Site navigation

Change font size: SmallerLargerReload

About the Australian Human Rights Commission navigation

Evolving law and order policy - A rights perspective

Speech by Aboriginal and Torres Strait Islander Social Justice Commissioner Dr William Jonas AM to the ATSIC Forum The Royal Commission into Aboriginal Deaths in Custody — Unfinished Business, 2 November 2001.

I would like to acknowledge the Gadigal people, the traditional owners and custodians of the land where we are meeting.

Today's forum is an extremely important one. It gives us the opportunity to reflect on progress, or lack of it, in the ten years since one of the most extensive and devastating reports into the impact of colonialism on the Indigenous peoples of this country.

But while it is in people's nature to celebrate anniversaries, it must be said that this anniversary is a sad one, and there is less to celebrate some 10 and a half years after the Royal Commission's findings than we might have hoped for.

The reports of the Royal Commission provided the impetus for the reconciliation process, and identified the necessity for a national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. It marked a turning point in the recognition of the wrongs of the past, and did so unreservedly.

The reports of the Royal Commission 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.

And while genuine efforts to this end continue, it must be said that sometimes one can feel that Aboriginal affairs has become a series of anniversaries - operating as an annual reminder of the unfulfilled promises and commitments of governments.

While this year is the tenth anniversary of the Royal Commission, next year will be the tenth anniversary of the Mabo decision and the fifth anniversary of the Bringing them home report. So we will again have anniversaries of events where the fundamental recognition and acknowledgement of wrongs committed in the past has not been matched by adequate remedy and redress by government.

It is also close to a year and a half since the release of the Roadmap to Reconciliation and a year since the final report and recommendations to government of the Council for Aboriginal Reconciliation. These documents were the result of a ten year process which commenced on the recommendation of the Royal Commission. The National Report of the Royal Commission identified reconciliation as 'an essential commitment on all sides if change is to be genuine and long term'.[1]

I ask myself of this particular anniversary, is it adequate that a year after the end of a sustained ten year process of reconciliation the government has failed to provide a national response to the recommendations of the Council for Aboriginal Reconciliation and has simply dismissed them as symbolic rather than of practical application?

The symbolism of this approach is crystal clear - it shows a demonstrable lack of respect for the distinctive cultures of Indigenous people and for seeking a just accommodation of them within the Australian societal fabric.

I offer these introductory comments in order to paint a picture of the broader context in which we must evaluate our progress as a nation ten years on from the Royal Commission. For ultimately, this is what the Royal Commission was about - it was about exposing a system of public institutions that have utterly failed Aboriginal people, and of making a series of proposals to guide governments in going about the process of 'righting' the wrongs, especially through greater respect for Indigenous cultures and on the basis of effective participation and self-determination.

Today I am talking largely about developments over the past five years in law and order policy. I want to stress, however, that this cannot be separated from this broader context. Indeed, the proposition that I am putting to you today is that in many ways recent developments in law and order policies across the country are reflective of this broader context.

Law and order policies, and the criminal justice system, remain one of the most significant - and difficult - points of contact in the relationship between Aboriginal people and non-Indigenous society. The Royal Commission, the reconciliation process, Bringing them home and other developments challenge us to change this relationship. And we have many statements from government that they are committed to such change.

But then we have the often contradictory messages being sent through the law and order platforms of a variety of governments, which lead me to question whether such commitments are merely rhetorical, and whether the reality is in fact that the criminal justice process is fulfilling its traditional role as what Rhoderic Broadhurst once called 'an efficient mechanism for the State to manage race conflicts and cross-cultural inequalities within society'[2].

Law and order policies in New South Wales offer a good illustration of these contradictions in government policies and programs.

But first, it is important to identify the nature of the problem that we now face before examining law and order policies. The main finding of the Royal Commission as to why Aboriginal people were dying in custody in such large numbers was simple - Aboriginal people died in custody in disproportionate numbers because they come into contact with the criminal justice system in such disproportionate numbers. The rationale of the recommendations of the Royal Commission was to reduce this over-representation at each stage of the process.

Ten years on, the statistics on Indigenous prisoners, women and juveniles in NSW shows that:

What these statistics show is that ten years on from the Royal Commission, contact with the criminal justice system is a growing problem in NSW - regardless of age or sex. This is a profoundly distressing situation.

There is no one reason that explains it. As the Royal Commission itself identified, the path towards the criminal justice system is a complex one with a multiplicity of factors which interact in differing ways.

Here in NSW, recent research and reports identify the following issues:

Without doubt, one of the most significant contributing factors to contact with the criminal justice system is the historically derived disadvantage, which can perhaps be better termed 'racial and economic exclusion', experienced by Indigenous Australians. This has created a situation of gross inequality in contemporary Australian society which often manifests in community dysfunction, violence and crime.

