1999 Social Justice Report
- Indigenous young people and human rights
- Bilingual education
- Mandatory sentencing and Indigenous youth
- Other issues - key themes in Indigenous policy formulation
The 1999 Social Justice Report is the first by Dr William Jonas. The report was transmitted to the federal Attorney-General on 20 January 2000.
The report looks at four key issues: young people and human rights, identity, mandatory sentencing and bilingual education.
Dr Jonas has focused this report on young Indigenous people young between the ages of 15 and 29. The Indigenous population is young, with a median age of 20. Over the next decade a high proportion of Indigenous people will reach working age and be ready to take on adult responsibilities. From this group will emerge Indigenous Australia's future leaders.
The report argues that the disproportionate disadvantage faced by young Indigenous people has the potential to increase and further entrench the disparity between Indigenous and non-Indigenous Australians over the coming decades unless greater effort is made now to reduce the inequality that they face.
In the light of broader human rights principles, the report assesses the outcomes of government policies, including the focus on improvements in targeted areas including health and housing reform.
Dr Jonas reports that in many cases, policies are initiated and implemented without due regard to human rights principles.
Chapter 1 evaluates, from a human rights perspective, key themes of the federal government's approach to Indigenous affairs. These are outlined in this summary.
The report profiles Australia's young Indigenous population and the disproportionate disadvantages they face in areas such as employment, housing, education, health, mortality, and contact with the criminal justice system. A summary follows:
Indigenous people constitute 2.1 per cent of the total Australian population. By comparison, Indigenous people aged 15-29 years represent 2.6 per cent and Indigenous children aged 0-14 years 3.9 per cent of the total population for those age groups.
The unemployment rate for Indigenous youth in 1996 was 28.6 per cent - more than double the corresponding rate for all youth. While the unemployment rate declines for adults aged 30 years and over, the rate of unemployment among Indigenous Australians remains more than double that of all Australians. The unemployment rate for Indigenous people over the age of 30 is higher than the unemployment rate for the total youth population.
Indigenous people aged 15-21 years have lower participation rates in the formal education system than the rest of the population. Census figures show that 73.7 per cent of Indigenous 15 year olds were in full-time education in 1996. This compares with 91.5 per cent of all 15 year olds.
At older ages, the gap between Indigenous participation and that of the rest of the population increases. By the age of 19, an age at which involvement in tertiary education might be expected, only 12 per cent of Indigenous people were in full-time education. This is one-third of the rate for the total population at age 19.
Data of sufficient quality about deaths of Indigenous people are only available for South Australia, Western Australia and the Northern Territory. In 1997, 15.3 per cent of all deaths of Indigenous people occurred in the 15-34 age group. This compares to only 3.5 per cent of deaths of non-Indigenous people in the same age group. Put differently, death rates for Indigenous males and females in the 15-24 year age group were 2-3 times higher than for non-Indigenous people in the same age group and nearly 5 times higher in the 25-34 year age group.
Contact with the criminal justice system
The 1998 National Prisoner Census shows that 18.8 per cent, or nearly 1 in 5 prisoners, were recorded as Indigenous on the night of the Prisoner Census. Imprisonment rates for Indigenous males are 12 times higher than the rate for all males, and the rate for Indigenous females 14 times higher than for all females.
There are extremely high rates of imprisonment for Indigenous men aged 20-29. 1 in 20 young Indigenous men were in prison on census night 1998. Rates for all males are also highest for 20-29 year olds but represent 1 in 200 of all young men. (pp29-48)
Redressing disadvantage - the human rights dimension
The report explains how human rights principles of non-discrimination and equality justify and may in fact require governments to redress these disadvantages through remedial programs, or 'special measures.' The report reviews the extent to which government policies comply with these requirements.
Dr Jonas states that redressing disadvantage is a human rights issue. Justice demands that we acknowledge the position faced by Indigenous people and make special effort to redress it.
The report finds that there are a number of programs in place, such as the Federal Government's Indigenous Employment program, but that:
- This and other programs do not explicitly recognise that it is a human rights obligation to redress Indigenous disadvantage; and
- That calls for Indigenous people to move 'beyond welfare dependency' and the frustration at the perceived lack of progress in crucial areas of Indigenous disadvantage, 'appear to lay blame and place the onus for redressing this disadvantage on Indigenous people themselves'. (pp49-63)
The report finds that spending on Indigenous programs is between 8-48 per cent higher for Indigenous people than non-Indigenous people on education, health and employment. However, spending on housing for non-Indigenous people is up to 21 per cent higher than for Indigenous people. The report concludes that these figures, when compared to the level of disadvantage faced, indicate that programs are insufficient to create equality of outcome for Indigenous people.
