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23
Family of the deceased entitled to legal representation
That the family of the deceased be entitled to legal representation at the inquest and that government pay the reasonable costs of such representation through legal aid schemes or otherwise.
The Commonwealth Government should continue funding VALS to provide culturally safe legal assistance and representation to Aboriginal families participating in coronial processes, beyond the 2020-2024 National Legal Assistance Program (NLAP). This funding should be expanded to include future legal representation and support services required by Aboriginal participants in coronial inquests for civil and criminal proceedings that arise as a result of the decisions and recommendations of coroners at the conclusion of coronial inquests.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 23 was to ensure that families whose loved ones pass in custody can access legal representation at inquest, funded by government.
Actions taken closely align with the intent of Recommendation 23. Practice Direction 6 requires the Victorian Aboriginal Legal Service (VALS) to be contacted within 48 hours of a death in custody to provide early legal advice to the next of kin. State and Commonwealth Government funding supports legal representation for Aboriginal families at inquests related to deaths in custody, primarily channelled through Aboriginal and Torres Strait Islander Legal Services and Legal Aid Commissions under the National Access to Justice Partnership (previously the National Legal Assistance Partnership).
While government funding and the implementation of Practice Direction demonstrate efforts to address these issues, we remain concerned about the adequacy of funding available. Delays in approving funding remain a significant issue, with some cases experiencing up to seven months of waiting for limited hearing days due to legal grant challenges. Additionally, uncertainty surrounds the long-term financing of legal representation through VALS, as coronial funding is often temporary.
VALS is capable of continuing to provide the legal representation, expertise and supports required by Aboriginal families engaged in coronial inquests, as well as ensuring the provision of holistic and culturally safe and competent bereavement supports in the future, if adequately funded and appropriately resourced.
Insufficient funding undermines the effectiveness of legal representation for Aboriginal families and their rights and interests. Often close family members who aren’t the ‘senior next of kin’ require legal representation to be involved in the inquest independently. Any government funding must be sufficient to support the entire family.
Recommendation 23 remains relevant. Full implementation of this recommendation would make it easier for families to obtain legal representation and may mean they can access assistance for a longer period.
Priority for Further Work:
Low
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Timeliness of grant approval
Government must streamline the grants process to ensure it is more timely and easier for families to access funding.
Certainty of adequate funding for the costs of legal representation
Governments to provide adequate funding for culturally safe legal assistance and representation to Aboriginal families participating in coronial processes. This funding must increase in line with community needs and to cover ongoing legal representation and support for Aboriginal families in civil and criminal proceedings that arise as a result of the decisions and recommendations of coroners at the conclusion of coronial inquests.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for adequate legal representation for families of the deceased. Acknowledging the difficulties families faced in obtaining legal representation, the Commission identified a pressing need for sufficient funding to support legal aid schemes including Aboriginal legal services given the additional workload involved in representing families at inquests.
Actions Taken Since Last Review
Coroners Court of Victoria
The State Coroner issued Practice Direction 6 in 2020 which sets out specific procedures for investigating Aboriginal deaths in custody. This directive aims to ensure that investigations are undertaken with greater cultural sensitivity, and outlines requirements for notifying VALS of any Aboriginal death in custody so that they can facilitate legal advice being provided to senior next of kin early in the coronial process.
Additional funding
The Commonwealth Closing the Gap 2023 Implementation Plan describes action underway to increase ATSILS’ capacity for legal assistance in coronial processes. The National Indigenous Australians Agency provided further detail on the two parts of this action, noting that $9.3 million was provided over four years (2021-22 to 2024-25) to:
A) Support ATSILS to provide legal assistance to families of deceased individuals in coronial inquiries, and to support clients involved in complex and/or expensive criminal cases.
In addition, $13.5 million was provided over three years (2022-23 to 2024-25) to:
B) Support ATSILS to ensure First Nations families can access culturally appropriate and timely legal assistance before, during and after coronial processes.
Both streams of funding were intended to support the identification and resolution of systemic issues which drive deaths in custody and over-incarceration.
National Access to Justice Partnership
The additional funding for ATSILS to provide legal assistance in coronial processes was due to end in June 2025 in line with the expiry of the National Legal Assistance Partnership (NLAP). In September 2024 the Commonwealth Government committed to investing $3.9 billion in support for frontline legal assistance services to be delivered through a new partnership agreement with the states and territories. This funding is intended to support Legal Aid Commissions, Community Legal Centres, Women’s Legal Services, ATSILS and Family Violence Prevention Legal Services; and allow for salaries in community sector legal assistance providers to better align with the rest of the sector, ensuring these services can recruit and retain staff.
Impact
Outputs
The Coroners Court of Victoria Practice Direction 6 of 2020 requires VALS to be contacted within 48 hours of an Aboriginal death in custody, so that they can provided legal advice to the senior next of kin. This provides the family of the deceased the opportunity to seek legal advice and representation early in the coronial process.
Outcomes
Commonwealth Government funding to support ATSILS to provide legal assistance to families in coronial inquiries and during the process including:
- $9.3 million over four years for legal assistance to families of deceased individuals in coronial inquiries, and to support clients involved in complex and/or expensive criminal cases, and
- $13.5 million over three years so families can access culturally appropriate and timely legal assistance before, during and after coronial processes.
Given this funding is time limited, ATSILS are concerned there may not be future funding specifically for supporting and representing Aboriginal families in relation to coronial processes and inquests. Furthermore, VALS have previously identified issues with the amount of funding and the need for greater investment so a broader range of supports can be provided to bereaved families in the lead up to, during and after a coronial inquest.
Community Views
Victorian Aboriginal Legal Service
VALS continue to highlight the need for governments to provide adequate funding to support legal representation for Aboriginal families involved in coronial inquests.
VALS has considerable experience, particularly the Wirraway legal team, in providing culturally safe and competent legal representation and support for Aboriginal families engaging in coronial inquests. The funding and resources required for coronial inquests – which average $40,000, at cost, for services including legal representation, community support and communications – are provided by VALS. Due to the recognised expertise in coronial inquests and reputation for culturally safe and competent services within Aboriginal communities in Victoria, demand for legal services and holistic support for coronial inquests is expected to increase in the future.
This cost estimate excludes future legal representation and support for related civil and criminal proceedings arising from coronial inquests. VALS aim to continue supporting Aboriginal families post-inquest to prevent further trauma from repeated storytelling across multiple organisations. In line with Recommendation 23, VALS recommended that:
The Commonwealth Government should continue funding VALS to provide culturally safe legal assistance and representation to Aboriginal families participating in coronial processes, beyond the 2020-2024 National Legal Assistance Program (NLAP). This funding should be expanded to include future legal representation and support services required by Aboriginal participants in coronial inquests for civil and criminal proceedings that arise as a result of the decisions and recommendations of coroners at the conclusion of coronial inquests.
In response to the Commonwealth Government’s announcement of funding to be provided under the National Access to Justice Partnership, VALS reiterated their concerns about its sufficiency to meet the complex legal needs of Aboriginal communities, and increasing demand. VALS’ chair, Crystal McKinnon noted:
Their own review said that we are funded inadequately and that our people are being denied justice – but they ignored the review, and they ignored us.