The Rule of Law and Aboriginal Incarceration

Practical Human Rights Governance Symposium Series

Curtin University Law School

Human Rights Day

Emeritus Professor Rosalind Croucher AM President, Australian Human Rights Commission

Acknowledgements

Thank you to Professor Robert Cunningham, Dean and Head of Curtin Law School, for this invitation to speak today. I am sorry that border closures and diary conflicts on this hugely significant day, prevent me being there ‘in 3D’.

May I begin by acknowledging the Gadigal people of the Eora nation—the traditional custodians of the land on which the Australian Human Rights Commission has its offices in the city of Sydney—and acknowledge the traditional custodians of the land on which Curtin university is located, the Wadjuk people of the Noongar nation. I pay my respects to elders past, present and future, and acknowledge especially Indigenous participants in this forum and those attending.

I will offer some remarks on the significance of this day, and the significance of human rights in relation to the topic of particular focus: the rule of law and Aboriginal incarceration.

Human Rights Day

The 10th December is one of the most significant days in the human rights calendar, for it was on this day, in 1948, borne in the aftermath of the horrors of second world war, that the United Nations General Assembly adopted Resolution 217A(III), the Universal Declaration of Human Rights. Each year, that day is commemorated as Human Rights Day. So, today we mark the 72nd anniversary of this defining document for the modern age.

This ‘international magna carta for all [people] everywhere’ was introduced by the Chair of the United Nations Commission on Human Rights, the indomitable Eleanor Roosevelt, widow of US President FD Roosevelt.

Eleanor Roosevelt said the importance of the Universal Declaration was ‘to make people everywhere conscious of the importance of human rights and freedoms’. It was to be one of the ‘foundation stones’ to ‘build an atmosphere in the world in which peace could grow’.

The preamble proclaimed the UNDHR as

a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

These are lofty words, indeed. To become meaningful, they have to permeate everything that nations do, and become essential reference points for how its citizens act. Universal and effective recognition is one thing, universal and effective observance is another. Here we all play our part.

Human rights, as set out in the Universal Declaration, start with an essential proposition—that people are born ‘free and equal in dignity and rights’, as Article 1 affirms. It is a vision that transcends political parties and political systems and reaches across all societies and all nations.

There can be treaties, and they can be written into domestic laws, but ‘the real change, which must give to people throughout the world their human rights, must come about in the hearts of people’.

Writing on the 10th anniversary of the UDHR, in 1958, Mrs Roosevelt asked, ‘Where ... do universal human rights begin?’. They begin, she said, ‘In small places, close to home — so close and so small that they cannot be seen on any maps of the world’ — in ‘the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works’:

Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.^[1]

But, as Mrs Roosevelt also reminded us, documents such as the UDHR ‘carry no weight unless the people know them, unless the people understand them, unless the people demand that they be lived’.

The adoption of the Universal Declaration of Human Rights was a moment that was also embraced and marked across Australia. The Hon Michael Kirby AC CMG remembers clearly the UDHR being given to every schoolchild in Australia, on the flimsy aerogramme paper of that time.

In addition to being in the chair of the UN General Assembly at its birth, Australia was a founding signatory to each of the other major first human rights instruments—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as the Charter of the United Nations itself. Overall, we have signed up to seven major treaties and a number of associated protocols.

The UDHR was an aspirational document, the rights contained within it not being binding. But the treaties ratified since are intended to have force, with governments accountable to the international community for their implementation by virtue of the commitments made by governments in signing and ratifying them.

However, not enough has been done to enact the rights and freedoms protected by these instruments into Australian law—despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years. This means that the rights and freedoms to which successive Australian governments have committed are not directly enforceable in Australia.

Today let’s celebrate Human Rights Day and embrace the possibilities of making our promises to the world part of our own, Australian, laws so that we can know our rights, understand them and demand that they be lived.

The world of the individual

This symposium is about ‘practical human rights governance’, with a focus on the rule of law and Aboriginal incarceration. Here we focus directly on the world of the individual—the individual in the context of our criminal justice system, and the rule of law as articulated in our criminal justice system. And when we look at the world of the individual as one of our own First Peoples what we see is very confronting. It demands to be seen. The statistics tell a confronting story.

Behind the statistics there are people: people with stories upon stories of disconnection, removal, discrimination—and above all, sorrow.

The speakers in the Symposium will each unpack aspects of the topic—and the statistics.

When I left the Australian Law Reform Commission to take up my current position as President of the Australian Human Rights Commission, the ALRC was halfway through its landmark inquiry on Indigenous incarceration, led by Judge Matthew Myers AM, member of the Darkinjung Local Aboriginal Land Council, member of the New South Wales Aboriginal Land Council, member of the National Congress of Australia’s First Peoples. I well recall Judge Myers saying to me that it was a conveyor belt—from removal from family into the criminal justice system and ultimately, incarceration. The report, Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 122), was completed in December 2017. It strongly focused on alternatives to incarceration, community diversionary options, and justice reinvestment.

