Source : PERTHNOW NEWS
What does it say about our justice system if an accomplished Aboriginal lawyer stands up in court only for an orderly to ask if they are on “today’s court list”.
By that time, he had already been in legal practice for 15 years and was appearing in court for work on the Royal Commission into the Protection and Detention of Children in the Northern Territory.
It was following this incident of systemic racism that Professor Eddie Cubillo began to explore how he could further advocate for Indigenous issues.
That courtroom experience is reflective of a hard truth: that despite the notion that everyone is equal before the law, the Australian justice system has continually failed to deliver such equality for Aboriginal and Torres Strait Islander peoples.
“The continued ignoring of findings, of reports and research made me realise that my continued work in this space requires me to question these deep and lasting failings by pursuing a doctorate,” he wrote.
With decades of legal advocacy and community work under his belt, Professor Cubillo undertook his PhD in Indigenous self-determination and legal services in Australia – which after a celebrated academic reception, was adapted into a book – Defending the Defenceless.
The work is an examination of Aboriginal and Torres Strait Islander Legal Services – known as ATSILS. It asks if Indigenous peoples would experience better outcomes if ATSILS had true self-determination – and how this would work in practice.
Aboriginal voices are central to legal disparity studies
There’s a misguided assumption that academic work must be totally objective and written void of the author’s own voice.
Defending the Defenceless proves this is far from the truth.
That Professor Cubillo’s voice, alongside a chorus of experts, is at the front and centre of this work proves to be a resounding success.
When setting the methodological approach of his study, Professor Cubillo was informed by Indigenous standpoint theory which “enables the privileging of the Indigenous voice”
This practice included employing his own knowledge as a descendant of the Larrakia, Wadjigan and Central Arrernte peoples of the Northern Territory, as well as his experience as a legal practitioner.
And it’s his personal story and connection to the experiences of different Aboriginal communities and legal practitioners involved in ATSILS and other bodies that this study is founded upon.
“I can’t unhear what I have heard, or unsee what I’ve seen,” he wrote.
“My experiences, and those from my family’s history, push me on to fight for justice, despite my frustrations at facing and dealing with the impact of racist policies and settler supremacy that are embedded in all facets of this justice system.”
Purse strings and the over-representation crisis
The over-representation of Aboriginal and Torres Strait Islander peoples in the Australian justice system is severe.
This is most commonly illustrated by the national incarceration rate of Indigenous adults, which is worsening. In 2019 the rate was 1906 per 100,000. Just five years later in 2024, the rate increased by more than 20 per cent, with 2304 incarcerated per 100,000. 2025 saw another increase, to 2500 per 100,000.
To commentators, such statistics are indicative of a failing system. Despite Closing the Gap introducing two justice targets in 2020, one for adult incarceration rates and one for youth detention, incarceration data indicates that the 2031 targets are out of reach.
Professor Cubillo’s study puts these figures, and many more, into their actual context and illustrates how the increase of government influence over ATSILS bodies has chipped away at their ability to self-determine their action – and therefore, their ability to make change.
The service was born out of Indigenous activist efforts in the 1960s and 70s, with Professor Cubillo prioritising Aboriginal activist and writer Gary Foley’s first hand account of how the circumstances that led to the establishement of the founding Redfern branch in 1970.
He expertly weaves interviews alongside a detailed account of ATSILS’ history before highlighting the increasing difficulties the bodies have been facing in seeking justice for the communities they were originally founded by.
In the broadest sense, his research found that increased government control through contractual obligations tied to ATSILS’ funding has reduced the services’ capacity to self-determine how they can best serve the community.
They are instead forced to act within the bounds set by the government, because losing the funding would jeopardise the operation completely.
In stark contrast, the health sector has accepted the position that best practice service delivery for Indigenous peoples is through community control.
The sector’s approach illustrates how the government can cooperate with cultural standards to build relationships with Indigenous communities that allow for better health outcomes. It is really a case study in why prioritising self-determination is the path forward.
Professor Cubillo explains that there is no equivalent relationship of trust between ATSILS, the government and the justice sector as a whole.
His interviews demonstrate that it is clear ATSILS have both the knowledge and decades of experience required to deliver the best legal services to Aboriginal peoples.
But because the government holds the “purse strings” – as former Indigenous Crown Prosecutor Nigel Browne put it – their “activities and functions are often shaped or controlled by government views, objectives and outcomes”.
And for years, they have faced detrimental budget cuts alongside threats of funding being withheld or reduced “if contractual agreements are not met or breached”.
As a result, ATSILS’ original role in the advocacy space has been significantly stifled.
“Due to the hollowing out of the services and the restrictive contractual conditions they have been required to operate within, their advocacy roles have been diminished over time.”
Community-control was the origin, and is the path forward
Many blurbs claim the contents of the book they are trying to sell is a “call to action”, but Professor Cubillo’s work is an appeal in the truest sense.
It might seem odd for an academic text to be labelled “moving” – but there is no other word that encapsulates the experience of reading this book.
In 2022, Professor Cubillo was awarded the University of Technology Sydney Chancellors award for outstanding thesis on the grounds of the significance and quality of his study.
It is difficult to accurately represent the findings of a work in which each and every word is considered and meaningful, and every avenue is explored.
Central to ATSILS achieving self-determination is economic independence. Professor Cubillo puts forward several models in which income might be generated to avoid reliance on government funding.
One such way is exploring what private legal services could be offered to raise funds, an example being the founding of new associated body that provides Native Title advice.
The money raised from this endeavour could be applied to the self-determined goals of the ATSILS – including funding specific advocacy projects or community legal education efforts.
Any description of academic research is totally reductionist – so the call to action of this review is – read the actual thing. Take in the words from the person who has lived and breathed them.
But, in the meantime, know that the case for the fostering the self-determination of ATSILS is indisputable.
Rating: 5/5
Defending the Defenceless is out on February 10 and is available online and in-store.
Eddie Cubillo is the director of The Mabo Centre at Melbourne Law School, University of Melbourne.
