National Aboriginal Justice Advisory Committee ( NAJAC) Colloquium
Aboriginal and Torres Strait Islander Social Justice
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Challenges for Aboriginal and Torres Strait Islander law and justice agencies
National Aboriginal Justice Advisory Committee ( NAJAC) Colloquium
13 September 2006
Speech by Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner
I would like to begin by acknowledging the Ngunnawal people peoples, the traditional owners and custodians of the land where we are gathered today, and pay my respects to their elders.
I would also like to thank the members of the National Aboriginal Justice Advisory Council for providing me with the opportunity to speak today and acknowledge my distinguished fellow speakers and panel members.
What I want to do in this speech is to set out some of the key challenges, as I see them, facing NAJAC and other Indigenous law and justice agencies in the current Indigenous law and justice policy context:
- In the first part of my speech, I want to broadly reflect on the challenge for NAJAC and other peak bodies in relation to addressing the issue of violence in Indigenous communities.
- In the second part, I want to focus on some specific justice issues: customary law, victims of crime, and incarceration rates for Indigenous people, and I want to outline the particular challenges for NAJAC and Indigenous law and justice agencies with regard to these.
But my first order of business relates to the fact that NAJAC is now over ten years old, established in 1995 following the first national conference of AJACs. Can I take this opportunity to acknowledge the work of the AJACs and NAJAC over the past decade or so, for among other things, keeping the Royal Commission into Aboriginal Deaths in Custody recommendations on the political agenda, against the forces of inertia and forgetfulness, and also for working so tirelessly to improve Indigenous people's access to justice, and for developing new approaches - such as the Koori Courts. While there is a long way to go in many areas, I think we need to acknowledge just how much worse things would have been without the AJACs and NAJAC advocacy for reform and change on behalf of Indigenous peoples.
Now this leads into the first part of my speech - the challenge for NAJAC and other peak bodies in contemporary Indigenous affairs. In short, at a time where no national representative Indigenous body exists, NAJAC's challenge - along with other Indigenous sector-specific peak bodies in their fields - is to position itself as the authoritative source of advice to Australian government in relation to justice and Indigenous peoples.
When I say this, I am not discounting the role NAJAC already plays. It is, after all, the national forum to which the Standing Committee of Attorneys-General refers matters of national significance in relation to Indigenous law and justice issues. My point is that there are a lot of competing voices out there and the challenge ahead is to make sure an Indigenous voice is heard clearly in Indigenous law and justice debates. I think the nature of this challenge is particularly clear in the ongoing debate on how to address family violence and sexual abuse in our communities.
And can I take this opportunity to make the comment that this debate is - in my mind - long overdue. It is an issue my Office has raised many times in various contexts over the past decade. Indeed for those of you who are interested, I would refer you to the paper 'Ending family violence and abuse in Aboriginal and Torres Strait Islander communities - key issues' published by my Office in June 2006, but which contains speeches, extracts from various Social Justice Reports and so on.
For those of you who want a copy, I have some hard copies here and the report is also available on-line, and the URL can be found on the slide above me.
Now, what do I see as the challenge for NAJAC in the current debate? Broadly, I would propose that it is, first, to play a leadership role, along with other Indigenous peak bodies, in addressing these issues proactively. Such a role, by necessity, involves working with other peak bodies in Indigenous affairs. Later in this speech I will discuss how an address to mental health issues is likely to be a vital part of any address to community violence and abuse in addition to the high rates of Indigenous incarceration. This also provides an example of an area where peak body 'inter-sectoral collaboration' will be vital as government look for answers, and if the funds and resources needed are to be secured for an effective address to mental health problems.
A further more 'specialised' role for NAJAC is to provide some balance in this debate. Balance in the sense that the focus on preventing violence and abuse does not eclipse all other law and justice concerns. We will all be aware that this year marks the 15th anniversary of the RCIADIC, and that in the 15 years since the findings of the Commissioners were handed down the rates of Indigenous incarceration have increased - and significantly. In addition, new incarceration problems have emerged. For example, Indigenous women are being incarcerated at all time record rates and at a rate that is growing alarmingly.
My point is that it is vitally important that the current focus on what is sometimes falsely characterised as a 'new' objective of addressing abuse and violence in communities is not at the expense of the 'old' objective set out in the RCIADIC to reduce Indigenous rates of contact with the criminal justice system. Indeed, it is vital that NAJAC are at the table to provide some balance between these two objectives. Too often the debate around protecting Indigenous people from crime and addressing the high rates of Indigenous incarceration - or for that matter, high rates of child removals, is framed in mutually exclusive terms.
The challenge is to keep the two major objectives alive and in balance. Of course, Indigenous family violence and child abuse must be reduced, but also, so should the rates of Indigenous incarceration. And we as Indigenous peoples cannot allow non-Indigenous shock jocks and quick fix, 'law and order' politicians to set the direction of policy in our communities. A strong and reasoned Indigenous voice is needed at the national level to ensure this does not happen. NAJAC is ideally placed to be that voice.
