The need for better engagement - Year in review

1.1 Introduction

In last year’s Social Justice and Native Title Report, I raised concerns about the changes resulting from the 2014-15 Budget and the restructure to Indigenous Affairs through the Indigenous Advancement Strategy (IAS).

Despite initial concerns about how these changes would impact our communities, I indicated that the streamlining of programs and the move away from a ‘one size fits all’ mentality had the potential to offer great benefit and flexibility for Aboriginal and Torres Strait Islander peoples.

Unfortunately, the high hopes with which the announcements were made have not yet materialised. Instead, what we have seen are deep cuts, confusion and anxiety for Aboriginal and Torres Strait Islander peoples.

In the background to this major reform, there have been a number of additional major developments that have added to the stress and uncertainty already felt by our people.

The announcement of community closures in Western Australia has been a particularly pertinent example of uncertainty and distress caused by decision making without adequate engagement with Aboriginal and Torres Strait Islander peoples.

This lack of engagement has extended to other areas, including the introduction of ‘paperless arrest’ laws in the Northern Territory and the process to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

Overall, this chapter will explore the combined effect of all of these changes on our communities and consider what meaningful engagement looks like.

I will also reflect on progress at the national and international level, including developments regarding the Close the Gap campaign, the Stolen Generations and Australia’s participation in United Nations mechanisms (at Appendix 2) during the past year.

In Appendix 3, I report on complaints of discrimination received by the Australian Human Rights Commission from Aboriginal and Torres Strait Islander peoples over 2014-15.

1.2 Indigenous Advancement Strategy

(a) Background

Following the September 2013 election, the Department of the Prime Minister and Cabinet (PM&C) assumed responsibility for most federal Indigenous specific programs and policies.

In 2014, the Australian Government announced its intention to introduce the Indigenous Advancement Strategy (IAS), rationalising 150 Indigenous specific programs and activities into five main streams:

• Jobs, Land and Economy, aimed at increasing Indigenous employment, business and economic development.
• Children and Schooling, aimed at increasing Indigenous school attendance, improving educational outcomes and improving transitions to further education and work.
• Safety and Wellbeing, aimed at increasing levels of community safety and wellbeing.
• Culture and Capability, aimed at achieving progress towards a referendum on constitutional recognition and improving participation in society and organisational capacity.
• Remote Australia Strategies, aimed at improving infrastructure, housing, local engagement, community safety, and educational and employment outcomes in remote Australia.^[1]

The Australian Government committed $4.9 billion over four years to the IAS,^[2] in addition to $3.7 billion allocated through the National Partnership Agreements, Special Accounts and Special Appropriations to Indigenous specific funds.^[3]

In last year’s report, I welcomed this rationalisation of programs and activities. I believed, and still hope, it can provide greater flexibility, allowing more scope for on the ground responses to issues that confront our communities.

I also wrote that, if done properly, this restructure had the potential to achieve the Australian Government’s stated aims of ‘reducing red tape’ for Aboriginal and Torres Strait Islander people and organisations and ‘cutting wasteful spending’ on bureaucracy. This in turn could translate to a greater share of funds being provided on the ground.

Finally, I warned of the challenges likely to be faced during the implementation of these changes and I made the following comments and suggestions to the Australian Government:

The transfer of approximately 150 programs and activities, along with 2000 staff means that PM&C is now dealing with about 1440 organisations and nearly 3040 current funding contracts.

It will take time to build the administrative systems, acclimatise staff in the new structure within PM&C, and for Aboriginal and Torres Strait Islander peoples, already cynical and fatigued by change, to have confidence in the competence of those implementing these new arrangements.

Restructuring programs and funding processes, which will affect around 1400 organisations with over 3000 funding contracts, is complex and stressful. It is also time consuming and calls for a highly skilled and culturally competent workforce that is cognisant of the magnitude of this task. It requires an effective communication strategy and a transition process that is open, transparent and easily understood. Most importantly, it will require respectful engagement with Aboriginal and Torres Strait Islander peoples.

The government should be open to extending the transitional period in the event that the tasks outlined above present challenges that were not anticipated when the 12 month timeframe was set.^[4]

It is disappointing that the Australian Government did not take note of these concerns and those expressed by others regarding the challenges of attempting to do too much, too quickly. It has been frustrating to see many of the difficulties I anticipated unfold over the 2014-15 reporting period, creating significant confusion and stress in Aboriginal and Torres Strait Islander communities.

(b) Grants process

Funding from the IAS is available through the following mechanisms:

• open competitive grants rounds where applications are assessed against the criteria for the relevant outcome and prioritised against competing applications for available grant funding
• targeted or restricted grant rounds where PM&C invites targeted entities, selected on the basis of the specialised requirements of the outcome, to submit a proposal to deliver the outcome
• direct grant allocation processes where PM&C approaches a service provider to expand their existing services or deliver new services
• a demand driven process where applications are assessed on a value for money basis against the selection criteria
• one-off or ad-hoc grants that are designed to meet a specific, and often urgent, need.^[5]

Approximately half of the $4.9 billion allocated to the IAS was distributed through dedicated funding arrangements, including the Remote Jobs and Communities Programme and the Working on Country programs, leaving around $2.3 billion to be allocated.^[6]

(i) Application and assessment process

Applications for the first open competitive grants round opened on 8 September 2014 and closed on 17 October 2014. PM&C received 2,472 applications for 4,948 projects from 2,345 organisations.^[7]

To assist applicants, PM&C produced an IAS Application Kit,^[8] with information for applicants and the application form, and a set of IAS Guidelines, which outline the terms and conditions for accessing IAS funding.

The application form for IAS funding required applicants to:

• detail the funding sought
• provide a project proposal
• describe the capacity of their organisation to deliver the proposed project
• detail the capability of their organisation
• describe their organisation’s commitment to Indigenous participation
• provide supporting documentation.^[9]

The information sought from applicants related to the general selection criteria for assessing applications, which were listed in the IAS Guidelines.^[10] There was no further guidance for applicants about what information they should include to adequately address the selection criteria.

Of the 2,472 applications, 1,233 applications were considered non-compliant.^[11]

Non-compliant applications included those applications that exceeded the page or electronic file size limits, were not signed, or did not include mandatory information. As this was the first IAS funding round, PM&C decided to include all non-compliant applications in the assessment process.^[12]

The overwhelming number of applications resulted in the assessment process being extended. Organisations with service delivery contracts due to expire on 31 December 2014 were offered a six month funding extension.^[13]

The IAS grants round introduced a shift to a competitive process that was markedly different from how Indigenous specific funding had previously been administered. Many organisations did not anticipate this new approach and were unprepared for this change of direction.

Applicants had six weeks to complete and submit their application and this presented a formidable task, particularly for organisations with little or no experience in such an application process.

A number of organisations had neither the capacity nor the resources to put together this kind of application. I am told that significant funds were spent hiring consultants to complete the application, but some were still unsuccessful. Others received assistance from PM&C, whilst some organisations decided not to apply, assuming that they did not fit the criteria.

The large number of non-compliant applications is one of the most damning indications of the confusion surrounding this application process. The consideration of non-compliant applications by PM&C does not assist those organisations that did not apply for IAS funding or who lacked the capacity to put together a competitive application.

PM&C, to their credit, have acknowledged they underestimated how difficult some organisations would find the application process.^[14]

As part of the assessment process, PM&C developed a service footprint for each region, identifying its needs and funding gaps.^[15] Regional Assessment Teams considered and made recommendations about those applications concerning projects proposed for their region in the context of these service footprints.^[16]

According to PM&C, these footprints included information about welfare reliance, employment, NAPLAN results, school attendance and community safety for Aboriginal and Torres Strait Islander peoples in each region.^[17]

A broad overview of the stages of the assessment process was included in the IAS Application Kit. However, it was not clear from this information how the Assessment Panels planned to use the selection criteria to assess different applications against one another or the weight that would be given to factors like regional needs and available funding.

