Ting indigenous cu

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Knowledge, Understanding and Awareness
The aim, from a pedagogical perspective, and without being prescriptive, is to make the scope of learning required in the first limb manageable within the resource constraints of a university teaching framework. That is, to enable students to gain an adequate knowledge and understanding through an undergraduate university course — or, in higher degree research courses, a deeper, more detailed knowledge and understanding.

The second part of the first limb requires an of Indigenous protocols’. At a functional level this is a modest requirement. For example this could mean being aware of the various ethical clearance protocols that institutions including universities have in place for undertaking research with Indigenous subjects as both the institution and the Indigenous communities require. While lawyers are not bound by these protocols per se in practice, requiring lawyers to have an awareness at least of these protocols is perhaps a very modest requirement. There is much more to Indigenous protocols than is indicated briefly here other than to note that such awareness should be seen as a first step only.

The UACC definition is not a legal definition. Nonetheless, it adequately captures the broad elements and provides a reasonable basis for adaption. Thus for example in practice, for a ‘working definition’ the scope UACC definition could be read down to mean a ‘(reasonable or adequate) knowledge’ and perhaps also a ‘(reasonable or adequate) understanding’, ‘of (one or more) Indigenous Australian cultures’. The term ‘cultures’ should be read quite broadly to include what His Honour Justice Finn referred to as

a plain English definition of the different possible societies’, which include localised regional (Indigenous) groups and broader regional (Indigenous) groups, which could encompass variations such as distinct groups of languages.12
B The Skills Element
The second limb consists of the development of practical skills and experience to apply the theoretical knowledge gained through formal study. In law schools this is usually achieved to some basic

12 Akiba v Queensland (No 2) [2010] FCA 663 [175].
extent through clinical programs and after graduation through practical legal training programs such as the ANUs Graduate Diploma in Legal Practice (GDLP). This is offered under different names by many law schools and other institutions. At the ANU neither the clinical nor the GDLP program has a specific ICC development component; this is a gap that needs to be addressed in the future. To this end the ANU is undertaking an audit of its law units with the aim of identifying how ICC can be strengthened within the framework of the current constraints.

It is unlikely that law students will be truly culturally competent even to deal with a local Indigenous community at the end of their degrees. At minimum, however, their knowledge and awareness should sensitise them to the vast gap that could exist in practice between the communities. There are many relevant issues, a few of which are raised here for illustration. The Law Council of South Australia, for example, has created a helpful document for lawyers dealing directly with local Aboriginal clients.13 The protocols capture the frustration of an Aboriginal client who said ‘Dealing with the whitefella law is like playing football when the other team and the umpire are applying basketball rules’.14 Acquiring the necessary skills to deal with these frustrations, including the difficulty of tackling the complex issues facing Indigenous women in rural towns, is also a key ‘access to justice’ issue for governments.15

The High Court has recognised that ‘Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices’, which may in cases have an enduring effect with attendant legal consequences.16 Gray et al refer to the range of equitable issues that must be considered when dealing with disadvantaged communities generally, but specifically addressing their case study in Indigenous communities.17 Physical barriers such as a high level of hearing loss among Aboriginal peoples make court processes difficult and compound inadequate English language competency issues.18 Ideally the university sector will be able to provide appropriate clinical programs that address these types of issues not only for graduates who will practice law but also for other who will work in legal policy areas — for example those who work closely with the Aboriginal Legal Services (if they survive the
13 Law Society of South Australia, Lawyers’ Protocols for Dealing with Aboriginal

Clients in South Australia (1st ed, 23 August 2010).

14 Ibid, 4.

15 Judy Putt and Kate Crowley, Working with adolescents to prevent domestic violence: rural town model (Canberra, Attorney Generals Department (Cth)

1998), 10.

16 Bugmy v The Queen [2013] HCA 37 (2 October 2013).

17 M C Gray, B H Hunter and J Taylor, Health expenditure, Income and Health Status Among Indigenous and Other Australians (Centre for Aboriginal Economic Policy Research 2002) 5.

18 Law Society of South Australia, above n 13, 19.
current changes in government policy), the community legal sector, NGOs and the many other public and private organisations such as the Office of the Registrar of Indigenous Corporations (ORIC).19

Indigenous people have a civilisation and culture which is significantly different from the majority Anglo-European culture. These differences clearly necessitate specific and appropriate approaches if problems and issues are to be addressed sensibly and to the satisfaction that is expected in a first world economy. Positive statements by governments and leaders in the broader community create some expectations on the part of the Indigenous community that their needs, including legal services, will be addressed by measures that are appropriate, targeted and of the same standard and quality enjoyed by the mainstream. The mass media such as the Australian Broadcasting Corporation or NITV, the Indigenous TV Chanel, have begun to educate viewers about the majority of Indigenous protocols and customary norms that apply widely, although perhaps not universally, among Indigenous communities. The need for holistic and comprehensive programs that address Indigenous communities, however, remains undiminished. That there is an implicit requirement that legal service providers be competent to deliver such programs has been recognised widely.20 These broader attributes include the skill needed to address the feeling of impotence among Indigenous men and the associated issues of alcohol and violence that put many men in an adversarial situation vis-à-vis the law.21 Lawyers should also know and understand the support mechanisms that are in place within Indigenous communities to deal with historical issues and to acquire the necessary skills to work with, and in concert with, these mechanisms so that this cooperation will bring about the optimal social benefits to Indigenous communities while remaining true to their obligations as officers of the Court.22 These are aspirational targets being considered by Indigenous law academics at conferences and seminars with a view to realising such change in the not too distant future. But the clock is ticking on these issues. Aspirations of Indigenous communities being served by a legal profession that understands them was proposed in 199323 — an aspiration that remains unfulfilled 20 years on.


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