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Address to Indigenous Legal Issues Forum

35th Australian Legal Convention

Tom Calma

Aboriginal and Torres Strait Islander

Social Justice Commissioner

and National Race Discrimination Commissioner

24 March 2007

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I would like to begin by acknowledging the traditional owners of the land we are meeting on, the Gadigal people of the Eora Nation. 

I would also like to thank the Law Council of Australia and its Advisory Committee on Indigenous Legal Issues for inviting me to deliver this address, and to take part in the customary law panel discussion later today. 

When it comes to addressing a ‘legal issues forum’ as an Indigenous person;   there is no shortage of pressing issues that could be raised.  Thinking about what has been in the national media recently there is quite a lot to choose from, including:

• Ongoing issues relating to the death in custody of Mulrunji Doomadgee on Palm Island, with the acquittal of Indigenous people involved in the riots, issues surrounding the charging of the police officer involved and important issues about the implementation of findings of the coronial inquest;
• ongoing litigation and settlements relating to under-award wage payments as well as the ‘stolen wages’;
• issues relating to family violence, including a focus on the consideration of Aboriginal customary law in sentencing Indigenous offenders;
• issues relating to the role of alcohol and drug abuse in fuelling Indigenous crime and the over-representation of Indigenous people in custody and in prison; and
• fundamental changes to land tenure arrangements to enable individual leasing on communally owned Indigenous land in the NT and Qld.

I could go on. 

I will discuss just two of these issues today – the consideration of customary law in sentencing and changes to tenure arrangements on communally owned Indigenous land.  But it’s important that I begin with some observations on the broader policy context for Indigenous affairs within which these issues arise. 

As you know, the federal government has implemented some complex reforms which are euphemistically referred to as the ‘new arrangements in Indigenous affairs’.  These have largely been introduced as a result of the abolition of ATSIC, although it is worth remembering that the objective that they strive to achieve – namely, whole of government coordination – is something that could be achieved with a national Indigenous body in existence. 

There are some very serious concerns that I have about these reforms and where the legal profession has a role.  I particularly want to discuss a human rights-based approach for Indigenous affairs, and how this could improve current efforts to address Indigenous disadvantage in Australia. 

Before I get to all of this, I think it will be useful to first outline the statutory functions I carry out as the Social Justice Commissioner.

The position of Aboriginal and Torres Strait Islander Social Justice Commissioner was created in 1992.  It was in response to the Royal Commission into Aboriginal Deaths in Custody, and Australia’s embarkation on the reconciliation process.

I am required to monitor Indigenous peoples’ enjoyment of their human rights and native title rights, and to report annually to Parliament on these two matters. 

Every year I produce a Social Justice Report and a Native Title Report, which contain recommendations for the Parliament about actions it can take to improve Indigenous peoples’ human rights.

I am also required to:

• Promote discussion and awareness about the human rights of Indigenous Australians,
• Undertake research and educational programs related to the rights of Indigenous Australians; and
• Review legislation to make sure it is consistent with international and domestic human rights standards.

Not surprisingly, the government’s new arrangements in Indigenous affairs have been a major focus of my work since taking up my appointment in 2004. 

The pace and scale of reform are almost unprecedented – and this alone is causing enormous problems in Indigenous communities – a point I will return to shortly. 

Just to recap on some of the main changes:

• We have seen the demise of ATSIC and the appointment of the National Indigenous Council (NIC). 
• The government has focused service delivery through a series of Regional Indigenous Coordination Centres or ICCs.  These ICCs are the public face of the new arrangements and they contain staff from a variety of government departments working together.
• The main activities of ICCs are grant management and negotiating agreements at a local level – thru Shared Responsibility Agreements – and at a regional level – thru Regional Partnership Agreements.
• The ICCs are coordinated nationally by the Office of Indigenous Policy Coordination or OIPC that is intended to ensure a connection between service delivery at the ground level and policy development up to the national level.

But for all this change, and all the rhetoric of the new arrangements, the actual impact on the lives of Indigenous Australians to date has not lived up to the expectations.