After the announcement of how the IAS process would proceed, I received many calls indicating widespread uncertainty and confusion amongst Aboriginal and Torres Strait Islander communities and organisations. These concerns included the lack of detail on how applications would be assessed, whether the outcomes of this process would contribute to the aims of the IAS more generally, and how its impact would be measured.

These concerns indicated a lack of confidence that this assessment process was the most appropriate method of achieving optimal outcomes for Aboriginal and Torres Strait Islander peoples.

As I said at the time, if the community is to have confidence in the outcome, they must have confidence in the processes that produced that outcome.

(ii) Funding decisions

On 4 March 2015, the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion, announced that $860 million was being offered to 964 organisations.^[18] This was increased to $1 billion for 996 organisations and 1,350 projects in May 2015.^[19] This increase was to fill service delivery gaps resulting from the initial funding round and to extend the duration of some funding agreements.^[20]

PM&C used an internal probity adviser and then engaged an external probity adviser from Ernst & Young to advise their officers involved in the funding round.^[21] The Probity Plan outlined the requirements for the funding round, including the principles of:

• fairness and impartiality
• consistency and transparency of process
• security and confidentiality
• identification and resolution of conflicts of interest
• compliance with legislation and policies.^[22]

Whilst the probity oversight provides some comfort that the process is adhered to it does not necessarily ensure that the process itself is sound.

The establishment of these requirements and ensuring compliance with them does not address whether a competitive process is the best approach for funding culturally safe and appropriate services and programs for our peoples. This approach also did not address any of the weaknesses that resulted from the lack of engagement of the program designers with Aboriginal and Torres Strait Islander peoples.

As I said earlier, the outcomes of the funding round resulted in widespread stress and confusion amongst Aboriginal and Torres Strait Islander organisations and communities. In Chapter 5 of this report I also examine in more detail the negative impact of this process on Aboriginal and Islander Child Care Agencies.

After being notified that they would receive IAS funding, successful organisations then had to negotiate the detail of their funding agreements with PM&C,^[23] resulting in a delay between the notification and the finalisation of the amount of funding organisations would receive. This then created confusion for some successful organisations when they discovered that they would not be receiving all of the funding they had applied for, prolonging uncertainty about whether or not they would be able to continue all their programs and retain all their staff.^[24]

Many Aboriginal and Torres Strait Islander peoples have expressed confusion at some of the funding decisions that have been made. Large corporations, government departments and sporting bodies all received grants through the IAS process and I am concerned that our organisations were disadvantaged by having to compete with such entities for funding.

PM&C estimates that 45 per cent of all recommended IAS applicants are Indigenous organisations.^[25]

The full extent of any gaps in service delivery arising from the IAS funding round are still not yet known, but the early signs are worrying. At the time of writing, concerns remained about the short length of some funding agreements and the proportion of funding that would reach frontline services.^[26]

Since the announcement of the first round funding results on 4 March 2015, I have been in ongoing discussions with PM&C about the IAS round, its results and process.

To date, there has been a lack of transparency and accountability in both the decision making process and its outcomes. Aboriginal and Torres Strait Islander peoples are entitled to know where and for what purpose the funding that is supposed to assist our communities is being used and it is frustrating that clear answers have not been forthcoming.

I call on the Australian Government to be more responsive to the concerns of our communities and organisations outlined in this chapter. These concerns must be addressed if we are to have confidence in this process to deliver outcomes for our communities.

(iii) Communication with stakeholders

PM&C used a number of methods to provide information to stakeholders about the funding round, including:

• public information sessions in every location where PM&C has an on-ground presence
• emails and letters with information and updates to currently funded service providers and organisations that had registered an interest in receiving information
• advertising in national, regional and remote newspapers
• updates issued via media releases and PM&C’s social media accounts
• an email inbox and a 1800 call line for fielding enquiries about the IAS.^[27]

Despite this multifaceted approach, confusion and misinformation characterised the process.

Many organisations reported having difficulty getting accurate information from PM&C about the funding round.^[28] For example, the National Aboriginal and Torres Strait Islander Legal Services struggled to get clear advice about whether a 10 year funding agreement for their Stronger Futures program was secure or if they needed to apply for funding for this program through the IAS funding round.^[29]

In correspondence to me, PM&C acknowledged that more could have been done to consult with stakeholders prior to the opening of the funding round and noted that it is in the process of developing a stakeholder engagement strategy.^[30]

However, the failure at the core of many of the problems that emerged during the IAS funding round was the lack of engagement with Aboriginal and Torres Strait Islander peoples about the design and implementation of the IAS processes. Proper engagement may have pre-empted many of the issues that subsequently arose.

Information sharing is an important element of engaging with Aboriginal and Torres Strait Islander communities but it is not a substitute for a consultation process that gives our people the opportunity to have input into the policies that affect us.

(c) Incorporation requirements

Another issue of concern is the incorporation requirements for Indigenous organisations that applied for funding through the IAS. I have received many calls about the potentially discriminatory nature of these requirements.

These concerns were echoed by a number of submissions made to the Senate Finance and Public Administration References Committee inquiry into the IAS tendering process.^[31]

The IAS Guidelines state that all organisations receiving grants of $500,000 (GST exclusive) or more in a single financial year under the Indigenous Affairs portfolio are required to:

• incorporate under Commonwealth legislation. Indigenous organisations are required to incorporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). All other organisations must incorporate under the Corporations Act 2001 (Cth) (Corporations Act), and
• continue to meet this requirement while receiving any amount of grant funding from the IAS.^[32]

For a long while there was uncertainty as to whether those Indigenous organisations currently incorporated under the Corporations Act would need to transfer their registration to the CATSI Act.

I welcome the clarification on PM&C’s website that Indigenous organisations already incorporated under the Corporations Act are excluded from these requirements and do not have to change their incorporation status.^[33] However, earlier advice of this nature would have made particularly good sense.

At the time of writing, the IAS Guidelines had not been amended to reflect this clarification and I hope that this is rectified soon.

It remains problematic that Indigenous organisations cannot choose to incorporate under State-based schemes or to register under the Corporations Act. Placing strict requirements on Aboriginal and Torres Strait Islander organisations that do not apply to non-Indigenous applicants raises immediate alarm bells for me and for many Indigenous organisations.

Sections 9(1) and 9(1A) of the Racial Discrimination Act 1975 (Cth) (RDA) provide broad prohibitions against acts that are directly or indirectly discriminatory on the basis of race, colour, descent or national or ethnic origin.

Section 13 of the RDA provides that it is unlawful to discriminate in the delivery of services, including the provision of grants.^[34] This means that a person who provides services to any section of the public cannot refuse or fail to supply those services (either at all or except on less favourable terms or conditions than they would otherwise supply the services by reason of race).

It is my belief that, unless further information about the effect of registration under the CATSI Act comes to light, it is likely that the requirement for some Indigenous organisations to register under the CATSI Act may be in breach of section 13 of the RDA.

The IAS incorporation requirements may also interfere with the right to self-determination^[35] and could consequently breach section 9(1) or section 9(1A) of the RDA.

Given this, and the concern expressed by Aboriginal and Torres Strait Islander organisations about the incorporation requirement, I urge the Australian Government to reflect on this requirement in the context of the RDA.

(d) Inquiries into the IAS and related processes

At the time of writing this report, there were two ongoing inquiries into the IAS processes.

On 19 March 2015, the impact on service quality, efficiency and sustainability of the IAS tendering processes was referred to the Senate Finance and Public Administration References Committee (the Senate Committee) for inquiry and report. The Senate Committee is due to report on 26 November 2015.

