Social Justice Report 2001: Summary

Social Justice Report 2001

Summary

1.
Ten Years on from the Royal Commission into Aboriginal Deaths in Custody

2. Mutual Obligation, Welfare Reform and Indigenous
Participation: A Human Rights Perspective

3.
Indigenous Governance and Community Capacity-Building

4. Laws Mandating Minimum Terms of Imprisonment ("Mandatory
Sentencing" and Indigenous People

5. Juvenile Deversionary Schemes and Indigenous People

6. Reconcilation - National Progress One Year On

Recommendations

1. 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.

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

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. (Social Justice Report 2001, p7)

How far have
we progressed?

Advances in the
decade since the Royal Commission include:

the establishment
of Aboriginal Justice Councils across the country;
vast improvements
in coronial and statistical collection systems;
the development
of the National Indigenous Legal Studies Curriculum to support Aboriginal
field officers in legal services;
the provision
of support mechanisms in custody for Indigenous detainees; and
the development
of Indigenous community justice initiatives - eg. night patrols and
mechanisms which recognise customary law.

At a broader level,
the Royal Commission has made a significant contribution to the collective
understanding of the history of Australia. However, there have been
major policy regressions in other areas. The lack of adequate progress
by governments is indicated by:

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 Commission's 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.

Rate of Indigenous
over-representation since the Royal Commission

The level of over-representation
has in fact worsened - rather than improved - since the Royal Commission.

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 country's
prisoners is shocking. (Social Justice Report 2001, p12)

The rate of imprisonment
of Indigenous prisoners increased 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 14.9 times
the non-Indigenous rate on a national basis for the June 2001 Quarter.

Juveniles:
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 over-representation
has increased. 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. Since 1997, Indigenous juveniles in corrections have
consistently made up approximately 42% of the total juvenile detention
population.

Women:
Perhaps most worrying of all is the rise in imprisonment of Indigenous
women since the Royal Commission. The total number of Indigenous female
prisoners on a national basis increased by 262% between 1991 and 1999,
and their rate of imprisonment nearly doubled during this period. 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. Despite
this, Aboriginal women remain largely invisible to policy makers and
program designers with very little attention devoted to their specific
situation and needs.

Deaths in custody
since the Royal Commission

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.
During the past decade Indigenous deaths in custody have continued 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. 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. Over the ten years from 1990 to 2000,
18% of all people who died in custody were Indigenous.

Ten years
on we should not be facing a situation where rates of over-representation
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.
(Social Justice Report 2001, p16)

Implementation
of the recommendations of the Royal Commission

$400 million was
allocated by the Commonwealth government for the implementation of the
Royal Commission's recommendations. While the implementation process
superficially appeared to be extensive, it has been spectacularly unsuccessful:

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. (Social
Justice Report 2001, p18)

The reporting process
was fundamentally flawed for a number of reasons. 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. Second,
governments generally took the 'public relations approach' to the reporting
process, re-packaging existing programs as an implementation response
at the end of each year (ie, it has been a decentralised and retrospective
process which makes a critical examination of the response meaningless
and does not allow long-term planning).

Accompanying this
flawed process of reporting over the last decade has been a nationwide
trend towards tougher 'law and order' policies. 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'. 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.

The report highlights
concerns in relation to the impact of public order laws in New South
Wales and Victoria (pp19-21), as well as in the Northern Territory (pp21-23)
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 over-regulation
reached new depths in the NT with the passage of the Public Order
and Anti-Social Conduct Act 2001 (NT). This act 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. It is a discriminatory form of public order
regulation which must be repealed.

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, and appear to do so for
limited - if any - broader social benefit. (Social Justice Report
2001, p23)

The inadequate
implementation of the Royal Commission's recommendations by all governments,
accompanied by the introduction of regressive laws and policies that
contradict its main goals, have most certainly contributed to the lack
of progress in addressing Indigenous over-representation in the criminal
justice process during the past decade.

Addressing the
underlying causes of over-representation of Indigenous people

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. While governments have committed themselves
time and again to addressing these issues as a matter of urgency and
priority, progress in this area since the Royal Commission has been
unsatisfactory.

Commitments such
as the Ministerial Summit on Deaths in Custody (1997) and the COAG National
Commitment (1992) have been largely not implemented. Government programs
and inter-governmental coordination continue to lack sufficient accountability
and transparency.

However, there
have 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. These are broadly in line with the commitment to the development
of multilateral agreements for the coordination of Commonwealth-State
funding and service delivery arrangements. The Queensland and Victorian
agreements, which set measurable outcomes and targets with monitoring
and evaluation mechanisms, are a welcome, if somewhat belated response
to the issues raised by the Royal Commission. Notably, however, the
state with the second highest rate of over-representation - New South
Wales - has not begun to develop such an agreement.

One of the consequences
of the failure to implement 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. Later chapters in the report examine
the limits and failures of practical reconciliation in this regard.

Reconciliation

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.

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. (Social Justice Report 2001, p30)

Chapter 6 of the
report examines the progress towards reconciliation in more detail.

2.
MUTUAL OBLIGATION, WELFARE REFORM AND INDIGENOUS PARTICIPATION: A HUMAN
RIGHTS PERSPECTIVE

Mutual obligation
and welfare reform

A mutual obligation
approach has been adopted to reform the welfare system in recent years.
This approach asserts that government assistance is not a right or entitlement
but must be reciprocated by recipients through meeting a range of obligations
and responsibilities. This may include performing certain duties such
as seeking work, undertaking training or accepting temporary employment
in exchange for income support. It is often accompanied by an understanding
that some form of active participation, geared towards greater 'self
reliance', is preferable to 'welfare passivity' or 'dependency'.

Mutual obligations
- some general concerns

There are a range
of general concerns with a mutual obligation approach, which often impact
more greatly on Indigenous peoples. This approach assumes that all citizens
are on a more or less equal footing, that there is little difference
between their circumstances, and that most people exercise a degree
of choice in regard to their employment situation.

The emphasis on
self reliance in mutual obligation policy promotes a view that wider
social problems associated with welfare dependency can be addressed
through changing the circumstances of individual lives. But the lack
of employment opportunities available for certain groups means that
mutual obligation policies are likely to be harsher in their impact
on them than on other sections of society. Significant factors contributing
to increasing poverty and inequality include: locational disadvantage,
lack of education and employment skills, and family history of unemployment
or precarious employment.

The expectation
that all adult individuals, including women, Indigenous and disabled
peoples, will participate in mutual obligation activities further has
the potential to increase the injustices and inequities experienced
by the disadvantaged, as illustrated by the harsh penalties incurred
as a result of 'breaching':

Research by
ACOSS and others indicates that 'breaching' places a greater burden
on already disadvantaged jobseekers. For example, from June 1997 to
March 1998 national breach rates were 'consistently higher among Indigenous
identifiers by a factor of about one-and-a-half in relation to activity
test breaching and a factor of two in administrative breaching.' (Social
Justice Report 2001, p40)

In contrast to
the demands placed on unemployed citizens, ways of enforcing the obligations
of other sectors of the community such as business are unclear. Some
have promoted the notion of 'social partnerships' for building up communities.
However, the inequalities between business and other players, such as
the precarious position of some disadvantaged communities and whether
they can offer business adequate incentives to work with them, need
careful consideration.

