Towards a Representative Legal System: First Nations Women in the Law


Content Warning: Mention of domestic violence, intergenerational trauma and murder of Indigenous people

Like many Zoom calls, it began with a series of ‘Sorry, can you hear me?’ and ‘I think I’m recording but let me just double check’ until the necessary technology issues were overcome and I could settle in for an enlightening interview with Melia Benn.



Image: Melia Benn

Benn is a Mamu and Gunggandji woman. Based in Cairns, she is also one of the only two practicing Indigenous women barristers in Queensland. Her career trajectory has seen her work as a property lawyer in private practice, a senior lawyer for the DPP in Queensland, and as Counsel Assisting the Northern Coroner of Queensland.


I had the privilege of speaking with Benn about the intersection of the Australian legal system and Indigenous communities, while unpacking the various challenges that arise from being an Indigenous woman in the law. Described as a trailblazer, Benn’s striking strength, resilience and determination exudes through the screen, as she articulated what it is like to be an Indigenous woman barrister.


Women and Indigenous people in the law

Across Australia, in 2021, women constitute 53% of total practicing solicitors, with every state and territory reporting more women lawyers than men for the first time ever. Whilst this is a huge step forward, women are still not being represented in senior legal positions at the same rate as their male counterparts. Unfortunately, the proportion of Aboriginal and Torres Strait Islander lawyers remains stagnant. In 2020, just 632 solicitors across the country identified as Aboriginal and/or Torres Strait Islander—representing just 0.8 per cent of the profession despite comprising 3.3% of the Australian population—further highlighting that the legal profession is not representative of Australia’s demography. In a career largely dominated by men, and not at all by women or Indigenous people, Benn has defied the status quo by being admitted to the Bar in 2018.


Indigenous voices are needed in the Australian legal system

The dark reality of Australia’s colonial history is that western laws have been used since colonisation to control, segregate, and murder Indigenous people. I asked Benn about how she feels to be participating in a legal system which ultimately continues to cause Indigenous communities egregious harm, and perpetuate a crisis of community disillusionment. ‘I have had these conversations’ Benn says, ‘and people would say “How could you do that”, and mob would say “How can you be a part of a system that prosecutes us?”’. Benn asserted her belief that legal disputes involving Indigenous people will inevitably require legal advocates and assistance, and so it is better that they are represented by ‘someone like us, who understands the nuances of culture and the nuances of community’. Cultural sensitivity and understanding is something that Benn emphasised as being vital to interacting and engaging with Indigenous people who find themselves in the criminal justice system. She further stated that this understanding is not inherent within the legal sector and community; it takes effort and intention to learn about each particular community or the particular mob and who has authority within that mob. It is about spending time and engaging in deep listening, Benn says, to successfully begin to learn and understand—for all legal professionals, Indigenous or non-Indigenous. ‘Just because you're a prosecutor, it doesn't absolve you from being culturally competent. Knowing things about particular communities; like especially in Cairns and the Cape, we have so many different nations … So it's actually good to have insight and to be respectful as a prosecutor—that role does not absolve you from doing that’.


Benn also reflects on not only the importance of background in understanding, but also diversity in experience, family circumstances and education. ‘I think that they benefit from having someone in the office that's not like them … that sounds really bad, but like, a lot of us are regional … we're not all private school kids or anything like that.’ Ultimately she says, ‘it's really hard to understand what it's like for a blak person going through the criminal justice system’, but her lived experience goes a long way towards enabling her to be the best advocate she can be.


I am particularly interested in Benn’s work with domestic violence. At the beginning of our conversation, Benn spoke candidly of her upbringing and disclosed that her father was an alcoholic who would become violent when he drank. There is a strong stereotype surrounding violence and alcoholism in Indigenous communities, and a lack of understanding that this is often a consequence of colonisation, intergenerational trauma and racism and discrimination. ‘There's a lot of domestic violence, including a lot of murders, that come through that office’, Benn says on domestic and family violence in Indigenous families, ‘... I think families really appreciate when you can say, yeah, look, you don't need to explain that part. To me, I get that part as I am Aboriginal, and it just takes a big load off some people having to continually explain themselves, or having things explained to them in a way that they don't understand.’ Having an understanding of the intergenerational trauma is vital in knowing how best to elicit information from Indigenous people, and Benn reflected that a failure to acknowledge this ‘is the biggest disservice to anyone (who is Indigenous) who’s going through the system’.