I provided a submission to this inquiry on 23 April 2015^[36] and also gave evidence to the Senate Committee on 29 June 2015.^[37] In this submission and my subsequent appearance, I outlined many of the concerns I have expressed in this chapter.

PM&C have also initiated an internal review of the IAS Guidelines and funding process. Evidence given by PM&C officers to the Senate Committee advised that this review would look at the processes, administration and communication of the funding round as well as the information included in the IAS Guidelines.^[38]

I hope that this review is conducted in genuine partnership and good faith with our people to produce a system that is going to deliver real benefits for Aboriginal and Torres Strait Islander communities.

I see these inquiries as an important mechanism through which to demystify elements of the IAS process that have been of great concern to Aboriginal and Torres Strait Islander communities. Together they have the potential to chart a way forward for the IAS and PM&C’s engagement with Aboriginal and Torres Strait Islander peoples more broadly.

1.3 Remote Aboriginal communities in Western Australia

On 24 September 2014, Minister Scullion announced that the Commonwealth had reached agreements with the Queensland, Western Australian, Victorian and Tasmanian Governments that would see these states assume responsibility for municipal and essential services in remote Indigenous communities.^[39]

In November 2014, following this announcement, the Premier of Western Australia, the Hon Colin Barnett MLA, flagged that up to 150 remote Aboriginal communities in Western Australia may be closed.^[40] Premier Barnett claimed that the social and health problems in many remote communities showed that the state could not provide them with essential services and the number of these communities should be reduced.^[41]

Governments have an obligation to provide essential and municipal services to all of their citizens, including those in remote locations. It is concerning that the existence of remote Aboriginal communities has been called into question because of a dispute about which level of government should bear responsibility for providing these services.

It is hard to imagine any other group of people in Australia being forced through the indignity of having their futures trivialised and their culture dismissed as part of a political spectacle. I note that similar conversations about ‘viability’ are not taking place in relation to other rural and remote communities across the country.

This provides another example of how decision making without proper engagement with Aboriginal and Torres Strait Islander peoples can cause great anxiety and uncertainty for our peoples.

As article 10 of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) provides:

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

As I have already indicated, the impact of the initial announcement created widespread uncertainty and enormous distress for all remote communities in Western Australia. Of more concern is the yet unknown impact of any changes to service provision and the resulting consequences for the health and wellbeing of Aboriginal and Torres Strait Islander people.

(a) Response to the announcement of potential closures

There are 274 remote communities in Western Australia with a total population of around 12,000 people.^[42]

Subsequent to the announcement, many justifications were put forward as to why the Western Australian Government should discontinue the funding of core services in many remote Aboriginal communities, including:

• the unviability of communities
• the cost per capita of service provision and the loss of federal funds
• child abuse
• family violence
• poor education outcomes
• the limited prospect of employment.^[43]

These justifications had the effect of painting all remote Aboriginal communities in Western Australia as dysfunctional, compounding the distress and uncertainty created by the threat of community closures. This was further aggravated by Prime Minister, the Hon Tony Abbott MP, describing living in remote communities as a ‘lifestyle choice’.^[44] I cannot emphasise enough how insensitive this kind of commentary about our remote communities was to our people and culture.

Discussion about the proposed closure of remote Aboriginal communities continued in these terms over a number of months. Little evidence or policy detail was offered to justify this debate and there was no engagement with remote Aboriginal communities, even after it was clear that the prolonged speculation about their futures was fraught and causing considerable anxiety.

For all the discussion about the reasons why remote communities should be closed, there was little consideration of the consequences of forcing people to move, nor any mention of the devastation felt by the people forced to abandon their homes.

Questions like where people would go, what assistance they would receive, and whether the towns they would move to have the resources to support a larger population remain unanswered.

During this time Ms Kirstie Parker, Co-Chair of National Congress of Australia’s First Peoples, and I wrote about the need for respectful engagement with the Aboriginal and Torres Strait Islander communities affected by these announcements:

This distressing situation - compounded by what is, at best, misjudged rhetoric and, at worst, failure to grasp or respect our people's connection with lands and territories - can only be addressed if governments work constructively with our people on long-term initiatives. Real and sustained engagement with our communities is one of the critical success factors.^[45]

(b) Benefits of remote communities

The Kimberley Land Council, which has many of the communities that may be subject to closure within its boundaries, has said that:

History demonstrates that Government policies removing people from their land has resulted in the gradual disintegration of cultural standards and governance; it has resulted in fringe communities in urban areas, in alcoholism and youth suicides, and in disempowerment. The proposed closure of remote communities in Western Australia is occurring:

• with complete discrimination – the Government is only proposing to remove services to Aboriginal communities, without regard to remote non-Aboriginal communities;
• without a long-term vision – no one has discussed what options or opportunities may be available to improve the economic sustainability of these communities;
• without properly establishing what will happen after communities are closed – there are many additional pressures that will be placed on larger regional communities, to the detriment of their current residents and those forced to move to them; and
• with complete disregard to the economic, social and cultural wellbeing of the Aboriginal people residing within them.^[46]

Whilst some remote Aboriginal communities face challenges it is unfair to suggest that all or even the majority of remote communities are dysfunctional.

Many of the remote communities in Western Australia are considered to be ‘homeland’ communities. In the Social Justice Report 2009 my predecessor, Dr Tom Calma wrote:

Homelands provide social, spiritual, cultural, health and economic benefits to residents. They are a unique component of the Indigenous social and cultural landscape, enabling residents to live on their ancestral lands.^[47]

In that report, Dr Calma highlighted that the debate over the viability of these communities is not new and has been ongoing since key policy changes in the 1970s and 1980s resulted in increased homeland populations.

There is significant evidence of the health benefits of living in homeland communities, with residents often comparing positively in health indicators, including morbidity, diabetes and hypertension, than those living in regional centres.^[48] Dr Calma reported that:

A large element of the health benefit is the social and emotional well being many homeland community members derive from living on country in smaller communities — removed from stressors such as community conflicts, alcohol and violence.^[49]

Living on country in remote communities is integral to the realisation of our right to culture in articles 11 and 12 of the Declaration. This is not just about preserving culture but fostering culture in a way that allows it to continue and evolve.^[50]

(c) Consultation process

It was not until 7 May 2015 that the Western Australian Government announced its ‘Regional Services Reform’ plan, which is proposed to address ‘the way services will be provided to Aboriginal communities to ensure better outcomes in health, education and job prospects, particularly for children’.^[51]

Strategic Regional Advisory Councils have been established in the Kimberley and the Pilbara to advise the Western Australian Government on these reforms. Each Council consists of four Aboriginal leaders, four heads of relevant State Government agencies, a senior representative from the Australian Government and a representative from the community service sector.^[52]

The Western Australian Department of Aboriginal Affairs has announced a timeline for consultations on this process, which indicates that from July to December 2015, there will be regional and community engagement on:

• accountability and service delivery models
• improving service delivery
• supporting individuals and families to take up education and employment opportunities.^[53]

When this process was announced, I stressed that, ‘For this approach to be fair dinkum, it requires commitment, patience and time. It will mean challenging the status quo and making meaningful change in the relationship’.^[54]

I welcome the Western Australian Government’s commitment to a consultation process and the comment of Western Australia’s Aboriginal Affairs Minister, the Hon Peter Collier MLA, that ‘it is absolutely imperative that they [Aboriginal and Torres Strait Islander people living in remote communities] are a part of the decision making process’.^[55]

However, I am concerned about the lack of detail around the consultation process and its purpose. At the time of drafting, the full details of the methodology, timing and resources to be committed to this engagement were not yet clear. I will be watching carefully to see that this is conducted in line with the rights of Aboriginal and Torres Strait Islander people in remote communities.

