Challenges and opportunities for Indigenous lawyers amid COVID-19

Challenges and opportunities for Indigenous lawyers amid COVID-19

12 November 2020 By Jerome Doraisamy
Challenges and opportunities for Indigenous lawyers

With NAIDOC Week drawing to a close and the pandemic ongoing, it is incumbent upon Australian legal professionals to recognise the existing and emerging issues facing Indigenous practitioners, particularly women, and find meaningful ways to achieve progress.

The theme for this year’s NAIDOC Week is ‘Always Was, Always Will Be’, giving Australians across the spectrum the opportunity to reflect on the lives and cultures that make up our Aboriginal and Torres Strait Islander population.

NAIDOC, which stands for National Aborigines and Islanders Day Observance Committee and has served as an annual week of observance since the 1970s, is a special opportunity for legal professionals, UTS law professor Dr Thalia Anthony said, to “listen to the stories and experiences of First Nations people and to have conversations about pathways for change”.

Dr Anthony, who specialises in Indigenous criminalisation and Indigenous community justice mechanisms, said that “we need to use NAIDOC Week to critically reflect on how laws enable sacred trees and sacred sites to be desecrated; stolen wages of First Nations people to go unpaid; First Nations children to be stolen from families; First Nations people to be locked up at alarming rates and causing unnecessary and inhumane deaths in custody.”

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Why NAIDOC Week is so important

This week, LOD head of marketing and communications (Asia Pacific) and Kaurareg woman Anita Thompson said, is an opportunity to “celebrate the invaluable contributions Aboriginal and Torres Strait Islander (women) have made – and continue to make – to the nation, their communities, families, and to business”.

“I am part of people whose resilience and strength has led to the survival of the world’s oldest civilisation. That is something I am truly proud of and I take that resilience and strength with me into everything I do,” said Ms Thompson, who also has Italian heritage.

“I have been very fortunate, my mother always taught me to never give up and pursue whatever goal I wanted. Because of that, I had a solid education which led me to take an Indigenous Cadetship with Deloitte during by university business degree, many years ago. That was my foundation into a career within professional services.” 

“There are, however, many Aboriginal and Torres Strait Islander women who aren’t as fortunate and do not have access to education.  I am passionate about ensuring young Aboriginal females identify role models and paths to success early on, and that they can gain access to education, so that they too can achieve their potential,” she espoused.

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This theme especially resonated with Marrawah Law principal and Trawlwoolway (Palawa) woman Leah Cameron as well, both personally and professionally, who told Lawyers Weekly that “it highlights the fact that we, as Aboriginal and Torres Strait Islander people, have a continuity on country for tens of thousands of years and it highlights the strength and resilience it has taken to retain that continuity”.

“Against the global backdrop of the Black Lives Matter movement and, closer to home, the high-profile of the Juukan Gorge disaster, this year – more than any other – I feel there is a platform to tell this story of strength and resilience. I believe we are being heard because of our persistent activism and community support and that is why this NAIDOC theme is so important,” Ms Cameron continued.

Issues facing Indigenous women in law

According to Charisma Cubillo, women, “and especially Indigenous women, continue to face issues with representation in the legal sphere, and having our voices heard”.

“There needs to be more Indigenous women in the legal world, promoting and making change to the injustices that continued to be placed upon women, in Australia, and around the globe. Especially injustices that have always existed, or now currently exist, post pandemic,” said Ms Cubillo, a Larrakia woman and solicitor at Terri Janke and Company.

The biggest issues and challenges post-pandemic, YFS solicitor and Kamilaroi woman Candice Hughes said, are the same as pre-pandemic.  

“We continue to carry the responsibilities of our community.  We continue to be burdened by our peoples overrepresentation in the criminal justice system, child protection, and domestic and family violence sector.  This is what drives us to be strong legal advocates,” she detailed.

“We also continue to advocate for the protection of the human rights of our people. To be a voice for our mob when we are asked to be, or need to be.”

There are also, as Cheryl Orr pointed out, new issues emerging in the age of coronavirus – namely isolation.

