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From rhetoric to reconciliation - Addressing the
challenge of equality for Aboriginal and Torres Strait Islander peoples in
criminal justice processes

Mr Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission



The
Elliott Johnston Tribute Lecture

Flinders University



Tuesday 23
May 2006

I would like to begin by acknowledging the Kaurna peoples, the
traditional owners and custodians of the land where we are gathered today, and
pay my respects to their elders and to the ancestors. It is good to see so
many familiar faces here tonight and hello to all of the Nungas in the
audience.



Thank you Flinders University for inviting me to deliver this
significant address. And thank you to Gary Davis, Tracey Bunda and staff for
making the arrangements.



May I begin by stating that it is an honour to
deliver this lecture.



Elliott Johnston has made a significant
contribution to the pursuit of justice and equality for Aboriginal and Torres
Strait Islander peoples.



He has done this most famously, but not
exclusively, through his role as National Commissioner on the Royal Commission
into Aboriginal Deaths in Custody.



The processes and final reports of
that Royal Commission represent a pivotal moment in the history of Indigenous
and non-Indigenous relations in this country.



The reports smashed the
so-called ‘great Australian silence’, by making explicit the
connections between the history of treatment of Indigenous peoples and
its ongoing, contemporary impact. This is seen through the
continuing experiences of disadvantage and discrimination, and most tragically
through the deaths in custody of too many Indigenous people.



The final
recommendation of the Royal Commission’s report also introduced into our
national debates the concept of ‘reconciliation’.



Up front,
I want to acknowledge that Elliott Johnston’s contribution is broader than
just being a champion for justice and equality for Indigenous peoples. It is
also a significant contribution to public life in Australia.



He has
challenged governments and all Australians to strive for a fairer and better
future. One in which all Australians – Indigenous and non-Indigenous – are equal. We too easily forget that we stand diminished
as a nation while the gross inequality and discrimination experienced by
Aboriginal and Torres Strait Islander peoples continues to exist.



In
preparing for this lecture, I noted the comments of my predecessor as Social
Justice Commissioner – Dr Bill Jonas. His comments were made on the tenth
anniversary of the Royal Commission. It is now, of course, fifteen years since
the Royal Commission.



Dr Jonas stated:

“while it is in people’s nature to celebrate anniversaries, it
must be said that this anniversary is a sad one. There is less to celebrate
some ten... years after the Royal Commission’s findings than we might have
hoped for.

The reports of the Royal Commission provided the impetus for the
reconciliation process and... marked a turning point in the recognition of the
wrongs of the past, and did so unreservedly.

They also provided great optimism that serious attention would be devoted to
overcoming the systemic, structural discrimination that Indigenous people face
in Australian society as a result of colonialism.

But while some genuine efforts to this end have been made in the decade since
the Royal Commission and continue to be made today, the sense of urgency and
commitment to addressing Indigenous over-representation in criminal justice
processes has slowly dissipated.

Indigenous people have continued to die in custody at high rates in the
decade since the Royal Commission, and the average rate of Indigenous people in
corrections has steadily increased on a national basis since the Royal
Commission. Yet (today) this hardly raises a murmur of discontent let alone
outrage among the broader community. These facts either go unnoticed, or
perhaps even worse in the age of reconciliation, are simply accepted and not
challenged.

As a consequence, Indigenous affairs seem to have become a series of
anniversaries – operating as an annual reminder of the unfulfilled
promises and commitments of
governments”.^[1]

Tonight, I could have read Bill’s speech to you verbatim, as a
reflection of where we stand today – five years on from this speech. When
we look to the fundamentals of the situation faced by Indigenous peoples today,
we can see that little has changed.



If we take the most recent figures
released by the Australian Bureau of Statistics, there were 5,662 Indigenous
people in jails across Australia in the December quarter. 80% of these people
are imprisoned in NSW, Western Australia and Queensland. This constitutes a
rate of 2,024 per 100,000 adult Indigenous population. By comparison, the
average daily imprisonment rate for all Australians is 155 prisoners per 100,000
adult population.^[2]



The
National Prisoner's Survey, which measures the number of people in prison on 30
June 2005, notes that 22% of prisoners on that date were
Indigenous.^[3] In 1991 when the Royal
Commission reported, Indigenous peoples comprised 14% of the prison
population.^[4]



Yes, I know.
You have heard it all before.



