Social Justice Report 2001: Chapter 1: Ten years on from the Royal Commission into Aboriginal Deaths in Custody
Social Justice Report 2001
Chapter 1: Ten years on
from the Royal Commission into Aboriginal Deaths in Custody
Ten
years on from the Royal Commission into Aboriginal Deaths in CustodyThe
Royal Commission into Aboriginal Deaths in CustodyTen
years on from the Royal Commission - how far have we progressed?Rates
of Indigeneous over-representation and deaths in custodyImplementation
of the Royal Commission recommendationsAddressing
the underlying causes of Indigenous over-representation in custody
Ten
years on from the Royal Commission into Aboriginal Deaths in Custody
The year 2001
marked the tenth anniversary of the final report of the Royal Commission
into Aboriginal Deaths in Custody. The 5 volumes and 339 recommendations
that comprise the national report of Commissioner Johnston remain
among the most extensive, frank and devastating examinations of the
impact of colonialism on the Indigenous peoples of this country.
But while it
is in peoples nature to celebrate anniversaries, it must be
said that this
anniversary is a sad one. There is less to celebrate some ten and
a half years after the Royal Commissions findings than we might
have hoped for.
The reports of
the Royal Commission provided the impetus for the reconciliation process
and identified the necessity for the national inquiry into the separation
of Aboriginal and Torres Strait Islander children from their families.
They marked a turning point in the recognition of the wrongs of the
past, and did so unreservedly.
They also provided
great optimism that serious attention would be devoted to overcoming
the systemic, structural discrimination that Indigenous people face
in Australian society as a result of colonialism. But while some genuine
efforts to this end have been made in the decade since the Royal Commission
and continue to be made today, the sense of urgency and commitment
to addressing Indigenous over-representation in criminal justice processes
has slowly dissipated.
Indigenous people
have continued to die in custody at high rates in the decade since
the Royal Commission, and the average rate of Indigenous people in
corrections has steadily increased on a national basis since the Royal
Commission. Yet in 2001 this hardly raises a murmur of discontent
yet alone outrage among the broader community. These facts either
go unnoticed, or perhaps even worse in the age of reconciliation,
are simply accepted and not challenged.
As a consequence,
Indigenous affairs seem to have become a series of anniversaries
operating as an annual reminder of the unfulfilled promises and commitments
of governments.
While this year
is the tenth anniversary of the Royal Commission, next year will be
the tenth anniversary of the rejection of the Mabo decision
which rejected terra nullius and recognised the continued existence
of native title. It is also the fifth anniversary of the Bringing
them home report. Again we will have anniversaries of events where
the fundamental recognition and acknowledgement of wrongs committed
in the past have not been matched by adequate remedy and redress by
government.
It is also close
to a year and a half since the release of the Australian Declaration
towards Reconciliation and the Roadmap to Reconciliation,
and a year since the final report and recommendations to government
by the Council for Aboriginal Reconciliation. These documents were
the result of a ten year process partly instigated by the Royal Commission,
the National Report of which identified reconciliation as an
essential commitment on all sides if change is to be genuine and long
term.[1]
I ask myself
of this, is it adequate that at the end of a sustained ten year process
of reconciliation the government has failed to provide a national
response and detailed plan of action for implementation of the recommendations
of the Council for Aboriginal Reconciliation and has instead dismissed
them as of symbolic rather than practical application? The symbolism
of this approach is crystal clear it shows a demonstrable lack
of respect for the distinctive cultures of Indigenous people and a
lack of commitment to seeking a just accommodation of our distinct
identities within the Australian societal fabric.
I offer these
introductory comments in order to paint a picture of the broader context
in which we must evaluate our progress as a nation ten years on from
the Royal Commission. For ultimately, the Royal Commission was about
exposing a system of public institutions that have utterly failed
Aboriginal people, and about making a series of proposals to guide
governments in how to right the wrongs through greater
respect for Indigenous cultures and on the basis of effective participation
and self-determination.
The
Royal Commission into Aboriginal Deaths in Custody
The Royal Commission
into Aboriginal Deaths in Custody was established to investigate the
deaths of 99 Indigenous people in the custody of police, prison or
juvenile detention centres between 1 January 1980 and 31 May 1989.
The circumstances of each person whose death was examined by the Royal
Commission differed vastly, yet the Commission found that in each
case facts associated
with their Aboriginality played
a significant and in most cases dominant role in their being in and
dying in custody.[2]
While there
was no evidence of an overall pattern of abuse, neglect or racism
common to all the deaths, the Royal Commission concluded that the
reasons for Indigenous deaths in custody were unambiguous:
Aboriginal
people in custody do not die at a greater rate than non-Aboriginal
people in custody. However, what is overwhelmingly different is
the rate at which Aboriginal people come into custody, compared
with the rate of the general community.[3]
Put simply,
Aboriginal people died in custody in disproportionate numbers because
they were in custody in disproportionate numbers. The Royal Commission
offered forthright condemnation of this fact: Too many Aboriginal
people are in custody too often
(It) is totally unacceptable
and
would not be tolerated if it occurred in the non-Aboriginal
community.[4]
The recommendations
of the report focused on the necessity to reduce Indigenous over-representation
at every stage of the criminal justice system. The Royal Commission
saw that this task lay at two levels first, and in some
ways the most immediate and in many ways the least difficult, is at
the level of the criminal justice system itself.[5]
The report examined the processes of the criminal justice system from
the initial point of contact with the police through to the point
of sentencing, as well as the practices of coroners following a persons
death.
Key factors identified
by the Royal Commission in this regard were the often petty nature
of much contact with the police and the way that this contact escalated
into more serious offending and contact with particular concern
expressed at the crucial importance which detention for public
drunkenness occupies in Aboriginal custodial over-representation,
[6] as well as other forms of public order regulation.
The key principle which underpinned the recommendations of the Commission
in this regard was that imprisonment should be a measure of last resort,
with the use of alternatives to custody and diversionary mechanisms
where appropriate.
A focus on the
criminal justice system alone, however, was not going to change the
overall life circumstances which drew Indigenous people into the criminal
justice systems web:
the more fundamental
causes for the over-representation of Aboriginal people in custody
are not to be found in the criminal justice system but in those
factors which bring Aboriginal people into conflict with the criminal
justice system in the first place... the most significant contributing
factor is the disadvantaged and unequal position in which Aboriginal
people find themselves in society socially, economically
and culturally.[7]
Central to the
approach of the report was the contention that the current circumstances
of Indigenous people in this country are a direct consequence of the
history of colonisation a history which was well known to historians
and Indigenous people, but which was not well enough known among non-Indigenous
society. From that history many things flow which are of central
importance to the issue of Aboriginal over-representation in custody.
