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Panel discussion: Indigenous
community expectations of best practice interventions in corrections

Speech by Dr Bill Jonas, Aboriginal
and Torres Strait Islander Social Justice Commissioner to the Best Practice
Interventions in Corrections for Indigenous People Conference, Adelaide,
14 October 1999

I would like to acknowledge
the Kaurna people, the traditional owners of the land on which we are
meeting, and to honour their children. I thank them for the welcome they
have extended to delegates of this conference.

I am pleased to join
you here today for what I think is an extremely important conference.
I must say I was pleasantly surprised when I first heard the title and
read the aims of the conference. I was particularly pleased to see the
conference's aim of examining and comparing best practice interventions
that are currently being used within the Australian correctional system,
or more accurately systems - a point of some significance to which
I will return later. Too often we focus on what we do badly, rather than
what we do well.

While I am still
only relatively new as a Commissioner at the Human Rights Commission,
I have quickly learned from my compatriots that human rights 'success
stories' are often rare, particularly in relation to Indigenous people.
I am therefore of the view that where there are success stories, or even
where programs such as those being discussed over the course of this conference
could only be described as an improvement in the treatment of Indigenous
people, they should be widely discussed and the ideas behind them shared,
particularly across jurisdictions. That way the greatest number of Indigenous
people possible may benefit from such programs.

I am going to discuss
Indigenous community expectations of best practice interventions from
the perspective of international human rights standards. Indigenous people,
as with every other member of Australian society, should expect no less
than the full recognition of and respect for their human rights. Indeed,
the failure of current practices demonstrates to us that nothing less
than this will succeed.

International human
rights standards are well-suited as benchmarks for evaluating the adequacy
and appropriateness of the design of programs within Australia's correctional
systems. They constitute minimum acceptable standards of behaviour
that Australia has committed itself to observe by signing a range of international
human rights treaties or to which Australia is bound through our participation
as 'good citizens' in the broader international community.

They also apply across
jurisdictional borders. While the federal government enters into treaty
obligations on behalf of Australia, these obligations apply equally to
the operations of the states and territories. Article 27 of the Vienna
Convention on the Law of Treaties, to which Australia is a party, provides
that 'a party may not invoke provisions of its internal law as justification
for its failure to perform a treaty.'

Similarly, in 1994
Australia appeared before the United Nations Committee on the Elimination
of Racial Discrimination for consideration of Australia's report under
the Convention on the Elimination of All Forms of Racial Discrimination
(or CERD). In its concluding observations on Australia the Committee noted
that the responsibility for ratifying international treaties resides with
the Commonwealth government, whereas the implementation of their provisions
requires the active participation of the states and territories, who have
almost exclusive jurisdiction over many of the matters covered by the
Convention. The Committee recommended that, in relation to the treatment
of Indigenous Australians, the Commonwealth government should undertake
appropriate measures to ensure the harmonious application of the provisions
of CERD as the federal, state and territory levels.¹

The Committee considers
Australia's next report under CERD in March next year, and the effect
of correctional policies and programs on Indigenous Australians is certain
to feature high on the agenda.

I particularly want
to focus today on the following principles of international law:

• the standards
  of non-discrimination and equality before the law;
• the recognition
  of cultural identity; and
• the right to self-determination.

The principle of
non-discrimination is recognised in every major international human rights
treaty, including the International Convention on the Elimination of All
Forms of Racial Discrimination -or CERD, and the International Covenant
on Civil and Political Rights - or the ICCPR.² International
law prohibits intentional or explicit discrimination. It also prohibits
systemic discrimination against particular ethnic groups.³
Actions, policies and services that have the effect of discriminating
against an ethnic group, either intentionally or unintentionally, are
also prohibited. This prohibition has been implemented in Australian domestic
law through section 9(1) of the Racial Discrimination Act 1975.

Current policies
and practices in the correctional systems of Australia do not meet the
required standard of non-discrimination. The rate of Indigenous involvement
in corrections remains, after many years, grossly disproportionate. The
most recent statistics released by the Australian Bureau of Statistics
on Indigenous persons in prison custody paint a picture that I am sure
you are all familiar with.