I will talk more about what needs to be considered by the Western Australian Government to ensure that these consultations respect the rights of the individuals and communities involved later in this chapter.

1.4 Northern Territory paperless arrest powers

In December 2014, amendments to the Police Administration Act (NT) (the Act) commenced which provide for ‘paperless arrest’.

Section 133AB of the Act allows the police, without a warrant, to detain a person in custody for up to four hours if they suspect that person has committed, or is about to commit, an ‘infringement notice offence’. If the person is intoxicated, the police may detain that person for longer than four hours until they believe the person is no longer intoxicated.

At the end of that period, the police may:

• release the person unconditionally, or
• release the person and issue them with an infringement notice, or
• release the person on bail, or
• under section 137 of the Act, bring the person before a court for the infringement notice offence.^[56]

Infringement notice offences are prescribed by regulation and include offences that are not punishable by a term of imprisonment.^[57]

These powers are significantly broader than pre-existing powers to arrest a person without a warrant or take an intoxicated person into protective custody.

The key differences between the new paperless arrest powers and existing powers allowing police to arrest a person without a warrant are that:

• there is no requirement to bring the person before a court as soon as is practicable
• there is no requirement that the period of detention be a reasonable period for questioning the person in relation to a relevant offence
• the powers apply to minor offences which include some offences that are not punishable by a period of imprisonment.^[58]

Under existing protective custody provisions, police must have reasonable grounds to believe that the person is intoxicated, and in a public place or trespassing on private property, and because of their intoxication, the person:

• is unable to adequately care for himself or herself and it is not practicable at that time for the person to be cared for by someone else, or
• may cause harm to himself or herself or someone else, or
• may intimidate, alarm or cause substantial annoyance to people, or
• is likely to commit an offence.^[59]

The person must only be held in custody for so long as it reasonably appears to the officer that the person remains intoxicated (or until 7.30am if they are in custody after midnight).^[60]

The Northern Territory Attorney-General and Minister for Justice, the Hon John Elferink MLA, described the purpose of the new powers as follows:

This alternative post-arrest option will provide further flexibility and efficiency in policing work. The option will enable police officers to return to their patrol in a more timely fashion, as opposed to being detained for long periods preparing necessary paperwork for a court to consider the charges. An additional benefit to the community is intended by the use of such an option to de-escalate social disorder situations or potential situations of public disorder before they escalate into major incidents.^[61]

I am extremely concerned that these powers are having a disproportionate impact on Aboriginal and Torres Strait Islander peoples in the Northern Territory, resulting in significantly more of our people spending time in custody for largely minor offending.

(a) Coronial inquest into the death of Kumanjayi Langdon

On 21 May 2015, Warlpiri man, Mr Kumanjayi Langdon, died in custody of heart failure, around three hours after being detained under the paperless arrest powers.

Kumanjayi Langdon was arrested after being seen drinking from a plastic bottle in a public park in the Darwin CBD.

The Coroner, Mr Greg Cavanagh SM, found that while Kumanjayi Langdon was lawfully arrested for drinking alcohol in a designated public area, he ‘had done nothing to bring himself to the attention of police, beyond being with other Aboriginal people in a park in the Darwin CBD’.^[62] He cooperated with police and ‘was not violent, was not uttering threats and not swearing or being offensive in any way’.^[63]

Drinking alcohol in a designated area is an offence under the Liquor Act (NT), carrying a maximum penalty of a $74 fine. Following his arrest and prior to arriving at the Darwin Watch House, Kumanjayi Langdon was issued with an infringement notice, leading the Coroner to question the purpose of his subsequent detention.^[64]

While the Coroner noted that there were ‘shortcomings’ in the health check process undertaken for Kumanjayi Langdon, he was satisfied that he received adequate care and supervision during his period in custody.^[65]

However, the Coroner was highly critical of the paperless arrest powers, stating that the powers:

• have a disproportionate impact on Aboriginal and Torres Strait Islander peoples
• perpetuate and entrench the disadvantage experienced by Aboriginal and Torres Strait Islander peoples
• are irreconcilable with the recommendations of the Royal Commission into Aboriginal Deaths in Custody
• would likely result in more Aboriginal and Torres Strait Islander people dying in custody.^[66]

Consequently, the Coroner recommended the Northern Territory Government repeal section 133AB of the Act. He also recommended that the Northern Territory Government commission an expert inquiry into responses to alcohol misuse, which would form the basis of a plan to be developed by the Northern Territory Government working with stakeholders, including Aboriginal people, communities, and organisations to find solutions.^[67]

I am deeply disappointed that the Northern Territory Government has rejected these recommendations^[68] and I call on the Northern Territory Government to better engage with Aboriginal communities to find strategies to deal with alcohol misuse that do not involve our people coming into contact with the criminal justice system.

(b) Disproportionate impact on Aboriginal and Torres Strait Islander peoples

The Coroner was also critical of the limited statistics available with which to assess the impact of these new powers, a consequence of the software used to collect this information.^[69]

Between 17 December 2014 and 17 July 2015, the option to release a person from custody and issue them with an infringement notice was used 1,807 times for 1,295 people, 901 of which were Aboriginal or Torres Strait Islander (around 70 per cent).^[70]

A further 512 people were released from custody with more than one infringement notice. The Coroner concluded, on the basis of evidence provided by the police that most, if not all, were Aboriginal or Torres Strait Islander, although the exact figure is unknown.^[71]

This does not take into account those people detained using these powers who were released unconditionally, or released on bail, or who were brought before a court. However, there is currently no system for calculating what proportion of these groups were Aboriginal or Torres Strait Islander.^[72]

All of the available evidence strongly indicates that these powers are primarily affecting our people. However, as the Coroner noted, it is unacceptable that there is no way of evaluating the effectiveness or adverse impact of these powers in detail.^[73]

(c) Royal Commission into Aboriginal Deaths in Custody

Nearly 25 years since the Royal Commission into Aboriginal Deaths in Custody (the Royal Commission) published 339 recommendations for change, it is unacceptable that our people are still dying in custody after minor offending.

The Royal Commission highlighted that the high number of Aboriginal deaths in custody was related to the disproportionately high rates of detention experienced by our people. This was in part due to underlying social, cultural and legal factors, like the legacy of colonisation and socio-economic disadvantage, but also the processes of the criminal justice system.^[74]

Aboriginal and Torres Strait Islander peoples are already significantly overrepresented in the Northern Territory’s criminal justice system. At 30 June 2014, around 85 per cent of prisoners in custody in adult correctional centres in the Northern Territory were Indigenous.^[79]

The report from the coronial inquest into the death of Kumanjayi Langdon paints a disturbing picture of how the paperless arrest powers work in practice. Together with ‘Operation Ascari II,’ a police initiative that targets public drinkers, the paperless arrest powers are bringing more people, largely Aboriginal and Torres Strait Islander people, into contact with the criminal justice system.^[80]

Police officers who gave evidence at the coronial inquest described a dramatic increase in the numbers of people being detained at the Darwin Watch House without any corresponding increase in staff.^[81]

This not only frustrates the aim of the powers to ‘provide further flexibility and efficiency in policing work’,^[82] but may seriously compromise the ability of the police to exercise their duty of care to people in custody.

Minimising the number of our people who die in custody requires a commitment in policy and practice to use arrest and imprisonment as a last resort.