[8]
In particular,
the Royal Commission noted that this history was one of:
deliberate
and systematic disempowerment of Aboriginal people starting with
dispossession of their land and proceeding to almost every aspect
of their life (with) every turn in the policy of government
and the practice of the non-Aboriginal community postulated
on the inferiority of Aboriginal people Every step of the
way is based upon an assumption of superiority and every new step
is an entrenchment of that assumption.[9]
The Commission
acknowledged that this was often guided by the best of motives
but that it was also always done in the sure knowledge that
(Aboriginal) people needed our superior ideas and skills
Aboriginal
peoples were never treated as equals and certainly relations between
the two groups were conducted on the basis of inequality and control.[10]
This inequality manifested itself greatest at the point of contact
between Indigenous and non-Indigenous societies namely, through
policing and the criminal justice system which one criminologist
has appropriately described as an efficient mechanism for the
State to manage race conflicts and crosscultural inequalities within
society.[11]
Addressing Indigenous
over-representation in the criminal justice system in a lasting manner
therefore required fundamental change to the existing relationship
between the mainstream society and Indigenous communities. It required
that the control over Indigenous peoples lives be removed from
the public institutions of the mainstream society, particularly those
formalised through the police and criminal justice system, and that
the unequal basis of the relationship be remedied by addressing the
profound economic, social and cultural disadvantage experienced by
Indigenous peoples. Ultimately, it required an end to the domination
of Aboriginal people, and the re-empowerment and return of control
of Aboriginal lives and communities to Aboriginal hands.
The Royal Commission
did not underestimate the difficulties of this task. It identified
a number of essential prerequisites which must exist in order for
Indigenous people to be in a position to freely determine their own
destinies. First, it required the desire and capacity of Aboriginal
people to put an end to their disadvantaged situation and to take
control of their lives.[12] This aspiration
the Commission was confident existed, despite the evident social dysfunction
in many Indigenous communities. Second, it required assistance and
understanding from the broader community, with bi-partisan political
support for funding to redress historically derived Indigenous disadvantage
while at the same time allowing Indigenous societies to be self-determining.[13]
What was required
was a process of reconciliation to end the unequal position that Indigenous
people occupy in Australian society and to embrace our diversity and
cultural distinctiveness. The
final recommendation of the Royal Commission called for political
leadership for such a process with bi-partisan support and
acknowledgement of its urgency and necessity. In doing so, the Report
integrally linked the outcomes of the reconciliation process to the
need to address the underlying causes of Indigenous over-representation
in criminal justice processes.
Ten
years on from the Royal Commission how far have we progressed?
The Royal Commission
laid a solid foundation for governments to address the over-representation
of Indigenous people in custody and in custodial deaths. It clearly
identified the challenges facing government and provided 339 steps
to assist in meeting those challenges. There have clearly been advances
in the decade since the Royal Commission, but they have not been enough
and they have been accompanied by major policy regressions in other
areas. Among the advances has been the establishment of Aboriginal
Justice Councils across the country. These provide independent scrutiny
of government action in relation to criminal justice processes, and
greater input into justice policy formulation. There have been vast
improvements in coronial and statistical collection systems. There
have also been many other initiatives such as the development of the
National Indigenous Legal Studies Curriculum to support Aboriginal
field officers in legal services as well as the provision of support
mechanisms in custody for Indigenous detainees. There have been the
development of Indigenous community justice initiatives such as night
patrols and mechanisms which recognise customary law and which provide
for the input of communities and elders into criminal justice processes,
for example, the Aboriginal court in South Australia to the recently
introduced circle sentencing trial in New South Wales and Community
Justice Groups in Queensland. At a broader level, the Royal Commission
has made a significant contribution to the collective understanding
of the history of Australia. As I said in the Social Justice Report
2000, the past ten years:
have seen Indigenous
issues become indelibly etched on the national consciousness. The
wider community has become aware of a history that was previously
only considered orthodox by Indigenous communities. A series of
events, particularly the reports of the Royal Commission into Aboriginal
Deaths in Custody, the recognition of native title and the documenting
of the impact of policies of the forcible removal of Indigenous
children from their families, have exposed the foundational myths
of our nations history [14] These key
events have ensured that at the end of the first decade of the formal
process of reconciliation, we find ourselves unable to take the
easy road and ignore or forget the past In many respects,
this has been the great advance of the past decade.[15]
Clearly, we cannot
move forward as a cohesive, inclusive nation without a frank acknowledgement
of the history of relations with Indigenous Australians and its impact
on the contemporary circumstances of Indigenous communities. This
is a highly significant legacy of the Royal Commission.
But it is one thing
to acknowledge the truth of our history, and another one entirely to
deal with its consequences. There are four main indicators which demonstrate
that, despite these advances, governments have not progressed adequately
beyond the situation that existed at the time of the Royal Commission
and have failed to achieve the lasting change necessary to ensure that
Indigenous people can participate in Australian society without discrimination
and on the basis of true equality. These are:
- The increased
rate of over-representation of Indigenous people in criminal justice
processes and the continued high number of deaths in custody since
the release of the Royal Commissions recommendations;
- The poor implementation
of the recommendations of the Royal Commission; and
- The lack of
adequate progress in addressing the underlying issues which lead
to contact with the criminal justice system.
Rates
of Indigenous over-representation and deaths in custody
The most tangible
indicator of progress since the Royal Commission is the extent of
Indigenous contact with the criminal justice system. Has the rate
of over-representation of Indigenous people and the number of deaths
in custody been reduced? We could have reasonably expected that lasting
improvements for both of these measures would have been realised within
a timeframe of ten years. This has not happened. Indigenous people
continue to be grossly overrepresented in criminal justice processes,
and the level of over-representation has in fact worsened rather
than improved - since the Royal Commission. Figure 1 below shows the
imprisonment rate [16] of Indigenous and non-Indigenous
persons over the age of 16 and the ratio of Indigenous over-representation
for the period 1991 to 1999.
The line graphs
shows how the number of Indigenous prisoners has increased at an average
rate of 8% per year since 1991, compared with an increase in the non-Indigenous
prisoner population of 3% per year on average. This has meant that
the number of Indigenous prisoners in 1999 made up 20% of the total
prisoner population in 1999 compared to 14% in 1991. That a group
that constitutes just over 2% of the total population provides 20%
of the countrys prisoners is shocking.
The bar graph shows
how the ratio of imprisonment of Indigenous prisoners compared to non-Indigenous
prisoners has increased steadily from 1991 to 1999, to a national average
almost 14 times the rate of non-Indigenous prisoners in 1999. Statistics
for 2000 and 2001 have worsened with the Indigenous rate of imprisonment
now 14.9 times the non-Indigenous rate on a national basis for the June
2001 Quarter. [17]
Source:
Australian Institute of Criminology [18]
On a state by state
basis, the situation was worst in Western Australia and South Australia
where Indigenous people were incarcerated at 20.6 and 17 times the rate
of non-Indigenous people respectively at 30
June 2001. Even the state with the best record, Tasmania, has nothing
to be proud of Indigenous people are over-represented in custody
at 5.2 times the non-Indigenous rate.[19] The rates
for Indigenous juveniles are no better. The rates of juvenile detention
have fallen significantly in the twenty years from 1981 to 2000, by nearly
half for males and nearly two thirds for females. Despite this, Indigenous
juveniles remain grossly over-represented in juvenile corrections and
the rate of overrepresentation has increased.
Figure 2 shows
the incarceration rate of Indigenous and non-Indigenous juveniles
(aged 10-17 years) and the ratio of imprisonment rates from 1993 to
1999.