'Law and order' policies in NSW also contribute to this situation. Indeed, a plethora of public order laws and increased surveillance and regulation of public space in the past decade have operated as a control mechanism for dealing with what is essentially characterised, either deliberately or not, as 'the Aboriginal problem'.

Some examples of new or amended laws since the Royal Commission which contribute to this situation include provisions which enable police to search people they suspect of carrying dangerous implements[10]; allow police to require people in public areas to supply their name and address when requested[11]; and provide police with the power to 'move on' people where they believe that they are obstructing others or causing fear in others[12] ; the Children (Protection and Parental Responsibility) Act 1997; and the continued criminalisation of offensive language and offensive conduct in sections 4 and 4a of the Summary Offences Act.

These laws have undoubtedly disproportionately impacted on Indigenous people.

For example, based on 1998 data, Aboriginal people were grossly over-represented for criminal proceedings for offensive language and offensive conduct, making up over 20% of all prosecutions despite being 1.8% of the NSW population. This means that they are 15 times more likely to be prosecuted for these charges (a figure which quite incredulously rises to over 80 times the state average in some communities). In 1 out of every 4 of these cases, Aboriginal people were also charged with offences against the police - either resist arrest or assault police.[13]

The NSW Bureau of Crime Statistics and Research recently showed that Indigenous people are more likely to be convicted of violent offences and offences against justice (such as breach of court order and resist arrest) and good order offences (such as offensive conduct, possession of weapons etc). In the case of these latter offences, there is a higher discretion in police as to whether to lay charges in the first place.[14]

Similarly, a review of the operation of the Children (Protection and Parental Responsibility) Act 1997 in Moree and Ballina demonstrated a clearly disproportionate impact on Indigenous people being removed from the street.[15] It is immaterial whether these laws intend these results. The principle of non-racial discrimination clearly applies to discrimination - as evidenced through such disproportionate impacts - that is by purpose or by effect.[16]

These figures are to an extent the result of a continuation of the history of Indigenous / police relations which are confrontational and which may be linked to the visibility of Aboriginal people in public spaces. It is difficult to see the public interest and social purpose that is served by targeting Aboriginal people in this way.

There needs to be greater vigilance from the NSW government in ensuring that there is adequate scrutiny of the operation of these laws, and indeed, serious consideration of the need for these laws to operate at all. I can see no justification for the continued existence of offences of offensive language and offensive conduct, for example; and have serious reservations about the continuation of the Children (Protection and Parental Responsibility) Act.

These laws are, unfortunately, reflective of a growing trend across most states and territories. A recent example that has come to some notice is the Public Order and Anti-Social Conduct Act 2001 in the Northern Territory. This Act targets a group of Aboriginal people colloquially referred to as 'long-grassers' - essentially Aboriginal people who have come into Darwin from communities, perhaps for medical treatment or to visit family, and who sleep out in public parks. The Act allows police to move people on from public places, shops, malls, railway stations and, quite extraordinarily, from private places which are adjacent to public places, or places that are prescribed by regulation - for example a residence!

The Act provides police with powers to direct a person to stop engaging in behaviour which may constitute anti-social conduct, leave the place for 3 days and not return, detain goods which contribute to the anti-social conduct, require names and addresses of offenders, and conduct searches of the person and their property. Failure to comply can result in a fine or imprisonment.

There is much that is extraordinary about the Act, including the fact that police can direct a person in the way described where they merely have a 'reasonable apprehension' that the person 'is about to engage in anti-social conduct'. The Northern Territory Act is a particularly despicable example of over the top and discriminatory public order regulation. It is hoped that the new government there will repeal this law, as they did mandatory sentencing provisions just a fortnight ago.

This trend in relation to public order regulation is in my view one of the most worrying developments since the Royal Commission. The seriousness of these offences goes beyond the penalties that they impose. The Royal Commission vividly demonstrated the cycle of criminalisation that many Indigenous people fall into. These laws can operate to indoctrinate Aboriginal people into the criminal justice system and potentially into a pattern of more serious offending[17], and appear to do so for limited - if any - broader social benefit.

This form of public order regulation stands in stark contrast to recent developments in relation to restorative justice mechanisms and the development of alternatives to custody which are specifically aimed to avoid incarceration and reduce such contact, and in contrast to broader, more holistic community governance processes which seek to deal with the cumulative, underlying factors - such as poor health, education, housing and unemployment - the consequences of which often reflect in criminal behaviour.