At the heart of this is Kumanjayi Langdon and the grief of his family and friends, compounded unnecessarily by the circumstances of his death. The Coroner perhaps summed it up best when he wrote:

Kumanjayi Langdon, a sick middle aged Aboriginal man, was treated like a criminal and incarcerated like a criminal; he died in a police cell which was built to house criminals. He died in his sleep with strangers in this cold and concrete cell. He died of natural causes and was always likely to die suddenly due to chronic and serious heart disease, but he was entitled to die in peace, in the comfort of family and friends. In my view, he was entitled to die as a free man.^[83]

(d) High Court challenge

In March 2015, the North Australian Aboriginal Justice Agency (NAAJA) and Ms Miranda Bowden (the plaintiffs) commenced proceedings in the High Court to challenge the validity of the paperless arrest powers.

The plaintiffs challenged the laws on the basis that they involve a breach of the separation of powers. That is, they allow the executive to carry out a role that is reserved by the Constitution for the courts.

On 1 September 2015, the Australian Human Rights Commission (the Commission) was granted leave to intervene in these proceedings as amicus curiae, limited to the filing of written submissions.^[84]

The Commission has the statutory function of intervening in legal proceedings that involve human rights issues, where it is appropriate to do so and with the leave of the court hearing the proceeding, subject to any conditions imposed by the court.^[85]

At the time of writing this chapter, the High Court had reserved its decision.

1.5 Constitutional recognition

Over the past year, the process towards a referendum on constitutional recognition has been largely ad hoc, resulting in a mix of political drift, some positive engagement, and a failure to understand the importance of the voices of Aboriginal and Torres Strait Islander peoples in the constitutional recognition process.

Although there has been firm bipartisan support on the issue, this has resulted in few active steps to engage with Aboriginal and Torres Strait Islander peoples on the process moving forward and a lack of clarity of what that process will look like.

(a) Aboriginal and Torres Strait Islander Peoples Recognition Act

On 12 March 2013, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) was passed unopposed by both houses of Parliament. This Act recognises Aboriginal and Torres Strait Islander peoples as the first people of the land now known as Australia, their continuing relationship with land and waters, and their continuing cultures, languages and heritage.

The purpose of this Act was to build momentum for a referendum on constitutional recognition, and initially included a sunset clause of two years. On 20 March 2015, this Act was extended for a further three years by the Aboriginal and Torres Strait Islander Peoples Recognition (Sunset Extension) Act 2015 (Cth) to 28 March 2018.

(b) Joint Select Committee on Constitutional Recognition final report

On 25 June 2015, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (Joint Select Committee) tabled its final report.

The Joint Select Committee’s recommendations were informed by 139 written submissions and evidence from witnesses who appeared at public hearings held around the country.^[86]

Recommendations in that report included that a referendum be held on the matter of recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution and that this should take place at a time when it has the highest chance of success.^[87]

Other recommendations of the Joint Select Committee include:

• the repeal of section 25 of the Constitution^[88]
• the repeal of section 51(xxvi) and the retention of a persons power so that the Australian Government can legislate for Aboriginal and Torres Strait Islander peoples in accordance with the 1967 referendum result^[89]
• three proposed models that would retain a persons power, each with different constraints regarding discriminatory laws, be considered for referendum^[90]
• constitutional conventions to build support for a referendum, including conventions made up of Aboriginal and Torres Strait Islander delegates^[91]
• each House of Parliament set aside a day of sitting to debate the Joint Select Committee’s recommendations^[92]
• the establishment of a parliamentary process to oversee progress towards a referendum^[93]
• the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) be amended to include the Declaration.^[94]

(c) Bipartisan summit

On 6 July 2015, 40 Aboriginal and Torres Strait Islander leaders met with Prime Minister Abbott, and Opposition Leader, the Hon Bill Shorten MP, to determine the next steps towards holding a referendum.

Both Prime Minister Abbott and Mr Shorten agreed that a referendum could not be held before the next term of Parliament and they proposed three next steps:

• a series of community conferences across Australia
• the development of a discussion paper by the Joint Select Committee on issues regarding constitutional change in order to facilitate community discussion
• the establishment of a Referendum Council to progress matters including settling a referendum question, the timing of a referendum, and constitutional issues.^[95]

The Referendum Council would report to the Prime Minister and the Leader of the Opposition with recommendations to be considered in developing a proposal to put to Parliament.^[96]

(d) Process moving forward

Following the bipartisan summit, Professor Patrick Dodson, Mr Noel Pearson, Professor Megan Davis, and Ms Kirstie Parker wrote to Prime Minister Abbott outlining a proposal for Indigenous conferences through which our people could reach a consensus on a model for constitutional change before the community conferences take place.

At the time, Mr Pearson and Professor Dodson wrote that:

An independent process for indigenous people to reach a position is crucial to ensure indigenous support. Without such a process, a referendum council and community conferences will be unlikely to produce the necessary engagement, understanding and consensus among Indigenous Australians.^[97]

Prime Minister Abbott initially rejected this proposal on the basis that the community conferences would be sufficient and a separate process could result in ‘something akin to a log of claims that is unlikely to achieve general support’.^[98]

Many in our communities, including myself, were extremely disappointed by Prime Minister Abbott’s initial response to this proposal and I welcome his change of position.^[99]

At the time of writing, the detail of the Australian Government’s support for Indigenous conferences is unclear. There is also little information around the composition and funding of the Referendum Council, and when and where the community conferences will be held.

1.6 Stolen Generations

Last year I reported on the case of the Collard family, who unsuccessfully sought compensation from the Western Australian Government for the removal of nine of their children by the Government in the late 1950s and early 1960s.

One of Donald and Sylvia Collard’s children was placed into foster care when she was only six months old, without the consent or knowledge of her parents. A few years later, eight of the Collard children were taken from the care of their parents and placed in the Sister Kate’s Children’s Home.

In 2013, the Supreme Court of Western Australia found against the Collard family.^[100] Among other arguments, the Collards had alleged that the Western Australian Government had breached equitable fiduciary duties by removing their children and failing to act in their best interests with respect to their custody, maintenance and education.

In April 2014, the Supreme Court of Western Australia decided that because this matter was a ‘test case’, each party should bear their own costs.^[101]

On 8 May 2015, the Court of Appeal (WA) overturned this decision and the Collard family were ordered to pay the State’s costs.^[102]

At the time of writing, the Collard family was seeking leave to appeal this decision in the High Court.^[103]

Western Australia’s costs are thought to be worth hundreds of thousands of dollars. At the time of the Western Australian Government’s appeal, Western Australia’s Attorney-General, the Hon Michael Mischin MLC, said that the state’s costs were around $400,000.^[104]

There is little prospect of the Western Australian Government recovering its costs from the Collard family.^[105]

I am disappointed for the Collard family that this matter continues to drag out because of the decision of the Western Australian Government to pursue costs. This family has already experienced considerable trauma and it is unfortunate that they now have to endure the stress and uncertainty of resolving court costs.

Again, I urge governments to prioritise effective reparations for the Stolen Generations and their families. Families like the Collards should not have to suffer through lengthy, expensive and traumatising litigation in an attempt to remedy past injustices.

1.7 Close the Gap

In my role as Co-Chair of the Close the Gap Campaign I continue to monitor progress on the national effort to close the unacceptable health and life expectancy gap between Aboriginal and Torres Strait Islander people and other Australians.

The most recent Australian Bureau of Statistics data estimating Aboriginal and Torres Strait Islander life expectancy indicates small increases over a five year period from 2005-07 to 2010-12.^[106] As noted by the Close the Gap Campaign Steering Committee (Campaign Steering Committee):

the modesty of the gains, and the magnitude of the remaining life expectancy gap remind us why the Council of Australian Governments’ (COAG) Closing the Gap Strategy and the target to close the life expectancy gap was needed. It remains necessary today.^[107]

Despite the slow progress in closing the gap, signs the task is possible are emerging from the available data. We are seeing reductions in smoking rates and improvements to maternal and child health outcomes.^[108]

In addition to these gains, new data has indicated high levels of Aboriginal and Torres Strait Islander people with undetected treatable and preventable chronic conditions.^[109] The Campaign Steering Committee argues that this data demonstrates that relatively large health and life expectancy gains are possible in relatively short periods of time. These gains can be made as a result of a greater focus on increasing access to primary health care services that will enable these conditions to be detected, treated and managed.^[110]

In July 2013, the former Australian Government launched the National Aboriginal and Torres Strait Islander Health Plan (Health Plan).^[111] The Health Plan set out the policy directions required to close the gap, including tackling child and maternal health and addressing chronic disease. In order to drive outcomes the Health Plan requires a detailed implementation plan that sets specific actions, timeframes and targets.