Source:
Australian Institute of Criminology [20]
The bar graph
shows the consistently high rate of over-representation of Indigenous
juveniles in corrective institutions. In 2000, Indigenous juveniles
were in juvenile corrections at a rate 15.5 times more than the non-Indigenous
rate, compared to 13 times in 1993. [21] Since 1997,
Indigenous juveniles in corrections have consistently made up approximately
42% of the total juvenile detention population.[22]
Perhaps most
worrying of all, however, is the rise in imprisonment of Indigenous
women in the decade since the Royal Commission. The total number of
Indigenous female prisoners on a national basis increased by 262%
between 1991 and 1999. This compares to a rise of 185% in the total
female prisoner population.[23]
The rate of imprisonment
for Indigenous women has also nearly doubled between 1991 and 1999
from 104 to 207 per 100,000 population.[24] There
are three comparisons that indicate the gravity of this situation:
- The rate of
women incarcerated per 100,000 for the total female population in
1999 was 15.3 women compared to 207 for Indigenous females.[25]
At the end of the June 2001 quarter, Indigenous women were incarcerated
at a rate 21 times that of non-Indigenous women. - In Western
Australia the incarceration rate was 29.7 times the non-Indigenous
rate, while it was 26.3 times the non-Indigenous rate in New South
Wales.[26] The result of this is that Aboriginal
women in New South Wales, for example, consistently constitute between
25-31% of the female prison population at any given time despite
comprising approximately 2% of the states total female population.[27] - This rate
of over-representation for Indigenous women (compared to total women)
is significantly higher than the rate for Indigenous men (compared
to total men), despite the national average rate of overrepresentation
of Indigenous males being unacceptably high at 14.9 times the non-Indigenous
male rate for the June 2001 quarter.[28] - The rate
of imprisonment of 207 Indigenous females per 100,000 is comparable
to the rate of imprisonment for non-Indigenous males. This is despite
imprisonment generally being a male phenomenon, with males comprising
approximately 94% of the total prison population.[29]
These figures
are profoundly distressing.
Despite this,
Aboriginal women remain largely invisible to policy makers and program
designers with very little attention devoted to their specific situation
and needs. This is of critical importance, particularly because of
the impact that imprisonment has on Indigenous families and communities
(especially through separation from children). As noted earlier, the
Royal Commission found that Indigenous people did not die at a greater
rate than non-Indigenous people in custody but in proportion to their
size of the custodial population. Given the above figures on incarceration
and the increasing rates of over-representation over the past 10 years,
it follows that Indigenous deaths in custody are likely to have continued
during the past decade at a substantial rate and one similar to that
in the decade leading up to the Royal Commission.
A total of 115
Indigenous people died in custody in the period from 1990 to 1999,
compared to 110 people in the period from 1980 to 1989. [30]
This constituted a slight fall in the average annual rate of Indigenous
deaths in custody from 4.4 persons
per 100,000 to 3.8.[31] Over the ten years from
1990 to 2000, 18% of all people who died in custody were Indigenous.[32]
There were some
significant changes related to the deaths in custody in the decade
since the Royal Commission. In the decade prior to the Royal Commission
61% of Indigenous deaths occurred in police custody. This was reduced
to 18% in the decade since. Correspondingly, the occurrence of Indigenous
deaths in prison rose from 39% in the decade prior to the Royal Commission
to 78% in the decade since.[33] The reduction of
the number of deaths in police custody may reflect the implementation
of the relevant recommendations of the Royal Commission, such as changes
to circumstances in which Indigenous prisoners are held in police
custody and cell conditions. It also reflects the transfer of the
site of deaths to prison custody. The Australian Institute of Criminology
has noted that the number of Indigenous deaths in prison custody has
doubled in the decade since the Royal Commission, as did the Indigenous
prison population.[34] This appears to confirm the
validity of the finding of the Royal Commission that Indigenous people
die in custody in rates proportionate to which they are held in custody.
Ten years on
we should not be facing a situation where rates of overrepresentation
have worsened like this and deaths in custody have not been significantly
reduced. The lack of concern and urgency from governments to rectify
this is distressing. As the Royal Commission stated, this situation
would not be tolerated if it occurred in the non-Indigenous community.
This point is
illustrated by research in Victoria which considered the rates of
over-representation of Indigenous people between 1993 and 1997. After
stating the rate at which alleged Indigenous male offenders are processed
by the police in Victoria, the researchers noted that this rate potentially
ranks them statistically amongst the most arrested groups of people
anywhere, and that if this rate applied to the non-Indigenous
male community, then in the year 1996/97 alone arrests of non-Aborigines
would number in the vicinity of half a million! [35]
This is but one illustration of the magnitude of the crisis that currently
exists across this country.
Implementation
of the Royal Commission recommendations
The second indicator
of governmental progress in the past decade is the level of implementation
of the recommendations of the Royal Commission.
The Royal Commission
was an extensive inquiry process that resulted in 99 reports on each
of the individuals who died in custody, as well as regional reports
and the five volume national report. This process ended upon submission
of the final national report in 1991. The responsibility for implementing
the Commissions findings rested with governments and their service
delivery agencies. The first recommendation of the Royal Commission
made clear that governments should do this through a process agreed
in partnership and after consultation with Indigenous organisations.
The responsibility and accountability for monitoring and evaluating
the implementation of the reports recommendations also lay with
governments at the federal, state and territory levels. $400 million
was allocated by the Commonwealth government for the implementation
of the Royal Commissions recommendations. Each jurisdiction
produced an annual implementation report for a period of 6 years.
Towards the end of this process there was also a national Ministerial
Summit to examine the status of the implementation of the recommendations.
There were a number of independent reviews of implementation during
this timeframe, by ATSIC and HREOC, criminologists and a Federal parliamentary
committee. This implementation process, while superficially appearing
extensive, has been spectacularly unsuccessful. The reporting process
was fundamentally flawed for a number of reasons.[36]
First, it did not result in accurate evaluations of progress at any
level due to the lack of independence and evaluation in each annual
government report.
The NSW Aboriginal
Justice Advisory Council (AJAC) has argued, for example, that of the
299 recommendations that apply to the NSW government a minimum of
140 of them have not been implemented in any meaningful way, with
a range of other recommendations also not fully implemented.[37]
This is despite a claim to the contrary by the NSW government in their
1998 implementation report. An example of this is the NSW government
response to recommendation 62 of the Royal Commission which calls
on governments to recognise that the problems affecting Indigenous
juveniles are so widespread and have such potentially disastrous repercussions,
and accordingly to devise strategies designed to reduce the rate of
separation of juveniles from their families, be it through care and
protection or the juvenile justice system. The government has cited
the Young Offenders Act 1997 as proof of its implementation
of the recommendation, and it is certainly a positive development.
But they have failed to mention those laws and practices which militate
against the objective of the recommendation by creating a situation
of greater contact with criminal justice processes, particularly through
repressive public space and public order regulation. I discuss the
particular impact of public order regulation in greater detail shortly.