But it still matters.



The high
rate of incarceration of Indigenous people also has its associated effects,
including:

• single parent families;
• kids without a father or mother;
• grandparents too busy raising children to enjoy their old age;
• difficulties for mothers and fathers in gaining and keeping employment
  – due to carer responsibilities or criminal records; and
• unstable family relationships.

Not to mention the high rates
of victimisation among Indigenous people, especially women and children, who are
the victims of most crime committed by Indigenous people.



The current
situation should not be tolerated any more than it was 15 years ago. As
the Royal Commission’s final report stated: “(It) is totally
unacceptable and... would not be tolerated if it occurred in the non-Aboriginal
community.”^[5]



Tonight,
my intention is a bold one.



I intend to provoke you. And I intend to
inspire you.



As I am sure you will agree, a lecture named after Elliott
Johnston should seek to do no less.



So let me begin with a vision for our
nation’s future.



I have three children. My youngest daughter
Alice, is 12.



Twenty to 30 years from now, Alice may well end up having
had some children of her own – after she has joined the growing ranks of
Indigenous professionals with her double degree of course! I’ll have to
wait and see, but she may even go to an esteemed university whose reputation is
acknowledged globally, such as Flinders University.



I want you to imagine
a time when, as a happily retired doting grandpa, I have a curious grandson or
grand-daughter sitting with me asking about what I used to do when I was
working.



‘I used to work at the Human Rights Commission,’ I
would say.



‘What’s that mean?’ they would
ask.



‘Well, my job was to keep an eye on how Indigenous people
around Australia enjoyed their human rights,’ I’d
explain.



(pause). Still a blank look.



So I’d continue:
‘Well, back then Aboriginal people were much worse off than other
Australians. Our people used to die about 17 years younger than other
Australians. We didn’t achieve the same levels of education and we were
much less likely to have a job or a good income, out bush many of our mob had to
share their home with relatives and lots of our people were in
jail’.



In this vision I would be met with a child’s innocence
and inquisitiveness, but also with their disbelief that such a place could ever
exist, let alone the place they called home!



My 20 year vision is for a
country where the current state of Indigenous disadvantage is as
incomprehensible to future Australians as say the ‘White Australia
policy’ is to the present generation.



That is how I want you to
view the current state of disadvantage experienced by Indigenous peoples in this
country – absurd and unacceptable. But the reality is, if the average
life expectancy of Indigenous males remains what it is, theoretically I will not
even be here in ten years time.



The current situation is perverse and
illogical for a country of Australia’s social and economic standing. Our
politicians wax lyrical about human rights injustices occurring throughout the
world, but seem to forget what is taking place in their own backyard. The
phrase ‘people in glass houses’ comes to mind.



We should not
seek to rationalise it or try to explain it. We are beyond that – well
beyond it.



And this brings me to the title of my presentation: From rhetoric to reconciliation - Addressing the challenge of equality for
Aboriginal and Torres Strait Islander peoples in criminal justice
processes.



There was an interesting forum held earlier this year
called The Australian Future Directions Forum. The patron for the forum
was the Prime Minister John Howard. About 100 people aged up to 40 were chosen
on the basis of their likely leadership role in Australia in the next 20 years
and they were asked to set out a blueprint for Australia’s future.



I want to read to you the statement that they endorsed about Indigenous
issues. It is very striking and inspiring, and encapsulates the sense of
urgency and commitment that I believe we need to see across all areas of
Indigenous affairs. It reads:

We declare that the ending of Aboriginal and Torres Strait Islander peoples
(Indigenous) disadvantage is the number one priority of the 2006 Australian
Future Directions Forum. We stand diminished as a nation unless we act
immediately and decisively to address the marginalization of Indigenous people
across all areas of life. This is not only desirable, it is achievable. It
would be outrageous for this level of alienation and disparity to continue into
the next decade. As future leaders we are determined to take all efforts to
address this legacy.

