The Difficulties of Communication Encountered by Indigenous Peoples: Moving Beyond Indigenous Deficit in the Model Admission Rules for Legal Practitioners

Abstract

The Law Admissions Consultative Committee’s Model Admission Rules 2015 require new practising lawyers to have an ‘awareness’ of the difficulties of communication attributable to cultural differences, including ‘the difficulties of communication encountered by Indigenous peoples’ (LACC: 31). While there is no doubt that effective cross-communication is essential to providing ethical legal representation for clients from diverse cultural backgrounds, this paper will argue that in the context of the First Peoples of Australia greater regulatory attention to these issues is urgently needed and that the ‘difficulties of communication’ need to be framed differently. Numerous reports and inquiries have shown that First Peoples’ encounters with the Australian legal system are fraught with a lack of cultural understanding on the part of non-Indigenous legal actors. Given the ongoing and systemic over-representation of First Peoples in the criminal justice system and child protection regimes, there is a critical need for lawyers to develop Indigenous cultural competency as one step towards addressing this gross injustice, and making the Australian legal system more responsive to the needs and aspirations of First Peoples. Canadian developments, particularly in the wake of the final report of the Truth and Reconciliation Commission, underline the scale and significance of this need, and provide some broader context for a reconsideration of legal education and professional admission requirements in Australia. This paper will argue that Indigenous cultural competency should be a mandatory requirement for admission to legal practice in Australia, and that the ‘deficit discourse’ on First Peoples’ engagement with the legal system must be discarded, to ensure that legal ethical and professional responsibilities are inclusive of the needs of First Peoples.