In relation to restorative justice mechanisms and alternatives to custody, the diversionary processes under the Young Offenders Act 1997 form the centrepiece of this approach in New South Wales. There is also a current proposal to introduce community justice conferencing for adults - a move for which I have indicated my broad support. These programs and proposals apply to all offenders, not just Aboriginal people.

There are also other programs more specifically targeted to Aboriginal needs - one of the most notable, which will be introduced later this year, is the circle sentencing trial in Nowra.

Diversionary programs, and I am leaving circle sentencing aside at this stage, have the potential to be more consistent with a human rights approach to criminal justice. I say potential because they also have the potential to be equally destructive as the formal criminal process, especially where they operate in an unaccountable, unscrutinised manner without adequate legal safeguards.

They also have the potential to continue to operate within a mono-cultural framework and to simply be inaccessible or culturally inappropriate to Indigenous people.

Indeed, one of the principle concerns with juvenile diversionary programs as it has operated in many jurisdictions to date is that they are less accessible to Indigenous juveniles. There is evidence in Western Australia, for example, that non-Indigenous youths have been the beneficiaries of diversionary processes, while Indigenous youth remain in the justice system - thereby increasing the rate of over-representation of Indigenous youth in the more formal areas of the justice system.

This has been accompanied by a net-widening effect, whereby contact with police is formalised - so that what may previously have been dealt with informally is now dealt with in a more formal way such as by written warning. Research in Western Australia on long-term trends in cautioning practices shows that level of contact between police and youth increased substantially after the introduction of diversion.

If we consider this net-widening effect next to the framework of public order offences, it is not difficult to see how diversion can result in an incremental accumulation of contact between the police and Indigenous youth, and may ultimately lead to the opposite of the intended effect.

This is one example of how diversionary programs need to be closely monitored to ensure that they benefit Indigenous people, rather than further entrenching the disadvantage that they face in criminal justice processes.There are a range of human rights standards that are relevant in this regard.

I have recently released a Human Rights Brief on best practice principles for the diversion of juveniles that summarises them. It highlights issues raised in the Royal Commission and Bringing them home reports relating to Indigenous juveniles and contains a checklist of safeguards that should be met in any diversionary program - and I commend it to you.[18]

Another concern that arises with diversionary programs is their cultural relevance to Indigenous people. There is often an assumption that many forms of diversion, such as family conferencing, are consistent with Aboriginal customary values and are therefore more appropriate for dealing with Aboriginal offenders. There can be a tendency to impose these programs on Indigenous people with this well-meaning intention in mind.

One of the pivotal messages of the Royal Commission, that needs to be made central to diversionary programs for them to be appropriate and acceptable, is that it cannot be imposed on Indigenous people. It must be premised on the basis of effective participation and self-determination with grass roots involvement of Aboriginal communities in program design and delivery. Recommendation 43 of Bringing them home goes further than this and recommends national legislation establishing the framework for negotiation at the community and regional level for the implementation of self-determination in relation to the well-being of Indigenous children and young people. In particular, it recommends that such national legislation should authorise negotiations with Indigenous communities, where they so desire, on the transfer of legal jurisdiction in relation to juvenile justice, transfer of police or judicial functions to the community, and adequate funding for community programs and strategies.

I suspect that current models of diversion have only superficially tapped into the potential for Indigenous participation and decision-making in regards to alternatives to custody. Approaches such as conferencing, if implemented appropriately, offer greater opportunity for Aboriginal community participation in the design and delivery of programs, and greater involvement in determining the outcomes of the process so that they are more meaningful and effective.

And it was from this perspective of ensuring effective participation of Aboriginal communities and greater ownership of justice initiatives that I was pleased to hear that the long-proposed trial of circle sentencing will now shortly commence in Nowra.

In many ways, I see the circle sentencing trial as a potential breakthrough in the recognition of Aboriginal customary law in the NSW context. It has the potential to provide Indigenous communities with a central role in the maintenance of law and order in their community.

I only want to comment on one aspect of circle sentencing today -and that has been the response to its announcement by the Opposition in NSW, which reflects a common misunderstanding about programs for Indigenous people. In Parliament, the leader of the Opposition Mrs Chikarovski said of circle sentencing:

We need to make sure that justice in NSW is fair for all. In doing so, we need to make sure that no particular concessions are given to one group in the community that would disadvantage any other group.[19]

These comments reflect a common misunderstanding of the concept of equality. The statistics that I have read to you today demonstrate that the situation at present does disadvantage one particular group in the community - namely Aboriginal people. The human rights principles of non-discrimination and equality before the law - which are found in Articles 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination - certainly envisage situations where differential treatment, such as alternative sentencing processes to counteract the gross over-representation of a particular racial group, is permissible. This is either on a short-term basis to bring a disadvantaged racial group up to the position of the rest of society - special measures - or where it constitutes a legitimate recognition of cultural difference.