Mutual obligation,
practical reconciliation and Indigenous welfare reform

Mutual obligation
fits hand in glove with the government's current 'practical reconciliation'
approach to Indigenous policy. Practical reconciliation focuses on issues
relating to Indigenous disadvantage in the areas of education, health,
housing and employment as opposed to other 'symbolic' issues, such as
the need for a treaty or an apology, said not to lead to concrete change.

But while mutual
obligation can be seen as integral to the process of practical reconciliation,
to date there has been very little focus on the Indigenous specific
dimensions of welfare dependency in debates about general welfare reform
and mutual obligation. This is a main criticism of the McClure report
on welfare reform and the government response to it. It is also evident
in the inequities between the operational funding support provided to
Work for the Dole programs compared to the Indigenous specific Community
Development Employment Projects (CDEP), meaning that CDEP remains a
'poor cousin of the mainstream' program.

Mutual obligation
and practical reconciliation share a number of features in common: they
focus on the individual's relationship to the State; are emotive at
a simplistic level, particularly in the language used to explain them;
and are ahistorical - they give little attention to the underlying causes
of Indigenous disadvantage and admit no contemporary consequences.

The context
of Indigenous marginalisation

Current Indigenous
employment and welfare reform policy strives for equality of participation
in the formal economy and through increased 'self-reliance'. This is
a necessary focus and is to be welcomed. But such an approach is limited.
It does not acknowledge the broader fabric of social and economic factors
that contribute to the level of Indigenous disadvantage and economic
marginalisation.

The 'practical'
focus on addressing welfare dependency through mutual obligation means
that a range of inter-related factors - social, cultural, political
and historical - integral to reversing Indigenous marginalisation
are being consistently obscured from the social policy lens. (ibid,
p57)

In particular,
historical, demographic, geographic and cultural factors make improvements
to Indigenous employment rates and economic participation difficult
to facilitate. These include poor health, low educational levels of
Indigenous people (which is of increasing concern with the rapid technological
change in the labour market), over-crowding of living conditions and
low self-esteem. These factors are often compounded in remote areas
where there is a lack of business development and employment opportunities,
and where long distances can make it difficult to undertake mutual obligation
activities.

Urging self-reliance
for many Indigenous people in this context, without acknowledging
or adequately addressing these underlying factors, is fanciful. When
combined with punitive, coercive measures it is potentially vindictive
it can in fact further demoralise (people) if support is inadequate.

As a consequence,
the mutual obligation approach over-stretches itself in its application
to Indigenous welfare reform by assuming that 'the intensity and scale
of personal and social problems, wrongly attributed to welfare
dependency, can be addressed through mechanisms which both enable,
and ultimately compel, individuals to engage with the formal economy'.
(ibid, p54)

Mutual obligation
and Indigenous cultural values

Mutual obligation is often said to be consistent with Indigenous cultural
values such as reciprocity and an emphasis on community. Noel Pearson
has been prominent in advocating mechanisms for restoring traditional
values such as 'reciprocity' to address social breakdown and community
dysfunction. He has also argued that a rights-based welfare regime has
given way to passivity and a sense of entitlement.

Pearson's call
for greater reciprocity and community responsibility is consistent with
a rights-framework. But there are differences between mutual obligation
as a social policy principle and reciprocity as a principle of social
obligation in Indigenous communities. Reciprocity applies to the individual
and his or her community, family and local group. Mutual obligation
applies to the relationship between the individual and the State. The
latter is also aimed at involving individuals in an increasingly mobile
workforce within a globalised order.

Traditional forms
of Indigenous participation may not be easily factored into the mutual
obligation equation. Many Indigenous Australians may already be involved
in meeting their obligations to community - for example, through cultural
activities and family support. These forms of participation may also
fall short of public policy agendas to stimulate labour market participation.

Pearson's approach
is regularly cited as support for the view that rights are not 'practical'
and do not contribute to improving Indigenous people's lives. Critics
of the rights agenda often imply that when Indigenous people gained
citizenship rights in 1967 that this agenda was fully implemented -
and that a rights approach has failed Indigenous people and should be
abandoned. But citizenship rights came 170 years late:

What has fundamentally
been lacking before and since 1967 is a rights culture that respects
Indigenous people and provides them with the opportunity to participate
on an equal footing in Australian society. The refusal to tolerate
the discriminatory practices of exclusion from welfare, education
and participation in the mainstream society and economy any longer
was merely the first step on the road to a culture of rights and respect
for Indigenous people. It is disingenuous to suggest otherwise. (p61)

Indigenous empowerment

The mutual obligation
approach is yet to transform the relationship between Indigenous people
and the mainstream society into a more equal one. Although it strives
for individual empowerment, mutual obligation does so from a position
in which the government is not prepared to relinquish the power and
control that it holds.

The unwillingness
to change the existing power dynamic ultimately constrains the relevance
of the mutual obligation approach to achieve lasting and sustainable
change. Changes to this power dynamic, through the effective participation
of Indigenous people in decisions that affect them, are essential.
(p65)

The terms of reference
of this approach are 'simply too narrowly focused to fully appreciate
and take account of the broader context of the everyday lives of Indigenous
people'.

Any commitment
to overcoming disadvantage should also involve a full democratic partnership
with Indigenous people, 'ensuring that Indigenous individuals and
communities are adequately involved in decisions that affect their
well being, including the design and delivery of programs'. It should
also provide support for Indigenous autonomy in terms that recognise
and respect cultural difference and the right to self-determination,
particularly in the form of strategies for capacity-building and increasing
self-governance. (ibid, p65)

The next chapter
examines approaches for devolving power to the community level through
development and support for building the capacity of Indigenous communities.
Within this context, mutual obligation could be more meaningful in the
longer term.

3.
INDIGENOUS GOVERNANCE AND COMMUNITY CAPACITY-BUILDING

Why are governance
and capacity-building important for Indigenous people?

Capacity-building
relates to 'the abilities, skills, understandings, values, relationships,
behaviours, motivations, resources and conditions that enable individuals,
organisations, sectors and social systems to carry out functions and
achieve their development objectives over time'. Governance concerns:
'the structures and processes for decision making [and] is generally
understood to encompass stewardship, leadership, direction, control
authority and accountability.' (Social Justice Report 2001, p67)

Common reasons
given for focussing on capacity-building and governance include the
need for increased Indigenous participation in decision-making, better
coordination and less duplication of services, and greater regional
and local involvement. A greater focus on governance and capacity-building
also provides an opportunity for governments to commit to long-term
processes for redressing Indigenous marginalisation. Building community
capacity provides a potential vehicle for the renewal of societal structures
and the political recognition and representation of Indigenous peoples'
status.