We must remember that many of the perpetrators that we incarcerate were victims as children. This is a cycle that needs to be broken and it requires the full attention and resources of government. Government policies need to be framed into a comprehensive strategy that finds a way out of the cycle. We need to make this objective loud and clear and we need the voice of NAJAC and other peak agencies to do this.
In particular, we need to raise the point that strategies need to be diverse, comprehensive, integrated and compassionate. If we want to solve these problems, we will not do it with ad hoc, one off programs that are poorly designed and not integrated. For example, the Royal Commission emphasised that the socio-economic disadvantage faced by Indigenous communities and the disempowerment of Indigenous people can be causal factors in poor mental health. We know that poor mental health can be a factor in violence. Any government strategy needs to address a range of issues simultaneously. Governments must positively discriminate by putting significant resources into this, in recognition of colonialist injustices and past policies that have created this legacy.
And I am not talking here of the continuation of a welfare mentality of service provision. Governments need to be negotiating with our communities about ways in which to develop comprehensive strategies that, as a minimum, will skill our people to manage and provide these services. And we must remember that we are a young population and these issues must be comprehensively addressed sooner rather than later.
Now, I want to move onto the next part of my speech and address three law and justice issues that are current challenges to Indigenous law and justice agencies. In particular, I want to highlight the human rights perspective on these issues. Time limits mean I am not going to be able to do justice to the complexity of many of these issues and there are many to choose from. These issues, and others, are expanded upon in the report Ending family violence and abuse in Aboriginal and Torres Strait Islander communities - key issues.
Challenge no. 1: Customary law
The first challenge I want to highlight is that of educating the wider public about customary law and Indigenous approaches to justice. This is vitally important at a time when customary law has been discredited in the media.
In the context of the recent debate on violence and abuse in communities, I believe it is a challenge to all of us to state over and over that Aboriginal customary law does not condone family violence and abuse, and cannot be relied upon to excuse such behaviour. Perpetrators of violence and abuse do not respect customary law and are not behaving in accordance with it.
We need to speak with a common voice to convey the message that customary law should not be relied upon as a defence in law if it is inconsistent with human rights standards. It is particularly important to assert that at no stage does customary law override the rights of women and children to be safe and to live free from violence. In situations where women's and/or children's human rights are at risk, Aboriginal communities should be encouraged to develop their own solutions to these problems and to adapt traditional practices to ensure these rights. While all attempts should be made to reconcile women and children's individual human rights with the rights of Indigenous peoples to retain and enjoy their culture, individual human rights must ultimately prevail.
The danger is that, unless Indigenous law and justice agencies start setting the agenda in the debate in relation to these parts of customary law, many of the positive aspects about customary law will be lost as the debate gets more and more polarised. In fact, as I am sure most of those present here will be aware, there will be many instances where there will be no conflict between human rights and customary law, and where they will be able operate in an interdependent manner. Aboriginal customary law has the capacity to strengthen social structures within Aboriginal communities and indeed can strengthen the observance of law. We need to be making this point loudly and clearly.
In contemporary society, some customary law is at odds with civil and political rights. Human rights education is a vital part of any response where the adjustment of customary law is required to reflect human rights. Education is required to inform communities about these rights. In my discussions with a number of stakeholders, I am reliably informed that many communities are not well informed about individual human rights.
I have put my hat in the ring to provide this form of education. Last year and again this year I submitted New Policy Proposals to government to undertake human rights education for Indigenous peoples. Unfortunately these were not funded. But this does not mean that we take the heat off government. I plan to keep putting forward this proposal because it is necessary, and because we need to take this message out to Indigenous communities, be they in remote areas or in cities, who do not have the same access to information, as we might enjoy in a bureaucracy. We need to discuss what consent means for example, and make sure that this message gets across.
There is a role for NAJAC Indigenous law and justice agencies to advocate for and to deliver such education. Educators must engage Indigenous individuals and communities, particularly those in rural and remote areas, and develop and disseminate educational materials about the potential conflict between customary law and individual's human rights so as to promote understanding of the Australian legal system and compliance with laws that protect individual's human rights.
This might involve developing partnerships at the community level between Indigenous communities and various agencies including police officers, health professionals and legal professionals, so that issues relating to customary law, family violence and abuse are approached in a consistent manner. It might involve providing structured mentoring to elders and leaders and support them in speaking out against family violence and most importantly, actively engage Indigenous women on family violence and abuse and the interaction with customary law and give them a voice on the issue within their communities.
We need to take back control of the agenda and of the debate. NAJAC and law and justice agencies need ownership of this matter so that customary law is not discarded, so that it is not discredited by the ill-informed, and so that customary law can take its place alongside the Australian legal justice system.