Circle sentencing joins initiatives in other states such as the South Australian Aboriginal Court in Port Adelaide as a cutting edge, community driven approach to justice issues, which I will hope will contribute to improving the desperate situation that currently exists in our criminal justice system regarding Indigenous people.

To finish, I want to return briefly to the broader context that I set out at the beginning of my talk. In a case a few years ago, Justice Fitzgerald commented:

the criminal law is a hopelessly blunt instrument of social policy, and its implementation by the courts is a totally inadequate substitute for improved education, health, housing and employment for Aboriginal communities. Irrespective of race, the criminal justice system increasingly merely punishes those who are the product of deficient or failed social policies… [20]

Law and order policies often act as a control mechanism of Aboriginal people - keeping them off the streets and keeping what is perceived as a problem out of the way of the broader community. The consequences of contact of Aboriginal people with the criminal justice process is devastating, and while much can be done to reduce over-representation in the ways that I have described today, we must always remind ourselves of the broader context of the society in which we live.

In my Social Justice Report 2000 I set out a human rights framework for achieving meaningful reconciliation. Central to that framework was overcoming Indigenous disadvantage through the adoption of an unqualified, long term national commitment, with inter-governmental and inter-agency cooperation and negotiation and participation of Indigenous communities.

Initiatives such as circle sentencing and diversionary programs are a microcosm of the broader holistic approach that must be adopted if we are to address the underlying causes that lead to contact with the criminal justice - and indeed care and protection - systems. Without changing the fundamentally unequal basis of our society, measures that provide alternatives to custody will only be band-aid solutions.

And with this in mind, I want to join with the NSW Aboriginal Justice Advisory Council in querying the lack of progress of the NSW government in developing and implementing its commitments from the 1997 National Summit on Deaths in Custody, particularly the failure to develop an Aboriginal Justice Plan.

I fully support the development by AJAC of an Aboriginal Justice Plan which seeks to develop a holistic, ground up approach to Indigenous participation and control in addressing the root causes of dysfunction in communities. Ultimately, governments must enter into partnerships with communities and empower them to deal with law and order issues themselves rather than relying on the 'hopelessly blunt instrument' that is the criminal justice system.

Thank you.

1. Royal Commission into Aboriginal Deaths in Custody, National Report - Volume 1, AGPS Canberra 1991, p xlviii.
2. 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.
3. Baker, J., The scope for reducing indigenous imprisonment rates, NSW Bureau of Crime Statistics and Research: Crime and Justice Bulletin 55, Sydney, March 2001, Table 1, p2.
4. Select Committee on the increase in the prison population, Interim report: Issues relating to women, NSW Parliament , Sydney 2000, para 3.12.
5. Australian Institute of Criminology, Persons in juvenile corrective institutions 1981-2000, AIC Canberra 2001.
6. Baker, J, op.cit, p3.
7. ibid, p9.
8. Aboriginal Justice Advisory Council (NSW), Royal Commission into Aboriginal Deaths in Custody: Review of NSW government implementation of recommendations, AJAC NSW, Sydney, 2000, p8.
9. New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96, NSWLRC, Sydney 2000, para 1.46.
10. The Crimes Legislation Amendment (Police and Public Safety) Act 1998.
11. Crimes Act.
12. Section 28 of the Summary Offences Act.
13. Aboriginal Justice Advisory Council NSW, Policing public order, offensive language and behaviour, the impact on Aboriginal people, AJAC, Sydney 1999.
14. Baker, J, op.cit, p3.
15. Aboriginal Justice Advisory Council NSW, A fraction more power - review of the impact of the Children (Protection and Parental Responsibility) Act on Aboriginal people in Moree and Ballina, AJAC NSW 2000.
16. For detailed discussion of this obligation, see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, HREOC Sydney 2000, Chapter 3.
17. See for example: Aboriginal Justice Advisory Council, Policing public order, offensive language and behaviour, the impact on Aboriginal people, op.cit; Hunter, B and Borland, J, The Effect of Arrest on Indigenous Employment Prospects, NSW Bureau of Crime Statistics and Research: Crime and Justice Bulletin 45, Sydney 1999.
18. Human Rights and Equal Opportunity Commission, Human Rights Brief 5: Best practice principles for the diversion of juveniles, www.humanrights.gov.au/social_justice/index.htm.
19. Mrs Chikarovski, Hansard - Legislative Assembly, 18 October 2001, p41.
20. Justice Fitzgerald, R v Daniel [1998] 1 QdR 499, p530.
Last updated 1 December 2001