'Community justice, law and governance - a rights perspective'
Dr William Jonas AM
Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission
Indigenous Governance
conference, Canberra,
3-5 April 2002
Due to overseas travel commitments in his role as Race Discrimination Commissioner, Dr Jonas is unable to be here today. He sends his apologies and has requested that Darren Dick, Director of the Social Justice Unit at HREOC deliver the following paper on his behalf.
I would like to acknowledge and pay my respects to the Ngunnawal people, the traditional owners of the land where we are meeting.
On behalf of the Social Justice Commissioner, I would also like to congratulate Reconciliation Australia, ATSIC, the National Institute for Governance and their conference partners for hosting this important conference.
Such congratulations are not provided merely as a matter of courtesy. The Social Justice Commissioner has in the past expressed concerns at the failure of the Council for Aboriginal Reconciliation to acknowledge the central importance of governance and community capacity building processes to the future sustainability and growth of Indigenous communities, and so is delighted that Reconciliation Australia is giving such thorough attention to these issues through this conference.
In the limited time available, I will make a number of propositions which the Social Justice Commissioner sees as identifying the main issues, problems and concerns about current approaches to Indigenous involvement in community justice initiatives and how they relate to governance processes. The intention is to be provocative and stimulate people's thinking about some possibilities for transforming the current situation. I'll then briefly discuss ways forward and relevant human rights considerations.
The first proposition is a general, structural one. It is that governance processes and the development of Indigenous community capacity are essential for achieving meaningful change into the future.
As you would be aware, the Social Justice Commissioner is required to submit on an annual basis two reports to the federal Parliament on the exercise and enjoyment of human rights by Aborigines and Torres Strait Islanders - namely, the Social Justice Report and the Native Title Report.
The Social Justice Report 2000 set out a human rights framework for reconciliation which sought to ensure that the process of reconciliation, and subsequent policy development, incorporates Australia's human rights obligations. The report set out a 4 pronged approach for reconciliation, namely:
1. Measures to ensure adequate government accountability and transparency in addressing Indigenous marginalisation (which the report argued was currently lacking);
2. Measures to facilitate Indigenous participation (both in terms of the negotiation of benchmarks and timeframes, involvement in the design and delivery of services and determination of priorities, through to the promotion of Indigenous autonomy and governance structures);
3. Mechanisms to provide adequate protection of human rights into the future (again, something that was argued is currently lacking); and
4. Processes to negotiate 'unfinished business' in order to establish a more equal basis for participation in Australian society and to remedy the entrenched inequality of the past and present.
The Social Justice Report 2000 noted that addressing Indigenous marginalisation is a precondition for Indigenous people to be able to enjoy basic citizenship entitlements. Indigenous participation in decision-making is crucial to achieve this. But reconciliation must go beyond simply providing equality of opportunity in terms of 'sameness'. It must provide for the acceptance, recognition and celebration of the unique, distinct societies and cultural characteristics of first Australians.
The report also noted that implementing measures to overcome Indigenous disadvantage, while certainly a great challenge, require no great innovation from an institutional or constitutional perspective. The more difficult part of the process is changing decision-making and service delivery processes to accommodate Indigenous cultural characteristics and aspirations, including through supporting and rebuilding the capacity for Indigenous self-government and autonomy.
The Social Justice Report 2000 saw an insufficient connection between the strategies of the Council for Aboriginal Reconciliation regarding addressing Indigenous disadvantage and achieving economic independence with the objective of the national strategy to recognise Aboriginal and Torres Strait Islander rights to provide 'formal recognition of the right of Aboriginal and Torres Strait Islander peoples to self-determination within the life of the nation'.
As James Anaya notes, '[s]elf-government is the political dimension of continuing self-determination'. Governance mechanisms illustrate the point that self-determination does not necessarily entail secession or the creation of separate states but can be articulated through the restructuring and renewal of existing relations between Indigenous organizations and Government to create arrangements to reflect and support a diversity of Indigenous circumstances.
Ultimately, the Social Justice Report 2000 identified the development of governance structures and regional autonomy as having 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.
The second proposition is that community justice mechanisms are an integral component of Indigenous governance. Processes of separation through the criminal justice, juvenile justice and care and protection systems, combined with dysfunctional behaviour such as violence and abuse in communities, are the hard edge where the lack of equality and extreme marginalisation of Indigenous people in Australian society is felt the most.
Historically and at the present time, the criminal justice and care and protection systems operate as a key agent for the management of inequality in Australian society. The criminologist Rhoderic Broadhurst has aptly described the criminal justice system as 'an efficient mechanism for the State to manage race conflicts and cross-cultural inequalities within society' . [1]
The criminal justice system is extremely poor at dealing with the underlying causes of criminal behaviour and makes a negligible contribution to addressing the consequences of crime in the community. One of the consequences of this, and a vital factor that is often overlooked, is that Indigenous victims of crime and communities are poorly served by the current system.