Challenge no.2: Needs of Indigenous victims of crime
The second challenge for law and justice agencies is to ensure Indigenous people are able to access victim support services as they need them and that such services are tailored to meet the needs of Indigenous peoples. There is evidence to suggest that, despite suffering the highest rates of victimisation for assault and other crimes, Indigenous people are not able to access these services.
However, in the main, we just don't know whether Indigenous people are able to access victim support services or not as many services do not record the Indigenous status of their clients. This in my eyes is a significant oversight - how is a service to know if it is meeting the needs of the whole population, including Aboriginal and Torres Strait Islander peoples, if monitoring is not taking place? From a human rights perspective, the challenge law and justice agencies face is to ensure that all Australians enjoy the same opportunity to access and use these services. And equality of opportunity must be related to relative needs of different population groups. I believe it is incumbent on such services to proactively ensure they are meeting the higher need for victims support services of Aboriginal and Torres Strait Islander people. This is particularly important in relation to women and children but applied to men also.
It is important for victim support services to recognise that Aboriginal and Torres Strait Islander people may not approach issues like family violence, or victimisation in the same way as non-Indigenous people. For many Aboriginal and Torres Strait Islander victims of crime and family violence, the solutions to that problem are seen to lie in strategies that attend to the needs of all members of the community, particularly in 'healing' rather than punishing the victimisers.
This point of difference was discussed in my Social Justice Report 2004 in relation to the post-release needs of Aboriginal and Torres Strait Islander women. Victim support services need to acknowledge and address that fully engaging with Aboriginal and Torres Strait Islander 'victims' and women in particular may require a quite different set of capabilities and quite a different approach. Such services are best designed and delivered by Aboriginal and Torres Strait Islander people to Aboriginal and Torres Strait Islander peoples.
Challenge no. 3: health and mental health
At a time when mental health is high on the agenda of Australian governments, the final challenge I want to highlight today for law and justice agencies is to ensure that governments respond to mental health as a health issue and also as a part of a response to community violence and the high rates of Indigenous incarceration.
Poor mental health is the first level at which factors like extreme disadvantage and disempowerment manifest as health symptoms. I think now is the time for Indigenous organisations to be lobbying and advocating for far greater resources. I say this noting that mental health has been a major interest of Australian governments over the past 6- months, with hundreds of millions of dollars being provided to improve mental health in Australia under the National Reform Agenda. The challenge for law and justice agencies is to ensure that a significant portion of these funds reaches Indigenous peoples and communities, and is appropriately targeted.
There is clearly a relationship between poor mental health and higher incarceration rates. A 2003 survey of NSW prisoners reported that 38% of all NSW Indigenous prisoners had suffered a mental disorder - that is a psychosis, affective disorder or anxiety disorder - in the previous 12 months, with higher rates reported among Indigenous women prisoners. It also reported that 84% of NSW Indigenous juvenile offenders had symptoms consistent with a clinical mental health disorder.
Illicit and licit drug use strongly correlates with mental health disorders. I therefore found it disturbing to note that among NSW Indigenous prisoners, 74% of women and 68% of men were reported to be using illicit drugs in jail - half of these injecting users.
If we assume that mental health and substance abuse issues are contributing to a significant number of incarcerations, what is the challenge confronting legal and justice services? Among other things, the AMA called for all jurisdictions to make imprisonment the last resort for those with mental health or substance abuse problems and to set specific annual reduction targets for the number of individuals incarcerated with these problems. It also recommended that the Aboriginal Medical Services have greater access to Indigenous prisoners and that greater interventions take place in prison to address mental health and substance issues in prison.
To these recommendations, which I support, I would add that, in the spirit of prevention being better than cure, greater mental health and substance abuse program resources are needed in communities to prevent people with mental health and substance abuse problems ending up in jail. Of course, these problems also contribute to the burden of violence and abuse in communities and so this too should reduce if greater resources reach communities.
The challenge, I believe, for bodies like NAJAC is to continue to work with health and mental health peak bodies to ensure policy-makers understand how important an address to mental health is, in terms of an address to family violence and incarceration rates. Law and justice agencies and health bodies must work to highlight the need for more Indigenous people to be trained as mental health professionals and para-professionals to work in communities. Mainstream services also need to be more attuned to the mental health needs of Aboriginal and Torres Strait Islander people. I also highlight the need for more and integrated primary mental health, substance abuse and family violence services in communities. Services that are controlled by the community they serve.
The role for NAJAC is to continue the voice of advocacy, and to reclaim the debate on these important issues. We have the authority, the knowledge and the right to be the voice on matters that affect our communities. We should ensure that governments hear us loudly and clearly before they unilaterally take action in our so-called best interests. You have a difficult and challenging role working at the grass roots level and I acknowledge you efforts.
Thank you.
