Practical Justice Initiative - Indigenous Lecture Series
Aboriginal and Torres Strait Islander Social Justice
Practical Justice Initiative Indigenous Lecture Series
University of New South Wales
June Oscar
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission
Thursday 9 November 2017
Acknowledgements
[Introduction in Bunuba]
Jalangurru lanygu balanggarri.
Yaningi warangira ngindaji yuwa muwayi ingirranggu, Bidjigal yani u.
I would like to acknowledge the Traditional Owners of the land upon which we meet today, the Bidjigal peoples. I pay my deep respects to their elders both past and present, and the generations to come.
The Bidjigal, like other nations in this area were at the frontier of first contact for our peoples and homelands and have been, and continue to be, some of our greatest warriors.
I would like to thank Professor Jeremy Moss and Darryl Cronin for organising and inviting me to speak at this Practical Justice Initiative Indigenous Lecture Series here at the University of New South Wales. I think this is an important lecture series and I look forward to the discussion at the end of my presentation.
My name is June Oscar. I come from the Bunuba peoples and my traditional lands is Warangarri, in the Fitzroy Valley in Northern Western Australia.
Today, I address you as the first Aboriginal woman to be appointed to the role of the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Australian Human Rights Commission.
When I was first appointed to my new position, I had many people ask me what my new role as the Social Justice Commissioner would entail. This made me realise that there are many people who do not understand the technical language and instruments of human rights which underpin the work of the Australian Human Rights Commission.
Aboriginal and Torres Strait Islander communities are very much aware of concepts around justice and equity. We know how to march and protest about issues that affect us. We have had stand offs with police and welfare officials. What we don’t know - is the language of human rights.
One of my major priorities will be to work hard to ensure that the human rights of Aboriginal and Torres Strait Islander peoples become more than just words on a page. Human rights must become part of our lived reality.
A crucial part of achieving this goes back to the core roles of the Australian Human Rights Commission.
As many of you will know, the Australian Human Rights Commission is Australia’s national human rights monitoring body and is responsible for handling human rights and discrimination complaints as well as promoting awareness of human rights for all Australians. In particular, my role is to ensure that human rights extend to Australia’s First Peoples.
I am charged with promoting the human rights of Aboriginal and Torres Strait Islander peoples in a number of ways including:
- producing reports to parliament, such as the Social Justice and Native Title Report;
- making submissions to parliamentary and other inquiries;
- developing policy advice on key issues affecting our peoples and;
- participating in key forums such as this one.
United Nations Declaration on the Rights of Indigenous Peoples
I want to turn briefly to an important document - the United Nations Declaration on the Rights of Indigenous Peoples.[1]
The Declaration sets out the individual and collective rights of the world’s 370 million indigenous peoples; calls for the maintenance and strengthening of their cultural identities; and emphasises indigenous peoples’ right to pursue development in keeping with their own needs and aspirations.
The UN Declaration was developed over a twenty year period by, and for Indigenous peoples across the globe. It is the most far-reaching, comprehensive instrument concerning Indigenous peoples. It is underpinned by four guiding principles: self-determination; participation in decision making and free, prior and informed consent; respect for and protection of culture; and non-discrimination and equality.
In September this year (2017), we commemorated the ten-year anniversary of the Declaration. It is fair to say that bringing full effect to the Declaration has been a challenge for many states around the world, but it is obligatory under the International Covenant on Economic, Social and Cultural Rights[2] that each nation takes key steps towards the realisation of our human rights. It is my great hope and ambition to make the Declaration a useful tool so that our communities know what to expect and demand, and how to negotiate and participate in equitable partnerships into the future.
It is now an opportune time for our country, having just been voted a seat on the Human Rights Council, to move beyond the symbolism of the Declaration to giving practical effect to this instrument in the Australian context.
I would like to see a commitment by the Government towards an implementation strategy that brings laws and policies in line with the articles of the Declaration. There is also a need to enhance current awareness programs and compatibility of existing approaches with the standards set out in the Declaration. Australia has a real opportunity to become a leader among nations by taking concrete steps to breathe life into this important instrument and I look forward to working with the Government to achieve these aims.