I have just completed writing my third Social Justice Report and sadly I find myself confirming that concerns that I identified as potentially emerging problems have now eventuated through the federal government’s approach. 

First and foremost among these is the marginalisation, and often complete absence of Indigenous peoples from the policy development, implementation and evaluation process. 

Similarly, I have concerns that there has been little progress in improving the accessibility of mainstream services for Indigenous peoples despite the continual changes in government processes through the new arrangements.

Three years into the new arrangements, Indigenous Australians find ourselves:

• without a national Indigenous representative body following the abolition of ATSIC,
• without regional representative processes (except in far north NSW and one region of Western Australia);
• without appropriate monitoring and evaluation mechanisms to measure progress in addressing Indigenous disadvantage; and
• without benchmarks and targets, negotiated with Indigenous peoples, to identify what would be a suitable rate of progress for Indigenous policy and service delivery.

Individual communities are also negotiating one-off Shared Responsibility Agreements with the government.  Feedback received by my Office suggests that while these are valuable, they play no role in addressing the holistic well-being of the community and are not providing a pathway to achieving long term improvements for Indigenous peoples.

From a human rights perspective – there are some very obvious reasons why all the policy activity is not translating into real improvements on the ground for Indigenous Australians. 

Given that we are the most economically and socially disadvantage group in the Australian population, it is critical that measures are put in place to enable Indigenous peoples to engage in consultations and negotiations about the new arrangements as equal partners with government.   

Consultation with relevant stakeholders also lies at the core of what makes good policy. Take a look at the Better Practice Guide on Implementation of Programme and Policy Initiatives that was put out by PM&C and the ANAO in October last year.¹ It emphasises the importance of government engaging    ‘with those affected by the initiative at an early time’ and make sure that you take on board what they are telling you in those consultations.²

It is now a good decade since the jurisprudence of UN treaty bodies has recognised that ensuring that indigenous peoples can participate effectively in the decisions that directly or indirectly impact on our lives is a fundamental component of the right to non-discrimination and essential to ensure equality before the law.³

Our inability to do this in the context of the government’s new arrangements in Indigenous affairs constitutes a fundamental flaw in the design and administration of this approach to date. 

Although I don’t have the time to refer to them in detail, I would like to refer you to Guidelines for engagement with indigenous peoples that were developed by my Office and are based on international human rights standards.  They were produced in 2005 at the International Workshop on Engaging with Indigenous Communities that HREOC co-hosted with the UN Permanent Forum on Indigenous Issues and are available in the 2005 Social Justice Report.⁴

Applying these guidelines; the new arrangements should:

• recognize and accommodate the cultural distinctiveness and diversity of Indigenous Australians (this will be particularly evident when I turn to the recent amendments to the Commonwealth Crimes Act);
• adopt a people-centred approach which values the full participation of Indigenous peoples in the process, from the very beginning of policy development, through to service delivery and monitoring and evaluation;
• involve the development of agreed targets and benchmarks, so we have a clear picture of what it is exactly that is trying to be achieved; and
• be supported by an evaluative framework to assess whether the rights of Indigenous peoples are being ‘progressively realised’, so that we can be confident that government efforts are effective, well targeted and taking place at the maximum level possible.

Adopting such a human rights based approach to overcoming Indigenous disadvantage would also recognise that constructive engagement with Indigenous peoples can only be meaningful if the capacity exists in communities to so engage.  It should support good governance in communities, and work to build the capacity of communities to be self-determining. 

And last but not least, a human rights based approach would respect the principle of free, prior and informed consent. 

This principle has emerged as a central concept in a human rights based approach to development at the United Nations level. It is not a newly created right for indigenous peoples.  Rather it brings together, or synthesises, the legal obligations of States that already exist in international law, including:

• the right of self-determination,
• cultural and minority group rights,
• non-discrimination, and
• equality before the law.

As the UN Working Group on Indigenous Populations notes:

Human rights, coupled with best practices in human development, provide a comprehensive framework for participatory development approaches which empower the poorest and most marginalized sections of society to have a meaningful voice in development.   Indeed, this is integral to a human rights-based understanding of poverty alleviation as evidenced by the definition of poverty adopted by the Committee on Economic, Social and Cultural rights:   “in light of the International Bill of Rights, poverty may be defined as a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights (E/C.12/2001/10, para.  8).   