Benn’s insights highlight a fundamental point—‘Can you make decisions about a group of people without understanding [them]?’. Without Indigenous representation in the legal sector, Indigenous communities will continue to be unfairly treated and wrongly prosecuted. Benn used the example of a current live matter, where a woman who has experienced violence for a decade is now being charged with murder. ‘It took me a good four months of talking to her before she even told me what happened. And if I wasn't at the Bar right now, would she have ever told anyone what happened? Or does she just go through a trial where she doesn't understand where she ends up? For example by not giving evidence; the only way she's ever going to get her acquittal is if she tells the jury what happened. But how does a woman from a community who's never spoken to a room of people—because that's exactly what speaking to a jury is—sit in a courtroom, charged with murder, and have to explain [her story] to 14 strangers who don't look like her?’


‘So,’ Benn laments, ‘how can people represent without understanding? How can people make policies without understanding a group of people? That doesn't actually make any sense to me! I can't believe that that still doesn't resonate with people in important positions, when they think they can speak on behalf of others. That's not just for Aboriginal stuff—that's for women's stuff too.’


Rates of domestic violence for Indigenous women are still at alarmingly high rates, despite various government initiatives and campaigns across Australia. I asked Benn whether she thought this is a consequence of inadequate government action and social services, or harmful social views and racism directed at Indigenous people. ‘It's a social thing and a police thing’, Benn says: ‘So, the way that [Indigenous people] deal with each other, and deal with conflict within their own family in their own community is different to how a white family might do it. A lot of the time, that intervention by social services—if it's not done properly, in a safe way—accelerates already poor conditions and problems that are faced by them and their community’.


Another core issue of policing arises in these circumstances, whereby Indigenous women are often mistreated for not acting as the ‘perfect victim’ in instances of domestic violence. Benn asserts that ‘In terms of policing, the way that people are presenting themselves as victims is an issue. If it's not the way other people present themselves as victims, like the perfect victim, the damsel in distress, or the one that's been super cooperative and respectful and dying for the help—as opposed to, say, being angry and upset, and screaming during a call about what's happened to them—it may make the situation worse.’ Benn observed that this can then lead to wrongful arrest, ‘with a woman being charged or made a respondent in a domestic violence setting’, when in fact she is the victim in need of support. This is clearly a major failing of the police system, which accentuates the lack of protection for Indigenous women in instances of family violence.


‘So’, Benn concludes, ‘[the problem is] systemic in terms of government services, police services, and general lack of education for people who don't know Aboriginal and Torres Strait Islander people. Some people in major cities have never met a blak person, an Aboriginal person. So how can they make policies about them? How can they know how to fund them? How can they know how to help?’


Towards the end of our conversation, I ask Benn how she manages her mental health in her job, particularly in light of the issues she contends with every day: ‘Yeah, I get days where I feel like I'm in total despair. A lot of the time... I want to grab people and say, “you don't want to end up like my dad, you need to stop drinking”; or “you don't want to wake up like my dad, and find out your daughter's a barrister doing the same work that you need a barrister for all the time, and be so far down the line where you've got cognitive impairments and things like that”. I want to shake people and do all that. But that's not my place … that can't ever be the reason why I get up and do this work. I've got to target other groups of people that want to listen, perhaps to me—like the youth that I represent. People like to take their own journeys: when they're ready, they'll want to reach out’.

Alongside this steady approach to her work, Benn also has ‘ways of combating the difficult days, which includes nothing to do with the law’. She tries to go home to Country as much as she can to put her feet in the sand. She lies down on the grass to centre herself, and ‘just watches the clouds go by to remember your actual size and place in the world’. ‘You're not going to be helpful to anyone, if you don't look up to yourself. So I'm not going to be a very good member of my community, or be helpful to fill the spot I fill right now—which is one of two women, right?— if I don't look after myself. It is such a long game here’.


Benn’s insights are as relevant now as they have ever been. In spite of Government inaction, young people have rallied around the need to reform our legal system to better engage Indigenous people and build a better future. Hearing from someone as inspiring as Melia Benn and in turn sharing her thoughts and observations with the Monash Law community should give us all pause: that Australia’s past doesn’t have to be a determinant of its future. After all, there’s now two more Indigenous women barristers in Queensland than fifty years ago, and that is something that gives us hope for the future: a future where our legal system reflects the communities it serves.