In mid-2014, Assistant Minister for Health, Senator the Hon Fiona Nash, announced that the Australian Government would begin work on an implementation plan.^[112] Since that time the Australian Government has been working in partnership with the National Health Leadership Forum (NHLF),^[113] comprised of national Aboriginal and Torres Strait Islander organisations whose core business is health, in this process. At the time of writing the implementation plan was close to being finalised.

I agree with the Campaign Steering Committee that an effective implementation plan for the Health Plan provides a significant opportunity for improving Aboriginal and Torres Strait Islander peoples’ access to appropriate health care and could address many of the other challenges in closing the health and life expectancy gap.^[114] Text Box 1.3 contains the key features that an effective implementation plan would contain.

1.8 Where to from here?

The developments of the past year need to be viewed against the backdrop of Indigenous Affairs policy more broadly.

Aboriginal and Torres Strait Islander people are no strangers to the many transitions that occur in this space and have seen many changes to the administration of Indigenous Affairs over the past few decades. When I reflected on 20 years of the position of Social Justice Commissioner, I was reminded about how circular these changes can often be.^[116] Our communities have seen many administrations come and go, from:

• The Council for Aboriginal Affairs and Office of Aboriginal Affairs which were then followed by the Department of Aboriginal Affairs under the Whitlam government.
• The establishment of government sponsored representative bodies such as the National Aboriginal Conference, the National Aboriginal Consultative Committee and the Aboriginal and Torres Strait Islander Commission (ATSIC).
• The abolition of ATSIC in 2004 to the mainstreaming of Indigenous Affairs and the implementation of the Office of Indigenous Policy Coordination and the establishment of regional arrangements.
• The Department of Immigration and Multicultural and Indigenous Affairs during the Howard years, and then arrangements under the Department of Families, Housing, Community Services and Indigenous Affairs.
• The consolidation of Indigenous programming policies and service delivery from the eight federal government agencies prior to the 2013 election to a central agency in PM&C.

The cumulative effect of these changes over many years is significant. I think that positive changes in the social disadvantage experienced by Aboriginal and Torres Strait Islander peoples are difficult to come by when the policy framework we are presented with is so chaotic and inconsistent.

I would argue that many of these changes, and many of the events outlined earlier in this chapter, are symptomatic of government failures, both at a federal and state level, to adequately include Aboriginal and Torres Strait Islander people in decision making.

Inclusion in decision making on issues that affect us is a right of our people, clearly articulated in article 18 of the Declaration. Article 19 then places a duty on government to consult and cooperate in good faith with Indigenous peoples even if our rights have not been recognised in domestic law as part of our right to free, prior and informed consent.^[117]

Article 18

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

In my view, the most effective initiatives to improve the lives of Aboriginal and Torres Strait Islander people are those that are managed or closely informed by the needs and aspirations identified by our communities.

The features of a meaningful and effective consultation process outlined in Text Box 1.4 were developed from the foundation of the government’s commitments to Aboriginal and Torres Strait Islander peoples in the Declaration. It then drew from:

• the work of international mechanisms such as the United Nations Permanent Forum on Indigenous Issues^[118]
• the views and experiences of Australian Aboriginal and Torres Strait Islander organisations such as the Native Title Representative Bodies (NTRBs), Native Title Service Providers (NTSPs) and Prescribed Bodies Corporate (PBCs).

These features are not designed as a checklist for consultations, for that is not the approach to consultations that is owed to our peoples. An inflexible, one-size-fits-all approach would not be conducive to relationship building or to effective outcomes for communities or governments.

Given the unproductiveness of a prescriptive, tick-a-box approach, the features of a meaningful and effective consultation process were prepared to guide the development of appropriate processes on a case-by-case basis.

1.9 Conclusion and recommendations

In last year’s report I noted that 2013-14 was characterised by uncertainty and upheaval for Aboriginal and Torres Strait Islander peoples and I am disappointed to say that this has continued throughout the past year.

The need for better engagement with Aboriginal and Torres Strait Islander peoples has been starkly apparent across a range of areas and levels of government during this reporting period.

The features of a meaningful and effective consultation can provide guidance to governments about how to produce more positive outcomes over the year ahead.

In both the review of the IAS and its future administration, the Australian Government must ensure that the mistakes of the past year are not repeated. Information must be provided in a timely and clear manner with Aboriginal and Torres Strait Islander organisations included in any subsequent decision making about its direction and rationale.

Many of the criticisms by organisations, leaders and communities of the first funding round of the IAS, both in public commentary and through engagement with the Senate inquiry into the IAS tendering processes, would be addressed by the consideration and implementation of the features of a meaningful and effective consultation process.

The Western Australian Government has an opportunity to ensure that the mistakes made in the initial conversation about remote community closures are not repeated by considering how these features are incorporated in their forthcoming consultations and implementation process. A first step would be to reflect on the adequacy of the timeframes for consultation and decision making.

Similarly, the Northern Territory Government needs to better engage with our communities to develop strategies for reducing the numbers of Aboriginal and Torres Strait Islander peoples in custody and for better dealing with alcohol misuse. It is only through this engagement that we will be able to develop solutions that address the complexities underlying these problems.

Consideration of these features is also an important part of in the next steps of the constitutional recognition process. This will help ensure that our people understand and have confidence in the process, providing us with the best opportunity to effect meaningful change.

All governments in Australia should take heed of the features of a meaningful and effective consultation process and use them to inform their approach to consultation and engagement with Aboriginal and Torres Strait Islander peoples in all areas that affect us. Such an approach has the potential to improve outcomes for our peoples and improve policy at its earliest stages.