These statistics
indicate that, for the June 1999 quarter, 76% of all prisoners in the
Northern Territory and 34% of all prisoners in Western Australia were
Indigenous. The rate of imprisonment of Indigenous people in Western Australia
was 21.7 times higher than that of the non-Indigenous population. The
rates in the other states for which statistics are available are also
unacceptably high - 15.7 times higher in South Australia, 12.2 times the
non-Indigenous rate in Victoria, 11.3 times higher in Queensland, 9.9
times higher in the Northern Territory and 5.1 times higher in Tasmania.⁴

My predecessor, Mick
Dodson, once observed in the context of standards of Indigenous health,
that most Australians tend to accept statistics such as these as being
almost inevitable. He commented that a certain kind of 'industrial deafness'
has developed.⁵

We must, however,
continually remind ourselves of the meaning of these statistics and relate
them to the lives of the people that they effect. In Bringing them
home, the report of the National Inquiry into the Separation of Aboriginal
and Torres Strait Islander Children from their Families, the Human Rights
and Equal Opportunity Commission noted that the level of involvement of
young Indigenous people in the juvenile justice system constitutes a contemporary
version of separation from their families - they are the 'new stolen generation'.

Similarly, my predecessor
stated in 1995:

We despair
watching the impact of incarceration on our young people. Fourteen year
olds come home street-wise sullen men. The current system damages our
children, while doing nothing to protect our communities and protect the
wider community in any lasting way.⁶

A recent study published
by the New South Wales Bureau of Crime Statistics and Research indicates
that arrest is one of the major factors underlying the poor employment
prospects of Indigenous Australians, and may explain about 15% of the
difference in the level of employment between Indigenous and non-Indigenous
Australians.⁷ The cycle continues however, with unemployment
increasing the likelihood of further involvement in corrections.

The principle of
non-discrimination provides us with a basis for questioning the entry
of Indigenous people into the correctional systems. There is much academic
material that indicates that contact for Indigenous Australians arises
from 'differential treatment of indigenous and non-indigenous Australians
rather than differences in behaviour.'⁸ This is also reflected
in the differential levels of arrest due to public order and non-violent
offences.

In the August 1999
issue of the Australian and New Zealand Journal of Criminology, Roderic
Broadhurst notes the recent shift in criminology theory away from viewing
Indigenous people as the central 'problem' to be managed, to a focus on
the settler state and the legacies of (post) colonialism. The correctional
systems of Australia, viewed in this light, historically reflect a mobilisation
of the legal system 'to legitimate land theft and manage 'race' conflicts.'⁹

The recognition of
native title also represents a movement away from this approach. For example,
the High Court brought down its decision in Yanner v Eaton last
week. In that case, the Court overturned the conviction of an Aboriginal
man for hunting crocodile without complying with the licensing requirements
of the Queensland Flora and Fauna Act, on the basis that he was acting
in accordance with his unextinguished native title right to hunt for the
purpose of sustenance. In absence of such recognition, the penalties imposed
by the Flora and Fauna Act are either imprisonment or a fine (significantly,
a large number of Indigenous people enter the correctional systems as
fine defaulters).

In prohibiting discrimination,
each of the main international human rights instruments provides for equality
before the law. Article 26 of the ICCPR, for example, provides that all
persons are equal before the law and are entitled without discrimination
to the equal protection of the law. Article 5 of CERD is worded in similar
terms.

In his famous judgment
in the South West Africa Case, Judge Tanaka explained the concept
of equality before the law in the following way:

The principle
of equality before the law does not mean the absolute equality, namely
the equal treatment of men without regard to individual, concrete circumstances,
but it means the relative equality, namely the principle to treat equally
what are equal and unequally what are unequal ... To treat unequal matters
differently according to their inequality is not only permitted but required.¹⁰

This approach acknowledges
that 'racially specific aspects of discrimination such as cultural difference,
socio-economic disadvantage and historical subordination must be taken
into account in order to redress inequality in fact.'¹¹ As
a consequence, parties to international treaties such as the ICCPR and
CERD - including Australia - have obligations to ensure that the effects
of past discrimination are not continued into the future, as well as to
redress the continued inequality of minority groups.¹²

Consistent with this
approach, the Committee that monitors CERD has recognised that actions
that constitute either a legitimate differentiation of treatment or a
'special measure' are not prohibited by CERD.