Past Reports and Royal Commissions
We are at a cross roads today where we need to focus on substance rather than symbolic gestures which do very little to improve conditions in our communities and the lives of Aboriginal and Torres Strait Islander peoples.
For far too long, Aboriginal and Torres Strait Islander issues have languished in the political landscape. Whilst there have been some key achievements to be proud of, there is much to be done to realise the rights of Indigenous peoples, across Australia.
Over the past 25 years we have had many important Commissions and Reports on the current status of Aboriginal and Torres Strait Islander peoples. These include the Royal Commission into Aboriginal Deaths in Custody[3]; the Bringing them Home Report[4] and; Reconciliation: Australia’s Challenge: the final report of the Council for Aboriginal Reconciliation[5]. These reports, and numerous other Coroner and Social Justice Reports, have made over 400 recommendations, all of which have called for both structural and practical changes in partnership with Indigenous peoples.
These reports have emphasised the need for Aboriginal and Torres Strait Islander peoples to have a genuine say in decisions that affect our peoples and communities. This is an important part of determining our future. As Aboriginal and Torres Strait Islander peoples, we have the right to freely determine our political status and freely pursue our economic, social and cultural development.
Most, if not all of the recommendations of the reports I have mentioned, call for better resourcing of Aboriginal and Torres Strait Islander organisations and services for Indigenous communities. This is echoed alongside calls for reconciliation that is based on truth-telling and that creates a just and mature relationship between non-Indigenous Australians and the First Peoples of this country.
It is disappointing that most of the recommendations of these reports have either been partially implemented or ignored altogether. For example, since the 1987 Royal Commission into Aboriginal Deaths in Custody, there has been a steady increase in incarceration and as a result, there are more Aboriginal and Torres Strait Islander peoples in prison today than ever before.
According to the Australian Bureau of Statistics, as of 30 June, 2016:
- There were 10,596 prisoners who identified as Aboriginal and Torres Strait Islander, a 7% increase (711 prisoners) from 30 June, 2015 (9,885 prisoners). The number of non-Indigenous prisoners increased by 8% (2,002 prisoners).
- Nationally, Aboriginal and Torres Strait Islander prisoners accounted for just over a quarter (27%) of the total Australian prisoner population.
- The proportion of adult prisoners who identified as Aboriginal and Torres Strait Islander ranged from 8% in Victoria (535 prisoners) to 84% (1,393 prisoners) in the Northern Territory.[6]
In this country, the ‘tough on crime’ narrative remains strong. There are measures in place that use custody as a first response rather than a last resort. This situation contributes to the extraordinarily high numbers of incarcerated Indigenous peoples. Examples of these measures include the ‘paperless arrest’ laws in the Northern Territory and the practice of jailing fine defaulters. As long as laws like these continue, incarceration rates will remain unacceptably high, and too many Indigenous people will be at risk of dying in custody.
Until recently, the Australian Government had resisted the adoption of justice targets or policy directions that support more preventative and reparative rather than punitive approaches to crime. In September 2016, during a meeting with Indigenous leaders of peak Aboriginal and Torres Strait Islander organizations, the Minister for Indigenous Affairs provided a promising commitment to justice targets stating:
“...We [the Australian Government] want to work with the states in ensuring that we use whatever levers we can and whatever persuasion we can for them to adopt the justice targets”.[7]
The Australian Human Rights Commission supports a justice reinvestment approach that addresses the social determinants of health, adopts justice targets and invests in the expertise provided by Indigenous legal organisations that can also help bring about the change that is necessary to stop the high levels of contact between Aboriginal and Torres Strait Islander peoples and the justice system.[8]
At the same time, indigenous peoples continue to initiate community responses to high incarceration rates. For example, in New South Wales, local Aboriginal groups have taken the initiative to build partnerships and engage in positive community building activities to prevent offending behaviour. This justice reinvestment work is particularly well progressed in Bourke and Cowra and is an example of Indigenous peoples finding solutions in their own communities. Disappointingly, the state government’s announcement in mid-2016 of $3.8 billion funding for prisons over the next four years is indicative that incarceration remains an ongoing priority for justice policy.[9]
The Bringing Them Home Report
This year commemorates the 20th anniversary of the Human Commission’s Bringing Them Home Report. In 1995, the Human Rights and Equal Opportunity Commission carried out the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. The Inquiry was established to:’
- examine the past laws, practices and policies of forcible separation of Aboriginal and Torres Strait Islander children from their families and their effects;
- identify what should be done in response, including any changes in current laws, practices and policies with a focus on locating and reunifying families;
- examine the justification for any compensation for those affected by the forcible separations;
- look at current laws, policies and practices affecting the placement and care of Indigenous children.