The principle of free, prior and informed consent is important so that:

• Indigenous peoples are not coerced, pressured or intimidated in their choices of development;
• Their consent is sought and freely given prior to the authorization and start of activities;
• Indigenous peoples have full information about the scope and impacts of development on their lands, resources and well-being; and
• Their choice to give or withhold consent over developments affecting them is respected and upheld. 

Unfortunately, current policy approaches don’t come close to these standards.  What I have observed with the government’s new arrangements in Indigenous affairs is a tendency to deliver important policy decisions as a fait accompli – but with the illusion of consultation. 

At present, very few Indigenous people can keep up with the pace of legal and policy reform that is occurring at the federal level let alone contribute to these reform processes. 

Let me give you an idea of what Indigenous people are up against.

Indigenous communities have had to deal with the following ongoing reform processes that have been occurring simultaneously at the national level:

• Reforms to governance arrangements for Aboriginal councils and associations;
• Reforms to the CDEP scheme, as well as processes for the lifting of Remote Area Exemptions in some remote communities; and
• Reforms of other employment related services, such as Indigenous Employment Centres, the Structured Training and Employment Program (STEP), and welfare to work reforms.

At the same time, consultations have been conducted relating to:

• Reforms to the Aboriginal Land Rights (Northern Territory) Act 1976, including substantial reforms for land tenure arrangements in townships and proposed changes to the permit system;
• Six inter-connected reform processes for different aspects of the native title system, followed by draft legislation to implement the findings of some of these consultation processes (with further amendments expected later on) – each of these consultation processes on native title occurred over the Christmas and New Year period just gone; and
• Reforms to the community housing and infrastructure program (CHIP).

Legislation has also been introduced to the federal Parliament that impacts on Indigenous communities relating to:

• Land rights reforms in the Northern Territory (through the Aboriginal Land Rights (Northern Territory) Act 1976);
• Indigenous heritage protection (through the Aboriginal and Torres Strait Islander Heritage Protection Act 1984);
• Indigenous governance (through the Aboriginal Councils and Associations Act 1976);
• Banning of consideration of Aboriginal customary law in federal sentencing matters (through the Crimes Amendment (Bail and Sentencing) Act 2006);
• The removal of consent procedures for traditional owners in the nomination of sites for storage of radioactive waste on Indigenous lands (through the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006); and
• Welfare to work reforms (through the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Bill 2006)

And Parliamentary inquiries have also been conducted into:

• petrol sniffing in remote Aboriginal Communities;
• national parks, conservation reserves and marine protected areas;
• the Indigenous visual arts and craft sector;
• Indigenous stolen wages;
• Native Title Representative Bodies (this inquiry was in addition to the four separate consultation processes on native title issues conducted by the Attorney-General’s Department);
• Indigenous employment;
• health funding;
• the non-fossil fuel energy industry;
• mental health;
• civics education and electoral procedures, including the loss of entitlement of prisoners (of whom Indigenous peoples make up a significant proportion) to vote; and
• an identity card (which is likely to have a significant impact on Indigenous peoples as high users of government services such as the welfare and health systems).

The consultation processes and reforms at the federal level have also been difficult for Indigenous peoples to participate in due to the short timeframes for consultation.  This has been particularly noticeable in parliamentary inquiries before the Australian Senate where public consultation on proposed legislation has consistently been severely curtailed. 

For example:

• The Senate Committee inquiry into changes to federal sentencing laws to ban consideration of Aboriginal customary law was formed on 14 September 2006 with submissions required to be submitted by 25 September 2006 – just 11 days later (with the committee due to report by 16 October 2006). Just 5 submissions were received from Indigenous organisations.  The final report noted that the government confirmed that 'there was no direct consultation' on the content of the Bill with groups who could be affected.⁵

• The Senate Committee Inquiry into the provisions of the amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 was created on 22 June 2006 for inquiry and report by 1 August 2006. The Committee received 4 submissions from Indigenous organisations. The final report of the Inquiry (by both government and non-government members of the Committee) stated that ‘The Committee considers the time made available for this inquiry to be totally inadequate’.⁶

We can only imagine how under siege Indigenous organisations are feeling with a seemingly endless raft of changes. 