My colleague, June Oscar AO, Aboriginal and Torres Strait Islander Social Justice Commissioner, has undertaken enormously important work over the past two years, to hear the voices of Indigenous women and girls across the country. The report, Wiyi Yani U Thangani, ‘Women’s Voices’ in June’s first language, Bunuba, was tabled in Parliament yesterday. June travelled all over the country to consult communities on their lands. It is the first time in 31 years that the Australian Government has funded a national engagement project to listen to the strengths, challenges and aspirations of Aboriginal and Torres Strait Islander women.

The report raises a number of serious concerns about indigenous women’s interaction with the justice system. It details problematic interactions with the police, instances of discrimination experienced on the basis of both their race and their gender, and a system that should, but fails, to protect women.

This contributes to the concerning rising number of Indigenous women in prison. June visited many women in prison during the project’s consultations. She heard the impact imprisonment has on families and children, and the way it has an impact across generations.

The Wiyi Yanu U Thangani report identifies examples of good practice in policing, and highlights the pathways identified by Indigenous women to realise positive changes to the patterns of engagement with the criminal justice system at all levels.

These include building cultural competency among law enforcement officials, including an understanding of inter-generational trauma; greater accountability and transparency mechanisms; building community based engagement, embedded in and owned by the community; as well as ensuring the availability of supports that women need – be it emergency accommodation, secure housing, access to services to address addiction, through to better support for community recreational activities for children and young adults.

The rising rates of child and adult incarceration, and the consistent trend in rising removals into the care and protection systems across Australia, are the outcome of failing our Indigenous women, children and families. We have to move beyond blaming individuals and Indigenous communities to focusing on how we can design better systems and responses.

As June has said, ‘We cannot heal trauma by causing more trauma and punitive interventions absolutely retraumatise. If we think about it historically, removal and incarceration are the cause of intergenerational trauma.’

June’s report acknowledges that large-scale structural change is required to break the cycle of a punitive system and to respond and support the strengths of women and girls effectively.  Change needs to be based on strengthening identity and self-esteem; empowerment and self-determination; the use and

revitalisation of women’s knowledges; healing and ending trauma; and place-based designed and led work. We also need to focus more on how we strengthen familial and social ties—as one of the key determinants to a lifetime of better health and wellbeing.

With the report now public, Stage two of this project will ask how do we work together in making the structural, policy and legislative changes needed toembed and support these alternative models and approaches?

June says—

Together we must ask ourselves what sort of nation do we want to live in? Do we want to live in a society where a lack of investment in public infrastructure increases inequality and punishes those in poverty? Or do we want a nation that grows the public good, enhances equality and reduces crime?

We should strive for ‘a society where everyone has the opportunity to be all they can’. For that to be a reality

we must all have equality before the law, and policies and legislation across all jurisdictions must rectify the impact of multiple inequalities and of generations of discrimination faced by all our women. To live in a land where everyone has a fair go, equality is essential.

Today we celebrate Human Rights Day

We celebrate Human Rights Day in the midst of a pandemic. We have seen very clearly that the actions of individuals can have a dramatic impact on everyone around them in this time. Communities have come together in the most extraordinary ways, with people helping others through great hardship and with individuals facing sometimes severe restrictions on their individual freedoms for the greater good of their community.

Human rights have never mattered more than they do right now. That we should celebrate.

But as we do, we must also remember that we still face significant challenges. And the experience of First nations communities in Australia is prominent among them. This includes ensuring operating a justice system that is just that— namely, just and fair to all—especially to First Nations peoples.

I would like to conclude on an aspirational note, reflecting the aspirations at the heart of the Universal Declaration of Human Rights, whose birthday we celebrate today. I would like to share with you all the last stanza of a poem by Indigenous poet, Oodgeroo Noonuccal, or Judith Wright as I knew of her when I was a schoolchild. It was introduced to me by Mick Gooda, June’s predecessor as Social Justice Commissioner. Its title is ‘A Song of Hope’.

To our fathers’ fathers 
The pain, the sorrow;
To our children’s children 
The glad tomorrow.

More speeches

More speeches by Rosalind Croucher.

Endnotes

^{[1] Excerpt from a speech by Eleanor Roosevelt at the presentation of ‘IN YOUR HANDS: A Guide for Community Action for the Tenth Anniversary of the Universal Declaration of Human Rights.’ Thursday, March 27, 1958. United Nations, New York.}