Second, governments
generally took what my predecessor called the public relations
approach to the reporting process, re-packaging existing programs
as an implementation response at the end of each year. The NSW AJAC
nominates this as the principal problem with implementation of the
Royal Commissions recommendations, because of the decentralised
and retrospective nature of the government reporting process:
responding
to a recommendation at the end of a reporting period has meant that
agencies have responded with activity that most closely matches
recommendations rather than pro-actively examining how to implement
the specific requirements of a recommendation.[38]
This makes a
critical examination of the response meaningless and does not allow
long term planning.
This approach
has also meant that the implementation process has been piecemeal
and ad hoc. There have not been whole-of-government responses to all
the recommendations, integrating programs across departments and between
levels of government to ensure coordinated outcomes. The focus of
the reporting process has also not been on an assessment of pre-agreed,
negotiated outcomes which measure real achievements. It has been simply
responding to individual recommendations in isolation from the rest
of the report. [39] Ultimately, it means that the
implementation report is nothing more than a piece of
empty government rhetoric, and is treated by government as an end
in itself.
As my predecessor,
Commissioner Dodson, stated when examining the reality of government
claims of implementation in 1996:
Australian
governments claim to have implemented the overwhelming bulk of Royal
Commission recommendations. Implementation is not support for recommendations
or the planning of policies distant from the site of death. Implementation
is outcomes. This means changing legislation, changing priorities,
changing cultures and changing procedures. While there are discernable
improvements, [there is] a large gap between the rhetoric of implementation
reports and the circumstances of the deaths of 96 Aboriginal people
[since the Royal Commission] [40]
Commissioner
Dodson referred to a six stage plan for implementation of the Royal
Commission recommendations by government departments:
1) Reviewing
current activities;
2) Developing policies and programs;
3) Setting goals or targets;
4) Allocating responsibility for implementation;
5) Ensuring adequate communication and training supports the plans;
and
6) Establishing evaluation mechanisms.[41]
The implementation
process for the Royal Commission has rarely moved beyond this first
stage. Accompanying this flawed process of reporting over the last
decade has been a nationwide trend towards tougher law and order
policies. Such tough on crime approaches to criminal justice
have ranged from zero tolerance in the Northern Territory to truth
in sentencing in NSW, to crackdowns on activities in public spaces
across the country with the introduction of alcohol dry zones (such
as recently introduced in Adelaide) to laws which provide police with
additional powers to move people along (the Public Order and Anti-Social
Conduct Act 2001(NT)) or remove them to a safe house for their
own safety (the Children (Protection and Parental Responsibility)
Act 1997 (NSW)), to provisions allowing police to remove people
who are drunk into protective custody to the continued prosecution
for summary offences such as offensive behaviour and language.
The impact of
this approach has contradicted efforts to address Indigenous over-representation
in custody. At the same time as promoting or reporting on activities
which aim to reduce Aboriginal contact with the criminal justice system
major government initiatives, policy and legislation seem to increase
that contact. [42] The most obvious and offensive
example of this is the existence of mandatory sentencing regimes in
the Northern Territory and Western Australia alongside government
commitments to enforce the principle of imprisonment as a sanction
of last resort (recommendation 92 of the Royal Commission). Particularly
worrying in this regard is the often unnoticed, incremental, yet growing
impact of public order regulation on Indigenous people, operating
as a de facto criminalisation of Indigenous people and being the entry
point to more serious offending. Indeed, a plethora of public order
laws and increased surveillance and regulation of public space in
the past decade has operated as a control mechanism for dealing with
what is essentially characterised, either deliberately or not, as
the Indigenous problem.
Some examples
of new or amended laws since the Royal Commission include provisions
in NSW which enable police to search people they suspect of carrying
dangerous implements, [43] allow police to require
people in public areas to supply their name and address when requested
[44] and provide police with the power to move
on people where they believe that they are obstructing others
or causing fear in others, [45] as well as the Children
(Protection and Parental Responsibility) Act 1997 (NSW); and the
continued criminalisation of offensive language and offensive conduct
in sections 4 and 4a of the Summary Offences Act 1988 (NSW).
These laws have
undoubtedly disproportionately impacted on Indigenous people. For
example, based on 1998 data, Aboriginal people were grossly overrepresented
for criminal proceedings for offensive language and offensive conduct,
making up over 20% of all prosecutions despite being 1.8% of the NSW
population. 14.3% of all Aboriginal people appearing in Local Court
in NSW appeared on at least one charge of offensive conduct or language.[46]
This means that they are 15 times more likely to be prosecuted for
these charges than non-Indigenous people (a figure which quite incredulously
rises to over 80 times the state average in Inverell and Richmond
River).[47]
In one out of
every four cases in which an Indigenous person was charged with offensive
language or conduct, they were also charged with offences against
the police either resist arrest or assault police.[48]
The NSW Bureau
of Crime Statistics and Research has also recently shown that the
main categories of offences on which Indigenous people are convicted
in New South Wales are good order offences (including offensive conduct),
as well as offences against justice (such as breach of court order
and resist arrest) and violent offences. In the case of good order
and justice offences, there is a higher discretion in police as to
whether to lay charges in the first place.[49] Similarly,
a review of the operation of the Children (Protection and Parental
Responsibility) Act 1997 (NSW) in Moree and Ballina demonstrated
a clearly disproportionate impact on Indigenous people being removed
from the street. [50]
Part 3 of the
Act provides that in designated towns (council areas which are approved
for the purposes of the Act), police have the power to remove unaccompanied
young people under the age of 16 from a public place where they determine
that the person is at risk. In this context, at
risk means that they are in danger of physical harm or abuse,
or about to commit an offence.
The Act is an
amended version of one introduced in 1994 which was widely condemned
for breaching human rights and the recommendations of the Royal Commission.
In the first six months of operation of the Act in Moree, 95 young
people were picked up by the police. In 91 of these occasions, the
young person was Aboriginal. The review of the Acts operation
found that:
the Act has
impacted almost solely on Aboriginal young people to the extent
that it may be grounds for a complaint of indirect racial discrimination
to domestic and international bodies. Police are taking young people
home during the day as well as in the evening, sometimes while these
young people are involved in cultural activities. The Act has sanctioned
widespread over-surveillance and control of young people.Young people
have been incorrectly told there are curfews in place and areas
of town are no-go zones. The Act has significantly changed
behaviour patterns of young people and limited their freedom to
move around town.[51]
It is immaterial
whether laws such as this one intend these results. The principleof
non-racial discrimination clearly applies to discrimination, that
are evidenced through such disproportionate impacts, that is intentional
or by effect.[52]
These figures
are to an extent the result of a continuation of the history of poor
relations between Indigenous people and the police, which are confrontational
and which may be linked to the visibility of Aboriginal people in
public spaces.
It is difficult
to see the public interest and social purpose that are served by targeting
Aboriginal people in this way. There needs to be greater vigilance
from the NSW government in ensuring that there is adequate scrutiny
of the operation of these laws, and indeed, serious consideration
of the need for these laws to operate at all. I can see no justification
for the continued existence of laws criminalising offensive language
or conduct (with other, more appropriate options existing for charging
people where such conduct causes harm) nor the Children (Protection
and Parental Responsibility) Act 1997 (NSW). These provisions
should be repealed immediately.
This situation
is, of course, not unique to New South Wales. Recent analysis of police
records in Victoria from 1993 to 1997 demonstrates that many of the
key concerns identified by the Royal Commission have not been addressed.