There is a clear lack of capacity for Indigenous communities to have input into these processes at the required level.  The net result is a policy framework that is applied to Indigenous peoples, rather than one that works with Indigenous peoples. 

It does not make for sound policy. It is also ironic, given that Indigenous peoples are continually being attacked for being passive recipients of welfare, and yet are being subjected to a passive model for policy development that does not actively engage with us.

This siege mentally is only exacerbated by the almost constant barrage of negativity about Indigenous communities in the media. 

At times it has been the federal Minister who is feeding the negative stereotypes.  You probably recall his allegations last year about the existence of ‘paedophile rings’ in the Northern Territory. It was a headline story on Lateline and across the tabloids for several days.⁷

Yet only a couple of weeks ago, after a seven month independent inquiry into child sex abuse in the Northern Territory, co-chairs Rex Wild QC and Pat Anderson reported that there were no paedophile rings in the Territory’s Aboriginal communities.  To quote Mr Wild:

We haven't uncovered any nests of paedophiles or anything of that kind in our work.  … We have passed on some information to the police but to our knowledge, they haven't led to prosecutions as such.⁸

I do not deny that there are inter-generational child abuse problems in the Northern Territory as there are in populations throughout the world.  But it is difficult to say how widespread it is – and even more difficult still to address the underlying causes. Media grandstanding won’t resolve the problem but a considered policy responses, that actively involves the affected community, will go some way to addressing the problem.

We face a major challenge to turn around media reporting in Australia on Indigenous issues so that it can celebrate successes in Indigenous communities and reinforce a positive message about the inherent value of Indigenous cultures and society. 

Indigenous peoples need to hear such positive messages. If the only references to your people that are reported in the media are negative, it can have a detrimental impact on your self-esteem and sense of self-worth. 

I want to finish with two specific examples of policy processes that illustrate the concerns I have already made more generally.

First is the government’s recent amendments to the Commonwealth Crimes Act 1914 – which it portrayed as a response to family violence in Indigenous communities.⁹ The federal amendments have banned any consideration of customary law in sentencing for federal offences. This will impact on communities other than Indigenous people, as it was not limited to Aboriginal customary law.

It is my view that the amendments distract from the real solutions to the problem of family violence in Indigenous communities:  that is - solutions that address poverty, overcrowding, substance abuse, low levels of education and unemployment.  The amendments are an example of the search for a ‘silver bullet’ or a panacea that will solve all the problems that currently exist. 

The search for these simple panaceas is a hallmark of policy at the moment – but such solutions don’t exist. If they did, we would have achieved substantial improvements in Indigenous well-being decades ago. 

Let me state unequivocally that family violence in Indigenous communities is abhorrent and has no place in Aboriginal society. Let me also state upfront that Aboriginal customary law, properly applied, does not condone family violence. 

HREOC has stated clearly in submissions to sentencing courts and to inquiries that customary law must be applied consistently with human rights standards.  In other words, at no stage does customary law override the rights of women and children to be safe and to live free from violence.

Returning now to the amendments to the Commonwealth bail and sentencing provisions and some of the reasons why the Commission recommended to the Senate Committee of Inquiry that it should not have been passed. 

First and foremost was the fact that both the amendments and the process surrounding their introduction are fundamentally flawed. 

As far as the Commission is aware, the Bill is not based on, or supported by, any evidenced research. It is in conflict with every major inquiry since 1986 into the role of cultural background and customary law in the Australian legal system, including several reports of the Australian and Western Australian Law Reform Commissions.⁹

Despite the complexity of the issues raised by the Bill, the inquiry process was unnecessarily rushed. After the inquiry was established, there were less than two weeks for lodgement of submissions and a total of one month for the Committee to report back to Parliament.¹⁰

Even if the Committee felt equipped to do justice to the task at hand – there was to the Commission’s knowledge - no consultation with Indigenous people who practice customary law and therefore no opportunity for feedback from the very people who are purportedly the subject of these amendments. 