We will do this because it is right. The manifest disadvantage of Indigenous
people is intolerable. By doing nothing we stand to witness the irreversible
loss of the most ancient culture in the world...

There has been considerable detailed work done on the solutions to Indigenous
disadvantage and for the recognition of Indigenous culture, so we can be
confident, that with refinement, the elements for success exist. The focus then
must be on commitment, priority and
action.^[6]

Well, I am a
realist but I also believe that we can achieve what this statement outlines.
Elliott Johnston and his fellow Royal Commissioners believed it could happen
too.



So let us now consider why it hasn’t happened to date,
and what needs to happen now, particularly in relation to criminal justice
issues.



The recommendations of the Royal Commission report focused on the
necessity to reduce Indigenous over-representation at every stage of the
criminal justice system.^[7] The Royal
Commission saw that this task lay at two levels – first, ‘and in
some ways the most immediate and in many ways the least difficult, is at the
level of the criminal justice system
itself’^[8].



The
Commissioners stated, however, that a focus on the criminal justice system
alone was not going to change the overall life circumstances which drew
Indigenous people into the criminal justice system’s web. They stated
that:

the most significant contributing factor is the disadvantaged and unequal
position in which Aboriginal people find themselves in society – socially,
economically and culturally^[9].

In particular, the Royal Commission noted that our history was one of:

deliberate and systematic disempowerment of Aboriginal people starting with
dispossession of their land and proceeding to almost every aspect of their
life... (with) every turn in the policy of government and the practice of the
non-Aboriginal community... postulated on the inferiority of Aboriginal
people... Every step of the way is based upon an assumption of superiority and
every new step is an entrenchment of that
assumption.^[10]

The Royal
Commission acknowledged that this was often ‘guided by the best of
motives’ but that it was also always done ‘in the sure knowledge
that (Aboriginal) people needed our superior ideas and skills... Aboriginal
peoples were never treated as equals and certainly relations between the two
groups were conducted on the basis of inequality and
control’^[11].



Addressing Indigenous over-representation in the criminal justice system
in a lasting manner therefore requires fundamental change to the existing
relationship between the mainstream society and Indigenous communities. These
changes centred on addressing the economic and social marginalisation
experienced by Indigenous peoples.



Time does not permit me to focus too
much on the first of these issues – the need for reform to the criminal
justice system itself. Although I will make reference later to one aspect that
needs attention, one which seems to be attracting considerable media attention
and public debate at present - Customary Law.



The Royal Commission
examined the processes of the criminal justice system from the initial point of
contact with the police through to the point of sentencing, as well as the
practices of Coroners following a person’s death.



I will limit
myself to three quick observations on these issues:

• First, there have been some positive developments over the past 15 years.
  The engagement of Indigenous communities in sentencing processes – such as
  through Koori Courts, circle sentencing and the Nunga courts at Murray Bridge
  and Port Adelaide and so on are very encouraging developments. As is the
  broader acceptance of restorative justice processes and the increased focus on
  diversionary schemes.

• Second, despite these moves many challenges remain. Of particular concern
  to me is the regular failure of governments, including in South Australia, to
  respond to the recommendations of State Coroners. In this state in particular,
  there have been significant inquests into the deaths of young Aboriginal men
  related to petrol sniffing which have received cursory attention by the
  government. Subsequent inquests have then rued the lack of attention by the
  government to the recommendations of previous inquests, except maybe the very
  recent initiative to establish a tri-state petrol sniffer rehabilitation centre.
  They have left us wondering, ‘where these subsequent deaths
  preventable?’ It would be inconceivable to the Royal Commissioners that 15
  years down the track we would be asking this question.

