The quote of the week and the precursor for this article was from a NSW barrister:

"If you want Justice don't come to the NSW Supreme Court go to Church... All you get here is costs...." Umm ... Not the answer I was looking for but from what I see mainly true! This article will consider how you will be discriminated against by the NSW court system when you choose what every NSW resident has the right to do and represent yourself through the NSW Justice system.

This week I stood in one of the Queen’s Square courts of the Supreme Court building in Sydney NSW and watched as a group of senior lawyers laughed and mocked the efforts of a senior member of the Sydney community when he was bravely representing himself and endeavoring to secure Justice in his case by gaining the assistance of the registrar in securing a pro-bono lawyer. He departed the court with the words “when will I ever see Justice in this court”? This systematically brought a further roar of delight, mocking and cajoling from the attending barristers and solicitors who were able witnesses to the event. Even the registrar himself failed to uphold common decency and decorum in his court room and quite frankly allowed the complete prejudice and discrimination of a client and allowed it to continue. The mocking even continued into the next case until I stated “Well I don’t find it funny” and the registrar then offered the offending lawyer a “recommendation for pro-bono assistance” putting an end to the scene. Quite frankly, it shouldn’t have taken for me to say anything, this kind of discrimination and systemic bullying of the system against those who represent themselves is endemic and I agree with the man. When a court full of the people who are the very one’s who are supposed to act in manner above that of the community, who are supposed to be the guiding light of truth and justice and who are supposed to uphold the laws of what is right and what is wrong in our society act in such an appalling, childish and discriminatory manner what conclusion are you left with? I don't think Her Majesty would be too amused at the use of her Court rooms in such a manner.

Let’s look firstly at how the Registrars perform within the Court system themselves.

In the first step of any legal proceedings you will encounter the Registrar. These people take your application review the document to make sure a) It is an appropriate and valid case; b) Check it is on the correct form and entered correctly; c) Approve and waive exemptions and reductions of fee’s; d) accept and file court documents and applications; and e) allocate you court dates for your cause. A simple enough process you would imagine. However, this is also the first point of resistance you will encounter in an effort to represent yourself and get your issue addressed. From practical experience you can expect:

1. to be given as little information and assistance as possible;
2. to be told the wrong thing and often intentionally misled or “not informed”;
3. to have documents that you filed be either not filed or filed on the wrong number;
4. to have documents “go missing”;
5. to have documents approved that shouldn’t have been approved;
6. to have documents not approved that should have been approved;
7. no apology, commiseration or restitution for their errors;
8. no justification or answer for why errors have been made or why no one did the right thing;
9. not to expect your case to be called even though you are sitting right outside the court room;
10. to be mocked, harassed, teased and discriminated against in the process; and
11. not to expect the registrar to stop or justify any of the above behaviors.

In the Local Courts you can apply for apprehended violence orders but don’t expect to get any of them approved no matter how much violence or how real the violence that you are trying to apprehend is. In fact you will be given reasons and excuses such as:

1. you are not allowed to “attach” any form of supporting evidence to the application no matter how relevant it is;
2. that you have to only fill in the space provided on the form and use no other “space” at all even if it is insufficient space;
3. not apply for more than 5 protected people - because there is no room on the form and this would require you filling in more than the space provided;
4. not speak to the registrar unless by appointment;
5. not be able to book an appointment with the registrar to speak to him anyway;
6. not get a phone call from the registrar even though your number is required on the form;
7. not be able to ring up and speak to the registrar;
8. not have the registrar justify his actions; and
9. be constantly discriminated against by the registrar at “his discretion” under the act;

What does this lead to? Further discrimination and the non apprehension of violence or rather put another way that the registrars at the local courts are ignoring the existence of violence, not applying the Personal Violence Act to apprehend the violence, and are allowing for violence to be perpetuated within our society. The Registrar’s state that if you have a fear for your safety go to the Police, the Police then send you back to the Registrar as it is not a domestic issue, the Registrar then either sends you back to the Police or utilizes his power to reject any application. How then do you apprehend the violence enacted on you when according to NSW legislation you only “have to fear or feel threatened” to have your issue addressed? Maybe we should take an Apprehended Violence Order out against the Registrar as they are the reason the violence is not apprehended – these issues are for the Court and the Judge to decide – not to be pre-judged by the Registrars who are out of their jurisdiction by filtering the cases and pre-deciding who gets Justice.

