Assuming that the language barrier has been overcome and the Aboriginal client is able to communicate effectively with the duty solicitor in English, then a variety of responses may be experienced. These responses are no different in kind from what may be experienced with non-Aboriginal defendants, but there will be differences in emphasis that reflect Aboriginal peoples’ cultures, society, world view and past experience. Both non-Aboriginal and Aboriginal duty solicitors may be experienced as alien because they are seen as part of the alien court system, and not “one of us”. Again, attentiveness, patience and courtesy to the defendant are of the utmost importance [see Role of the Duty Solicitor chapter].

Gender issues inevitably arise for duty solicitors dealing with Aboriginal people, particularly when dealing with traditional people [see Role of the Duty Solicitor chapter].

Aboriginal and Torres Strait Islander people have a disproportionate lower life expectancy and health status compared to non-Indigenous people. They die on average twenty years earlier than non-Indigenous Australians and infant mortality is three times higher than for non-Indigenous Australians. It is widely accepted that the ongoing disadvantage faced by Aboriginal people is due to a complex web of socioeconomic factors such as: poverty, overcrowding in houses, inadequate access to clean water and sanitation, inadequate access to education, housing and employment, lack of access to medical assistance and treatment, poor nutrition, drug and alcohol abuse (including petrol and solvent sniffing), ongoing discrimination and racism, dispossession from land, the separation of families, loss of culture, and emotional upheaval. Chronic diseases such as heart disease, diabetes, stroke, and renal failure are common and escalating, as is drug and alcohol addiction. Taking into account the prevalence of chronic illnesses within Aboriginal communities, it is important that the duty solicitor is aware that not all people who appear unwell or charged up are in fact high on drugs or alcohol, but rather are chronically ill.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) showed that Aboriginal people were disproportionately represented in relation to the offences of assault, drunkenness and public order offences. The deaths investigated by RCIADIC showed time and again that alcohol withdrawal in particular is life threatening, and that alcohol intoxication is potentially dangerous because it has the effect of masking effects and symptoms of other life threatening illnesses and conditions, such as closed head injuries [see Role of the Duty Solicitor chapter]. Taking these factors into consideration, it is important for the duty solicitor to not make assumptions about the condition of any defendant and be vigilant to the possibility that instructions may be needed in order to have the defendant medically examined.

Clearly, some defendants will be under the influence of alcohol or drugs. Where it is impossible to take instructions, the duty solicitor is obliged to obtain instructions to have the matter held over until the defendant is able to communicate effectively. Instructions should be obtained to warn the cell guards of the defendant's condition, and to remind them of their obligation and duty of care towards that person [see Role of the Duty Solicitor chapter].

For many Aboriginal people, raising the name of a dead person will cause serious offence and is culturally insensitive. For those people who speak Pitjantjatjara, the deceased person’s name is not to be spoken until the grieving family decides the name can come back into use. It is a matter of respect for traditional culture that one does not disturb its members’ memories of the dead by reviving the use of their name. In place of the person’s name, the word “Kunmanara” is used. Kunmanara means “one whose name cannot be mentioned” or “no name”. It is used by all people who have the same name as a person who has died recently, and may also be applied to the duty solicitor if it is appropriate. The rule is simple: if the defendant calls the duty solicitor “Kunmanara” or if the defendant calls somebody else “Kunmanara”, then it is very important the duty solicitor does not use that person's name, but rather call the person in question “Kunmanara”.

In addition, the duty solicitor should be aware that it is culturally inappropriate to show community members material such as video, voice recordings and photographs which contain images of the deceased person.

The Magistrates Court of South Australia, when it sits in the north-west of the State, will consider ceremonial obligations as reasons for absence from court, however more weight is given to such submissions where supporting information is also provided. This particularly applies to people of the Western Desert Language Groups, who reside at Yalata, Oak Valley and in the Pitjantjatjara Homelands. It is helpful to remember:

Business usually takes place during the summer months, though this is by no means an invariable rule and there is usually a fairly long lead-up time prior to the occasion when the travelling starts.

It is obviously important to the maintenance of the tradition of the courts giving leeway to defendants at ceremony time that the present arrangements not be abused. Some communities have gone so far as to arrange for traditional leaders to speak with visiting Magistrates and to request them to impose bail conditions consistent with attendance on business, but requiring the immediate arrest of defendants who have absented themselves from the community during “business time” so as to go on a drinking binge. This is cited as an example of the seriousness with which community leaders regard the importance of Aboriginal people attending traditional ceremonies and not abusing the leeway that Magistrates give in those circumstances.