^[1] Australian Government, Indigenous Advancement Strategy Guidelines (2014) 11-17.
^[2] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 5.
^[3] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 10.
^[4] Mick Gooda, Social Justice and Native Title Report 2014, Australian Human Rights Commission (2014) 18, 24. (footnotes omitted)
^[5] Australian Government, Indigenous Advancement Strategy Guidelines (2014) 5.
^[6] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 10, Attachment F.
^[7] Senate Estimates Finance and Public Administration Legislation Committee, Canberra, 27 February 2015, 50 (Liza Carroll); Department of the Prime Minister and Cabinet, Correspondence to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 7 April 2015.
^[8] See Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, Attachment H.
^[9] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, Attachment H.
^[10] Australian Government, Indigenous Advancement Strategy Guidelines (2014) [2.5].
^[11] Senate Estimates Finance and Public Administration Legislation Committee, Canberra, 27 February 2015, 50 (Liza Carroll); Department of the Prime Minister and Cabinet, Correspondence to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 7 April 2015.
^[12] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 14-15.
^[13] Senator the Nigel Scullion, Minister for Indigenous Affairs, ‘Indigenous Grant Round’ (Media Release, 24 November 2014).
^[14] Senate Estimates Finance and Public Administration Legislation Committee, Canberra, 27 February 2015, 47 (Liza Carroll).
^[15] Senate Estimates Finance and Public Administration Legislation Committee, Canberra, 27 February 2015, 60 (Susan Black).
^[16] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 13-14.
^[17] Correspondence from Senator the Hon Nigel Scullion, Minister for Indigenous Affairs, to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 2 July 2015.
^[18] Senator the Hon Nigel Scullion, Minister for Indigenous Affairs, ‘$860 million investment through Indigenous Advancement Strategy Grants Round’ (Media Release, 4 March 2015).
^[19] Senator the Hon Nigel Scullion, Minister for Indigenous Affairs, ‘IAS grant round investment totals $1 billion’, (Media Release, 27 May 2015).
^[20] Senate Finance and Public Administration References Committee, Canberra, 29 June 2015, 54 (Liza Carroll).
^[21] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 15.
^[22] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 15.
^[23] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 18-19.
^[24] ‘Agencies wait to hear fate as Indigenous Advancement Strategy grants list finalised’ ABC News (online), 5 March 2015 <http://www.abc.net.au/news/2015-03-05/frontline-domestic-violence-agency-funding-cut-hundreds-wait/6283932>.
^[25] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 18.
^[26] Amos Aikman, “ ‘Close Gap’ funds spent on desk jobs,’ The Australian (online), 5 September 2015 <http://www.theaustralian.com.au/national-affairs/indigenous/close-gap-indigneous-funds-spent-on-desk-jobs/story-fn9hm1pm-1227513611493?sv=5d876710913eb1339c6b8ac6c6bb0cfa>; Amos Aikman, ‘System a recipe for indigenous dependency: Pat Dodson,’ the Australian (online) 8 September 2015 <http://www.theaustralian.com.au/national-affairs/indigenous/system-a-recipe-for-indigenous-dependency-pat-dodson/story-fn9hm1pm-1227516991553> Amos Aikman ‘Two out of 10: Noel Pearson berates indigenous spending overhaul,’ The Australian (online) 7 September 2015 <http://www.theaustralian.com.au/national-affairs/indigenous/two-out-of-10-noel-pearson-berates-indigenous-spending-overhaul/story-fn9hm1pm-1227515485825?sv=7134f7d93a134ef4a263eb85aed6d6ce>.
^[27] Department of the Prime Minister and Cabinet, Submission No 48 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 11-12, Attachment G.
^[28] National Congress of Australia’s First Peoples, Submission No 84 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, June 2015, 18.
^[29] Senate Finance and Public Administration References Committee, Canberra, 29 June 2015, 28 (Priscilla Collins); National Aboriginal and Torres Strait Islander Legal Services, Submission No 17 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, April 2015, 3.
^[30] Correspondence from the Department of the Prime Minister and Cabinet to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 7 April 2015.
^[31] National Aboriginal and Torres Strait Islander Legal Services, Submission No 17 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, April 2015, 6-7; Reconciliation Australia, Submission No 44 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 30 April 2015, 7-8; Victorian Aboriginal Community Controlled Health Organisation, Submission No 47 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, April 2015, 11-3; Victorian Council of Social Service, Submission No 56, to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, May 2015, 13-4; National Family Violence Prevention Legal Services, Submission No 83 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, June 2015, 18-9.
^[32] Australian Government, Indigenous Advancement Strategy Guidelines (2014) [2.8.2].
^[33] Department of the Prime Minister and Cabinet, Incorporation requirements, <https://www.dpmc.gov.au/indigenous-affairs/incorporation-requirements>.
^[34] Racial Discrimination Act 1975 (Cth) s 3.
^[35] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 1, International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 1, United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc A/61/L.67 (2007) art 3.
^[36] Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission No 15 to the Senate Finance and Public Administration References Committee, Commonwealth Indigenous Advancement Strategy tendering process, 23 April 2015.
^[37] Senate Finance and Public Administration References Committee, Canberra, 29 June 2015, 1-10 (Mick Gooda).
^[38] Senate Finance and Public Administration References Committee, Canberra, 29 June 2015, 45-46 (Liza Carroll).
^[39] Nigel Scullion, Minister for Indigenous Affairs, ‘Historic agreements reached for states to deliver municipal and essential services’ (Media Release, 24 September 2014).
^[40] Sonia Kohlbacher ‘WA Premier Colin Barnett flags closing remote sites’, The Australian (online) 11 November 2014 <http://www.theaustralian.com.au/national-affairs/state-politics/wa-premier-colin-barnett-flags-closing-remote-sites/story-e6frgczx-1227118746328>; Western Australia, Parliamentary Debates, Legislative Assembly, 12 November 2014, 8030-8032 (Colin Barnett).
^[41] Sonia Kohlbacher ‘WA Premier Colin Barnett flags closing remote sites’, The Australian (online) 11 November 2014 < http://www.theaustralian.com.au/national-affairs/state-politics/wa-premier-colin-barnett-flags-closing-remote-sites/story-e6frgczx-1227118746328>; Western Australia, Parliamentary Debates, Legislative Assembly, 12 November 2014, 8030-8032 (Colin Barnett).
^[42] Western Australia, Parliamentary Debates, Legislative Assembly, 12 November 2014, 8030 (Colin Barnett).
^[43] See Sonia Kohlbacher ‘WA Premier Colin Barnett flags closing remote sites’, The Australian (online), 11 November 2014 <http://www.theaustralian.com.au/national-affairs/state-politics/wa-premier-colin-barnett-flags-closing-remote-sites/story-e6frgczx-1227118746328>; Nicholas Perpitch, Bonnie Christian and Andrew O’Connor, ‘Colin Barnett pushed as anger erupts at protest over remote communities closure,’ ABC News (online), 19 March 2015 <http://www.abc.net.au/news/2015-03-19/protesters-rally-against-closure-aboriginal-remote-communities/6332526>; Nicholas Perpitch, ‘Aboriginal people to be consulted on remote community closure: WA Government,’ ABC News (online), 8 May 2015 <http://www.abc.net.au/news/2015-05-07/aboriginal-people-to-be-consulted-on-community-closures-wa/6451866>.
^[44] Latika Bourke, ‘’ ‘Lifestyle choice’: Tony Abbott stands by controversial comments despite indigenous leader backlash’, Sydney Morning Herald (online) 11 March 2015 <http://www.smh.com.au/federal-politics/political-news/lifestyle-choice-tony-abbott-stands-by-controversial-comments-despite-indigenous-leader-backlash-20150310-140mn5.html>.
^[45] Mick Gooda and Kirstie Parker, ‘Close the gap, not the communities,’ The Drum, 19 March 2015 <http://www.abc.net.au/news/2015-03-19/gooda-parker-close-the-gap-not-the-communities/6331150>.
^[46] Correspondence from Kimberley Land Council to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 14 May 2015.
^[47] Tom Calma, Social Justice Report 2009, Australian Human Rights Commission, (2009) 107.
^[48] Kevin Rowley et al, ‘Lower than expected morbidity and mortality for an Australian aboriginal population: 10 year follow-up in a decentralised community’ (2008) 188(5) Medical Journal of Australia 283.
^[49] Tom Calma, Social Justice Report 2009, Australian Human Rights Commission, (2009) 126 citing CP Burgess et al, ‘Healthy Country: Healthy People? Exploring the health benefits of Indigenous Natural Resource Management’, (2005) 29(2) Australian and New Zealand Journal of Public Health, 117-122.
^[50] Tom Calma, Social Justice Report 2009, Australian Human Rights Commission, (2009) 134.
^[51] The Hon Colin Barnett MLA, Premier of Western Australia, and Peter Collier, Minister for Education; Aboriginal Affairs; and Electoral Affairs, ‘Reform to improve lives of Aboriginal people’ (Media Release, 7 May 2015).
^[52] Department of Aboriginal Affairs (WA), Strategic Regional Advisory Councils, <http://www.daa.wa.gov.au/accountable-government/remote-communities/strategic-regional-advisory-councils/>.
^[53] Department of Aboriginal Affairs (WA), Consultation and timeline, <http://www.daa.wa.gov.au/accountable-government/remote-communities/consultation-timeline/>.
^[54] Mick Gooda, ‘Rob Riley Memorial Lecture’ (Speech delivered at Curtin University, Perth, 8 May 2015) <https://www.humanrights.gov.au/news/speeches/rob-riley-lecture>.
^[55] Andrew O’Connor, ‘Remote Indigenous communities will be consulted before closures decision, WA Aboriginal Affairs Minister Peter Collier says’ ABC News (online), 25 March 2015, <http://www.abc.net.au/news/2015-03-25/remote-communities-will-be-consulted-before-closures-minister/6346690>.
^[56] Police Administration Act (NT) s 133AB(3).
^[57] Police Administration Act (NT) s 133AA; Police Administration Regulation (NT) reg 19A.
^[58] See Police Administration Act (NT) ss 123, 137, 138.