Extensive consultations were conducted across Australia and the Inquiry heard from around 1000 Aboriginal and Torres Strait Islander peoples. It gave survivors a space to tell their stories in their own voices, some for the first time, and in doing so provided a starting point for the healing process.
The Bringing Them Home Report found that ‘between one in three and one in ten Indigenous children were forcibly removed from their families and communities between 1910 and 1970’.[10]
Knowing what we know now from the Bringing Them Home Report, it is almost inconceivable that Aboriginal and Torres Strait Islander children today are being removed at an even greater rate than when the report was released. It is very obvious that the key recommendations from the national inquiry have not been implemented and Aboriginal and Torres Strait Islander children now make up a larger part of the out-of-home care system. For example, Aboriginal and Torres Strait Islander children are now almost 10 times more likely than non-Indigenous children to be in the out-of-home care system and numbers are set to triple by 2035.[11]
This is a national tragedy.
The child protection system is supposed to safeguard the rights of children, keep them safe with the best interests of the child being the primary consideration.
Our communities are supposed to be where children feel safe and protected. In this regard, the child protection system has a role in working with us to strengthen families and ensuring the cultural security of our communities.
If a child is under the protection of child welfare, we need to consider the ways that the child remains connected to their culture, identity and community, rather than be taken away, cut off from the important things that may be able to provide their ongoing strength and identity throughout their lives.
Peak Indigenous organizations such as the Secretariat of National Aboriginal and Islander Child Care (SNAICC), the Aboriginal Child, Family and Community Care State Secretariat (ABSEC) and Queensland Aboriginal and Torres Strait Child Protection Peak Limited ((QATSICPP) have lobbied for many years on Aboriginal and Torres Strait Islander Child Placement Principle. It is important that these peak body organisations are better equipped to be at the forefront of designing, delivering and evaluating child policy and services. They must have a role beyond providing advice and consultation because they are in the best position to have an understanding of Indigenous communities and the strategies needed to protect Aboriginal and Torres Strait Islander children as well as build capacity within families.
Juvenile Justice
Whilst we are acknowledging the challenges in relation to child welfare, is sad to say, that this system has become a spring board for Aboriginal and Torres Strait Islander children and young people to enter the justice system.
Alarmingly, more than half of Aboriginal and Torres Strait Islander children aged between 10-17 years are in juvenile detention. [12]
Over the last few years, we have seen increasing numbers of Aboriginal and Torres Strait Islander children and young people with complex behavioral and psychological needs being placed in the child protection and juvenile justice systems.
There are many things we can do now to begin to break this cycle of trauma however, what we are dealing with now is not acceptable.
It is my view that these institutions are just not appropriately equipped to care for Aboriginal and Torres Strait Islander children generally, let alone our children with complex needs.[13]
The Royal Commission into the Protection and Detention of Children in the Northern Territory[14] has heard appalling evidence of neglect and abuse of youth detainees. I hope its findings will lead to reforms that are urgently needed. We know issues relating to child welfare and juvenile justice have worsened over the years, mainly due to the fundamental failures of Governments to implement reforms. This must change.