The report examines how non-Indigenous definitions of 'Aboriginality' have been used by policy-makers to manage and control Indigenous peoples (pp67-73); the challenge faced by Indigenous youth of striking a balance between involvement in the Indigenous community and the mainstream Australian community (pp74-76); and the continuing impact of the historical treatment of Indigenous peoples in Australia (pp77-80). Young Indigenous people variously speak of being alienated from both black and white communities, of difficulty in coming to terms with the past, of living somewhere 'between two worlds', and being unable to find a point of balance (pp65-80).
Having outlined these issues, the report then considers identity rights. That is, human rights principles which recognise and protect the distinct cultural characteristics of Indigenous peoples worldwide (p81). The report notes that globalisation and the increasing recognition of the identity rights of Indigenous people in the international arena has significance domestically. It forms the basis for the re-empowerment of Indigenous people within Australia, despite being a slow, uncomfortable and haphazard process.
It is a process that requires Australia to come to terms with the historic denial of the rights of Indigenous Australians. The report argues that for reconciliation to be lasting and meaningful it must involve the full recognition of identity rights. While this is a difficult task, the belated recognition of native title demonstrates that it will not simply go away and will grow more difficult until it is faced.
The report notes that there is already some recognition for identity rights by governments in Australia - but that it is grudging, limited in scope and within tightly prescribed limits. (p9)
The report criticises on human rights grounds the Northern Territory Government's abolition in 1998 of bilingual education programs for Aboriginal students in public schools.
Bilingual education is the teaching of children in traditional languages with English gradually becoming the main language of instruction. This process helps maintain Indigenous language, culture and identity, and improves Indigenous students' participation in the formal mainstream education system. It is an example of human rights principles in practice.
The philosophy behind bilingual education is strongly supported by educational research and international human rights principles such as the right to an education, the appropriate recognition of cultural difference and self-determination.
The report argues that the governments of the Northern Territory and the Commonwealth have a responsibility to support the principles behind bilingual education as a means to improving students' experience of and participation in the formal education system and supporting the maintenance of unique cultures and languages. Bilingual education programs have tangible long term benefits.
Replacing bilingual education with programs based on teaching solely in English will not necessarily improve students' educational experience and may come at considerable cultural cost.
- Places concerns about mandatory detention laws within the context of long held, and widely accepted, concerns of Indigenous over-representation in criminal justice processes;
- reviews statistics on mandatory sentencing and the criminal justice system;
- outlines the key human rights principles applying to the mandatory sentencing debate; and
- identifies alternatives to mandatory detention.
The report states that mandatory sentencing laws are the antithesis of social justice, are inconsistent with best practice standards in criminal justice and breach Australia's international human rights obligations (p169).
For two decades, Australian authorities have had their attention drawn repeatedly to the fact that Indigenous people are vastly over-represented in the juvenile justice and criminal justice systems. The reasons are clear-cut and widely-accepted: Indigenous people continue to suffer economic disadvantage, social disruption and systemic discrimination.
The need to reduce this over-representation has long been recognised by governments. None-the-less, various state and territory governments, riding on a wave of 'law and order' politics, continue to introduce punitive sentencing laws that impact disproportionately on Indigenous people.
Using case studies, the report analyses the disproportionate impact of mandatory sentencing laws on Indigenous youth in Western Australia and the Northern Territory. Dr Jonas argues that these laws flout the widely-accepted aim of minimising Indigenous contact with the criminal justice system and are in breach of Australia's international human rights obligations.
The report recalls the recommendations of the Royal Commission into Aboriginal Deaths in Custody and reports that the situation has deteriorated since they were issued. The report cites many statistics. For example:
- In 1993, an Indigenous youth was 17 more times likely to be detained in custody than a non-Indigenous youth. By 1996 an Indigenous youth was 21 more times likely to be detained in custody than a non-Indigenous youth;
- Between 1994 and 1997 there was a 20 per cent increase in the number of young Indigenous people in detention;
- In 1999, 76 per cent of all prisoners in the NT and 34 per cent of all prisoners in WA were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of the non-Indigenous population;
- Rates in the other states for which statistics are available are also unacceptably high - 15.7 times higher in South Australia, 12.2 times higher in Victoria, 11.3 times higher in Queensland, 9.9 times higher in the Northern Territory and 5.1 times higher in Tasmania;
- From 1988 to 1998, the Indigenous prisoner population (across all age groups) has more than doubled; and
- The number of Indigenous deaths in custody in the decade since the Royal Commission has been 147, compared to 99 in the decade before the Royal Commission, climbing from 12 per cent of all prison deaths to 17 per cent in a decade.
These statistics are evidence of a legal system that continues to respond inappropriately to the circumstances of Indigenous people. It is within this context that mandatory detention laws - which relate to but one stage of the criminal justice process - are considered by the report.
Human rights standards
The report shows how mandatory sentencing breaches a number of internationally-accepted human rights standards (pp137-149).
