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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Similarly, my predecessor stated in 1995:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Endnotes

1 Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, 19 April 1994, UN Doc A/49/18, para 547.
2 The principle of racial non-discrimination has also reached the status of jus cogens, i.e., a norm of international law from which no derogation is permitted: See Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, HREOC, Sydney 1999, p30.
3 This section is extracted from Human Rights and Equal Opportunity Commission, Bringing them home, HREOC Sydney 1997, pp319-322.
4 Australian Bureau of Statistics, Corrective Services, June Quarter 1999, Ref: 4512.0. There are no reliable figures for New South Wales.
5 Aboriginal and Torres Strait Islander Social Justice Commissioner, Second Report 1994, Human Rights and Equal Opportunity Commission, Sydney 1995, p99.
6 Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report 1995, AGPS, Canberra, 1996, p23.
7 Hunter, B and Borland, J, 'The effect of arrest on indigenous employment prospects', Crime and Justice Bulletin, Number 45, June 1999, NSW Bureau of Crime Statistics and Research.
8 ibid, pp 1-2. See also Gallagher, P and Poletti, P, Sentencing disparity and the Ethnicity of Juvenile Offenders, Judicial Commission of New South Wales, Sydney 1998.
9 Broadhurst, R, 'Crime, Justice and Indigenous Peoples: the 'New Justice' and Settler States' (1999) 32(2) Australian and New Zealand Journal of Criminology 105, p107.
10 South West Africa Case (Second Phase) {1966} ICJ Rep 6, per Judge Tanaka, pp303-304, p305.
11 Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, op.cit, p32.
12 For example, see Committee on the Elimination of Racial Discrimination, General Recommendation XX on Article 5, UN Doc CERD/48/Misc.6/Rev.2 (1996), para 2 and Committee on the Elimination of Racial Discrimination, General Recommendation XIV - Definition of discrimination, 19/03/93, para 2.
13 Committee on the Elimination of Racial Discrimination, General Recommendation XXIII - Indigenous Peoples, Un Doc CERD/C/51/Misc.13/Rev.4, 18 August 1997, para 3.
14 ibid., para 4.
15 Article 1 of the International Covenant on Economic, Social and Cultural Rights is worded identically, as is the current version of Draft Declaration on the Rights of Indigenous Peoples.
16 This has been referred to by the Committee operating under CERD as part of the internal aspect of self-determination, as opposed to the above situation which constitutes part of the external aspect: Committee on the Elimination of Racial Discrimination, General Recommendation XXI on Self-determination (1996) UN Doc CERD/48/Misc.7/Rev.3, paras 4-5.
17 Aboriginal and Torres Strait Islander Social Justice Commissioner, First report 1993, AGPS Canberra 1993, p56. Note: for approaches to incorporating the principle of self-determination, as well as those of non-discrimination, equality and cultural difference, into correctional programs, see Bringing them home, op.cit, Chapters 24, 26.

Last updated 1 December 2001