“Aboriginal people have an initiate spirit of interconnectedness, to look after one another, to be personal, hands on. The current world climate is severally compromising Aboriginal way of being,” explained Ms Orr, the principal of a self-named family law firm and Gurang Gurang Woman.

While listening is something everyone does naturally, Ms Cameron mused, “you’d be surprised how many lawyers don’t listen enough, particularly to their clients and especially in the Indigenous space”.

“For me, that means having the ability to really hear what a client means; properly understand their situation and what they want to achieve; and then help them to determine the best course of action that works for them.”

The other reason why listening is so important in the ‘new normal’ world is that we are all learning to listen differently – it’s harder to get on the ground to see clients and to travel to different parts of Australia so we are adapting and changing. We are meeting virtually, we are spending less time on planes and we are spending more time in our own local regions – all of which requires a different style, a level of flexibility and a level of patience with technology!”

Another lingering issue, Queensland Indigenous Family Violence Legal Service principal and Gimo woman Thelma Schwartz pointed out, is encouraging and supporting Aboriginal and Torres Strait Islander peoples, “and especially women, to study law and ultimately practice and succeed in the practice of law”.

“I have had the benefit of a career in commercial litigation, as a criminal defence solicitor and now, as the principal legal officer of QIFVLS. There is so much benefit from working with and for Aboriginal and Torres Strait Islander peoples in the not for profit sector and I strongly encourage those graduates coming through to think of a practice in the not for profit sector,” stressed Ms Schwartz, whose background consists of German, Samoan and Papua New Guinean heritage.

Opportunities for Indigenous women in law

One of the biggest opportunities for all lawyers, including Indigenous women in law, is the chance to adapt to a new pace and a new style of working, Ms Cameron determined.

“This year has provided an opportunity to spend more time at home with family while still growing the business and delivering for clients. Secondly, and unrelated to COVID-19, the current focus on Indigenous interests, stemming from the continued interest in the Juukan Gorge and the likely changes to the management of cultural heritage across Australia and the Black Lives Matter movement, as a real opportunity for Indigenous professionals to raise their profiles and really look to deliver true benefit for Indigenous communities. This can be done by working closely with corporate and government clients to make sure that Indigenous views and perspectives are heard and, more importantly, addressed,” she outlined.

In addition to being forced to find new ways to be more efficient in the delivery of services, Ms Schwartz noted, the National Partnership Agreement on Closing the Gap was signed off earlier this year.

“This is an exciting time for all, especially Indigenous Lawyers and Indigenous women lawyers. It is the time to lead the discussions and pathways to healing and working better and stronger together to close the gap. It is the time through our individual voices and our collective voices to show our strengths, to show our resilience and to move forward in addressing and leading the way for social justice reform,” she said.

For Ms Cubillo, this also means creating new avenues through which Indigenous women can become leaders in the legal profession, and “take the lead in these pressing times”.

Ms Hughes agreed, saying the age of coronavirus provides motivation to be a strong legal advocate: “It is an opportunity is to show how deadly, strong, resilient, and proud Indigenous women in law are.”

Moreover, Ms Orr added, the need to get creative is increasingly prominent: “Being forced to brain storm for solutions, enhancing skills with the latest technology, having more time to connect although it being on the telephone or video app as opposed to personal encounters.”

Duties upon the broader legal profession

When asked how best lawyers across the country can better assist in addressing systemic issues in a post-pandemic landscape, Ms Schwartz said this is a “multi-layered question”.

“At the heart of it, I feel is respect, tolerance and understanding. Indigenous professionals wear and carry so many hats and loads in their day. For many including me – I was the first in my family to complete primary school, high school, to go to university and obtain a university qualification. I carried the weight of my family expectation to succeed and to show my kin coming through that if I could do this and break through, so could they,” she said.

“It is also important to have mentors or ‘champions’ for Indigenous professionals. I have been blessed to work in law for 21 years and I have always had strong mentors to support and guide me and to reach for the stars. Indigenous professionals in the law, like all others in the law, should be provided with the same opportunities to learn, to grow and to succeed.”