If welfare
reform is to provide greater opportunities for Indigenous participation,
then government must take the need for reform of existing funding
and administrative arrangements seriously. It must recognise the part
the current community services model has played in generating Indigenous
welfare dependency and move beyond this to find ways of developing
and resourcing Indigenous capacity-building and governance arrangements
that will provide an adequate basis for economic development and self-sufficiency.
In doing so, it must also take up the challenge of facilitating rather
than repressing the recognition of the specific characteristics and
aspirations of Indigenous cultures and societies in Australia. (p97)

Governance and
reconciliation

The development
of governance structures and regional autonomy provides the potential
for a successful meeting place to integrate the various strands of
reconciliation. In particular, it is able to tie together the aims
of promoting recognition of Indigenous rights, with the related aims
of overcoming disadvantage and achieving economic independence. (Social
Justice Report 2000, p107)

The Royal Commission
into Aboriginal Deaths in Custody emphasised the necessity for a changed
relationship between Indigenous people and government to address long-standing
disadvantage, and recommended the use of longer term, more flexible
forms of funding arrangements.

Both Reconciliation
Australia and the Council of Australian Governments have introduced
strategies supporting capacity-building and governance in their frameworks
for progressing reconciliation. Government initiatives have also been
introduced following the Indigenous Community Capacity Building Roundtable
held in October 2000 and as part of the welfare reform package in the
2001 federal budget.

But commitments
to date have been short-term and minimal in terms of funding support:

While these
initiatives are to be welcomed, they only hint at the potential for
reconfiguring and transforming the relationship of Indigenous communities
with the mainstream society. Indigenous community capacity and governance
mechanisms could be furthered through facilitating more effective
forms of financial and administrative self-government. (Social Justice
Report 2001, p75)

Case studies
of governance and capacity building initiatives

Current initiatives
by Indigenous people to create new governance structures and processes
include: ATSIC Murdi Parki Regional Council Plan, Cape York Peninsula
Partnerships Plan, Miwatj Regional Council and the Torres Strait Regional
Authority. The Social Justice Report 2001 focuses on the Mutitjulu
Community Participation and Partnership Agreement and Yenbena Indigenous
Training Centre.

Mutitjulu Community
Participation and Partnership Agreement

Budget 2001's welfare
reform package introduced the Community Participation Agreement (CPA)
initiative for remote communities. Modelling is now taking place with
the Mutitjulu Community Council and residents (Anangu people) located
near Uluru-Kata Tjuta National Park. This CPA's key concept is 'participation':
all social security recipients at Mutitjulu are to design and negotiate
their obligations and activities in return for income support, and plan
for better delivery of services at the local level. Participation activities
are to be meaningful and flexible, and include everyday cultural, social
and economic activities in the community. The initiative also aims to
identify innovative approaches to financial management, to build the
organisational and management capacity of the community and to explore
opportunities for partnerships with the business and NGO sectors. This
CPA model raises the following issues:

Coerciveness:
The initiative seeks to offset the coercive elements of social
security requirements by adapting compliance measures to suit the
culture and circumstances of individual Indigenous communities.
Financial
commitments: There needs to be a commitment from government beyond
Budget 2001's 4-year funding period: a 5-10 year commitment is seen
as necessary for the CPA model to make any inroads on the current
situation.
Interagency
involvement:
Ideally the model would be based on the pooling of resources across
government agencies providing one incoming financial stream to the
community. There needs to be clarity about the forms of commitment
various partners are to make, including to meeting assessable goals
and objectives over a set time-frame.
Flexibility:
Some of solutions being considered by the Mutitjulu Community will
probably be relevant and transferable to other communities participating
in the CPA initiative. But it is essential that design of CPAs remains
flexible.

Whatever the future level of success of the CPA initiative, Indigenous
people should not be restricted to one model as a means of pursuing
greater autonomy and control over their affairs. Other initiatives
for furthering Indigenous capacity and governance, including those
based in native title, should also be encouraged. (p91)
Ownership:
Governance models must be owned by Indigenous people themselves and
the relationship of Indigenous kinship and authority structures to
the processes and structures of these models must be taken into account.

it
is important that some of the more fundamental issues concerning
the respective roles and authority of Indigenous, government and
other partners are re-visited, or in time these new models may run
the risk of becoming yet another case of a failed Indigenous policy
initiative and a further source of 'blaming the victim'. (p84)

Yenbena Indigenous
Training Centre

Yenbena Indigenous
Training Centre is located at Barmah near Echuca in northern Victoria
and has been in operation since March 2001. It was established by Yorta
Yorta Nation Aboriginal Corporation to provide targeted and culturally
appropriate training for Indigenous young people in the area in order
to increase employment, community participation and capacity-building
outcomes.

The Yorta Yorta
Aboriginal community found that Commonwealth programs such as Work for
the Dole and CDEP did not provide adequate skilling and mentoring for
successful transition from mutual obligation-type activities to employment.
The community sought alternative Commonwealth and State with a view
to tailoring a training program to meet their own needs.

Yenbena is now
a registered training provider, and offers courses in response to identified
training needs in the local area. All training modules are linked to
placements and each employee has a pathway in which future jobs are
identified. The program's flexibility enables the Yorta Yorta Aboriginal
community to integrate cultural knowledge with training without having
to create a separate opportunity. For example, courses (such as communication
skills, business administration and community work) are customised to
suit the local context and provide culturally-specific training. Elders
also play a significant role as trainers and mentors.

While this initiative
is creative, self-directing and enterprising, it essentially seeks to
'fill the gaps' where the Commonwealth is not providing appropriate
funding for programs to meet Indigenous employment needs.

4.
LAWS MANDATING MINIMUM TERMS OF IMPRISONMENT ('MANDATORY SENTENCING')
AND INDIGENOUS PEOPLE

In April 2000 the
Senate requested HREOC to inquire into all aspects of mandatory sentencing
regimes in the Northern Territory (NT) and Western Australia (WA), and
assess their continued impact on Indigenous Australians. HREOC also
decided to develop a methodology against which to evaluate diversionary
schemes in the NT and WA, and to assess these schemes on this basis
(see next chapter).

The NT government
repealed mandatory sentencing laws for juvenile and adult property offenders
on 18 October 2001. The review remains pertinent as sentencing laws
continue to operate in WA and as there is also a risk that mandatory
sentencing laws will continue to be considered and introduced in Australia
despite the arguments against their use.

Western Australia

Mandatory sentencing
or 'three strikes' laws came into effect in WA in 1996. For adults,
the Criminal Code (WA) requires the court to impose a sentence
of at least 12 months imprisonment for a person convicted of home burglary
who has previously served a custodial sentence on at least two occasions
for home burglary. For juveniles (offenders aged 10 - 17 years inclusive),
the WA laws require a 12 month sentence in a juvenile facility for the
third or subsequent strike of home burglary. The laws apply to children
as young as ten years of age. Juveniles sentenced under the laws are
not eligible for parole until they have served at least six months -
or 50 per cent - of their sentence. This is in contrast to adults sentenced
to imprisonment, who are eligible for parole after serving one third
of their sentence.