Accordingly, the current system disadvantages Indigenous people from both ends - it has a deleterious effect on Indigenous communities through over-representation of Indigenous people in custody, in large part due to historically derived disadvantage and ongoing systemic discrimination, combined with the lack of attention it gives to the high rate of Indigenous victimisation, particularly through violence and abuse in communities. Reform to criminal justice processes, including through community justice initiatives, must be responsive to these factors.
During 2001, the Social Justice Commissioner's office conducted consultations with people in the NT about mandatory sentencing and the introduction of juvenile diversionary programs. In various locations, older Indigenous people in particular express pain and sorrow that the younger members of the community caused trouble, and were fearful of the long term consequences for community and cultural life.
Many people that we met were victims of property crime and violent crimes themselves. They clearly saw it as in their interests, as Indigenous communities, to prevent crime. When all else seemed hopeless, some Indigenous people had asked for key troublemakers to be taken away from the community to detention. This was a sign of desperation, not of choice.
In remote communities in the NT, mandatory sentencing laws were seen as an imposed solution, without consultation. Imprisonment was not seen by Indigenous people as the solution to offending behaviour and did not make offenders accountable to their community. It was our clear impression that communities were struggling with levels of criminal activity, and that they were looking for new ways to address the underlying causes of crime and social breakdown. In particular, they were looking for new processes that would provide them with a greater role in addressing the underlying problems on their own terms.
And this leads to the third proposition, that not only are community justice mechanisms necessary, but they must be accompanied by a return of control and decision making processes to Indigenous communities if they are to lead to marked improvements in the situation faced by Indigenous people.
The Social Justice Commissioner considers that there currently exists an overly restrictive level of control by Government of Aboriginal people. It is a different type of control than the system of reservations, missions and forcible removal policies that existed during the assimilation period. Instead it is based on a perpetuation of the marginalised position of Indigenous people, combined with a denial of any collective or historical dimension to Indigenous people's experiences, and through the steadfast refusal of Government to relinquish control over decision making processes, be it through the tied nature of ATSIC funding or the refusal to entertain any form of differential treatment or cultural pluralism. This is vividly demonstrated by the lack of response to the final recommendations of the Council for Aboriginal Reconciliation some sixteen months after they were made.
Similarly, to date it is fair to say many Indigenous community justice initiatives have emerged as a crisis management response to the inadequacies of the current system. They seek to deal with a situation, however fragmentary or temporarily, in order to avoid contact with formal criminal justice processes, over which there is a great level of mistrust. Such community based processes are generally an add-on to the existing system - tolerated and allowed to operate in tandem with the mainstream system yet not given the legitimacy or support necessary for them to challenge the fundamental basis of the mainstream system or result in any reconfiguration of relationships and responsibilities. Power is ultimately retained by the relevant authorities within the formal system.
An example of this is night patrols, which have developed out of concerns about the deficiencies of the formal system and yet which still generally operate on its margins. They have provided an alternative to dealing with the effects of alcoholism, substance abuse and violence (albeit from the perspective of the perpetrator and not of victims) by preventing the formal intervention of the criminal justice system. The importance of such initiatives is beyond question - night patrols fulfil a vital role in many communities. But it doesn't take away from their significance to note that they remain largely a band aid solution aimed at minimising the destructive impact on Indigenous communities and culture that often results through the intervention of the formal, mainstream legal system.
It is necessary to alter the current situation and seek to change the power dynamic so that it is more equitable. I want to look briefly at two examples of approaches which challenge us to be innovative in this regard.
First, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families was required under its fourth term of reference to consider current laws, policies and practices of removal of children (including through the care and protection and juvenile justice systems) and to advise on any changes required, taking into account the principle of self-determination.
The report of the inquiry, Bringing them home, found that current programs do not comply with the principle of self-determination and governments have proceeded on the basis of an assumption that processes for consultation and participation in service delivery are an adequate response to Indigenous needs. The report found that in many circumstances even consultation has been lacking in areas of legislative change and policy development on issues where there is a direct likelihood of removal of Indigenous children from their families and communities.
The report sought to grapple with how to empower Indigenous communities to provide adequate involvement and control over decision making processes. The report's recommendations envisaged the possibility of the eventual transfer of responsibility for children's well-being to Indigenous communities or to the regional level and proposed a framework for negotiating autonomy measures which might include the transfer of legal jurisdiction in relation to children's welfare, care and protection, juvenile justice; the transfer of police, judicial or departmental functions; and other matters. The report did not outline the features of such a scheme as it considered it inappropriate to pre-empt the results of any subsequent negotiations.
These recommendations of Bringing them home have not been subject to as much debate or scrutiny as those recommendations dealing with the consequences of past forcible removal policies. And they remain confronting to many people for the challenge that they pose to current approaches to Indigenous affairs - though the Social Justice Commissioner would also argue that they are illustrative of how constrained debates about 'practical reconciliation' have become over the past three years, which makes these recommendations seem all the more radical despite their consistency and logical development from the social justice package proposals of 1995. The recommendations provide a potent example of the transformative capabilities of governance reform as it relates to community justice mechanisms.