Ms Hughes has “always advocated”, she said, for meaningful engagement and consultation with Indigenous legal and non-legal professionals in the law.

“To be open to our truth-telling and to listen. No decision about our people, without our people. For the broader legal profession to take our lead and advocate for embedding Indigenous knowledge into legal curriculum and cultural awareness training as a compulsory in terms of admission and ongoing professional development,” she advised. 

The fundamental dynamic in the lawyer-client relationship is that the client is in charge, Ms Cameron said, and all clients – government, corporate and Indigenous – need to feel confident that their lawyers are listening to them and ensure the decisions are made with their full client input and agreement.

“With the spotlight very firmly on the way that Indigenous issues are managed, this is more important than ever. I believe this spotlight should focus us all and ensure we are looking at real change. Many of these issues that we are hearing about in the media are not new issues, I think we need to take this opportunity to learn, listen and enact change,” she argued.

Practitioners must also, Ms Schwartz said, remember to check in on their colleagues and “acknowledge the cultural norm differences and be mindful and respectful of the difference even if the broader legal profession doesn’t agree with them and reaching out to young Indigenous lawyers who are coming into the profession”.

For Dr Anthony, the responsibility of the legal profession in Australia boils down to call out racism and oppression where it exists, perhaps more so than those in other lines of work: “We are all invested in this system, so it’s our responsibility to change it.”

Role of academia in Australia

The momentum in NAIDOC Week, Dr Anthony submitted, should be “carried through every single week of the year”.

“Us as legal academics always need to be listening and questioning, especially the role of colonial legal institutions and laws in the lives of First Nations people,” she added.

The first thing to do, Dr Anthony continued, is to have First Nations women from community, the university and faculty (including students) be part of developing a strategy to guide the change in the class room and outside the class through creating spaces of support and strengthening. 

“We are attempting to embed self-determination at UTS Law through the Waran-gi Pyalla committee. It’s an understatement to say that we have a lot of work to do, but we are fortunate to be led by the vision of Wiradjuri Elder Bronwyn Penrith, Business/Law Professor and Wiradjuri woman Robynne Quiggin, Dharug student Michelle Toy, Palawa student Olivia (Ollie) Henderson, and previously Professor Susan Page from the Centre for the Advancement of Indigenous Knowledges (UTS) and Gomeroi researcher Alison Whittaker,” she explained.

“The legal profession should call out against racism and oppression of First Nations people by the legal system, and question how legal professionals can do more to change this system. We are all invested in this system, so it’s our responsibility to change it.”

Looking ahead

It is clear, Dr Anthony added, from recent movements that First Nations women will take a “leading role” in standing up for their communities and country, and mobilising the broader community.

“You can see this in the leadership of so many First Nations women activists, including Lizzy Jarrett, Carly Stanley, Jenny Munro, Apryl Watson and Belinda Stevens, Latoya Rule and Caroline Andersen, Lynda-June Coe, Amelia Telford, Lidia and Marjorie Thorpe, Tabitha Lean, Tarneen Onus-Williams, Meriki Onus, Crystal McKinnon, Nessa Turnbull-Roberts and Ruby Wharton,” she listed.

“First Nations women lawyers also have a central place in defining the change, which is seen in the advocacy by Emma Langton, Teela Reid and Larissa Behrendt – to name just a few in NSW. These names are just the tip of the iceberg but I think it’s important to honour their contributions in NAIDOC Week.”

Ms Schwartz, for her part, hopes that all Australians partake in NAIDOC Week celebrations in some form, calling it a “wonderful time to come together as community”.

“I hope it also stokes that little fire in many of you to start looking at some of the core socioeconomic issues that have led to an overrepresentation of Aboriginal and Torres Strait Islander peoples within the justice system and really begin the agitation for social justice reform that is deeply needed in Australia. Together, we can pave the way for a new tomorrow,” she concluded.

Challenges and opportunities for Indigenous lawyers amid COVID-19
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