The WA Government
reviewed the operation of the mandatory sentencing provisions in 2001.
The review found that rates of imprisonment for burglary 'have had little
effect on sentencing patterns of adult burglary offenders'. There was
also 'no reduction in the number of offences committed after the introduction
of the amendments'. The review identified a lack of clarity in the operation
of the laws, particularly in determining whether someone is a third
striker, as well as the capacity for the laws to produce 'unfairly harsh
and counterproductive outcomes'. By implication, the system of strikes
has also resulted in some offenders being treated more leniently than
they might otherwise be.

In relation to
juveniles, the review admits that 'while it is likely that for the most
part juveniles sentenced to detention would have gone into detention
anyway, a few would not and for others shorter terms may have been
considered more appropriate'. The review also found in relation
to juveniles that the mandatory detention provisions have a degree of
arbitrariness and unfairness due to the calculation of strikes and the
exercise of discretion to divert some juveniles but not others (concern
about the lack of access to diversion for young Aboriginal offenders
in WA is discussed in detail in the next chapter).

Despite these very
significant concerns, the WA Attorney-General's response to the review
was that it demonstrated that 'the overwhelming majority of those convicted
under the laws have an appalling history of offending' and that 'juveniles
caught by the laws had, on average, 50 prior convictions'. As a consequence,
he concluded that 'he was satisfied the laws were targeting a very real
problem with serious property offences'.

Research conducted
by the WA Aboriginal Justice Council contradicts this claim. The Council
examined the circumstances of the 110 third strike cases (involving
73 Indigenous juveniles) which could be identified in the records of
the Aboriginal Legal Service of WA. This review found that 73 Indigenous
juveniles accounted for the 110 third strike sentences that could be
identified. Of these, 54 individuals were dealt with just once and 19
individuals more than once (with only four individuals dealt with under
the three strikes law four times or more).

It is disingenuous
to suggest that the WA laws target the most serious repeat offenders
and accordingly must remain. They do not. Serious repeat offenders
are sentenced to terms of imprisonment of greater length than the
mandatory minimum. The laws are irrelevant for such offenders. (Social
Justice Report 2001, p112)

The WA provisions
are more complex than those in the NT and have avoided much scrutiny
because of this. But we must remember that the WA provisions impose
much harsher penalties on juveniles than the NT laws ever did - 12
months minimum detention as opposed to 28 days. Like the NT provisions,
the WA laws have resulted in situations of injustice, with individuals
receiving sentences that are disproportionate to the circumstances
of their offending.

I call for
the WA Government to repeal its mandatory detention provisions and
for the federal Parliament to exercise its responsibilities to ensure
compliance by the WA Government with Australia's international human
rights obligations by overriding the laws if necessary. (Social Justice
Report 2001, p130)

Human rights
concerns about mandatory minimum terms of imprisonment

The following concerns
relate to the imposition of mandatory minimum terms of detention for
juveniles. They apply equally to the NT and WA laws:

Best interests
of the child as a primary consideration (article 3.1, Convention on
the Rights of the Child (CROC))
Children require
special measures of protection (article 24, International Covenant
on Civil and Political Rights (ICCPR))
Detention of
children as a measure of last resort (article 37(b), CROC)
A variety of
dispositions must be available for child offenders (article 40.4,
CROC)
Rehabilitation
and reintegration of a child offender should be the essential aim.
A child offender should be treated in a manner which takes into account
his or her age (article 40.1, CROC)

The following concerns
relate to the imposition of mandatory minimum terms of detention for
juveniles and adults. They apply equally to the NT and WA laws:

Sentence must
be reviewable by a higher tribunal (article 40.2 (b), CROC; article
14.5, ICCPR)
Detention must
not be arbitrary (article 37(b), CROC; article 9.1, ICCPR)
Laws and policies
must be non-discriminatory and ensure equality before the law (article
2, article 26, ICCPR; article 2.1(a), (c) and 5(a) International Convention
on the Elimination of All Forms of Racial Discrimination (CERD))
Physical and
mental condition must be taken fully into account (Principle 5, Declaration
on the Rights of Disabled Persons; Principle 6, Declaration on the
Rights of Mentally Retarded Persons)
Ensuring consistency
of international obligations across all levels of government (article
50, ICCPR; article 2, CERD)

The effectiveness
of mandatory minimum imprisonment laws

The manner in which
mandatory minimum imprisonment laws in both the NT and WA breach human
rights obligations is so substantial that the laws cannot be seen as
socially useful or acceptable. There are also a range of other reasons,
grounded in the practical operation of the laws, which render them ineffective
as well:

Deterrence:
In the NT, reporting trends show that there has been no real change
in reporting of property crime in the NT between 1994 and 1998.
Retribution:
Removing judicial discretion to determine the length of sentences
inevitably leads to harsh and unfair results.
Rehabilitation:
Custodial environments place the emphasis on physical containment
rather than on rehabilitation. There are serious concerns about the
capacity of the prison system to rehabilitate Indigenous offenders.
Incapacitation:
Courts are in a better position than parliament to make a prediction
about an offender's future prospects based on the offender's background
and circumstances established by evidence before the court.
Reparation:
Other options to incarceration, such as victim/offender conferences,
allow the offender to make direct reparation to the victim.
Community
concern: There has been no real test of whether the laws have
addressed community concerns. The serious nature of these offences
may be 'indicated' in a variety of ways other than mandatory minimum
sentences, such as maximum penalties, guideline judgments and community
education.
Cost effectiveness:
While
the financial costs of property crime to the community is often emphasised
in public debate, the costs of incarceration are themselves high.
Effect on
sentencing principles and operation of the criminal legal processes:
These laws undermine sentencing principles which are well-established
in Australia and abroad. They also shift discretion from the judiciary
to police and prosecutors. Once a matter reaches the sentencing stage
the result is inevitable.

Mandatory minimum
terms of imprisonment and their impact on Indigenous people

These laws impact
disproportionately on Indigenous people in both the NT and WA.

In WA, Aboriginal
juveniles account for 81 per cent of all identified 'three strikes'
juvenile cases. However, they make up one third of all offenders before
the Children's Court.
In the NT in
2000/2001, approximately 79 per cent of prisoners sentenced for all
property offences were Indigenous. Only 28.5 per cent of the NT population
are Indigenous.

The Commonwealth
Government has argued that these are not discriminatory because they
apply equally to Indigenous and non-Indigenous offenders. However, Article
1.1 of CERD includes racial discrimination 'in purpose or effect'. Governments
are required to take different impacts on particular racial groups into
account.

Factors that can
lead to disproportionate impacts on Indigenous people include:

Selection of
offences subject to mandatory detention: Eg. Targeting offences overwhelmingly
committed by Indigenous people, especially young people, while specifically
excluding offences generally committed by non-Indigenous people.
Exercise of
police discretion: Studies have shown Indigenous people are overrepresented
at all stages of the pre-court process. The coexistence of mandatory
sentencing laws and juvenile diversion programs runs the risk of 'bifurcating'
juvenile justice, with first time offenders being diverted and repeat
offenders, who are largely Indigenous, being perceived by the courts
as 'hard core' juvenile offenders.\
Socio-economic
disadvantage: Socio-economic factors, such as educational disadvantage
and a lack of employment opportunities, play a large role in determining
rates of offending. Recognising the social context of young Indigenous
offenders is extremely important for crime prevention policy. If detention
has become a routine means for marginalised and disadvantaged young
Indigenous people to access a different experience, it is questionable
whether this functions as a deterrent at all.