So maybe you need a lawyer – well there are pro-bono lawyers – and these can be court appointed but don’t expect much more than the refusals you’ve already had from other lawyers. Moreover, if it is a case that the system doesn’t want heard then don’t expect anyone to risk their reputation or fight for truth and Justice because they only fight for what they get paid for (win, lose or draw) and if it’s not worth the risk to their reputation they will out price your case and find reasons to refuse it. Furthermore, if taking your case will put them in competition with the status quo of the system or challenge it in an way that involves changing the system expect them to rapidly withdraw and actively encourage you to remove your case.  So representing yourself does have some advantages and I would add the following:

1. NO ONE knows or understands your case better than you and why waste your time and money convincing someone else you are right when you already know you are;
2. You already have a fuller understanding of the events and the case - you are only deficient in the intricacies of the legal process (hence why you feel you need a lawyer) and it doesn’t take long to learn those;
3. Having to construct and be across ALL the paperwork yourself makes you acutely aware of the case, the acts, the arguments, the dates and the process and gives you a better understanding of it;
4. You are not polluted by the negative thoughts of pessimists and reductionists who can not see the end goal; and
5. You are not constricted by an onus to the system and adherence to the socio-political spheres of the legal system in the way a lawyer is;

However, get used to the following terms and gain a full understanding of what they mean because they will become very familiar, very quickly. For example the term “vexatious” is all too loosely thrown around. In order for something to be defined vexatious there has to be proof that it is and the burden of proving that is on those who all too willingly use it as a scare tactic. Ask them to support their statements before you rule them defamatory. In much the same way “abuse of process” or “abuse of power” or “no case defined” are all too often used as subterfuge for “we have no case to defend our actions so will criticize your evidence and the weakness that you represent yourself and use it against you”. Everything requires JUSTIFICATION….. ASK FOR IT…..

Get familiar too with the meaning of “due process”, “procedural fairness”, and the process of being “denied natural justice of the law”. It will faster equip you to defend any “vexatious” attack you will inevitably receive. Moreover, if you actually have to have a court appointed pro-bono lawyer make sure they fully read and understand your case before they have any meeting with you or attempt to make any decisions in regards to your case with you. Do not be rushed bullied or harassed into anything you don’t agree with – take your time, step back, research it, think about it and then when you are ready respond. Argue the point and expect to be heard you have a RIGHT to be heard and to UNDERSTAND what is going on.

As a final thought – on the way out of the court having received the adjournment we were seeking I trapped a group of about eight of the lawyers/barrister in the lift, who had laughed at the man representing himself, on the way down and I stated “I wonder how well these lawyers would perform if they where placed out of their depth on a hospital floor and had to perform someone else’s job to the best of their ability?” – “Just how would they feel then? How would they go? Wouldn’t be so funny then, would it?” Try tackling a system that treats you as an outcast, a rebel, and an activist while ridiculing you for doing what you have every legal and moral right to do. Moreover, a system that otherwise does not represent you effectively or correctly and give you no Justice.

The same week in the local court I met an Aboriginal man who had represented himself and beat all the charges as he stated “no lawyer was going to represent my case properly – better off doing it myself”.

In the Consumer, Trader and Tenancy Tribunal I met a single mother of three children who was defending her third tribunal hearing for being behind in her rent when the whole time the real estate agent and landlord had failed in their statutory obligations to maintain the property - sounds familiar! It appears Justice comes with a price in Australia and especially in New South Wales, you only get the Justice if you can cover the costs, it doesn’t matter how right or how wrong, or how much evidence you have it’s all about costs.