The Bill also is contrary to common law sentencing principles that have developed over many years to require courts to take into account material facts about the offender’s cultural background in order to ensure just sentences.¹¹

Although the government argued that the Bill will ensure equality before the law by removing cultural considerations from the sentencing process – this is a fundamentally flawed argument.  It seeks to deny the reality that all Australians, regardless of their ethnic background, have cultural values and may engage in cultural practices that may be relevant to sentencing for a criminal offence. 

It also overlooks the reality that a court is not obliged to give significant weight to cultural factors in reaching an appropriate sentence – they may be outweighed by other factors, such as the need for general deterrence. In the event that a judge makes an error in sentencing, the sentence can be appealed.

As the Commission pointed out in its submission to the Senate Inquiry, if the government was concerned that courts only sentence people on the basis of reliable evidence about customary law and cultural practice, precisely these kinds of safeguards can be introduced into the law. 

This is what has occurred under the NT’s Sentencing Act¹² and could have been replicated in the Commonwealth Act. Instead we see the Commonwealth trying to do the reverse, and encouraging all states and territories to now amend their criminal laws to match the Commonwealth’s. 

And finally, the Commission felt that the Bill sent entirely the wrong message to the broader community about the place of Aboriginal customary law in the life of the nation. 

For example, customary law can help Indigenous communities exercise greater self-governance and take greater control over the problems facing their communities. It should not be automatically excluded as irrelevant in the context of sentencing. 

You only need to look at positive developments around the country where Indigenous communities are benefiting from important initiatives, like circle sentencing, Murri Courts, Nungah Courts, Noongar Courts and Koori courts. 

Although it is early days in their operation, these innovative approaches to tackling Indigenous re-offending appear to be having a range of positive spin-offs for both the offenders and the broader Indigenous communities that are trialling them. 

For example, there is evidence to suggest that involving Indigenous Elders in restorative justice programs is helping to revive and strengthen traditional authority structures in Indigenous communities. Given the level of dysfunction and community breakdown that is evident – this surely is a positive example of communities doing it for themselves and something that all governments should be supporting. 

Let me consider one further major policy development that is occurring at present that replicates some of the concerns I have voiced today.

The Australian Government is implementing various policy and legislative levers to stimulate the dynamic forces of economic and social competition, and lift remote Indigenous communities out of their social and economic malaise. The government aims to encourage remote Indigenous Australians into employment, home ownership, asset accumulation and higher levels of participation in economic activity. 

These are important and worthy goals. However, the method chosen and its implementation are more problematic. 

Amendments have been made to the Northern Territory’s Land Rights Act to enable 99 year leases over communal land townships. The government has stated the desire to spread these reforms to other states, through legislative change at the state level.

The 99 year lease scheme is intended to create certainty of tenure. The 99 year head-leases will transfer control of land from the traditional owners to a yet to be defined government entity. The government describes the policy reforms as ‘normalising’ Indigenous communities. 

Overall, while I commend the Australian Government for its intensive effort to improve outcomes for remote Indigenous communities, my research demonstrates that the current reform agenda will not provide benefits to the vast majority of remote Indigenous Australians. In fact it has potential to do great harm.  My reasoning is as follows:

• Increasing contact between Indigenous and non-Indigenous people is not a strategy in itself to stimulate Indigenous economies. Despite access to employment and all of the benefits of a ‘normal’ economy in towns like Alice Springs, social and economic dysfunction continues.  For remote Indigenous people, relocation to town camps on the fringes of townships like Alice Springs increases, rather than alleviates alienation and dysfunction.

• Basic economic modeling demonstrates that the Australian Government’s expanded home ownership scheme will be out of reach of the majority of remote Indigenous households. While the scheme may advantage some Indigenous families, the policy will only be effective for families already able to access current programs such as the Indigenous Business Australia home loan assistance scheme.  It is in-accessible to the majority of Indigenous peoples in target communities. 