From whatever perspective
they are examined, mandatory detention laws in WA and the NT are bad
law. They are ineffective in deterring crime and rehabilitating offenders,
they are costly and they are manifestly unjust.

in
the context of 10 years since the Royal Commission, we must remain
alive to the consequences of these laws. The removal of young people
to detention centres and prisons far away from their communities has
a particularly painful resonance for Indigenous families and communities.
The Bringing them home report outlined the impact that child removal
policies have had in the past. As one submission to that inquiry stated,
'The juvenile justice system is mimicking the separation policies
of the past'. (ibid, p130)

5. JUVENILE
DIVERSIONARY SCHEMES AND INDIGENOUS PEOPLE

Diversion and
restorative justice

Diversion is the
term applied to measures to 'divert' offenders from the formal criminal
justice system. Options for diversion include verbal and written warnings,
formal cautions, victim-offender or family conferencing, or referral
to formal or informal community-based programs.

There has been
increased focus on diversion in the 1990s as a form of restorative justice,
a process whereby all the parties with a stake in a particular offence
come together to resolve collectively how to deal with the aftermath
of the offence and its implications for the future. This process seeks
to ensure that offenders are able to accept responsibility for their
offending behaviour and any on the community or victims.

All Australian
states and territories offer some form of diversionary programs for
juveniles, and some offer diversion for adults. The Social Justice
Report 2001 evaluates juvenile diversion schemes in NT and WA, and
gives a brief overview of schemes in all other states and territories
of Australia as well as New Zealand (see Appendix 1 of report). These
diversionary schemes are assessed against best practice human rights
principles based on international standards as well as recommendations
from the Royal Commission into Aboriginal Deaths in Custody and the
Bringing them home and Seen and heard reports (see pp
135-37 of report for overview of principles).

Juvenile diversion
in the Northern Territory

The NT has one
of the highest rates of juvenile detention in corrective institutions
in Australia. Indigenous people represented approximately 73 per cent
of juvenile detainees in the NT in June 2000. The potential of juvenile
diversionary mechanisms to break the cycle of juvenile offending has
only been introduced relatively recently in the NT, as a means to temper
the impact of mandatory sentencing legislation on juveniles.

An evaluation of
the NT scheme needs to bear in mind that the scheme is relatively new.
This report examines the model of diversion in the NT and makes some
preliminary observations on the operation of the scheme so far (see
pp138-154 of report for overview of the scheme).

The introduction
of the NT Pre-Court Juvenile Diversion Scheme is a positive development
in the NT. The first twelve months have seen rapid progress in the
unveiling of the scheme. However, there have been a range of concerns
that have come to the Commission's attention during consultations
about the new scheme some of these may relate to the scheme's
relative newness. However, further concerns are more fundamentally
to do with the conception of the model itself and its application
to the cultural and socio-economic factors affecting Indigenous people
in the NT. (Social Justice Report 2001, pp 154-55)

Comments and concerns
about the NT scheme are raised under the following 10 human rights principles:

1) Viable alternatives
to detention: Human rights principles require that a range of community-based
diversionary options be available, adequately resourced and planned
and implemented through adequate consultation. To date, there are limited
community based alternatives, due in part to the poor level of infrastructure
and service networks in many communities. There are program gaps in
many under-resourced areas, eg lack of programs for petrol sniffers
in Central Australia. There has been no systematic approach to encouraging
Indigenous participation in designing and delivering diversionary processes.

2) Availability
of diversion at all stages of the criminal justice process: The
NT scheme performs well on this criteria, with a wide variety of forms
of diversion available at the pre-court and post-court stages, and for
a wide variety of offences.

3) Discretion
exercised on the basis of established criteria prescribed by law:
The legislation setting up the pre-court diversion scheme is extremely
bare, leaving most matters to police standing orders. There has been
limited parliamentary scrutiny of the way diversion operates in practice,
raising concern about the scheme's transparency. A particular concern
with the scheme is the level of discretion vested in police, at all
stages of the process. This concern is exacerbated by the history and
continuation of poor relations between Indigenous people and the NT
police.

4) Training
of law enforcement officials involved in the administration of diversion
to meet the needs of young people: While there has been extensive
formal training of police in diversion, there are no specialised government
services which meet the needs of juveniles. The lack of specialised
youth services is a serious impediment to the effective implementation
of diversionary approaches in the NT.

5) Diversion
requires the informed consent of the child or his/her parents: There
are no requirements for young people to access legal advice prior to
consenting to diversion or during a victim/offender conference. These
factors need to be monitored to ensure that they do not contribute to
coercive diversionary outcomes.

6) Young people
are provided with procedural safeguards throughout the diversionary
process: Safeguards such as access to a lawyer, right to silence,
presumption of innocence, confidentiality and right to privacy are not
adequate under the NT scheme. The provision of interpreter services
has improved protection of procedural safeguards, though this needs
to be subject to ongoing monitoring.

7) Young people
are provided with human rights safeguards throughout the diversionary
process: Studies show that police contact has increased for Indigenous
youth since the introduction of cautioning systems in other jurisdictions.
While issuing more formal cautions may have reduced contact with the
courts, it may have increased contact with the police. There needs to
be monitoring to ensure that this 'net widening' effect does not arise
in the NT. Early statistics show that Indigenous youth are accessing
the scheme at an equal rate to non-Indigenous youth.

8) Complaints
and review mechanisms relating to the exercise of discretion to divert:
There are very few checks or balances on the discretion exercised by
police at all stages of the Northern Territory pre-court diversion scheme.
There is no oversight of the quality of the admission made by the young
person or the type of diversion offered by the informant. No decision
made by a police officer during the diversionary process can be reviewed
or appealed under the legislation.

9) Independent
monitoring and evaluation mechanisms for the scheme: While a series
of reports and evaluations of the scheme are required, they cannot be
called independent as they are conducted by NT Police or the Commonwealth
Attorney-General.

10) Self-determination
of Indigenous peoples: Indigenous involvement remains piecemeal
and uncoordinated, and police retain primary control over the processes.
Some Indigenous people in the NT have expressed an interest in other
means of dealing with juvenile offenders which could be seen as restorative,
such as the use of elements of customary law. Self-determination requires
more than offering Indigenous communities involvement in a diversionary
system that has already been established along non-Indigenous lines
without adequate consultation and partnership.

The Social Justice
Commissioner has made 6 recommendations for improving the NT scheme
and to address the concerns raised in the report (see end of summary).

Juvenile diversion
in Western Australia

The level and nature
of contact of Indigenous people with the WA criminal justice system
has been a matter of great concern for several decades. The level of
over-representation of Indigenous people in WA is consistently the highest
in the country. There also continues to be a large number of deaths
in custody, both Indigenous and non-Indigenous.

