Reconciliation - Where to Now?:
Perth and Broome Launches of the Social Justice Report 2001 and Native Title Report 2001
Speech delivered by Dr William
Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner
Human Rights and Equal Opportunity Commission
1 July 2002 (Perth) and 4 July 2002 (Broome)
Acknowledgement of traditional owners and those present.
On 14 May 2002 the Attorney-General tabled the Social Justice Report 2001, my annual review of the exercise of human rights by Indigenous Australians, and the Native Title Report 2001, my annual review of native title developments, in federal Parliament.
I am holding this launch this evening, and others across the nation over the next few weeks, to bring issues of human rights significance raised by my reports to the attention of Indigenous and other interested communities and organisations. In the absence of an adequate response from government to a process of such national significance as reconciliation it is important that people such as yourselves continue to ponder and pursue solutions to the question of 'where to now?' for achieving equity and social justice for Indigenous people in Australia.
In both my reports I found cause to express serious concerns about the nation's progress in achieving the exercise of Indigenous rights. The Social Justice Report highlights the ongoing failure to address Indigenous overrepresentation in the criminal justice system ten years on from the Royal Commission into Aboriginal Deaths in Custody. In particular, it focuses on the human rights implications of mandatory sentencing laws and diversionary schemes for juveniles in Western Australia and the Northern Territory.
It also examines significant policy issues that have emerged in regard to the use of mutual obligation and welfare reform policies to address Indigenous disadvantage, and new initiatives for governance and capacity-building in Indigenous communities.
The Native Title Report expresses concern at the administration of the right to negotiate provisions by tribunals and governments; as well as at the inequitable funding levels within the native title system which disadvantage native title representative bodies in the process. It also explores the capacity for framework agreements to be better utilised to elaborate standards for the co-existence of interests in land.
In releasing my reports this year the issue of reconciliation, and the lack of national leadership and commitment shown by the federal government to furthering this process, has provided a focal point for evaluating the exercise and the enjoyment of human rights by Indigenous Australians.
To date, there has been no formal, comprehensive public response by the federal government to the reconciliation documents handed to the government at Corroboree in May 2000 or the recommendations of the Council for Aboriginal Reconciliation's final report of December 2000. This is despite the passage of eighteen months since CAR's final report and of over two years since the documents of reconciliation were released.
The timing of my latest reports in itself provides further cause for reflection on the nation's failure to make significant inroads on the reconciliation process.
The year 2001 marked the tenth anniversary of the final report of the Royal Commission into Aboriginal Deaths in Custody. We have also recently celebrated the tenth anniversary of the Mabo decision which rejected terra nullius and recognised the continued existence of native title. It is also the fifth anniversary of the Bringing them home report. Indigenous affairs seem to have become a series of anniversaries - operating as an annual reminder of the unfulfilled promises and commitments of governments.
The reports of the Royal Commission marked a turning point in the recognition of the wrongs of the past, and did so unreservedly. They also provided great optimism that serious attention would be devoted to overcoming the systemic, structural discrimination that Indigenous people face in Australian society as a result of colonialism.
But while some genuine efforts to this end have been made in the decade since the Royal Commission and continue to be made today, Indigenous people have continued to die in custody at high rates and the average rate of Indigenous people in corrections representation has in fact worsened - rather than improved.
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. In 1999 the number of Indigenous prisoners made up 20% of the total prisoner population - that compares to 14% in 1991. That a group that constitutes 2% of the total population provides 20% of the country's prisoners is shocking.
Indigenous juveniles remain grossly over-represented in juvenile corrections. 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.
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.
But in 2001, ten years on from the Royal Commission, these deteriorating circumstances hardly raised a murmur of discontent yet alone outrage among the broader community. The sense of urgency and commitment to addressing Indigenous over-representation in criminal justice processes has slowly dissipated. The facts about Indigenous people in custody now either go unnoticed, or perhaps even worse in the age of reconciliation, are simply accepted and not challenged.
The situation is worst here in Western Australia. And the Social Justice Report provides a detailed look at two aspects of the system here, largely as it relates to Indigenous juveniles. This is through examining laws which impose mandatory minimum terms of imprisonment and the operation of the system of juvenile diversion from custody.
I have often condemned mandatory sentencing laws, and a recent report by the now defunct Aboriginal Justice Committee provides damning evidence of the discriminatory and arbitrary nature of these laws in Western Australia. So I will only say this about these laws:
Suggestions by the current WA government that these laws only target the most serious offenders and are justifiable on that basis are incorrect and disingenuous. They do not. Statistics show that serious offenders are sentenced to terms greater than the mandatory minimum through the proper and appropriate operation of judicial discretion. The laws are irrelevant for such offenders. Instead, they impact on the lesser end of the scale and there are examples of great injustice and disproportionate sentencing that have resulted accordingly.
Mandatory sentencing must go. WA cannot be seen as a progressive state while these laws continue to operate.
These laws are combined, even more tragically in my opinion, with poorly constructed options for diversion of juveniles from the formal criminal justice system. The system of Juvenile Justice Teams in WA is examined in detail in the Social Justice Report where they are assessed against human rights standards.
