Vulnerable remote Northern Territory residents, including children, could be forced to represent themselves in criminal matters because Legal Aid will no longer accept bush court files, the ABC can reveal.
Colloquially known as "bush courts", the NT's circuit court system sees Darwin and Alice Springs-based lawyers, judges and court staff travel to remote communities each month to hold court hearings.
Bush courts have been suspended since February due to concerns about COVID-19, however, they are due to return after the Easter break.
When they do, the Northern Territory Legal Aid Commission (NTLAC) will only send lawyers out to handle matters they are already working on, and no new clients will be accepted outside of major centres.
"The Department of the Attorney-General and Justice has been advised that the NT Legal Aid Commission (NTLAC) has ceased granting aid for new applications for representation in matters that are to be heard in locations where NTLAC does not have an office," a department spokesperson said.
Most defendants in the Northern Territory's bush courts, which sit in around 30 communities outside of Darwin, Katherine, Alice Springs and Tennant Creek, are represented by the North Australian Aboriginal Justice Agency (NAAJA).
But where the agency has a conflict of interest – such as already representing a victim, witness or defendant in a matter — they're obligated to refer people to another legal service.
Hundreds of cases referred to Legal Aid
In the 2020-21 financial year, the NTLAC received 619 conflict referrals from NAAJA, according to its annual report, and almost half of the commission's clients are Indigenous.
NAAJA's deputy principle legal officer, Beth Wild, said the ethical obligation is binding for lawyers across the country.
"If a conflict is identified, we will refer it to another legal service, that in the NT is usually Legal Aid, however we've been advised Legal Aid will not be attending bush court for any new matters," she said.
The ABC understands at least one child will be unable to access legal representation in a remote community next week.
In cases such as that, Ms Wild said the court could appoint a lawyer if a child makes an application to the judge themselves.
"What that would involve is then appointing a barrister or lawyer from the private profession to appear for the child out bush and that would incur considerable cost for the government," Ms Wild said.
"Alternatively, the court could adjourn the matter into one of the town centres such as Darwin, but the child would have to make their own way into town and that could be problematic if not impossible."
'People are ruled out of the justice system'
The court can only appoint lawyers in situations where legislation requires it, such as in domestic violence cases.
"A lot of matters might involve domestic violence and that will leave an unrepresented person having to potentially cross exam their partner who's a victim of domestic violence, which is unsatisfactory," Ms Wild said.
"We've got legislation in the NT which prevents this from happening, so again we're looking at a court appointed lawyer to be sent out to community or everybody flies in from community… which puts pressure on the centre's list if we have to have matters all adjourned to Darwin."
Professor of Law at the University of Technology Sydney, Thalia Anthony, said most people forced to represent themselves will be caught navigating an unfamiliar legal system in a language they're not fluent in.
"To be put in this very alien legal system, the non-Aboriginal legal system, where people are not aware of the protocols and not aware of what rights they can argue for, it effectively means people are ruled out of the justice system," Dr Anthony said.
Funding issues have been ongoing
A funding stoush between NTLAC and the NT government has been ongoing for years.
Remote services were suspended by the commission in 2019 for around six months.
In its 2019/2020 and 2020/2021 annual reports, NTLAC chairman Duncan McConnel said the commission was pushing for a five-year funding agreement with the NT government.
"Through short term arrangements with the Department of Attorney-General and Justice we have been able to resume bush court services, but it remains a challenge to build in certainty and continuity to these services under the current funding arrangements," Mr McConnel wrote two years in a row.
In 2020/2021, Mr McConnel said the recently signed Aboriginal Justice Agreement was an opportunity to develop a "master-planned" system, as opposed to the "ad-hoc system currently operating."
When approached by the ABC this week, NT Legal Aid director Annmarie Lumsden said: "NTLAC is working with the Department of Attorney-General and Justice and NAAJA to address legal representation at Bush Circuit Courts when they reconvene after Easter".
Northern Territory Attorney-General Selena Uibo did not respond to questions, but a department spokesperson said the lack of NTLAC services in remote communities was "not currently an issue" as bush courts are suspended until next week.
"The NTLAC receives funding from the Northern Territory Government through appropriation to the Department and to the Commonwealth Government, under the National Legal Assistance Partnership," the spokesperson said.
"The NTLAC sets its priorities in accordance with its establishing legislation."
Commonwealth funding delivered by territory government
A statement from the Federal Attorney General's department said most Commonwealth funding for the sector is provided to states and territories.
"States and territories are responsible for delivering the funding to individual organisations, including legal aid commissions and Aboriginal and Torres Strait Islander Legal Services," the statement said.
"In 2020-21, the Commonwealth provided the Northern Territory Government with $25 million through the National Legal Assistance Partnership, including of $7.143 million to the Northern Territory Legal Aid Commission.
The statement said the recent budget also included a number of measures that would see additional funding flow to the NTLAC.
Dr Anthony said any refusal of legal aid in remote communities compounded issues of inequality for Aboriginal people.
"This denial of legal rights entrenches issues of poverty and means they can't have their basic human rights expressed and justice served."