While the diversionary
options established in the Young Offenders Act 1994 (WA) reflect a number
of human rights principles, HREOC's consultations indicated these are
often ignored in the Act's practical operation. Particular concerns
on the scheme are as follows.

1) Viable alternatives
to detention: There are concerns that diversion through the operation
of the juvenile justice teams (JJTs) in country regions is not available
as an alternative to detention. Statistics show that cautioning and
referrals to JJTs is much more prevalent in Perth. Community-based programs
in country areas for Indigenous youth are also lacking.

2) Availability
of diversion at all stages of the criminal justice process: Statistics
demonstrate that, while police referrals represent the main pathway
to JJTs, court referrals are high. In many instances young people do
not get diverted at the earliest possible stage.

3) Discretion
exercised on the basis of established criteria prescribed by law:
A lack of legislative guidance is compounded by a tendency for police
policies to be seen as 'guidelines' rather than rules. Indigenous juveniles
have not benefited sufficiently from diversionary processes, and tend
to be dealt with more harshly by police.

4) Training
of law enforcement officials involved in the administration of diversion
to meet the needs of young people: Current police training is inadequate
to deal with decision-making relating to diversion. A large proportion
of police do not sufficiently understand diversionary processes, with
police in non-metropolitan areas more reluctant to become engaged in
the JJT process - they do not see it as 'police work'.

5) Diversion
requires the informed consent of the child or his/her parents: While
the Act requires that the young person and a responsible adult consent
to participation in a referral to JJT, there are no safeguards such
as the provision of legal advice and an interpreter if necessary, which
has the potential to undermine the informed nature of the consent given.

6) Young people
are provided with procedural safeguards throughout the diversionary
process: There is no statutory obligation in WA for interpreters
to be used at any stage of the criminal justice system. One of the most
serious concerns about the JJT diversionary process relates to the status
of records of involvement in the process at some later judicial event,
which may be read out to establish the 'circumstances of the offence'.
This contradicts the purpose of diversion and has the effect of 'up-tariffing'
young people when decisions are made regarding punishment (ie, it results
in higher level dispositions for an offence).

7) Young people
are provided with human rights safeguards throughout the diversionary
process: Concerns range from the failure to take the age and maturity
of the young person into account, failure to promote the rehabilitation
and social reintegration of the young offender and failure to ensure
that diversionary options are culturally appropriate and non-discriminatory
in their impact. The most significant issue is that of net widening
- the failure of Indigenous youth to benefit from diversion through
the exercise of police or court discretion combined with increased contact
with police.

8) Complaints
and review mechanisms relating to the exercise of discretion to divert:
The court may refer a young person who has been charged with an offence
to a JJT whether or not the person has been found guilty, or has pleaded
guilty to the charge. There is currently no mechanism for young people
to appeal against decisions made in relation to cautions or JJT decisions
and outcomes. Legal representation at the point of diversion is also
absent.

9) Independent
monitoring and evaluation mechanisms for the scheme: An evaluation
completed in 1998 raised concern about the adequacy of monitoring mechanisms.
The unacceptably high non-recording of ethnicity, or at least Aboriginality,
on the children's court information system was highlighted as a matter
of urgency.

10) Self-determination
of Indigenous peoples: The focus is on the juvenile justice teams
as an early intervention option within the framework of the juvenile
justice system, rather than as part of an overall shift in orientation.

Overall, the Western
Australian scheme is particularly poor.

A number of
concerns have been raised about the accessibility of diversionary
options for Indigenous people, and the limited role for and participation
of Indigenous people in these. At base, the process suffers from a
lack of support from Indigenous people and is seen as culturally inappropriate.
Given the crisis rates of removals of Indigenous juveniles through
criminal justice processes, this is of serious concern and is totally
unacceptable.

The process
somehow has to be 'given back' to the Indigenous community. Currently,
it is not working well enough for Indigenous people and their families.
Diversionary program options for Indigenous young people, particularly
in regional areas, need to be negotiated with Indigenous
communities to ensure that they are relevant and able to meet the
needs of the community. (ibid, p186)

The Social Justice
Commissioner has made 4 recommendations for improving the WA scheme
and to address the concerns raised in the report (see end of summary).

The primary
aim of diversion should be to slow down the rate of entry into the
system and reduce the likelihood of Indigenous youth being labelled
repeat offenders. The current (WA) system is not equipped to meet
this task. (Social Justice Report 2001, p175)

6.
RECONCILIATION - NATIONAL PROGRESS ONE YEAR ON

This chapter implements
the proposal by the Council for Aboriginal Reconciliation for the Social
Justice Commissioner to monitor progress towards reconciliation on an
annual basis. It reviews the first year since the final report of Council
was provided to the Parliament and focuses on measures adopted to ensure
reconciliation is ongoing; processes for measuring and evaluating outcomes
and the leadership of the federal government.

In particular,
it examines the response to the Roadmap for reconciliation (May
2000), the recommendations of the final report of the Council for Aboriginal
Reconciliation (December 2000) and the recommendations of the Social
Justice Report 2000 (December 2000).

Implementing
reconciliation

An adequate implementation
process should include the following stages: reviewing current activities;
developing policies and programs; setting goals or targets; allocating
responsibility for implementation; and establishing evaluation mechanisms.
Vital to a successful process is also federal leadership, including
forms of leverage to ensure compliance of States and Territories.

In relation
to reconciliation it is reasonable to expect that at the end
of a ten year process, governments would at least engage in the stages
outlined above

It can also
be reasonably expected that a ten year, multi-million dollar process,
which is of such pivotal importance to the development of Australian
society, would receive a formal response so that all members of the
Australian community are clear as to the level of commitment provided
by the government. We should also expect national coordination of
reconciliation in order to prevent a repeat of the mistakes of the
past, especially in regard to ensuring adequate accountability, transparency,
effective monitoring and long term planning. (Social Justice Report
2001, p195).

The report identifies
and examines six key features of the federal government's approach to
reconciliation.

1) Direct responses
to the reconciliation documents

To date, 'there
has been no formal, comprehensive public response by the federal government
to the reconciliation documents handed to the government at Corroboree
2000 or the recommendations of the Council for Aboriginal Reconciliation's
final report of December 2000. This is despite the passage of twelve
months since the final report and eighteen months since the documents
of reconciliation were released' (Social Justice Report 2001, p196).
There has also been no response to the recommendations of the Social
Justice Report 2000.

There is limited
material available which explicitly identifies the government's views
on the recommendations in anything more than a general sense. We know
generally that they are committed to 'practical reconciliation' but
not specifically their response to the Council's documents or the Social
Justice Report.

In terms of
an implementation process it is difficult, in fact, to identify any
public material that demonstrates that the government has engaged
in a good faith process to consider the Council's recommendations
through reviewing their current programs and policies and consulting
and negotiating with Indigenous people about ways to improve these
Not only has the federal government not explicitly responded to the
CAR documents, they have quite deliberately sought to shut down debate
and avoid any engagement about them by stating that they are committed
to practical reconciliation (Social Justice Report, p198).