In particular, public drunkenness and summary offences such as indecent
language, resisting arrest and offensive behaviour remain a significant
factor in Indigenous over-representation in custody, accounting for
almost one quarter of all processings of Indigenous people during
the period.[53]
Indigenous offenders
were also more likely to be dealt with through more formal processes
such as arrest, rather than through cautioning, across all offence
categories.[54] In relation to summary offences,
for example, Indigenous juveniles were arrested 36.1% of the time,
compared to just 15.4% for non-Indigenous juveniles; with Indigenous
juveniles cautioned just 4.6% of the time compared to 35.6% for non-Indigenous
juveniles.[55] This is despite recommendation 239
of the Royal Commission (for police to give preference to forms of
processing other than arrest) and the existence of Victorian government
instructions to police that alleged offenders should be processed
according to the seriousness of the offence, with arrest only to be
used in extreme circumstances and as a last resort. Perhaps the most
extreme form of public order regulation has occurred in the Northern
Territory, where zero tolerance policing and trespass notices in shopping
malls have combined with mandatory sentencing to produce an unwelcome
environment
for youths and Indigenous people in public spaces. This overregulation
reached new depths with the passage of the Public Order and Anti-Social
Conduct Act 2001 (NT) earlier in the year.
This Act targets
a group of Aboriginal people colloquially referred to as longgrassers,
Aboriginal people who have come into Darwin or other large towns from
communities, perhaps for medical treatment or to visit family, and
who sleep out in public parks in the dry season. The Act allows police
to move people on from a variety of locations including public places,
shops, malls, railway stations and, quite extraordinarily, from private
places which are adjacent to public places, or places that are designated
by regulation to fall within the scope of the Act (through a Place
of Anti-social conduct declaration), for example, a private
residence. The Act provides police with powers to direct a person
to stop engaging in behaviour which may constitute anti-social conduct
(the definition of which is highly ambiguous in section 3 of the Act),
and to leave the place for 3 days and not return, detain goods which
contribute to the anti-social conduct, require names and addresses
of offenders, and conduct searches of the person and their property.
Failure to comply
with any of these directions can result in a fine or imprisonment.
Police can make such directions where they have a reasonable
apprehension that the person is about to or might
engage in anti-social conduct. If a private place is designated to
be a place of anti-social conduct then its occupants forfeit a range
of civil liberties. Police are then able to enter at any time (including
with force), search without warrant, confiscate property and give
directions to residents, visitors and passers-by. These provisions
were justified by the then Police Minister by stating that people
who engage in antisocial conduct in their own homes deserve to forfeit
the social and legal rights that are usually attached to private places.[56]
In introducing the Bill, the then Chief Minister and Attorney-General
of the Northern Territory explained the new law as follows:
The Bill is
really a matter of police knowing clearly what their powers are
on activities that are not necessarily illegal but anti-social and
distasteful and force law-abiding citizens to leave the area. Im
talking about drunkenitinerants creating problems in public areas,
taking over public areas, taking over parks so children feel unsafe
going there. [57]
There are a number
of concerns about this explanation and the Act. First, it explicitly
targets itinerants or long-grassers (as they
were referred to in the Ministerial Statement on Law and Order which
announced the Bill).[58] This is a colloquial reference
to a particular group of Indigenous people in the Northern Territory.[59]
Second, if such itinerants are breaching the law by creating
problems in public areas then there is already provision to
arrest them for fighting, offensive language or conduct etc under
the Summary Offences Act 1979 (NT) and Trespass Act 1987
(NT).[60] The Act is therefore redundant to
the extent that it replicates existing provisions. This leaves the
real operation of the Act in that area of conduct which the Chief
Minister describes as not necessarily illegal but anti-social
and distasteful and which forces law-abiding citizens to leave
the public area.
In other words,
the Act provides a wide, highly ambiguous discretion which police
can exercise in reasonable circumstances when there might
be an act of anti-social conduct at some time in the future. It allows
them to direct equally law-abiding citizens to leave an area. It provides
totally unwarranted levels of police discretion, with extraordinary
scope for over-policing, and fertile ground for harassment of
disadvantaged people. [61] It raises significant
concerns with regard to the recommendations of the Royal Commission,
as well as the International Convention on the Elimination of All
Forms of Racial Discrimination (particularly Articles 2 and 5).
The newly elected
government in the Northern Territory has pledged to repeal this Act
in early 2002. It constitutes a particularly despicable example of
discriminatory public order regulation and must be repealed at the
earliest time. This trend in relation to public order regulation is
in my view one of the most distressing developments since the Royal
Commission. The seriousness of this approach extends beyond the penalties
that these offences impose. The Royal Commission vividly demonstrated
the cycle of criminalisation that many Indigenous people fall into.
These laws can operate to introduce Aboriginal people into the criminal
justice system and potentially into a pattern of more serious offending.
[62] and appear to do so for limited if any
broader social benefit.
This form of
public order regulation stands in stark contrast to recent developments
in relation to restorative justice mechanisms and the development
of alternatives to custody which are specifically aimed to avoid incarceration
and reduce such contact. It is also in contrast to broader, more holistic
community governance processes which seek to deal with the cumulative,
underlying factors such as poor health, education, housing and unemployment,
the consequences of which are often reflected in criminal behaviour.
The inadequate
level of implementation of the recommendations by all governments,
accompanied by the introduction of regressive laws and policies that
contradict the main goals of the Royal Commission, have most certainly
contributed to the lack of progress in addressing Indigenous over-representation
in the criminal justice process over the past decade.
Addressing
the underlying causes of Indigenous over-representation in custody.
The Royal Commission
continually emphasised the central importance of addressing the underlying
issues which contribute to the likelihood of contact by Indigenous
people with the criminal justice system. Addressing the racial and
economic exclusion faced by Indigenous people through the oppressive
control exercised by the State over every aspect of their lives and
the resultant entrenched socio-economic disadvantage was the
longer term imperative identified by the Royal Commission, necessary
for any change to be lasting.
Progress in addressing
these issues since the Royal Commission has been unsatisfactory. Time
and again, all governments have agreed on the necessity to address
the underlying causes of over-representation for long term change
and have committed themselves to this purpose as a matter of urgency
and priority. At the National Ministerial Summit on Deaths in Custody
in 1997, for example, relevant Ministers at the Commonwealth, state
and territory level (except the Northern Territory) stated that:
Ministers:
(a) agree that the primary issues of concern are the significant
over-representation of Indigenous people at all stages of the criminal
justice process ; (c) acknowledge that addressing the underlying
issues is fundamental to the achievement of any real, long term
solutions to the issue of indigenous incarceration and deaths in
custody; and (d) recognise that it will take the combined effort
of Commonwealth, State and Territory Governments and Indigenous
people and the widercommunity to effectively address Indigenous
over-representation. [63]
Accordingly,
they agreed the following resolution:
To address
the over-representation of Indigenous peoples in the criminal justice
system Ministers agreed, in partnership with Indigenous peoples,
to develop strategic plans for the coordination of Commonwealth,
State and territory funding and service delivery for Indigenous
programs and services, including working towards the development
of multilateral agreements between Commonwealth, State and Territory
governments and Indigenous peoples and organisations to further
develop and deliver programs. The focus of these plans will address:
underlying social, economic and cultural issues; justice issues;
customary law; law reform; funding levels and will include: jurisdictional
targets for reducing the rate of over-representation of Indigenous
people in the criminal justice system; planning mechanisms; methods
of service delivery; monitoring and evaluation. [64]
The then Social
Justice Commissioner and the Aboriginal and Torres Strait Islander
Commission (ATSIC) attended the Summit and refused to be signatories
to this resolution. This was due to concerns that the summit
outcomes unfortunately
replicate the vague, generalised approaches of the past which have
been marked by refusal to commit to achieving specific measurable
outcomes within specific time frames.[65]
State governments
had resisted attempts to specify a timeframe for the coordination
of Commonwealth State funding and service delivery arrangements
and the development of multi-lateral agreements, or even, as proposed
by the federal Attorney-General, to commit to the resolution to the
prompt development of strategic plans for such coordination.
