discrimination may be lodged under federal or state legislation. For some time, the assumption was that each complaint had a ripple effect that would bring us a step closer to the ideal of substantive equality.

This has proven to be a somewhat naïve assumption because of the ad hoc nature of employment complaints to external agencies, the minuscule number of public hearings and the often insuperable burden of proof confronting complainants.

It also ignores the disproportionate effect of treating the same those who are differently situated. Formal equality ignores the profound socio-economic and cultural impact of sustained animus towards a disfavoured group.

Affirmative action (also referred to as positive discrimination or special measures) entails proactive measures on the part of employers that are designed to address the historic discrimination, exclusion and under-representation of, for example, Indigenous people in the legal profession.

Affirmative action does not have a single denotation but encompasses a potentially vast array of initiatives appropriate for a particular workplace culture.

Modest forms of affirmative action might entail the use of inclusive language and images in advertising material. Stronger forms might include special scholarships in relation to completion of an LLB or practical legal training course, opportunities for work experience, internships and so on.

The most contentious form of affirmative action entails the use of quotas because of the possibility of Whites complaining that, but for the existence of the quota, they would have been appointed. Although occasionally ordered by American courts in the face of egregious discrimination (total exclusion or confinement to unskilled jobs), the detractors of affirmative action have falsely equated the concept with appointment on the ground of race (or sex) alone without regard to the merit principle.

The myth of the unqualified subject of affirmative action has taken hold among some Australian conservatives.

“Soft” quotas or targets that are discretionary, rather than “hard” quotas that are mandatory, may be more acceptable as they are less open to challenge.

In any case, affirmative action initiatives are protected by the special measures provision of the Racial Discrimination Act 1975 (Cth), s8(1). The Equal Opportunity Act 1995 (Vic) contains no such provision, for it endorses a strict equal treatment approach, but an application may be made to VCAT for an exemption under s83.

There is therefore no legal impediment preventing Victorian law firms from devising trail-blazing, non-paternalistic initiatives in the interests of social justice for Indigenous people.

Margaret Thornton is Professor of Law at the Australian National University, Canberra. She is the author of The Liberal Promise: Anti-discrimination legislation in Australia (Oxford, 1990).

Join the discussion

23 August
Tarwirri second AGM
Ph: 9607 9474. Web: http://www.tarwirri.com.au


4-7 September
The Australasian
Institute of Judicial Administration Indigenous Courts Conference
Ph: 9372 7182 Web: http://www.aija.org.au


6-7 September
Tarwirri second community education program for regional students considering studying law
Ph: 9607 9474 Web: http://www.tarwirri.com.au


14-15 September
National Indigenous Legal Conference Sir Gerard Brennan will give the keynote address on “40 years since the 1967 referendum”. Other topics include Native Title, governance in Indigenous communities and intellectual property.
Ph: (07) 3238 5109


16-18 October
10th annual Croc Festival
As part of the wide-ranging festival, workshops include promotion of the law to Indigenous youth in regional areas.
Web: http://www.crocfestival.org.au


Victorian Bar Indigenous Barristers Fund
Donations can be made C/- Denise Bennett, Executive Officer, Victorian Bar, 205 William Street, Melbourne 3000.
For more information, ph 9225 7111.


LIV Indigenous Australians in the Legal Profession and Justice System policy

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