2) National
communiqué by the Council of Australian Governments

The most significant
development in the government's national leadership on this issue has
been the November 2000 communiqué on reconciliation from Council
of Australian Governments (COAG). In keeping with the CAR report's first
recommendation, the communiqué commits itself to addressing Indigenous
disadvantage through a nationally-coordinated reconciliation framework
based on partnerships and shared responsibilities with Indigenous communities;
programme flexibility; and coordination between government agencies,
with a focus on local communities and outcomes. The Ministerial Council
on Aboriginal and Torres Strait Islander Affairs (MCATSIA) is to coordinate
and monitor this process, including a periodic review of progress on
reconciliation. COAG has since produced a performance monitoring framework,
but is yet to make this public.

To date COAG's
approach does not provide:

a total
response to the recommendations of CAR or by itself as an adequate
response of governments. This is due first to the fact that the communiqué
does not respond to significant aspects of the Council for Aboriginal
Reconciliation's recommendations, particularly issues that relate
to the recognition of rights and some of the symbolic aspects of CAR's
proposals. (p200)

3) Reconciliation
Australia and Reconciliation Place

After CAR made
its final report, the federal government provided funding for the construction
of Reconciliation Place in the Parliamentary triangle and for the establishment
of Reconciliation Australia, with full tax deductibility status for
all donations.

While Reconciliation
Place has the potential to provide long overdue acknowledgement to the
place of Indigenous Australians in our history, there are indications
that it may not meet this purpose. There has been significant disquiet
among Indigenous people over the lack of consultation about the contents
of the square, the design of the square as well as a number of components
contained within it, such as the representation of the removal of Indigenous
people from their families.

Reconciliation
Australia has been presented by the federal government as the 'successor'
to the Council for Aboriginal Reconciliation. However, it is a not-for
profit private company rather than a government authority, and its operation
and objectives have not been mandated by Parliament. Accordingly its
relationship with government at all levels is based on goodwill. Its
level of funding means that it will not have the capacity that CAR did
to provide ongoing, nationally significant public awareness activities
regarding reconciliation. Reconciliation Australia also has limited
ability to ensure adequate processes of monitoring and evaluation in
contrast to those proposed by CAR in the Reconciliation Bill 2000.

There is a
danger that the reconciliation walks from last year will be the high
watermark of support for reconciliation, as national attention (necessarily
related to the ability of Reconciliation Australia and the government
to keep a national profile for reconciliation) slowly dissipates.
better results may have been achieved with a more active leadership
role being played by the Commonwealth, including through the use of
forms of leverage to ensure compliance such as performance conditions
on grants to states and territories (p203).

4) Practical
reconciliation

The government's
'practical reconciliation' approach has continued independently of,
and without reference to or assessment against, the Council's recommendations.
It instead promotes a focus on 'those things where we agree on reconciliation'
- namely, the areas of the reconciliation documents and report in keeping
with the Coalition's longstanding Indigenous policy focus on practical
measures.

This approach creates
an arbitrary distinction between practical and symbolic measures - it
does not acknowledge the inter-relationship between different issues
and approaches or the need for multi-dimensional solutions. It lacks
sufficient accountability for government programs - with inadequate
performance indicators and benchmarks and monitoring and evaluation
mechanisms. Similarly, it does not provide Indigenous people with a
central role in determining priorities:

Practical reconciliation
seeks to address Indigenous people on a restrictive basis of equality.
Ultimately it is assimilationist in approach, aiming for formal equality
with only limited recognition of cultural difference. It seeks to
maintain rather than transform the relationship of Indigenous people
to the mainstream society. (p205)

The lack of participation
on equal terms is also evident in the dismissive approach to what have
been termed 'symbolic issues' of reconciliation.

One of the
main concerns with this approach is that it clearly misconceives,
or misrepresents, the purpose of a number of initiatives. Agreement
making processes and a treaty are not symbolic measures - they are
about a fundamental realignment of the relationship between Indigenous
people and the State. They are about ensuring the effective participation
of Indigenous people (The government's response) is a 'take
it or leave it approach' to reconciliation (p207).

In Budget 2001,
the government announced 'its commitment to reconciliation and reducing
Indigenous disadvantage through a boost of more than $327 million to
spending on Indigenous affairs'. While increases to funding and new
initiatives are welcome, the definition of Indigenous-specific is extremely
broad and includes all expenditure that in some way relates to Indigenous
people. Some of the funding identified as Indigenous-specific is also
clearly detrimental to Indigenous people's advancement, such as funding
to oppose native title applications. Although Indigenous-specific programs
are often strategic and targeted, they are not in position to replicate
the level of services and expertise provided by mainstream programs.
The focus should instead be outcomes-based. Shortfalls from projected
funding needs in Budget 2001 also indicate that the need to develop
a more fundamental and far-reaching understanding of social justice
and equity in addressing Indigenous disadvantage.

5) Domestic
violence and abuse in Indigenous communities

Some of the national
debate about reconciliation over the past twelve months has focussed
on domestic violence and abuse in Indigenous communities. Calls were
made by ATSIC, Reconciliation Australia and the federal Minister for
Reconciliation and Aboriginal and Torres Strait Islander Affairs for
re-assessment of national coordination of this issue.

While these calls
received some support, such as MCATSIA's commitment to a 7-point action
plan, there is a need for further commitments to drive a whole-of-government
approach across all relevant Commonwealth, state and territory agencies
and departments, including appropriate responses to requests for additional
funding and services. Service delivery to Indigenous Australians is
a shared responsibility between all levels of government: primary responsibility
for issues of family violence rests with health and community service
agencies in Federal, State and Territory governments. An awareness of
the prevalence of violence in Indigenous peoples' lives, particularly
those of women and children, is not new and has been the subject of
a series of reports as well as a recent policy focus for both ATSIC
and the Office for the Status of Women.

The government
has used the renewed interest in violence to reinforce its practical
reconciliation approach - for example, as evidence that 'public debate
is finally beginning to catch up with the government's emphasis on practical
assistance', and that a focus on rights did not have the capacity to
'make a practical difference to people's lives.' However:

Indigenous
representatives have articulated a number of common elements for achieving
effective outcomes in response to family violence issues. These include
the need for national coordination of a holistic and strategic long-term
strategy rather than quick-fix, short-term solutions, and to ground
policy on Indigenous family violence in self-determination and cultural
rights.

This stands
in contrast to the Federal Government's claim that the renewed focus
on family violence has led to a 'turning point' for Indigenous people
in which they have recognised the need to eschew a rights-agenda and
accept a practical reconciliation approach. (p216)

6) Human rights
and reconciliation

None of the recommendations
of CAR or the Social Justice Report 2000 relating to rights have
been responded to or implemented. The content of rights has also been
misrepresented by the government (see chapter 2: Mutual obligation relating
to the misappropriation of Noel Pearson's arguments about reciprocity
and responsibility). Of particular concern is the failure to distinguish
between two types of human rights: citizenship rights and inherent rights.