The second example is to consider briefly developments over the past ten years, largely in relation to criminal justice, in what has become known as restorative and now transformative justice. To an extent, restorative justice is a term that has been loosely used in recent years to describe any process that is not the formal criminal justice system.
The most accepted definition of restorative justice, however is that of Tony Marshall which states that it is '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'. The Law Commission of Canada provides a useful commentary on restorative justice as:
fundamentally concerned with restoring social relationships, with establishing or re-establishing social equality in relationships. That is, relationships in which each person's rights to equal dignity, concern and respect are satisfied… As it is concerned with social equality, restorative justice inherently demands that one attend to the nature of relationships between individuals, groups and communities. Thus, in order to achieve restoration of relationships, restorative justice must be concerned with both the discrete wrong and its relevant context and causes. [2]
This does not necessarily seek to return a relationship to the position prior to the commission of some wrongdoing, but instead to address the underlying issues. Restorative justice can thus incorporate concepts of restitution and healing, while focusing on the transformation of relationships.
There are obvious links between a restorative justice approach and Aboriginal customary laws and values. I note that Winsome Matthews is on the conference program to speak this afternoon and I anticipate that she may well discuss the recently commenced circle sentencing trials in NSW, which very much build on this approach. The Social Justice Commissioner also commends the recent discussion paper of the NSW Aboriginal Justice Advisory Council titled Holistic community justice which proposes a restorative approach to dealing with Aboriginal family violence through the establishment of localised community controlled justice and healing centres combined with alternative sentencing processes for offenders which seek to establish formal links with local Aboriginal communities.
These are further examples of processes, currently under consideration, which seek to transform the current relationship through community justice mechanisms.
To conclude, I want to reinforce the relevance of human rights standards to governance processes and to Aboriginal controlled community justice initiatives. Whenever issues relating to governance, alternative community justice proposals or the recognition of customary law are raised, we often hear rather simplistic assertions by Governments that they are unacceptable as they would lead to the creation of separate rights and different systems of law for different sectors of the community. The catchcry of this approach is 'one law for all'.
In the Social Justice Report 2000, the Social Justice Commissioner rejected these arguments on the basis that no matter how popular they may be as an understanding of the concept of equality, it simply does not reflect reality. He stated:
The view that everybody should be treated the same overlooks the simple fact that throughout Australian history Indigenous people never have been…
The failure to provide us with the same opportunities as the rest of society in the past means that to now insist on identical treatment will simply confirm the position of Indigenous people at the bottom rungs of… society. Demands for identical or 'sameness' of treatment are tantamount to 'keeping us in our place' (Social Justice Report 2000, p19).
In this context, it is worth highlighting the provisions of the Racial Discrimination Act 1975 (Cth) and the international convention on which it is based. In general terms, section 8 of the Racial Discrimination Act 1975 (Cth) exempts certain forms of differential treatment from the definition of unlawful racial discrimination if they can be classified as a special measure. This requires establishing a number of factors, including that the program under consideration is a reasonable response to the special needs of the group who will be affected by the program; that they agree to it and generally accept it; and that the purpose of the program is to secure adequate advancement of the intended beneficiaries in order to be able to ultimately equally enjoy human rights. There are limits to this approach - such as that special measures are intended to be temporary in scope - but overall the Racial Discrimination Act 1975 operates to ensure that processes that are aimed at redressing the marginalised position of Indigenous people in Australian society will be valid and not considered racially discriminatory.
It is worth noting that the Racial Discrimination Act 1975 and its interpretation by the courts to date, has fallen significantly behind the interpretation given to the principles of equality, non-discrimination and minority group rights internationally.
The Committee on the Elimination of Racial Discrimination, which operates under ICERD, has recognised for example that measures that seek to protect the culture and identity of Indigenous peoples may constitute legitimate differential treatment and therefore be non-discriminatory under the Racial Discrimination Convention without being required to be classified as a special measure. The Committee has called on States to ensure that discrimination against Indigenous people is countered by:
- Recognizing and respecting Indigenous distinct culture, history, language and way of life, and promoting its preservation;
- Providing Indigenous people with conditions allowing for sustainable economic and social development compatible with their cultural characteristics;
- Ensuring that Indigenous people have equal rights to participation in public life and that no decisions directly relating to their interests are taken without their informed consent; and
- Ensuring that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and practice their languages. (CERD, General Recommendation 23, see Social Justice Report 2000, pp20-21).
These provisions, both internationally and through their currently imperfect incorporation in domestic law through the Racial Discrimination Act will be able to be relied upon to ensure that there is no legal impediment to the introduction of Aboriginal controlled community justice mechanisms and governance processes.
Thankyou.
1. 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.
2. Llewellyn, J and Howse, R, Restorative justice - a conceptual framework, Law Commission of Canada, Ottawa 1999, p2. See: www.lcc.gc.ca/en/sr/rj/howse/index.html