Simon Dorante-Day BA, BEng, MRGC
(c) ATSIPHJ 2011

The following article is split into three sections to avoid a lengthy paper and isolate the three separate issues that it will focus upon, these are:

1. An update on the Superannuation and ABSTUDY issue; and its subsequent parts
   
   
2. The Consumer, Trader and Tenancy Tribunal in NSW; and
3. Indigenous Australian’s and the Civil Justice System: Unrepresented, unjust and unconstitutional.

Firstly, an update on the issue of the release of Superannuation funds under severe financial hardship for ABSTUDY participants. The issue is now in the last stages of being admitted into the High Court of Australia for a hearing and over the next week is being reviewed by a Justice of the High Court for a hearing. Whilst the case has multiple issues the three central arguments to the case are that:

1. the Superannuation Industry (Supervision) Regulations 1994 (Cth) Reg.6.01 is unconstitutional in that it does not give rights to equality before the law to Indigenous Australian’s by breaching the Racial Discrimination Act 1975 (Cth) s.10 (1)(2) & (3). Moreover, that this has further allowed for breaches of the Racial Discrimination Act 1975 (Cth) under s.9 (1)(1A)(a),(b) and (c) to occur to the applicants.
2. the Superannuation Industry (Supervision) Regulations 1994 (Cth.) Reg. 6.01 violates Section 10(3) of the Racial Discrimination Act 1975 (Cth.) in that it authorizes management and prevents and/or restricts termination of the management of an Aboriginal or Torres Strait Islander persons property.
3. the Superannuation Industry (Supervision) Regulations 1994 (Cth.) Reg. 6.01 also violates Section 10(1) of  the Racial Discrimination Act 1975 (Cth.) in that the preservation age does not accommodate for the shorter life span endured by Indigenous Australian’s versus Non-Indigenous Australians.

Whilst the “regulations” have specific parameters under Reg. 6.01 as to what class of payment the applicant must be on for 26 weeks to release funds ABSTUDY is neither included nor excluded from this regulation. Yet Indigenous Australian’s are “forced” to receive ABSTUDY and not AUSTUDY because of the fact that they are Indigenous and this ensures that they are treated differently to other Australians because of their Race, even if it with positive intentions, it is not having this effect under these regulations; therefore it is discriminatory and unconstitutional in nature.

By Commonwealth definition ABSTUDY is an income support payment financed by the Department of Employment, Education, and Workplace Relations, a Commonwealth department. Therefore, it is a valid Commonwealth Income Support payment not included or excluded in these regulations. Moreover, to not release funds to an ABSTUDY student who is experiencing severe financial hardship and on the edge of losing housing because of this goes thoroughly against the intentions and directions of ABSTUDY policy which are:

Objectives of ABSTUDY

ABSTUDY is an important symbol of the Australian Government’s commitment to Indigenous education; more generally, it signals the Australian Government’s recognition that education will be a key to the Government’s objective of reconciliation with the Indigenous community, and a prime measure by which its overall performance in this area will be measured.

The main objectives of the ABSTUDY Scheme are to:

• encourage Aboriginal and Torres Strait Islander people to take full advantage of the educational opportunities available;
• promote equity of educational opportunity; and
• improve educational outcomes.

It is anticipated that we will have the Court’s decision by the 2^nd of May and the Discrimination Watchgroup will publish further details following the decision.

Simon Charles Dorante-Day BA, BEng, MRGC.
(c) Discrimination Watchgroup of Australia 2011 

The construction and operation of the Consumer, Trader and Tenancy Tribunal NSW is discriminatory and unjust towards Tenants in that it blocks or prevents the Real Estate Agent from impartially representing their tenants rights, particularly when the issue is with a landlord who has many properties run by the same Real Estate Agent, the agents are effectively owned and controlled or “bought” by the landlord and fail to represent the tenants and uphold their rights where and when they should. This is particularly evident when both the landlord and agent have failed in their statutory obligations to maintain and repair the property and both fall in dispute with the tenant, they can effectively contrive together to hide their misdemeanor and evict the tenant. At the same time they can also avoid the $220,000 fine they would each face for breaching the Competition and Consumer Act 2010 (Cth.) and even criminal convictions. How many landlords and agents in New South Wales are criminal repeat offenders using the system to avoid conviction?