There can no longer be an absence of Indigenous voices in decision making about our youth. Decisions need to be made taking into account other factors such as social determinants in health and wellbeing; commitment to justice and child welfare targets; and core indicators. Closing the Gap has to be about real commitment and not simply a form of symbolism towards Aboriginal and Torres Strait Islander health and wellbeing.
Martu Leadership Program
Of course we must acknowledge the challenges, but also that the situation of our peoples is not all gloom and doom. There are countless examples of partnership that are driving better outcome for our communities. Today I would like to share two occurring in the justice space.
The first example includes the Martu peoples who are the traditional custodians of a vast area of the Great Sandy, Little Sandy and Gibson Deserts in the Western Desert of the Pilbara.
The Martu are among the last of Australia’s indigenous peoples to make contact with the European world, with many moving into cattle stations and missions from a completely traditional desert life. This happened in two main waves. The Martu living around the town of Jigalong came out of the desert in the 1930s and 1940s, but the Martu peoples living deep in the Western deserts did not move onto cattle stations and missions until the 1950s and 1960s. However, in the early 1980s a group of four old men led the Martu who had come in from the deep desert, back to their remote desert country. They began a process to build their own communities and to gain native title over their country.[15]
The Martu have their own organization with heritage, employment and leadership programs. The Martu Leadership Group built a close relationship with the Pilbara Magistrate that led to the Magistrate working in a different way with the Martu peoples. As a result, this new partnership provided better opportunities to work and engage with Martu in a way called ‘two way learning’.[16]
At that time, the Magistrate had limited options for Martu offenders who often ended up in prison. The outcome of this ‘two way learning’ opened new opportunities to develop a criminal justice diversion and recidivism prevention program.
Further, a group of Martu Leadership members, including elders attended a conference at the invitation of the Magistrate, and gave a presentation about Martu and the goals of the Martu Leadership Group. This meeting of senior Martu lawmen and magistrates was also a critical moment of ‘two-way learning’.[17]
In another situation, the Martu engaged with the Aboriginal Legal Service where lawyers often had limited opportunities to clarify misunderstandings and miscommunication with Martu clients. This engagement enabled the Aboriginal Legal Service lawyers to develop capacity in order to represent Martu clients in courts. It also enabled lawyers to deliver more legal education to the Martu community as well as build new relationships and ways of engaging.[18]
Koori Courts
Another example is when the Victorian Government resolved to put into place strategies to reduce the Indigenous custody rates. This initiative, first piloted in 2002, was the establishment of the Koori Court Division of the Victorian Magistrates’ Court. The Koori Court hears criminal matters where the accused person is of Aboriginal or Torres Strait Islander background and intends to plead guilty. The aim of the Koori Court is to allow a more informal legal hearing, where matters can be discussed openly and without complicated legal procedure or jargon. The Koori Court also allows for the participation of members of the indigenous community, such as elders or members of the defendant’s family. Being a division of the Magistrate’s Court, the Koori Court deals with offences at that level and has the same sentencing powers – however the Koori Court is not permitted to deal with certain offences. The aim of the Koori Court is to provide a more culturally relevant and inclusive sentencing process for Indigenous peoples charged with offences.[19]
Koori Courts were a key element of the Aboriginal Justice Agreement, the Victorian Government’s blueprint for reducing the overrepresentation of Aboriginal and Torres Strait Islander peoples within the justice system, both as offenders and as victims. The initiative of the Koori Courts has helped improve justice outcomes for the Koori community which in turn benefits all Victorians. Further, the outcomes have been more successful in individual cases; have improved the engagement of Koori communities with the justice system and; helped build capacity within Koori communities.[20]
In addition to the Koori Courts, in 2016, the Victorian government officially launched Australia's first Koori Family Hearing Day[21], at the Family Division of the Broadmeadows Children's Court. Its aim is to reduce the trauma that children can suffer when they are forced to take part in court proceedings. The focus on trying to keep Aboriginal families in their communities - often placing children with a family member or other Indigenous families if their own family breaks down, or their parents are unable to care for them. Named Marram-Ngala Ganbu, which translates as 'we are one' in the Woiwurrung language, the court puts cultural awareness and sensitivity at the heart of its work. This Court process aims to reduce the over-representation of Koori children in out-of-home care and the criminal justice system.[22]
Empowering Indigenous Women and Girls
Before I touch on my final topic for today, I just want to mention briefly that on 1 December, my team and I will launch a new project which is a national human rights based engagement process with Aboriginal and Torres Strait Islander women and girls. This engagement process is supported by the Department of Prime Minister and Cabinet.