Dr Jonas argues that mandatory sentencing laws violate the principles of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights especially as they relate to the following principles of juvenile justice:
- detention shall be a sentence of last resort
- detention shall be for the shortest appropriate period of time
- detention must not be arbitrary or unjust
- a sentence must be proportionate to the circumstances of the offender and the offence, and in the case of juveniles must be individually tailored, and
- the conviction and sentence must be capable of review
Examples of sentences are given, including:
- A 15 year old girl detained for 28 days for unlawful possession of a motor vehicle when in fact she was only a passenger
- A young offender sentenced to 14 days for breaking a light worth $9.60; and
- A 29 year old homeless man sentenced to one year for stealing a towel (see pp147-48).
The report examines the devastating impact of incarceration on Indigenous lives. Using case studies, the report also considers the social and economic disadvantage that often leads to offending behaviour and which explains the disproportionate impact on Indigenous youth.
The report presents positive alternatives for dealing with Indigenous juvenile crime and highlights the number of times these recommendations have been made previously, such as in the Bringing them home and Seen and Heard (ALRC/HREOC 1997) reports. It explains how these alternatives fit within international human rights standards and urges governments to give more urgent consideration to them. (pp154-168)
Alternatives include crime prevention programs; diversionary programs, including cautioning and group conferencing; and non-custodial sentence options.
The report calls on the Commonwealth government to repeal the mandatory detention laws of WA and the NT, given that those governments have chosen not to do so. The passage of overriding legislation by the Commonwealth would send a clear message to the states and territories that they do not have unlimited power to introduce laws that further discriminate against Indigenous Australians, and would re-emphasise the importance of the recommendations of the Deaths in Custody Royal Commission that aim to reduce over-representation of Indigenous people in criminal justice processes.
The report assesses four key themes that currently dominate debate about the development of Indigenous policies against human rights principles.
a) Welfare dependency
The call for a move beyond welfare dependency to situations that are economically viable and sustainable in the long term has long been a desire expressed by Indigenous leaders and lies at the core of debates over regional governance and the recognition of native title rights.
To the extent that this debate reflects the desire to improve the situation of Indigenous people, Dr Jonas expresses his agreement with this approach.
However, the report argues that the process of breaking down Indigenous disadvantage into individual programs rather than being viewed as of a broad systemic nature is too narrow.
It reduces Indigenous disadvantage to an individual level, implying that there is a lack of responsibility on the part of Indigenous people who are on welfare, while failing to recognise the broader, systemic nature of Indigenous disadvantage in this country.
a government focus on accountability in Indigenous affairs, the report
argues that a lack of coordination in funding and service delivery hampers
the goal of improving Indigenous living conditions.
The report argues that accountability should be required in every aspect of service delivery to Indigenous people, including from governments. International scrutiny is a form of such accountability of government.
Australia's international human rights obligations require governments to provide services and redress Indigenous disadvantage in culturally appropriate, non-discriminatory manner and with adequate consultation. This is to ensure the effective participation of Indigenous peoples, particularly in the design and delivery of services that affect them.
The report argues that the apparently objective aim of ensuring accountability should not be used as a subterfuge for failing to address the legitimate and clearly expressed aspirations of Indigenous people. Indigenous people have a role in determining what is 'a rational allocation of resources.'
c) Effective participation
The report argues that the requirement that Indigenous people be able to fully participate in decisions that affect them is essential to secure movement away from welfare dependency Dr Jonas notes that despite the apparent acceptance of the importance of this principle governments continue in most instances to act in a manner that conceives of it as aspirational rather than essential. The consequence of this is that Indigenous perspectives and concerns are able to be dismissed or outweighed when there is a contrary or competing set of interests.
Reconciliation must involve the full recognition of and respect for the human rights of Indigenous peoples if it is to be lasting and meaningful. As Sir Gerard Brennan has stated, 'Reconciliation is an obligation of justice, not a manifestation of benevolence.' Reconciliation must include recognition of rights to equality, non-discrimination and effective participation and must give weight to the aspirations of Indigenous Australians.
The report argues that there can be no doubt as to what these aspirations are. Indigenous people have consistently called for the recognition of the full spectrum of their human rights.
The report takes as an example the aspirations of Northern Territory Indigenous people as expressed during the statehood debate. These aspirations called for the recognition of the distinct rights of the Aboriginal peoples of the Northern Territory, including:
- Rights of self-determination and self-government;
- The recognition of Indigenous customary law;
- Protection in the Northern Territory Constitution of the rights of Aboriginal people to land, sacred sites and significant areas;
- Procedures to ensure effective levels of representation of Aboriginal people in the Northern Territory Parliament;
- Recognition of the right of Aboriginal children to all levels of education, to Indigenous control of and the culturally appropriate delivery of educational services;
- The repeal of mandatory sentencing legislation.
A reconciliation process which is based on anything less than negotiation over these principles will join proposals such as the Social Justice Package as an empty, unfulfilled commitment to social justice for all Australians.Last updated 2 December 2001.