An example of an
action that the Committee has recognised may constitute a legitimate,
non-discriminatory, differentiation of treatment is the protection of
Indigenous culture and identity. The Committee has recognised that Indigenous
peoples worldwide:

have been,
and are still being, discriminated against, deprived of their human rights
and fundamental freedoms ... Consequently the preservation of their culture
and their historical identity has been and still is jeopardized.¹³

Due to this continued
inequality the Committee has felt it necessary to emphasise that CERD
places obligations on States to take all appropriate means to combat and
eliminate discrimination against Indigenous peoples, and has called on
States, amongst other things, to:

• recognize and
  respect Indigenous distinct culture, history, language and way of life
  as an enrichment of the State's cultural identity and to promote its
  preservation;
• ensure that members
  of Indigenous peoples are free and equal in dignity and rights and free
  from any discrimination, in particular that based on Indigenous identity;
• ensure that members
  of Indigenous peoples have equal rights in respect of effective participation
  in public life, and that no decisions directly relating to their rights
  and interests are taken without their informed consent; and
• ensure that Indigenous
  communities can exercise their rights to practice and revitalize their
  cultural traditions and customs, to preserve and to practice their languages.¹⁴

So how do we ensure
that these principles inform the design of programs within the correctional
systems of Australia? Before answering that question let me reinforce
that these principles are not merely aspirations - they are positive
obligations that Australia - including the states and territories - are
bound to act in accordance with.

In answering the
question how do we ensure that principles of non-discrimination, equality
and the appropriate recognition of cultural identity inform the design
of programs within the correctional systems of Australia, I am inevitably
led to discussion of the principle of self-determination.

Self-determination
is the collective right of peoples to determine and control their own
destiny. Article 1 of the ICCPR states that 'All peoples have the right
of self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development.'¹⁵

The application of
the principle of self-determination to Indigenous peoples within an established
state is often seen as a threat to the sovereignty of that state. This
in part is due to the origins of the concept, and its general application
to situations such as we see now in East Timor - involving a transfer
of power from a colonial power that exists as a minority of the population
to a local majority. The circumstance where Indigenous peoples constitute
a minority within an established colonial country - such as Australia
- has proven far more challenging to traditional notions of democratic
governance and political participation.

The right to self-determination
claimed by Indigenous peoples in response to their colonised past is not
one directed towards the dismantling of the State itself, but rather towards
the development within the State of economic, social and cultural structures
controlled and managed by Indigenous people.¹⁶

In relation to the
correctional systems of Australia it is about moving from correctional
programs designed for Indigenous people, to programs designed and
informed by Indigenous people.

The idea that Indigenous
people may have a contribution to make to this process is one that can
be confronting to a lot of people. I want to share an experience I have
had on this topic with you.

Back before the NSW
Land Rights Act was passed, a colleague and I initiated a project where
we would seek to measure how Indigenous people in NSW actually benefited
from the introduction of the land rights act. We intended to do a before
and after comparison to measure its effect.

Our difficulty was
coming up with something that we could measure that was meaningful. Measures
such as income and housing weren't much use - people didn't have jobs
or houses, or if they did it was government housing. So we decided that
the appropriate measurement was the way in which people saw their own
needs, as individuals, families and communities. We were going to ask
people 'what do you see as your needs as a family, as a community, and
so on.

Our underlying assumption
was that when it comes to living as an Aboriginal person, the experts
on the day to day realities are Aboriginal people. This assumption caused
quite an uproar at the time. People objected to this approach for two
reasons - first, they said, 'Aboriginal people can't be experts, how can
they be? They haven't studied at university or written books!' Second,
they said it was a waste of time and money going out and asking people
what they want because, they said, 'we already know what they need and
know what's best for them.'