The Commonwealth government also used the Summit to effectively withdraw
from processes to implement the Royal Commission, seeing it as almost
exclusively a responsibility for the states and territories.[66]
The Ministerial
Summit commitment was not the first such commitment that had been
made to coordination of service delivery, reduction of Indigenous
disadvantage and participation of Indigenous organisations. The
National Commitment to improved outcome in the delivery of programs
and services for Aboriginal peoples and Torres Strait Islanders had
been made by the Council of Australian Governments in 1992.[67]
It committed governments to negotiate national benchmarks and targets,
and to put into place adequate statistical collection, monitoring
and evaluation mechanisms after consultation and with the participation
of Indigenous communities and organisations. A revised national commitment
was made by the Council of Australian Governments in November 2000
through their National Communiqué on reconciliation.[68]
The Ministerial
Summit commitment and the COAG National Commitment have been largely
not implemented. Government programs and inter-governmental coordination
continue to lack sufficient accountability and transparency. On 26
September 2001, the Senate once more called for a renewed commitment
by the federal government to address these issues, by calling for
it to reaffirm:
its commitment
to addressing the unacceptably high levels of social, economic and
cultural disadvantage experienced by Aboriginal peoples and Torres
Strait Islanders in recognition that this disadvantage contributes
to Indigenous over-representation in our gaols; and in consultation
with Aboriginal peoples and Torres Strait Islander and their representative
organisations, as well as state and territory governments, to commit
to reviewing the rate at which Indigenous persons appear in court
and the rate at which they are taken into custody.[69]
There have, however,
been some pleasing developments by state governments in relation to
the 1997 Ministerial Summit in the past two years. Justice Agreements
have been concluded with representative Indigenous organisations in
most states, which are broadly in line with the commitment to the
development of multilateral agreements for the coordination of Commonwealth
State funding and service delivery arrangements. Notably, however,
the state with the second highest
rate of over-representation New South Wales has not
begun to develop such an agreement.
The Victorian
Aboriginal Justice Agreement came into effect from July 2000 and seeks
to implement a whole-of-government approach to tackle overrepresentation
of Indigenous Australians in criminal justice system by also tackling
Indigenous disadvantage. It also recommits the government to a
rigorous monitoring process across the whole of government with the
reintroduction of annual reporting to Parliament on the Royal
Commission recommendations, while also re-assessing the recommendations
to counter growing social problems such as gambling and illicit drugs.[70]
The most extensive,
and recent, of these agreements is the Queensland Aboriginal and Torres
Strait Islander Justice Agreement that was signed on 19 December 2000.
The agreement addresses one of eight key priorities (alongside family
violence, reconciliation, economic development, community governance,
service delivery, human services and land, heritage and natural resources)
adopted by the Queensland government in what has become known as the
Ten year partnership.
The Justice Agreement
sets as its long term goal that the rate of Aboriginal and Torres
Strait Islander peoples coming into contact with the Queensland criminal
justice system be reduced to at least the same rate as other Queenslanders.
The government has agreed with Queensland Indigenous representatives
that the appropriate measurable outcome for this is a reduction
by 50% in the rate of Aboriginal and Torres Strait Islander peoples
incarcerated in the Queensland criminal justice system by the year
2011. [71] with a range of supporting indicators
including reductions in the number of Indigenous people being arrested,
coming before courts, being given custodial sentences, as well as
an increase in the proportion of Indigenous people being cautioned
(corresponding to a reduction in contact through the rest of the criminal
justice system) and an increase in community service orders rather
than incarceration, [72]
The agreement
is based on the principles of ensuring Indigenous participation, recognition
of culture, acknowledgement of the past, respect for Indigenous cultural
values, equality before the law, improved coordination of government
services, empowerment and self-determination, addressing underlying
issues, and implementing the Royal Commission recommendations.[73]
The agreement makes explicit that it is not legally binding, but operates
instead at the level of a formal public commitment by government.
[74]
The adoption
of measurable outcomes and targets with monitoring and evaluation
mechanisms through agreements like the Queensland and Victorian ones
are a welcome, if somewhat belated response to the issues raised by
the Royal Commission. Now they must turn the rhetoric of these commitments
into action.
One of the consequences
of the lack of implementation of commitments such as the Ministerial
Summit and COAG National Commitment has been the lack of priority
and urgency with which governments have pursued the task of addressing
Indigenous disadvantage over the past decade.
I discuss the
approach of governments in addressing Indigenous disadvantage in more
detail in chapters 2, 3 and 6 of this report. In brief, redressing
Indigenous disadvantage is not merely something that is desirable,
but is a matter of obligation in order to guarantee a free and equal
society. Governments must take deliberate, concrete steps which are
targeted as clearly as possible to reducing existing inequalities
as quickly and efficiently as possible through the adoption of benchmarks
and targets. Adequate monitoring and evaluation mechanisms are necessary
in order that governments will be held accountable to do more than
simply manage the existing inequalities in society. This is particularly
so where the disadvantage that exists is the consequence of historic
systemic discrimination against a particular racial group.[75]
In last years
report I argued that current funding arrangements are not adequate
to meet this objective in a number of ways:
Despite the
commitment of significant resources to redress Indigenous disadvantage,
there is very little to indicate the priority that governments attach
to reducing the inequalities. The 2000 budget paper on Indigenous
policy notes the record amount allocated to targeted
Indigenous specific programmes At no stage does it identify
the reduction of the disparities in enjoyment of rights between
Indigenous and non-Indigenous people as the governments purpose
Also missing from current funding and service delivery arrangements
are adequate performance targets, benchmarks and mechanisms to ensure
government accountability and transparency [76]
I also noted
that current approaches do not provide sufficient support for Indigenous
participation in the design and delivery of services, the setting
of priorities and decision making, or for building Indigenous capacity
to manage services; and are not sufficiently coordinated between government
agencies or across governments. The Commonwealth Grants Commission
has also noted that mainstream government services, in urban, rural
or remote areas, are not accessible to Indigenous people on an equitable
basis:
Mainstream
services are intended to support access by all Australians to a
wide range of services. Given the entrenched levels of disadvantage
experienced by Indigenous people it should be expected that
their use of mainstream services would be at levels greater than
those of non-Indigenous Australians. This is not the case
mainstream services do not meet the needs of Indigenous people to
the same extent as they meet the needs of non-Indigenous people.