Moreover, under section 28 of the Consumer, Trader and Tenancy Tribunal ACT 2001 (NSW) clause 1 the Tribunal can “subject to this Act, determine its own procedure” which can vary depending on the Tribunal member, what day they are having, and any other peculiarity they like. It is basically an open passport to abuse a system that was set up to more equally represent the tenant over issues with their landlord without the need for legal assistance and lawyers that tenant’s can’t afford. However, experience in this case has demonstrated that it has fallen far short of this mark and in fact discriminates and excludes the same tenant it aims to assist. Consider the following illustration:

Diagram 1 is the existing system and as can be seen the landlord has the ability to hide behind the agent who is then removed from the expectation of performing his responsibilities to the tenant in fact, it could be considered that he is automatically representing only the landlord and his own interests. In Diagram 2 however, the agent is forced to act as an impartial part of the process and represent the interests of all three parties. The landlord however, would be forced to liaise with the judge and tenant themselves. This would give far better equity and equality of the Tribunal system and allow for the agent to be more impartial and assist the tenant in representing their case not force the agent over to the landlord’s side. It doesn’t however deal with the issues of the conduct of the Tribunal members. In such a democracy as Australia you would think it would be hard to believe that a tribunal member would act in any unfair manner however, if the agent and landlord deceive the member or don’t introduce issues into the hearing the member goes uninformed unless the tenant has the legal capacity, understanding or conviction to bring these hidden issues forward themselves. More often than not, the majority of tenants would not understand the tenancy act or the tribunal process enough to represent them selves in such a situation. Additionally, one must remember that the tribunal, as per section 3 of the act, was set up to be more accessible to enable proceedings to be determined in an informal, expeditious and inexpensive manner and allow the member to have “investigative” powers that a judge in a court would not have. For example consider the following image:

This is how a tenant was left to turn on the one remaining element that they have from 4 elements on their stove top from October 2010 and are still enduring to this day despite notifying the agent, the landlord, the landlord’s lawyer and going through five tribunal hearings of the CTTT in NSW. One tribunal member has even refused to hear or act upon this evidence even though the image was presented within the formal hearing stating that it had “No relevance to the case”. Personally, given the high risk of electrocution I define it as criminal negligence by all involved (which also includes the Supreme Court of NSW) however, given that this particular landlord has hidden his actions behind those of his agent who has also neglected his responsibilities to both tenant and landlord by allowing this situation to continue for so long unabated its not surprising the tribunal are reluctant to intercede when they should have also picked this up by listening to the tenant at a much earlier time. However, it doesn’t stop there, the same agents and landlords have also not repaired the oven alongside this stove top for 2 years of the lease despite the fact the glass door is hanging off does not seal and has lost thermostatic control.

They have also failed to repair a collapsing fence for 4 years that separates young children from a pool (risk of drowning) and a fully grown Rottweiler (risk of attack) causing trauma not only to the parents of the children but also to the adjoining neighbor who owns the dog. For the last two years the tenants have not had the enjoyment of the back yard and their children’s lives have been at risk for the last 2 years because of the negligence of the landlord and his agent.

This is why landlords have statutory obligations and why the tribunal is given powers of investigation to investigate and enforce this – not to ignore issues and rules in favor of a quick solution that appeases the landlord and agent and moves the cases quicker through the tribunal.