^[59] Police Administration Act (NT) s 128.

^[60] Police Administration Act (NT) s 129.
^[61] Northern Territory, Parliamentary Debates, Northern Territory Legislative Assembly, 22 October 2014, The Hon John Elferink MLA (Attorney General and Minister for Justice).
^[62] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [25], [28]
^[63] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [28].
^[64] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [10], [74]-[77].
^[65] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [11], [52]
^[66] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [87]-[90]
^[67] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [92], [93].
^[68] Jane Bardon, ‘NT Government dismisses coroner’s call to scrap paperless arrests after death of Kumanjayi Langdon’ ABC News (online), 14 August 2015 <http://www.abc.net.au/news/2015-08-14/paperless-arrest-system-manifestly-unfair-langdon-inquest-told/6697818>.
^[69] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [65].
^[70] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [66].
^[71] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [66].
^[72] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [67].
^[73] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [67].
^[74] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 3, part D <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol3/3.html>.
^[75] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 3 [21.1] <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol3/3.html>.
^[76] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 3 [21.2] <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol3/3.html>.
^[77] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 3 [22.1] <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol3/3.html>.
^[78] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 3 [22.5] <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol3/3.html>.
^[79] Department of Correctional Services (NT), Annual Statistics 2013-14, (2015) 6.
^[80] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [63]-[68].
^[81] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [51].
^[82] Northern Territory, Parliamentary Debates, Northern Territory Legislative Assembly, 22 October 2014, The Hon John Elferink MLA (Attorney General and Minister for Justice).
^[83] Inquest into the death of Perry Jabanangka Langdon [2015] NTMC 016 [71].
^[84] North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia [2015] HCATrans 211 (1 September 2015). The Commission’s written submissions are available at: <http://www.hcourt.gov.au/assets/cases/m45-2015/NAAJA_AHRC.pdf>.
^[85] Australian Human Rights Commission Act 1986 (Cth) s 11(1)(o).
^[86] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) apps 4, 5.
^[87] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendations 2, 9.
^[88] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 3.
^[89] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 4.
^[90] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 5.
^[91] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 7, 8.
^[92] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 1.
^[93] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 10.
^[94] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) recommendation 6.
^[95] The Hon Tony Abbott MP, Prime Minister, and Bill Shorten, Leader of the Opposition, ‘Indigenous Recognition’ (Media Release, 6 July 2015).
^[96] The Hon Tony Abbott MP, Prime Minister, and Bill Shorten, Leader of the Opposition, ‘Indigenous Recognition’ (Media Release, 6 July 2015).
^[97] Noel Pearson and Patrick Dodson, ‘Recognition referendum needs indigenous input,’ The Australian (online), 18 July 2015 <http://www.theaustralian.com.au/news/inquirer/recognition-referendum-needs-indigenous-input/story-e6frg6z6-1227446388545?sv=1034318a8373356466720b822e1c8dd2>.
^[98] Anna Henderson, ‘PM calls meeting to address impasses on referendum ahead of week in remote Indigenous communities,’ ABC News (online), 19 August 2015 <http://www.abc.net.au/news/2015-08-18/pm-calls-meeting-with-key-advocates-of-indigenous-recognition/6707088>.
^[99] ‘PM backs down on indigenous summits’ Sky News (online) 20 August 2015 <http://www.skynews.com.au/news/politics/national/2015/08/20/abbott-supports-indigenous-forums.html>.
^[100] Collard v State of Western Australia (No 4) [2013] WASC 455.
^[101] Collard v State of Western Australia (No 4) [2013] WASC 455 (S).
^[102] State of Western Australia v Collard [2015] WASCA 86.
^[103] Human Rights Law Centre, Stolen Generation family seeks justice on legal costs (18 June 2015) <http://hrlc.org.au/stolen-generation-family-seeks-justice-on-legal-costs/>.
^[104] ‘Stolen Generations: WA Government appeals in bid to force family to pay compensation ‘test case’ casts’, ABC News (online) 20 November 2014 <http://www.abc.net.au/news/2014-11-20/family-facing-legal-bill-in-stolen-generation-test-case/5903936>.
^[105] ‘Stolen Generations: WA Government appeals in bid to force family to pay compensation ‘test case’ casts’, ABC News (online) 20 November 2014 <http://www.abc.net.au/news/2014-11-20/family-facing-legal-bill-in-stolen-generation-test-case/5903936>.
^[106] Australian Bureau of Statistics, Life Tables for Aboriginal and Torres Strait Islander Australians, 2010-2012, ABS cat. no. 3302.0.55.003, 2013, 6. <http://www.abs.gov.au/ausstats/abs@.nsf/mf/3302.0.55.003>.
^[107] Close the Gap Campaign Steering Committee, Progress and priorities report 2015 (2015) 1.
^[108] Close the Gap Campaign Steering Committee, Progress and priorities report 2015 (2015) 1.
^[109] Australian Bureau of Statistics, Australian Aboriginal and Torres Strait Islander Health Survey: Biomedical Results, 2012–13, ABS cat. no. 4727.0.55.003, 2014 <http://www.abs.gov.au/ausstats/abs@.nsf/mf/4727.0.55.003>.
^[110] Close the Gap Campaign Steering Committee, Progress and priorities report 2015 (2015) 1.
^[111] See Department of Health (Cth), National Aboriginal and Torres Strait Islander Health Plan 2013-2023, <http://www.health.gov.au/natsihp>.
^[112] The Hon Fiona Nash, Assistant Minister for Health, ‘National Indigenous Health Plan to Focus on Outcomes,’ (Media Release, 30 May 2014). Fiona Nash, Assistant Minister for Health, ‘Another Step Towards Indigenous Health Equality’, (Media Release, 24 June 2014).
^[113] The National Health Leadership Forum members form the leadership group of the Campaign Steering Committee that supports the leadership of the Co-Chairs.
^[114] Close the Gap Campaign Steering Committee, Progress and priorities report 2015 (2015) 42.
^[115] Close the Gap Campaign Steering Committee, Progress and priorities report 2015 (2015) 42.
^[116] Mick Gooda, Social Justice and Native Title Report 2014, Australian Human Rights Commission, (2014) 19.
^[117] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Report to the Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), paras 43-44.
^[118] For example, United Nations Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc E/C.19/2005/3 (2005), para 46; J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Report to the Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009); Expert Mechanism on the Rights of Indigenous Peoples, Progress report on the study on indigenous peoples and the right to participate in decision-making, Report to the Human Rights Council, 15th session, UN Doc A/HRC/15/35 (2010). See also Tom Calma, Native Title Report 2009, Australian Human Rights Commission (2009), appendix 3.
^[119] Text Box 1.4 summarises Chapter 3 of the Native Title Report 2010.
^[120] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Report to the Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 50.
^[121] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Report to the Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 48.