In general, Indigenous people experience
greater disadvantage and have greater needs than non- Indigenous
people and, for geographic, economic and cultural reasons, mainstream
services are less accessible to them.[77]
I have also
expressed major reservations in my previous social justice reports
about the federal governments overall approach to Indigenous
disadvantage, as expressed through the catchcry of practical
reconciliation.[78]
This approach
draws distinctions between practical or real
issues and those issues which are categorised as being merely symbolic.
It emphasises addressing Indigenous disadvantage in the key areas
of health, housing, education and employment as the real issues whereas
other issues, across an ever-expanding range, such as recognition
of rights to land and culture, reparations for forcible removal, a
treaty process, and self-determination are not seen as of practical
benefit. This approach was taken even further in the past year when
the Minister for Reconciliation and Aboriginal and Torres Strait Islander
Affairs proclaimed that public concerns about levels of violence and
abuse in Indigenous communities had assured the ascendency of the
practical reconciliation approach over a rights based agenda.[79]
Practical
reconciliation retreats from the approach of the Royal Commission
in two significant ways. First, it strips Indigenous disadvantage
of its historical context. Over-representation in criminal justice
and care and protection processes, high levels of domestic violence
and abuse, as well as poor educational attainment and health and high
unemployment are not addressed as matters which are fundamentally
a consequence of the history of dispossession, protection and control.
Practical reconciliation admits no contemporary, ongoing consequences
of this history. Consequently, there is nothing particularly distinctive
about Indigenous disadvantage or about the response necessary to it.
An illustration
of this approach is the suggestion by the federal government to the
recent Commonwealth Grants Commission Inquiry into Indigenous funding
need, that the needs of Indigenous people living in urban areas should
be met by mainstream programs so that specific Indigenous funding
programs can focus on addressing issues facing Indigenous people in
rural and remote areas.
The Commonwealth
Grants Commission rejected this suggestion as too simplistic. They
found that there are significant problems in access to mainstream
health, housing and employment services for Indigenous clients in
urban areas as they are planned and delivered for the common user.
As a result they are unable to cope with the level of disadvantage
or special needs of Indigenous people, and may be inaccessible for
cultural reasons. In the case of health and housing services, they
may be inaccessible due to the historic low income and
lack of accumulated wealth of Indigenous families, resulting from
intergenerational poverty.[80]
Second, the constrained
approach of practical reconciliation does not seek to transform the
relationship between government and Indigenous people. It seeks to
maintain the existing structure in the delivery of services. Accordingly,
it does not change the unequal basis of the relationship and leaves
Indigenous people disempowered. Change to this power dynamic, through
the effective participation of Indigenous people in decisions that
affect them, was seen as a central requirement by the Royal Commission.
Lessons
for the future.
I have not examined
the inadequacy of governmental responses to the Royal Commission simply
in order to reminisce or shrug my shoulders at what could have been.
The experiences and the mistakes of the ten years since the Royal
Commission must be built on in order to frame a better future. Indigenous
communities cannot afford a continuation of present rates of incarceration
and deaths in custody.
This report examines
a number of crucial developments in the current approach of governments
to social justice for Indigenous people: namely, policies regarding
welfare dependency and initiatives for developing Indigenous community
governance capacity; the importance of the principle of imprisonment
as a last resort and the availability of alternatives to detention;
and the progress of the reconciliation process. Throughout the report
I return to the concerns that have been raised in this introduction.
For example, what is the nature of the commitments that have been
made by governments at the end of the reconciliation process? What
is the process for implementing reconciliation, how does it assure
Indigenous participation and how does it overcome the flaws and problems
identified by the Royal Commission? How do current approaches seek
to facilitate Indigenous control and empowerment? The next section
considers the current debate about Indigenous welfare dependency.
Chapter 2 analyses
recent welfare reform initiatives which have taken place on the basis
of mutual obligation and practical reconciliation. Chapter 3 then
considers the need for a more holistic approach to Indigenous economic
marginalisation which provides greater emphasis on the development
of Indigenous community governance capacity. The chapter provides
two detailed case studies of differing approaches to capacity building
and service delivery, which demonstrate the ingenuity and determination
of Indigenouscommunities to control their destinies and move beyond
welfare dependency. The following section then examines two contradictory
approaches to criminal justice reform which have been integral to
the approach of the Western Australian (WA) and Northern Territory
(NT) governments in recent years namely, so called mandatory
sentencing laws and juvenile diversionary schemes. It is a great
irony that diversionary schemes based on the principle of providing
alternatives to custody and the use of imprisonment as a sanction
of last resort should
be introduced in the NT as a measure to run concurrently with mandatory
sentencing and that both diversion and mandatory sentencing should
be so integral to the crime prevention approach of the WA government.
These two approaches are clearly contradictory and work towards opposite
goals. Chapter 4 provides an overview of recent developments in relation
to mandatory sentencing laws in both WA and the NT. Chapter 5 then
examines diversionary schemes for juvenile offenders in these jurisdictions
and assesses them against human rights standards. These chapters fulfil
the requirements of a review requested by the Senate that I had indicated
I would undertake through the normal performance of my functions.
The final section
of the report then examines the progress towards reconciliation in
the first year since the term of the Council for Aboriginal Reconciliation
ended. It examines the level of commitment made at the national level
to progress reconciliation and to achieve real change to the lives
of Indigenous people rather than merely being a populist movement
based on the expression of kind sentiment. The lack of progress in
addressing the concerns of the Royal Commission offers us a stark
reminder of what is at stake in this country with reconciliation.
As a society, we cannot afford to look back in ten years time on the
reconciliation process with the same regrets that we now do on the
Royal Commission.
1. Royal
Commission into Aboriginal Deaths in Custody, National Report
Volume 1, AGPS Canberra 1991, pxlviii.
6. Royal
Commission into Aboriginal Deaths in Custody, National Report
Volume 3, AGP Canberra 1991, p3.
7. Royal
Commission into Aboriginal Deaths in Custody, National Report
Volume 1, op.cit, p15.
11. Broadhurst,
R Crime, justice and Indigenous peoples: the new justice
and settler states (1999) 32(2) Australian and New Zealand
Journal of Criminology 105, p105.
12. Royal
Commission into Aboriginal Deaths in Custody, National Report
Volume 1, op.cit, p16.
14. Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2000, Human Rights and Equal Opportunity Commission,
Sydney 2000, p6.
16.
These data include both sentenced prisoners and remandees.
17. Australian
Bureau of Statistics, Corrective services Australia June
Quarter 2001, ABS Canberra 2001, Table 5, p20.
18. Australian
Institute of Criminology, Australian crime Facts and figures
2000, AIC Canberra 2001, Figure 52.
20. Australian
Institute of Criminology, Australian crime facts and figures
2000, op.cit, Figure 59. See also Australian Institute of Criminology,
Persons in juvenile corrective institutions 1981- 2000, AIC Canberra
2001, Table 3 and Figure 2.