A key driver for this project is to acknowledge the thirty-year landmark of the Women’s Business report that was published in 1986.
The aim of this engagement process will be to elevate the voices of our women and girls; obtain their views of their immediate and long-term needs in order to guide and influence governments to implement policies and practices that foster agency within our communities; and provide the conditions for positive change.
We will provide more information once the project is launched.
Constitutional Reform
Of course, I cannot leave here today without talking about the current constitutional challenge. But in order to get to that, let me first reflect on the recent history of this process. I know that through the leadership of your institution and Pro Vice Chancellor, Professor Megan Davis, that many of you will know this landscape.
In December 2015, the Prime Minister, Malcolm Turnbull and Opposition Leader, Bill Shorten established the Referendum Council. The Council was made up of 14 Indigenous and non-Indigenous members. It was tasked with providing advice on whether, and how best, to recognise Indigenous Australians in the Constitution.
The report of the Referendum Council was the culmination of 18 months of consultation and discussion, including six months of regional dialogues with Aboriginal and Torres Strait Islander peoples. The Council drew on two previous reports and public submissions from people across Australia. Most significantly, it oversaw an innovative process where – for the first time – Aboriginal and Torres Strait Islander peoples themselves were asked to deliberate collectively and report back on what constitutional recognition meant to them.
This process culminated in the Uluru Statement from the Heart. At Uluru, Indigenous peoples spoke directly to the Australian people, and demanded constitutional reform on three points: voice, truth, and treaty.
They called for:
- a national representative body with the power to advise parliament on laws that affect Indigenous peoples; and
- a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and undertake a public truth-telling process about Australia’s history. Makarrata is a Yolngu word meaning ‘a coming together after a struggle’.
Only the national representative body would involve a constitutional change. Ordinary legislation could establish the Makarrata Commission.
As you may be aware, Aboriginal and Torres Strait Islander peoples were very disappointed at the recent rejection by Federal Cabinet of the Referendum Council’s recommendation of a voice to Parliament. Many Aboriginal and Torres Strait Islander peoples felt they had made their voices very clear not only at Uluru but also in the national consultations in the lead up to the Uluru national summit on constitutional reform. There is a feeling that a commitment to addressing the many challenges that Indigenous Australians currently face requires the Government to listen to our voices and act on what our communities have said.
The rejection of the Uluru statement proposals, and particularly the establishment of a constitutionally enshrined voice to Parliament, is seen as a setback to any hope of Indigenous peoples’ recognition in the Australian constitution.
At the same time, we cannot turn away from the legitimate aspirations of Aboriginal and Torres Strait Islander peoples. We have made it clear that only substance, not symbolism is needed.
Conclusion
We are at a critical juncture in this country in Indigenous affairs. Our peoples have come through some of the worst of what has been thrown at us and yet still we have a long way to go to ensure that we thrive, not just survive.
Key to this is a commitment on the part of Aboriginal and Torres Strait Islander peoples and government.
For us, this requires a dogged determination to overcome our past and build a better future for ourselves and our families - free from the shackles of prejudice and pain. In order to do this, we must begin to accept that we can co-exist with our fellow Australians and that there is a genuine kindness and hope for harmony and healing that lives alongside us.
We take the moments of goodwill that are wrapped up in the 1967 Referendum, the walk over the Sydney Harbour Bridge in 2000; and the Prime Minister’s Apology in 2008 as evidence of the kind of Australia that makes us proud. We take the comments of our political leaders at face value and genuinely believe that they want to do things ‘with’ us and not ‘to’, us. We don’t doubt those commitments, but we are no strangers to the political realities around us and the resolution that is required to take these words and make them part of our lived reality.