• My third observation is that we have seen insufficient action in the past
  five years by governments to review their criminal justice systems for
  compliance with the recommendations of the Royal Commission. This lack of
  ongoing consideration of the Royal Commission in justice planning is of deep
  concern. It is coupled with my concern at the absence of processes for
  Indigenous participation in reviewing the justice system. As you know, we have
  Aboriginal Justice Advisory Committees, but they are not treated seriously or
  resourced appropriately.

• Finally I commend the Victorian Government for showing leadership on
  this issue, having recently finalised an extensive and very frank review of
  their compliance with the Royal Commission. The Victorian Government is also
  alone in having in place a well-resourced process in the Aboriginal Justice
  Forum and Regional Aboriginal Justice Advisory Committees, which engages with
  Indigenous peoples and high level bureaucrats to advance the findings of that
  review and justice issues more generally. For other states, this absence is a systemic problem that must be addressed.

So let me
turn my focus to the second and longer term issue identified by the Royal
Commission: the need for fundamental change to the existing relationship
between the mainstream society and Indigenous communities.



The Royal
Commission did not underestimate the difficulty of this task. It identified a
number of essential prerequisites which must exist in order for Indigenous
people to be in a position to freely determine their own destiny.



First, it required ‘the desire and capacity of Aboriginal people
to put an end to their disadvantaged situation and to take control of their
lives’^[12]. The Royal
Commission was confident that this aspiration existed, despite the social
dysfunction evident in many Indigenous communities.



Second, it required
assistance and understanding from the broader community, with bi-partisan
political support for funding to redress historically derived Indigenous
disadvantage, while at the same time allowing Indigenous societies to be
self-determining^[13].



I
stated earlier that I consider that the Royal Commission got it right.



Unfortunately, we are still not meeting the pre-requisites that
were recommended by the Royal Commission fully. And that is the fundamental
problem that we face in addressing Indigenous Australian’s
disadvantage.



I would suggest to you that the reasons we are not meeting
these pre-requisites and what we should be doing, are encapsulated in the
following Royal Commission statement:

We require a fundamental shift in the mindset of governments and
Indigenous communities. This shift is from an approach that seeks to manage
Indigenous disadvantage and dysfunction, to an approach that supports and builds
functional communities.

Now this is a loaded statement. So let me
explain the various components that I see to it.



First, I see a
need for governments to activate the solemn commitments that they have
made to Indigenous peoples. This is one aspect of a shift in the mindset of
governments.



I do not doubt for one second the genuineness of the
commitments made by governments to address the situation of Indigenous peoples.
In recent years, the Council of Australian Governments (COAG) has initiated some
of the most significant commitments to addressing the situation of Indigenous
peoples that we have ever seen.



But these commitments come and go. There
were major commitments made 15 years ago in the wake of the Royal Commission, but who remembers them?



Well, Indigenous people do, actually.
Even if governments have moved on to the latest unimplemented model.



There remains a crying need for government accountability in
Indigenous affairs.



By this I mean accountability where
governments’ action match the commitments they make. Where
governments’ actions show that they have decided:

a) that they are committed to a particular course of action – such as
overcoming Indigenous disadvantage;

b) that they have considered what needs to be done to actually achieve this
outcome;

c) that they have put all resources possible and made every effort possible
to achieve this, and;

d) have done so for as long as is necessary to reach the end goal –
even if this is longer than the electoral cycle. This may require bi-partisan
support, but if the policy intervention is sound and it has been developed with
the active participation of Indigenous peoples, such support should be
forthcoming.

When you have been downtrodden for all of your life and
governments have been promising to do something to address this for all of your
life, and they haven’t – why would you hold out any hope for change?
We can’t forget how disempowering, dispiriting and destructive empty
promises have been on Indigenous society over such a long period of
time.



Another element of the change in mindset necessary is that
governments should see these commitments not just being made to Indigenous
peoples, but commitments to all Australian. Commitments which are necessary to
truly achieve an equal and fair Australian society.



Non-Indigenous
peoples in this country should be just as affronted and offended as Indigenous
people at the lack of achievement of outcomes in Indigenous affairs by
governments.



