Dr Eddie Cubillo gives Yoorrook Evidence

On 15 December 2022, Dr Eddie Cubillo gave evidence to the Yoorrook Justice Commission (Yoorrook).

Yoorrook is the first formal truth-telling process into injustices experienced by First Peoples in Victoria since colonisation. This truth-telling process was established after calls from the First Peoples’ Assembly of Victoria (Assembly), for treaty to be built from a base of truth.

Yoorrook’s inquiry is guided by three goals: truth, understanding and transformation.

After commencing in March 2022, public hearings have been held for Elders, Assembly and the Victorian Government. In September 2022, Yoorrook’s next phase commenced which will be considering criminal justice, child removal and priorities for treaty. Dr Cubillo’s evidence was given during Yoorrook’s recent public hearings for the criminal justice inquiry.

Dr Cubillo’s evidence covered two major themes; (i) barriers and issues of the criminal justice system and (ii) solutions and reform for these.

When considering barriers, Dr Cubillo, highlighted five major flaws of the criminal justice system:

  1. The legal system disproportionately impacts First Peoples due to trauma, colonisation and systematic racism on First People. Government policies and laws affect Aboriginal people differently to the non-Aboriginal population – and this is not appropriately responded to.
  2. New policy needs to acknowledge the importance of culture and kinship for Indigenous people, as essential sources of strength.
  3. Dr Cubillo noted several examples of previous Royal Commissions and inquiries where subsequent government actions have completely contradicted the recommendations made and evidence given by Indigenous advocates and experts. Dr Cubillo called on the government to guarantee that Yoorrook’s recommendations are implemented and acted upon.
  4. Indigenous advocates, tasked with leading these inquiries, are subject to immense mental health impacts and cultural labour. Dr Cubillo spoke from his personal experience working on a Royal Commission, saying that there is more at stake for the Indigenous leaders working in advocacy, as for many, it is ‘(their) family’s and (their) kid’s lives that are at stake’.
  5. The current approach to Australian legal education and legal accreditation supports the ‘law’s systematic discrimination and structural bias’ against First Nations people. There is currently no requirement for Indigenous subjects-matter or content delivered with any Indigenous lens within the Priestley 11 (core subjects required to do a law degree). There is also no profession-wide requirement for lawyers to complete training in Indigenous cultural awareness or safety.

Dr Cubillo provided the following solutions and reform for Yoorrook to consider;

  • There must be genuine effort to change the Australian people’s perspective on Aboriginal people and issues. This must combat the systematic and unconscious bias against Aboriginal people.
  • There must be better accreditation in the legal industry, for example, lawyers, judges, and people who work in the justice system, should have Indigenous accreditation. This must involve an understanding of Indigenous law and lore.
  • The goals and policies of the criminal justice must be steered away from control, coercion and punishment. This reimagined system, Dr Cubillo suggested, should be focused on ‘rehabilitation, looking at the trauma and the factors that contribute to that behaviour.’
  • Indigenous legal services must be funded appropriately to ensure access to justice of Indigenous people.
  • Dr Cubillo also made important recommendations for Treaty, including, Treaty negotiations to involve the re-designing of both child protection and criminal legal systems.
  • Consideration should be given as to how best to acknowledge and reflect Indigenous legal systems into Australian common law. To do this we could look to how Tikanga Māori (being Māori law and customary practices) is increasingly being incorporated in to common law In Aotearoa.
  • Finally, Dr Cubillo reiterated that the Victorian government must take Yoorrook recommendations seriously – which means resourcing implementation!

The links to watch or read Dr Cubillo presenting the evidence are available on the Yoorook Justice Commission website. Dr Cubillo's full evidence can be read in the full witness outline.

This summary of Dr Cubillo's evidence was authored by Maggie Blanden, JD student and Research Assistant at the Indigenous Law and Justice Hub.