We know that leadership in Indigenous affairs might sometimes feel like a living puzzle that seeks to move all of the hopes of our peoples through a very small political window. We know that this is a difficult manoeuvre for any leader, and that insofar as constitutional reform is concerned has the power to be transformative, not just for our lives, but for the nation.
We cannot heal our country with catch cries of “formal equality” that minimises the experience of Aboriginal and Torres Strait Islander peoples and perpetuates this myth that somehow, for us, that equal treatment is going to allow us to arrive at the same destination as other Australians.
The history of injustice experienced by our peoples needs to be acknowledged not just in the words, but in the deeds of our political leaders. It compels our leaders to recognise these injustices and find a solution that puts us on equal footing with our fellow Australians. You cannot treat two different people the same and expect them to land at the same place. Our peoples have united behind a form of substantive equality that would give us a platform and a voice in the matters that affect us. It is a rejection of symbolism, which has not served us well but a call for structural reform that will enable the kind of change that we seek in all walks of life, whether that be in health, justice, child welfare or employment.
We know that without addressing these structural issues, that we cannot hope to address the many challenges that confront us and that our voices will be drowned out without a specific platform to elevate them.
An opportunity is upon our nation at the moment, and I hope that one day, our political leaders will have the courage to honour the voices of our peoples as captured in the Uluru Statement and seize that moment.
That day might not be today. But as the saying goes in that famous song about Vincent Lingiari and the Gurindji peoples - “We know how to wait”.[23]
Yaninyja. Thank you
[1] United Nations Declaration on the Rights of Indigenous Peoples, published by the United Nations, 07-38681, March 2008
[2] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3. At http://www.refworld.org/docid/3ae6b36c0.html (viewed 26 October 2017).
[3] Indigenous Deaths in Custody: A Report prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner for the Aboriginal and Torres Strait Islander Commission
1996
[4] Bringing them Home Report: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, 1997
[5] Final report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, December 2000.
[6]http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2016~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics~5
[7] Michael Gordon, ‘Nigel Scullion to push justice targets with states over Indigenous incarceration’, The Sydney Morning Herald (online), 21 September 2016
[8] Tom Calma, ‘The justice reinvestment movement in Australia’ in J A Guthrie (ed), Is Justice Reinvestment Needed in Australia? (Unpublished report and edited transcript of proceedings, National Centre for Indigenous Studies, 2012) 14-15.
[9] Department of Justice NSW, ‘Record investment in justice’, (Media release, 21 June 2016) <http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2016/Record-investment-in-justice-in-NSW-budget.aspx>.
[10] Human Rights and Equal Opportunity Commission, Bringing them Home Report 1997.
[11] Family Matters Campaign Report
[12] Australian Institute of Health and Welfare, Youth detention population in Australia 2016, p2 http://www.aihw.gov.au/publication-detail/?id=60129557387&tab=2
[13] J Higgins, et al, Children with complex needs, Australian Institute of Family Studies, (2007), https://aifs.gov.au/cfca/publications/children-complex-needs.
[14] https://childdetentionnt.royalcommission.gov.au/Pages/default.aspx
[15] The Martu Leadership Program: Evaluation of a pilot program using the Social Return on Investment (SROI) methodology by Social Adventures Australia April 2017, p11
[16] Ibid. p47
[17] Ibid. p48
[18] Ibid. p49
[19] http://lawgovpol.com/koori-court/
[20] https://www.humanrightscommission.vic.gov.au/home/news-and-events/commission-news/item/892-new-melbourne-magistrates-koori-court-launched
[21] http://assets.justice.vic.gov.au/njc/resources/74040519-7cc4-4649-8b03-05c90a6572e0/aboriginal+hearing+day+-+heidelberg+magistrates+court.pdf
[22] http://www.theage.com.au/victoria/new-koori-court-to-bring-justice-to-kids-20160825-gr1672.html
[23] From Little Things Big Things Grow by Paul Kelly and Kev Carmody