Non-Indigenous and Indigenous people alike ought to be
banging down the doors of Parliaments across Australia asking how any government
could possibly accept a situation where the proportion of Indigenous peoples
incarcerated is higher than when the Royal Commission reported 15 years ago.
Everyone should be demanding why this isn’t being treated as a national
crisis.



The focus of policymakers should be on what they need to do to
achieve the commitments that they have made to Indigenous peoples. This
requires a focus that is broader than simply the delivery of a service that
responds to an immediate need or problem.



As it stands,
government programs and services are not targeted to a level that will
overcome Indigenous disadvantage. Hence, they are not targeted in a way
that will meet their solemn commitments. They are targeted to maintain
the status quo.



In my latest Social Justice Report to federal
Parliament, I have proposed a campaign for achieving Aboriginal and Torres
Strait Islander health equality within a generation. That is how long it will
take, if we treat this as a crisis issue now.



You will hear more of this
during the next 12 months as this campaign unfolds and rolls out.



What
I have stated in the report is that the factor that is most striking in its
absence from the current health framework is the lack of a timeframe for
achieving Aboriginal and Torres Strait Islander health equality. There
remains a need for governments to take adequate measures (including through
the allocation of adequate resources) within set timeframes to overcome the
disparity in rights experienced by Aboriginal and Torres Strait Islander
peoples.



In the Social Justice Report I identify two things that
Aboriginal and Torres Strait Islander peoples and the general community can no
longer accept from governments. These apply equally to responses to criminal
justice as they do to health issues.



First, we can no longer accept
the making of commitments to address Aboriginal and Torres Strait Islander
inequality without putting into place processes and programs to match the
stated commitments. Programs and service delivery must be adequately resourced
and supported so that they are capable of achieving the stated goals of
governments.



Second, and conversely, we can not accept the failure of
governments to commit to an urgent plan of action. It is not acceptable to
continually state that the situation is tragic and ought to be treated with
urgency, and then fail to put into place bold targets to focus policy making
over the short, medium and longer term or to fund programs so they are capable
of meeting these targets.



A plan that is not adequately funded to meet
its outcomes cannot be considered an effective plan. The history of
approaches to Aboriginal and Torres Strait Islander disadvantage reflects this:
Australian governments have proved unwilling to fund programs based on
actual need and, as a result, plans have failed.



The 2001
Commonwealth Grants Commission Inquiry into funding of Indigenous programs
stated: “When programs are being designed to address an aspect of
Indigenous need, the primary focus should be on what change in outcome is
required and how long it will take to achieve. At present, the focus is too
often on current budgetary considerations. These are important, but should,
where possible, be accommodated within a long-term commitment”.



The second mind-shift that is required is from an approach which
manages dysfunction to one that supports functional communities.



Every
year we hear of the record expenditure on Indigenous affairs.



Most of
this expenditure is paying for the consequences of disadvantage and
discrimination. It is paying for ill-health, for unemployment, violence and
substance abuse. It is a passive reactive system of feeding dysfunction, rather
than taking positive steps to overcome it.



I want to see a pro-active
system of service delivery to Indigenous communities – in other words, a
focus on building functional, healthy communities.



It should be obvious
that supporting good health and supporting functional communities is good
policy. It doesn’t take much to see that it makes sound financial sense
in the longer term. And of course, it is socially and morally
preferable.



This objective should be the dominant thought in the mind of
all policymakers and governments. At present, I am not sure that it
is.



Which brings me to the third aspect of this mind-shift - any
government approach must be a partnership with Indigenous peoples. It must be
based on genuine engagement with Indigenous communities.



Much of the
failure of service delivery to Indigenous people and communities, and the lack
of sustainable outcomes, is a direct result of the failure to engage
appropriately with Indigenous people and of the failure to support and build the
capacity of Indigenous communities.



It is the result of a failure to
develop priorities and programs in full participation with Indigenous
communities.