While diversion has existed in WA for a decade, it is extremely outmoded and does not meet the needs of Indigenous communities. The primary aim of diversion is to slow down the rate of entry into the formal criminal justice system and to reduce the likelihood of Indigenous juveniles being labeled repeat offenders. The current system is not equipped to meet this task. It also perhaps the worst scheme currently in operation in Australia.
Concerns identified in the report about diversion include:
- The high rate of referral to diversion at the Court rather than police stage, indicating that diversion is happening later that it should;
- The lack of legislation guiding the operation of diversion and the treatment of police rules as 'guidelines' rather than binding instruments;
- A significant net-widening effect with Indigenous juveniles being increasingly caught in the web of the criminal system while non-Indigenous juveniles are able to access diversion at a greater rate;
- Unacceptably poor monitoring mechanisms, including at the court level with lack of adequate recording of ethnicity of offenders; and
- The lack of legal safeguards for suspected offenders at the diversionary stage.
I am also concerned that the scheme is culturally inappropriate, inaccessible to Indigenous communities - and this is particularly the case outside of Perth where programs are virtually non-existent - and provides no meaningful role in design and implementation for Indigenous communities.
I have accordingly made recommendations to the WA government to remedy this situation, which include legislative reform, consultation and negotiation with Indigenous communities, regionalisation of programs and services and improved monitoring and data collection.
I urge you to maintain pressure on the Attorney-General to ensure that this reform agenda is considered and implemented.
While I applaud positive developments in WA like the Statement of Commitment and establishment of an Indigenous Affairs Advisory Committee last October, these things seem very empty commitments while they stand next to a criminal justice system, that is so intrusive and destructive of Aboriginal peoples lives in this State.
Do not become reconciled with this situation because it is an extraordinary one of such magnitude that true reconciliation cannot realistically be achieved while it remains the status quo.
In my Native Title Report I have found cause to express further concern at the failure of the Native Title Act to deliver lasting outcomes for Indigenous peoples. Ten years on from the landmark Mabo decision, the native title process has become a travesty of the justice it was meant to deliver to Indigenous Australians.
As an embodiment of social relations, the native title system places Indigenous interests at a lower level than non-Indigenous interests, every time. As an embodiment of economic relations, the native title system removes Indigenous people's effective control over their only asset: exclusive rights to land and sea country. And as an embodiment of political relations, native title fails to recognise traditional decision-making structures.
Of particular concern is the administration of the right to negotiate provisions by tribunals and governments: in the past year some governments have failed to accord to native title parties their right to negotiate on lands where the status of native title is as yet uncertain. Some governments have avoided the operation of the right to negotiate by implementing their own regimes permitted by the Native Title Act which undermine the right to negotiate.
In fact, the increasingly technical approach to native title has had the effect of reducing the necessity to negotiate with native title parties over developments on lands potentially subject to native title. These actions breach international human rights standards.
There also continues to be inequitable funding levels within the native title system which disadvantage the native title representative bodies who advocate for claimants in the process. Critical factors relating to the functions of native title representative bodies are not reflected in funding levels. This under-funding limits the options available to Indigenous people in protecting their native title rights.
We must remember that the Council for Aboriginal Reconciliation's Australian Declaration towards Reconciliation and the Roadmap to Reconciliation were the result of a ten year process partly instigated by the Royal Commission, the National Report of which identified reconciliation as 'an essential commitment on all sides if change is to be genuine and long term'. The reconciliation process was implemented as an initiative of government, not of Indigenous people themselves, and one to which Indigenous people responded and acted in good faith.
But now we face a deplorable situation in which not only has the federal government failed to respond adequately or comprehensively to CAR's recommendations, they have quite deliberately sought to shut down debate and avoid any engagement about them by stating that they are committed to practical reconciliation.
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 pursuing this approach, the government has responded to only one of the six recommendations of CAR's final report - through the limited focus of COAG's framework for addressing disadvantage. They have ignored the broader-based agenda for reconciliation put forward by CAR that recognised the necessary interrelatedness of symbolic and practical measures to Indigenous people's self-determination.
There is a danger that the reconciliation walks from 2000 will be the high watermark of support for reconciliation, as national attention slowly dissipates. Vital to the success of the reconciliation process would be a more active leadership role by the Commonwealth 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.
The impoverished notion of practical reconciliation will not in and of itself lead to meaningful reconciliation between Indigenous and non-Indigenous peoples. It is simply not enough to assert that what is needed is for Indigenous people to assimilate to mainstream society or that reconciliation will be the product of a country that is relaxed and comfortable with itself.
Now, as I said before the lack of progress in addressing the concerns of the Royal Commission into Deaths in Custody offers us a stark reminder of what is at stake in this country with reconciliation.
It is for many of the reasons already outlined that I am calling for a Senate inquiry into the reconciliation process and in particular into the documents produced by the Council for Aboriginal Reconciliation and the recommendations of the Social Justice Report 2000. This inquiry would examine the adequacy of the Federal government's response to each of these recommendations. It would also consider the processes by which 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.
At the end of a ten year, multi-million dollar process of such pivotal importance to the development of Australian society as reconciliation, it would be reasonable to expect a formal response so that all members of the Australian community are clear as to the level of commitment provided by the government. I believe that we cannot afford to look back in 10 years' time on the reconciliation process with the same regrets we now do on the Royal Commission into Aboriginal Deaths in Custody.
Thank you.