21. Australian
Institute of Criminology, Persons in juvenile corrective institutions
1981-2000, AIC Canberra 2001, Table 3 and Figure 2. This over-representation
rate reached as high as 17 times the non-Indigenous rate in 1997:
Australian Institute of Criminology, Australian crime facts
and figures 2000, op.cit, Figure 59.
22. Australian
Institute of Criminology, Australian crime facts and figures
2000, op.cit, Figure 59.
23. Australian
Institute of Criminology, Women in prison Numbers soar,
Media Release, 1 October 2000. See Also: Margaret Cameron, Women
prisoners and correctional programs, Trends and issues in crime
and criminal justice Number 194, Australian Institute of Criminology,
Canberra 2001, pp1-2. It must be noted, however, that the female prisoner
population is extremely small and constitutes approximately 6% of
the total prison population.
26. Australian
Bureau of Statistics, Corrective services Australia June
Quarter 2001, op.cit, Table 5, p21.
27.
Select Committee on the increase in the prison population, Interim
report: Issues relating to women, NSW Parliament, Sydney 2000,
para 3.12.
28.
Australian Bureau of Statistics, Corrective services Australia
June Quarter 2001, op.cit, Table 5, p21.
29. Australian
Institute of Criminology, Women in prison Numbers soar,
op.cit, p1.
30. Williams,
P, Deaths in custody: 10 years on from the Royal Commission,
Trends and Issues in Criminal Justice Number 203, Australian
Institute of Criminology, Canberra 2001, p2.
32. Collins,
L and Mouzos, J, Australian deaths in custody and custody-related
police operations 2000, Trends and Issues in Criminal Justice
Number 217, Australian Institute of Criminology, Canberra 2001,
p2.
33.
Williams, P, Deaths in custody: 10 years on from the Royal Commission,
op.cit, p2.
35.
Gardiner, G, Indigenous people and the criminal justice system
in Victoria: Alleged offenders, rates of arrest and over-representation
in the 1990s, Criminal Justice Monograph 2001, Centre for Australian
Indigenous Studies, Monash University 2001, p27. Emphasis in original.
It is notable that rates of over-representation of Indigenous males
in Victoria are significantly lower than many other states, where
this situation would potentially be far worse.
36. See
further: Aboriginal and Torres Strait Islander Social Justice Commissioner,
Indigenous deaths in custody 1989-1996, Aboriginal and Torres
Strait Islander Commission, Canberra 1996, p257.
37. Aboriginal
Justice Advisory Council (NSW), Royal Commission into Aboriginal
Deaths in Custody: Review of NSW government implementation of recommendations,
AJAC NSW, Sydney, 2000, p8.
38.
Aboriginal Justice Advisory Council (NSW), Where to from here?
10 years after the Royal Commission, some suggested direction for
Aboriginal justice planning, AJAC (NSW), Sydney 2001, p9.
40. Aboriginal
and Torres Strait Islander Social Justice Commissioner, Indigenous
deaths in custody 1989-1996, op.cit, pviii.
42. Aboriginal
Justice Advisory Council (NSW), Royal Commission into Aboriginal
Deaths in Custody: Review of NSW government implementation of recommendations,
AJAC NSW, Sydney, 2000, p8.
43. The
Crimes Legislation Amendment (Police and Public Safety) Act 1998
(NSW).
45. Summary
Offences Act 1988 (NSW), s28.
46. Aboriginal
Justice Advisory Council NSW, Policing public order, offensive
language and behaviour, the impact on Aboriginal people, AJAC,
Sydney 1999, p3.
48. Aboriginal
Justice Advisory Council NSW, Policing public order, offensive
language and behaviour, the impact on Aboriginal people, AJAC,
Sydney 1999.
49. Baker,
J, The scope for reducing indigenous imprisonment rates, NSW
Bureau of Crime Statistics and Research Crime and Justice Bulletin
Number 55, Sydney 2001, p3.
50.
Aboriginal Justice Advisory Council NSW, A fraction more power
review of the impact of the Children (Protection and Parental
Responsibility) Act on Aboriginal people in Moree and Ballina,
AJAC NSW 2000.
52.
For detailed discussion of this obligation, see Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report
2000, HREOC Sydney 2000, Chapter 3.
53. Gardiner,
G, Indigenous people and the criminal justice system in Victoria:
Alleged offenders, rates of arrest and over-representation in the
1990s, op.cit, pp92-93.
56. Quoted
in Sheldon, J, NT Update: Public Order and Anti-Social Conduct
Act (NT), Rights Now, National Children and Youth Law Centre,
Sydney, September 2001, p9.
57.
Interview quoted in the Northern Territory News, 4 June 2001, and
cited in Parity, An illusion of equity: Aboriginal homelessness
and NT government policy under the Public Order and Anti- Social Conduct
Act 2001, 14(6) Parity 16, p16.
58. The
Hon D Burke, Ministerial statement to the NT Legislative Assembly
Law and order, 5 June 2001
59. Parity,
An illusion of equity, op.cit, p16; Senator Ridgeway, Hansard
Senate, 28 June 2001, p25226.
60. There
are also in place Council by-laws such as ss 103,106 Darwin City
Council By-laws, and ss 55-56 Alice Springs (Control of Public Places)
By-laws. The use of these by-laws has also been the subject of
much concern.
61. Sheldon,
J, NT Update: Public Order and Anti-Social Conduct Act (NT),
op.cit, pp9-10.
62. See
for example: Aboriginal Justice Advisory Council, Policing public
order, offensive language and behaviour, the impact on Aboriginal
people, op.cit; Hunter, B and Borland, J, The Effect of Arrest on
Indigenous Employment Prospects, NSW Bureau of Crime Statistics
and Research: Crime and Justice Bulletin 45, Sydney 1999.
63. Reproduced
in Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 1996-97 Fifth report, HREOC Sydney
1997, pp153-54.
67. For
a discussion of the National Commitment see Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report
1999, HREOC Sydney 2000, Chapter 1.
68. This
is discussed in more detail in chapter 6 of this report.
69. Senator
Ridgeway, Motion, Hansard, Senate, 26 September 2001, pp27281-82.
70. Government
of Victoria, Victorian Aboriginal Justice Agreement a partnership
between the Victorian government and the Aboriginal community,
Victorian Aboriginal Justice Committee, Melbourne 2000, p3.
71. Queensland
Government, Queensland Aboriginal and Torres Strait Islander Justice
Agreement, Queensland Government, Brisbane 2001, p11.
75. Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2000, op.cit, pp24-25.
77. Commonwealth
Grants Commission, Report on Indigenous funding, Commonwealth
of Australia, Canberra 2001, pp59, 43.
78. For
example: Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 1999, Chapter 1; Social Justice Report
2000, pp21-27, pp57-64, and Chapter 4.
79. Ruddock,
P, Aborigines reach a turning point, The Age, 23 July 2001, p15. See
also: Jonas, W, Moving forward from practical reconciliation
to social justice, Speech, Moving Forward: Achieving reparations
for the stolen generations, University of New South Wales, Sydney
15 August 2001, www.humanrights.gov.au/movingforward/.
This issue is discussed in greater detail in chapter 6 of this report.
80. Commonwealth
Grants Commission, op.cit, pp61-3.