Put simply, governments risk failure if they develop and
implement policies about Indigenous issues without engaging with the intended
recipients of those services. Bureaucrats and governments can have the best
intentions in the world, but if their ideas have not been subject to the
‘reality test’ of the life experience of the local Indigenous
peoples who are intended to benefit from this, then government efforts will fail
in the medium to long term.



More importantly, if bureaucrats or
governments believe that their ideas are more important or more relevant than
those of local Indigenous peoples, or that they can replicate policies that have
worked in different contexts – such as functional or urbanised
communities, or communities which have the necessary infrastructure and support
mechanisms in place, then again, they will fail.



These are fairly basic
points, but they are of such fundamental importance, and so often they
are overlooked.



At the international level, principles relating to
effective participation are gaining wide acceptance. United Nations agencies
are guided by what is known as the Common Understanding of a Human-Rights
Based Approach to Development Cooperation. This integrates policy and
program development for human rights, development and poverty eradication. It
is based on the recognition that people are key actors in their own development,
rather than simply being passive recipients of services.



In other
words, governments are there to serve communities, not the other way around.



Specifically in relation to Indigenous peoples, these requirements for
participation have been expressed as the principle of free, prior and
informed consent. My office has done some work with the Secretariat of the
United Nations Permanent Forum on Indigenous Issues on this issue, when we
co-hosted a workshop in Brisbane in August 2005 titled ‘Engaging the
marginalised’.

The outcomes of this workshop are currently being
discussed – literally yesterday or today - at the Permanent Forum’s
5th session which is on in New York now.



In brief:

• Free - requires no coercion, intimidation or manipulation;
• Prior - requires that consent has been sought sufficiently in advance
  of any authorization or commencement of activities, and respects time
  requirements of Indigenous consultation and consensus building processes;
• Informed - requires that information is provided that addresses the
  purpose, scope, obligations and impact of any proposed activity, and;
• Consent - requires that consultations be undertaken in good faith; on
  a basis of mutual respect; and with full and equitable participation. It also
  requires that Indigenous peoples can participate through their own freely chosen
  representatives and customary or other institutions, and ultimately it must
  allow the option for Indigenous people to withhold their consent.

The principle of free, prior and informed consent has recently
received important international endorsement by the United Nations General
Assembly. In adopting the Program of Action for the 2nd International Decade of
the World’s Indigenous People, five key objectives were agreed for the
Decade. They include:

• Promoting the full and effective participation of Indigenous peoples in
  decisions which directly or indirectly affect them, and to do so in accordance
  with the principle of free, prior and informed consent.

Relevant to the discussion today, the objectives also
include:

• Adopting targets (including concrete benchmarks) for improving the situation
  of Indigenous peoples, and;
• Developing strong monitoring mechanisms and enhanced accountability
  frameworks for the protection of Indigenous peoples.

These are
challenges that exist for all governments in Australia.



There are some
good instances where governments are beginning to address these challenges. But
there are also many instances where these challenges are not being met.
We have a long way to go for the rhetoric of government to be matched by action.



Crucially, this action must be principled. That is, it must be
based on acceptance of the central importance of Indigenous participation. It
is important for government to walk with Indigenous people and not run ahead and
expect that they will catch up.



In my latest Social Justice Report I also put the challenge to all Australian governments to ensure that
appropriate support is provided to the establishment of regional Indigenous
representative structures as a matter of urgency.



I don’t intend
to say more about this issue here, other than that it is difficult to see how
governments have the basis for adopting a partnership approach when there is
limited capacity for Indigenous participation in existing government frameworks.



This is a flaw of current processes and requires urgent attention.



One thing that the absence of such structures does is, it makes
important issues near invisible – such as criminal justice issues. So
this is of direct relevance to what I am more broadly talking about
today.



So then, what is the mind-shift that is required within Indigenous
society?



I don’t think it is a mind-shift in the same way as the
one needed from government. Instead, it is more of a re-asserting of
values and a re-empowerment of Indigenous peoples.



In terms of re-asserting values, I ask myself ‘what makes Indigenous
peoples’ situation distinct and unique from other peoples?’