• The home ownership scheme will transfer the considerable burden of costs of remote housing maintenance to Indigenous people on low incomes. ‘Cost effectiveness’ is also the government’s most important design parameter for houses to be built for home ownership in remote communities. Given that structural problems and climatic conditions are proven causes of the majority of maintenance requirements in remote Australia, low cost housing is likely to exacerbate these problems. Low cost housing is also likely to be more expensive to heat and cool in some of the harshest environments in Australia.  In this context, home ownership is likely to put considerable economic strain on low income households.

• International experience demonstrates that individualising Indigenous communal tenures such as those proposed through the 99 year head-leases leads to the loss of Indigenous owned land. The economic benefits are marginal and short-term, and do not compensate in the long term for loss of traditional lands.

• Most Indigenous land tenures are located in very remote desert country, distant from markets and infrastructure to support enterprise development. The current Australian Government policy will not have any impact on these communities. 

• Many remote communities currently lack the governance, capacity and skill to access Australian Government enterprise development incentives. In order to be able to apply for funds, applicants must have competent English literacy and financial literacy skills, and be able to develop business plans and grant applications. Many communities require targeted intervention to get to a point of gaining any benefit from policies under the government’s self-access model. 

• Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), (the ALRA), the authorization provisions for 99 year head-leases agreements are not adequate to ensure that traditional land owners are giving their free, prior and informed consent. The ALRA does not specify that traditional owner’s document and authorise their traditional or agreed decision making processes prior to engaging in negotiations for 99 year head-leases. Given that 99 year leases have a financial component through annual rental payments, there is potential for more powerful people to coerce others in the interests of monetary gain, disregarding other cultural and social considerations, and

• In the majority of remote communities, Indigenous people are not likely to be competitive in an open employment market.  Australian Bureau of Statistics data demonstrates that private enterprise is not a reliable employer of Indigenous people.  In remote contexts, private enterprise will be under no obligation to employ Indigenous people, the majority of whom have limited skills and education.  Given that secondary education is only now being rolled out in remote northern Australia, Indigenous people are disadvantaged in competition for employment. 

Essentially, the government’s economic strategy for remote areas will only be successful in a minority of Indigenous communities with good governance systems and personnel capable of accessing government subsidies and grants. Communities that are well resourced and well organised may be able to leverage additional benefits for Indigenous residents.  Coastal communities on fertile land may also be attractive to investors and attract external business interests under the government’s reforms. Clearly, the benefits of the government’s strategy are directed primarily to individuals and communities that are already advantaged or to the non Indigenous business and investment sector. 

It is likely that communities on marginal land with no history of enterprise development will continue to find themselves economically isolated.  In its current form, the Australian Government’s economic reform agenda is not targeted to the remote Indigenous communities most in need, where there is compound disadvantage including:

• poor governance or a lack of governing bodies;
• low levels of English literacy;
• reduced access to education and training relevant to support employment;
• marginal land that has not provided income to date and is unlikely to do so in the future; and
• poor community infrastructure. 

What does this all mean?

Unfortunately, I think there is a lack of sufficient scrutiny of the government’s approach on these important issues. 

There is a need for solid scrutiny of all proposed changes to ensure that they are consistent with human rights principles. And there is a dire need for assistance for Indigenous peoples to be able to participate actively in the processes of policy development, service delivery and monitoring and evaluation. 

It is unacceptable that policy is developed without reference to, and engagement with, those who are affected by it.

The legal fraternity can play a key role in pointing out the problems of the current policy approach and its practical implications in communities.  The rapidity of current policy change is alarming.

I am not opposed to change – per se – but I am not supportive of changed policy that lacks an evidence base, occurs without stakeholder engagement, is conducted outside of a capacity development framework and lacks transparency. I am also not supportive of a policy framework that is increasingly punitive in its approach, that could further disadvantage and disenfranchise Indigenous peoples and that scapegoats Indigenous peoples for the failures of government service delivery and thereby neatly sidesteps accountability for the historic and ongoing under-performance of government on Indigenous issues. 

Thank you

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Last updated 12 February 2006