Simon Charles Dorante-Day BA, BEng, MRGC.
(c) Discrimination Watchgroup 2011 

Given the case demonstrated in the previous Consumer, Trader and Tenancy Tribunal issue what if the tenants were Indigenous Australians? Would this be a discriminatory action by the landlord and his agent? It would be hard to show that it was since if the tenants weren’t Indigenous then they also would be suffering the same injustice. However, just as you can show that maybe it isn’t racially motivated discrimination how can you show a court or a tribunal that it is if it was? The Racial Discrimination Act is quite clear about how the action or statement is a violation but how do you prove the intentions or how “clear” the actions are to a court or body? How do you demonstrate the internal workings of the landlords mind and consequently his actions towards the tenant to the court?

Look at his actions, yes they are negligent and criminal but are they racially motivated. Given that no landlord or agent in Australia would be stupid enough too actually state “oh you’re Aboriginal you’re used to substandard housing” or tell the agent “They’re Aboriginal they don’t need it” doesn’t mean that’s not what there thinking or why they are doing it. So how do you prove this? If the landlord had more than one property that they rent you could view the others to see whether they looked after their non-Indigenous tenant’s any better, but that still would not prove conclusively that the actions of the landlord where discriminatory towards a particular tenant even though they may well have been. But what if the landlord has only the one property? The task is even harder. What if the Tribunal member that this comes in front of is racist themselves and brought up in old-school Australian thought? How then is it dealt with in this form of institutionalised racism? These are the kinds of problems that for years now I have battled with the Anti-Discrimination boards and bodies over. They require proof absolute – but proof absolute is impossible – yet the violations go on day after day for thousands of Indigenous Australians. Even when you get the bodies to listen mediation is the best they have to offer they are powerless to respond in any real manner.

Recently Dr. Gary Johns from the Australian Catholic University suggested in the Australian over the Andrew Bolt case and the Behrendt twitter comments about Bess Price and the subsequent media barrage that “one Aborigine hating another in public doesn't cut it under the Racial Discrimination Act” well the truth Dr. Johns is they don’t and haven’t for some time. It’s hard enough to “prove” that non-Indigenous Australians are discriminatory towards Indigenous Australians without trying to prove that Aboriginal people are racist either to Torres Strait Islanders or vica versa or that other Aboriginal people are also discriminatory to those of another tribal group smaller or more distant to their own, but the truth is they can be and often are – Behrendt’s comments alone bear testament to that as do Prices comments in retaliation to it. How many of the “discussions” that erupted over the media and on social networks in regards to this issue were also “racist” or discriminatory in nature when read by Indigenous Australians? And again what gives non-Indigenous Australians the right to use this type of battle to speak on behalf of Indigenous Australians again and talk about what they don’t have to personally endure on a daily basis - again? None view the discrimination so severe as those who have been discriminated against!

Well from personal experience and having been a public victim of this battle and living daily with people that suffer from this battle I would like to see everyone - Behrendt, Johns, Australian Human Rights bodies, courts, tribunals and Government get real and start to deal with some of these issues that are clearly disadvantaging Indigenous Australians on the ground with more vigor. For too long this battle has gone on in silence while the educated upper echelon of our society, who supposedly know better turns a blind eye. If it takes a few redneck reporters to break the silence and get it aired and open all the better I say! Because, at the end of the day, it’s disadvantaging Indigenous Australians and increasing the gap in Indigenous Health, Housing, Economic and Educational outcomes on a daily basis. Only the minority in the minority groups really see the picture.

Dr. Johns also suggests that Indigenous Australians utilize the defamation laws available to them to apprehend this sort of behavior, on the face of it a reasonable idea academically/legally speaking, but as Dr. Johns points out whilst there has been plenty of research on Indigenous Australians and the Criminal system (and I don’t subscribe to his views on Indigenous Deaths in custody) there is little research and little writing about Indigenous Australians and the Civil system. Hence the object of this paper – a little practical experience and realism in a world of fantasy or put another way “try fighting on the ground for REAL Indigenous rights with what’s available”.