The answer is our cultures, our identity and systems built on respect.



This respect begins with respect for our elders and continues on to
respect for our mothers and women, our men and for our children – our
future generations.



As I have noted, the Royal Commission identified as
an essential requirement for change ‘the desire and capacity of Aboriginal
people to put an end to their disadvantaged situation and to take control of
their lives’.



For me, this means ensuring respect among our people
for our culture and through embracing our identities as Indigenous
peoples.



One of the most insidious and damaging effects of our
colonisation as peoples, has been the breaking down of our systems of
respect. Disadvantage and discrimination have bred dysfunction and have led to
a lack of respect among sectors of our communities.



We have heard much
about the corrosive effect of ‘passive welfare’ in this regard.



What we don’t talk about enough is the need to focus on rebuilding
or re-asserting our cultural values as an integral part of the response to this
lack of respect.



Governments have had a role in creating this situation
– I would say the major role. But if we are to truly address the
consequences of this, it requires a re-asserting of values at the Indigenous
community level. The responses and the solutions must come from Indigenous
peoples.



When we look back at our traditions and customs as Aboriginal
peoples, there are aspects of those cultures which might be judged as severe or
violent by today’s standards. But such violence was of a physical nature. Among many Aboriginal peoples this continues to be practiced today, and
occasionally leads to difficult challenges when our customary systems come into
contact with criminal justice processes in Australia, such as through
payback.



But when we look back historically at how our cultures have been
practiced, I have yet to see any evidence that suggests that abuse of women or
children was ever part of any Aboriginal culture.



Indigenous women and
children are entitled to live without fear of violence or abuse. This is
their cultural and human right.



Abuse of women and children has no
place in Aboriginal culture and customary law cannot be relied upon to condone
such behaviour. A code of silence should not exist in communities where this
behaviour takes place. This not the customary law that I know. We should be
talking of the perpetrators of this abuse as the ones who do not respect
customary law.



This is what I mean by a re-asserting of values in
Indigenous society.



Such behaviour is also in breach of human rights
and the criminal law of the country. I am on record several times stating that
if an Indigenous person commits these types of offences they should be dealt
with by the judicial system just as any other person would be.



I am also
on the record calling for a comprehensive campaign of human rights education
among Indigenous communities so that this is fully understood. The government has not seen this as a priority to date, but the events of the past week
have highlighted the ongoing need for such a campaign. I can assure you that
the government is on notice about this issue.



Indigenous women and
children have the right to the protection of the law to the same extent as
all other Australians.



Now I want to make a subtle point here, but
it is a fundamental one. The same protection of the law as other Australians is
not the same thing as identical treatment.



I have been very disturbed
by some of the debate that has been taking place in recent weeks about this
issue. I have heard from some commentators and government members that abuse of
women and children has occurred due to the failures of policies of
self-determination; and expressing views that it is a consequence of recognising
customary law, and by inference, that the solutions required include not recognising customary law.



These are dangerous comments which have the
potential to set us back significantly in achieving equality for Indigenous
peoples.



Self-determination has not failed Indigenous peoples.
Self-determination has never been implemented. Indigenous peoples have never
had full control over their lives and destinies, as the Royal Commission noted
back in 1991 in comments that I quoted to you earlier in this paper.



Some
comments in the media from senior officials have suggested that
self-determination as a policy has impeded treating Indigenous women equally.
Again, I disagree. This is simply a misunderstanding of what self-determination
is. The principles of equality before the law and non-discrimination are
fundamental principles that apply to the application of all other human rights.



At no stage can these principles be overridden. It is nonsense
to suggest that women’s rights or the rights of children can or will be
overridden by customary law.



Again, in relation to the suggestion that
the policy of self-determination has prevented equality, I would say that this
is not about the application of this principle. It is about the failure to
implement this principle in practice, and the failure to ensure that services
are delivered to Indigenous communities on a basis of equality.



While I am talking about the responsibilities of Indigenous people here,
I cannot do so in isolation of the reciprocal role of government.