Well, in relation
to the correctional systems of Australia, I am sure we all agree that
incarceration of my fellow Indigenous Australians is not good for us.
The statistics reveal that what government policies and programs have
historically been, and are continuing to be good at, is locking up Aboriginal
people, not at 'correcting' us.

Unless provided in
accordance with the principle of self-determination, correctional services
aimed at Indigenous people may be effectively inaccessible to them or
where they are accessible, be unlikely to secure their objectives. As
my predecessor Mick Dodson once commented:

The aim
(of self-determination) is not merely to participate in the delivery of ...
services, but to penetrate their design and inform them with Indigenous
cultural values. The result is not merely services which are better structured
to reflect the needs and identity of particular communities: there can
be a resultant improvement in the effectiveness and efficiency of these
services.¹⁷

With that thought,
I thank you for listening and wish you well in your deliberations over
the next two days. Thank you.

Endnotes

¹ Committee
on the Elimination of Racial Discrimination, Concluding observations
on Australia, 19 April 1994, UN Doc A/49/18, para 547.

² The principle of racial non-discrimination has also reached
the status of jus cogens, i.e., a norm of international law from which
no derogation is permitted: See Acting Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 1998, HREOC, Sydney
1999, p30.

³ This section is extracted from Human Rights and Equal Opportunity
Commission, Bringing them home, HREOC Sydney 1997, pp319-322.

⁴ Australian Bureau of Statistics, Corrective Services,
June Quarter 1999, Ref: 4512.0. There are no reliable figures for New
South Wales.

⁵ Aboriginal and Torres Strait Islander Social Justice Commissioner,
Second Report 1994, Human Rights and Equal Opportunity Commission,
Sydney 1995, p99.

⁶ Aboriginal and Torres Strait Islander Social Justice Commissioner,
Third Report 1995, AGPS, Canberra, 1996, p23.

⁷ Hunter, B and Borland, J, 'The effect of arrest on indigenous
employment prospects', Crime and Justice Bulletin, Number 45, June
1999, NSW Bureau of Crime Statistics and Research.

⁸ ibid, pp 1-2. See also Gallagher, P and Poletti, P,
Sentencing disparity and the Ethnicity of Juvenile Offenders, Judicial
Commission of New South Wales, Sydney 1998.

⁹ Broadhurst, R, 'Crime, Justice and Indigenous Peoples: the
'New Justice' and Settler States' (1999) 32(2) Australian and New Zealand
Journal of Criminology 105, p107.

¹⁰ South West Africa Case (Second Phase) {1966} ICJ
Rep 6, per Judge Tanaka, pp303-304, p305.

¹¹ Acting Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 1998, op.cit, p32.

¹² For example, see Committee on the Elimination of Racial
Discrimination, General Recommendation XX on Article 5, UN Doc
CERD/48/Misc.6/Rev.2 (1996), para 2 and Committee on the Elimination of
Racial Discrimination, General Recommendation XIV - Definition of discrimination,
19/03/93, para 2.

¹³ Committee on the Elimination of Racial Discrimination, General
Recommendation XXIII - Indigenous Peoples, Un Doc CERD/C/51/Misc.13/Rev.4,
18 August 1997, para 3.

¹⁴ ibid., para 4.

¹⁵ Article 1 of the International Covenant on Economic, Social
and Cultural Rights is worded identically, as is the current version of
Draft Declaration on the Rights of Indigenous Peoples.

¹⁶ This has been referred to by the Committee operating under
CERD as part of the internal aspect of self-determination, as opposed
to the above situation which constitutes part of the external aspect:
Committee on the Elimination of Racial Discrimination, General Recommendation
XXI on Self-determination (1996) UN Doc CERD/48/Misc.7/Rev.3, paras
4-5.

¹⁷ Aboriginal and Torres Strait Islander Social Justice Commissioner,
First report 1993, AGPS Canberra 1993, p56. Note: for approaches
to incorporating the principle of self-determination, as well as those
of non-discrimination, equality and cultural difference, into correctional
programs, see Bringing them home, op.cit, Chapters 24, 26.

Last
updated 1 December 2001