For a start take the issue that there are no Torres Strait Islander specific policies, regulations or authorities in any of the States or Territories other than Queensland. Yet Torres Strait Islanders reside in all of the States and Territories and in fact there are as many Torres Strait Islanders residing in NSW as there are residing in all of the Torres Strait Islands themselves. Furthermore, we have Aboriginal legal and health services in all of the States and Territories but where are the Torres Strait Island health and legal services? Take the fact that money federally allocated for “Indigenous (both Aboriginal and Torres Strait Islander) issues” gets bundled together and distributed to organizations that have little or no Torres Strait input, advice or control and that moreover, do not divide or separate the funds between Aboriginal and Torres Island spending appropriately - if at all. Some would call this division I would call it equality – depends on your perspective.

Take the aforementioned case – that has been removed from the CTTT NSW under s.65 of the CTTT Act 2001 (NSW) on grounds of procedural unfairness to the Supreme Court of NSW – not only a rare move for a residential lease but an education on what Indigenous Australians and low socio economic Australians are facing in the civil system in an attempt to get issues addressed. I raise the following issues:

1. There is no Indigenous funding or legal assistance for Indigenous Civil cases;
2. The Aboriginal Legal services and Legal aid will not assist civil matters, especially in regards to appeals;
3. The minimum sum any “decent” or reputable lawyer will require before representation is $15,000 often considerably more for defamation cases;
4. Very few lawyers are culturally appropriate and even fewer have livid experience and understanding of Indigenous issues;
5. There are NO policies or guidelines in any of the civil courts that advises or guides cultural appropriateness or language utilization;
6. There are NO translators available and you will have to also fund this even if it is to give the court the understanding of the evidence you present to them;
7. There are NO guidelines enforcing the use of Interpreters as there are in the Criminal system;
8. There is no real understanding or cultural appropriateness by the courts and no acknowledgment that Indigenous Australians are often living under two laws;
9. The court scene is an alien, aggressive and harsh environment that speaks another language to the majority of Indigenous Australians and is often institutional in its discrimination and outlook; and
10. Because of 1) – 4) you are forced to either a) to drop it and not fight the issue or b) represent yourself; and
11. Because of 5) – 9) your chances of enduring the distance or getting a “fair” hearing are pretty minimal.

Of course there are always pro-bono lawyers – who will also “evaluate” the scenario based on their understanding from their narrow world views and advise you incorrectly the best way to “get out” of the situation with minimal cost and damage. There is much work to be done before we see any Indigenous Australians winning anywhere near the amount of cases in the civil system that we should be seeing. With discrimination alone the statistical outcomes of the Discrimination bodies nationally clearly shows that whilst Racial Discrimination cases are being won by Australian Africans, Australian Indians, Australian Chinese and even Australian Jewish people there are few if any being won by Indigenous Australians. My own personal experience can vouch for the fact that discrimination occurs on a daily basis, if not multiple times a day, for Indigenous Australians - as I am sure many of you will agree – so if it happens why then is there no action? When are the discrimination bodies going to stand up and criticize or fine the Australian media and government for perpetuating Indigenous discrimination and stereotypes? When are we going to see major wins in the civil courts? When are we going to see appropriate justice through the legal system in Australia that will set a precedent and act as a warning to those who think it is alright to discriminate against others? Australia is a multi cultural democratic society that is supposed to understand and stand up for the rights and views of others – not turn a blind eye and bury their heads in the sand because the problems are to hard or to extensive to overcome.

For one minute imagine being an Indigenous Australian being kicked out of a house on your ancestors land because you couldn’t pay the rent to a foreign owner who stole your land and had the cheek to charge you rent for the house he stuck on your Uncle Billy’s land without anyone’s permission and without any respect for the environment or ancient cultural rites whilst doing so? How would you feel? What civil actions are open to you in court? And what would you think of Julia Gillard’s inappropriate comment to “pay the rent”? Who should first? Well if we can’t pay the rent maybe we should have an obligation as Australians to fix this problem the right way, and for once fairly, and put right some wrong’s not just speak it in words such as “sorry” but enact it through legislation and policy that is real, practical and effective.

Simon Charles Dorante-Day BA, BEng, MRGC
(c) Discrimination Watchgroup 2011