It appears
from a close analysis of the arguments opposing a rights approach
to Indigenous issues that it fails to distinguish between the two
types of rights relevant to Indigenous peoples; citizenship rights
and inherent rights. What are actually being attacked as the cause
of the horrendous and irresponsible violence in some Indigenous communities
are the rights that came with citizenship. That is, the right of Aboriginals
to be treated the same as non-Aboriginals, without being discriminated
against on the basis of their race. The right to leave a mission or
reserve without first seeking permission. The right to vote. The right
to enter a pub and buy alcohol. The right to unemployment benefits
when out of work. The right to enter a de facto relationship. The
right to formal equality.

Yet of those
attacking the rights approach as producing no improvement in Aboriginal
lives, no one has suggested that the solution is to take these rights
away and force Aboriginal people back to the mission or the reserve
under the supervision of the Crown, the police or the church. To do
so would strike at the very core of Australian society as well as
marginalise Aboriginal communities and their problems even more than
is presently the case. These rights do not need to be abandoned, they
need to be augmented. The real problem with citizenship rights
is that they are not capable of transforming the poverty and destitution
that marks so many Aboriginal people's lives. They were not intended
for this purpose

The call to
abandon rights assumes that they have been tried and failed. That
is incorrect. Indigenous rights, ones that recognise Aboriginal people
for what they are, and have the capacity to change their dire living
circumstances, have never been embraced as a way forward. What is
required is that Aboriginal people be given the full enjoyment of
their inherent rights through native title and that Indigenous disadvantage
be addressed with the full participation of those affected. (pp 218-219).

The report makes
two recommendations to ensure greater accountability and transparency
by the federal government in relation to reconciliation, namely:

Recommendation
11: The Senate empower the Legal and Constitutional References Committee
to conduct an inquiry into the implementation and response to the reconciliation
process. The terms of reference of the inquiry should require the Committee
to examine the recommendations contained within the Roadmap towards
reconciliation, the final report of the Council for Aboriginal Reconciliation
and the Social Justice Report 2000 as well as the adequacy of the response
of the Federal Government to each of these. In determining the adequacy
of the response, the Committee should be required to consider processes
by which government agencies have reviewed their policies and programs
against the documents of reconciliation; as well as the adequacy of
targets and benchmarks adopted and monitoring and evaluation mechanisms.

Recommendation
12: At the time of tabling of the annual Social Justice Report in
Parliament, or within 15 sitting days, the Government furnish a response
to the report and its recommendations in Parliament. In the event that
the Government does not furnish such a response in Parliament, the Senate
consider the establishment of a parliamentary inquiry to consider matters
that appear in or arise out of the report and its recommendations, and
matters to which the Committee believes Parliament's attention should
be directed.

RECOMMENDATIONS

In submitting this
report I am required to make any recommendations as to actions that
should be taken by governments to improve the recognition of the human
rights of Indigenous people.

JUVENILE DIVERSIONARY
SCHEMES IN THE NORTHERN TERRITORY

Recommendation
1: A Juvenile Justice Division be established and adequately resourced
within the NT Department of Justice. Prime responsibility for coordinating
pre-court and post-court diversion, especially family and victim-offender
conferences and referral to programs, be transferred from NT Police
and NT Corrections to specialist Youth Case Workers in the Juvenile
Justice Division. NT Police retain a Juvenile Diversion Division to
implement the continued significant police involvement in diversionary
processes.

Recommendation
2: As an urgent priority, a review be undertaken by the Department
of Justice to establish program needs across the Territory, particularly
as they relate to regional areas and Indigenous people. The terms of
the review should include examining methods for coordinating youth service
delivery in justice, health and welfare related areas across government
departments, including through the NT Police proposal for community
youth development units, and the potential for Aboriginal customary
law to be recognised through diversionary processes. The review should
be conducted on the basis of widespread consultation, particularly with
Indigenous organisations.

Recommendation
3: The NT Law Reform Commission be empowered through legislation
to conduct an independent review of the operation of pre-court and post-court
diversionary schemes every four years. The review be required to consider
compliance with human rights standards and to be conducted on the basis
of widespread consultation with Indigenous organisations, communities
and young offenders.

Recommendation
4: The Juvenile Justice Act 1993 (NT) and Police Administration
Act 1978 (NT) be amended to provide legislative detail on juvenile
diversionary processes. The amendments should require the police to
inform the young person that they are entitled to access to a legal
advocate or a registered local community advocate (for example, in remote
areas) at any stage of the process and to facilitate contact immediately
if so required; and should require an admission of guilt prior to a
diversionary option, other than a verbal warning, being offered. The
amendments should also provide for review of decisions regarding diversion,
and independent monitoring and evaluation provisions (as outlined above).
In relation to Indigenous young people, the legislation should specify
that they are entitled to an interpreter as well an interview friend
(in accordance with the Anungu rules).

Recommendation
5: A children's legal service be established and appropriately resourced,
including through the provision of a 24 hour phone hotline for children's
legal advice.

Recommendation
6: It be made an offence to publish material identifying a defendant
or a young person who has participated in a diversionary option under
the age of 18 years.

JUVENILE DIVERSIONARY
SCHEMES IN WESTERN AUSTRALIA

Recommendation
7: The Young Offenders Act 1994 (WA) be amended to include
greater detail on the operation of diversionary options in WA, rather
than matters integral to the process being contained in Police General
Orders. The amendments should include the following as a minimum:

create a presumption
that police will divert young people unless a range of specified criteria
are not met;
provide for
review of decisions regarding diversion;
require that
a young person is informed that they are entitled to access to a legal
advocate at any stage of the process;
require that
an interpreter be freely available at all stages in the process where
there is doubt about the ability of the young person to understand
the proceedings or express themself in English; and
provide that
previous cautions and justice team referrals cannot be cited in court
as though they form part of a prior record.

Recommendation
8: The Department of Justice consult regional councils of the Aboriginal
and Torres Strait Islander Commission and Aboriginal community organisations
about the adequacy of current community based diversionary programs
for Indigenous juvenile offenders, particularly in regional areas, and
their form, organisation, management and coordination in the future.

Recommendation
9: Juvenile Justice Teams and conferencing processes be adequately
funded in regional areas. Funding be provided for the employment of
Aboriginal workers, and the training of Aboriginal people in local communities
to act as conference facilitators.

Recommendation
10: The Department of Justice coordinate the development of consistent
record keeping on diversionary processes across all agencies, particularly
the Department of Justice, Police and Children's Court. Record keeping
must identify the ethnicity of offenders in order to identify the extent
of any racial bias in referral processes. This data should be subject
to ongoing and independent monitoring and evaluation.

RECONCILIATION

Recommendation
11: The Senate empower the Legal and Constitutional References Committee
to conduct an inquiry into the implementation and response to the reconciliation
process. The terms of reference of the inquiry should require the Committee
to examine the recommendations contained within the Roadmap towards
reconciliation, the final report of the Council for Aboriginal Reconciliation
and the Social Justice Report 2000 as well as the adequacy of
the response of the Federal Government to each of these. In determining
the adequacy of the response, the Committee should be required to consider
processes by which government agencies have reviewed their policies
and programs against the documents of reconciliation; as well as the
adequacy of targets and benchmarks adopted and monitoring and evaluation
mechanisms.

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Social Justice Report 2001: Summary