Many
Indigenous leaders, women and community members have been fighting for equal
delivery of services and protection for many years. The development of Family
Violence Prevention Legal Services in recent years is one example of
community-led initiatives. But too often communities are not supported and
their cries for help are ignored.



It is one thing to re-assert values,
but this also requires partnerships and action from governments. So don’t
make the mistake of reading my comments as placing the onus entirely on
communities – governments have an important facilitation role to ensure
that Indigenous peoples have the capacity to address these issues.



And this is the second issue that I wanted to discuss in terms of the
mind-shift for Indigenous peoples - the need for a re-empowerment of
Indigenous peoples.



I truly believe that the future lies in Indigenous
peoples’ hands.



If we can activate the commitments of governments
– hold them to their rhetoric - then we can truly believe that change is
possible and a better future is just around the corner.



The challenge I
issue to Indigenous peoples is to not sit back and wait for government to come
up with the solutions to the issues you face. Take control of these
processes.



If the existing processes don’t work then say so, and
develop the alternatives that will work. Tackle problems where they exist and
turn them around.



As Indigenous peoples, we are letting governments off
the hook at the moment. It is easy for them to ignore our plight and to blame
us for the poverty and dysfunction that many of our peoples endure.



We
need to ensure that if there are problems existing in our communities, that we
actively try to address them. If we are active participants in setting out
agendas for our communities, and it is government who is unresponsive and does
nothing, then let the record show this. Let us be unequivocal about our
determination for better lives for our peoples.



It can be done. It
isn’t easy. But one thing that we have from trying is respect for
ourselves, for our communities and for our cultures. I don’t think we can
under-estimate how important these things are. From self respect comes dignity
and from dignity comes hope.



So allow me to make some brief concluding
comments.



We don’t want to see any more unfunded promises from
governments.



Commitments, such as those at the COAG level, must be
benchmarked and matched against need. They must be funded to achieve their
goals and there must be equality between the investment in government
bureaucratic processes and program funding that reaches Indigenous
peoples.



A commitment to equality is not much better than a system that
actively discriminates unless there is an attempt by governments to fund and
conduct efforts at a level that will actually achieve equality.



Indigenous peoples get no joy from commitments of governments which have
resulted in no noticeable improvement in incarceration rates 15 years down the
road from such a significant event as the Royal Commission.



The status
quo is not acceptable.



I don’t want to hear about record
expenditure when it is paying for our poor health, our high imprisonment rates
and our unemployment.



I want to see a positive future, where the
rhetoric of government turns to true reconciliation, as measured in tangible
outcomes.



This is achievable and it is realistic. And it is
overdue.



Finally, I hope that I have honoured Elliott Johnston by
provoking and challenging you this evening into imaging a better future for
Aboriginal and Torres Strait Islander peoples.



I thank you for listening
and invite you to consider how you can personally contribute to support Indigenous people to achieve equality in Australia.

^[1] Social Justice Report
2001, Chapter 1.

^[2] Reference:
Australian Bureau of Statistics, Corrective Services - December quarter 2005, Cat 4512.0, http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/8F7BF1141B69E8D9CA257139000E3B5F/$File/45120_dec%202005.pdf.

^[3] 4517.0 - Prisoners in
Australia, 2005, http://www.abs.gov.au/AUSSTATS/abs@.nsf/PrimaryMainFeatures/4517.0?OpenDocument

^[4] For an overview see Social Justice Report 2001, Chapter
1.

^[5] ibid.,
p7.

^[6] http://www.afdf.net.au/outcomes.html.

^[7] The next page is based on the discussion of the Commission’s findings in Social Justice Report 2001, Chapter
1.

^[8] ibid, p12.

^[9] Royal Commission into
Aboriginal Deaths in Custody, National Report – Volume 1, op.cit, p15.

^[10] ibid, pp 9-10.

^[11] ibid, p10.

^[12] Royal
Commission into Aboriginal Deaths in Custody, National Report – Volume
1, op.cit, p16.

^[13] ibid, p22.

Last
updated

May 25, 2006