Submission to the United Nations Committee on the Rights of the Child for their Day of General Discussion on the Rights of Indigenous Children

Submission to the United Nations
Committee on the Rights of the Child for their Day of General Discussion
on the Rights of Indigenous Children

by the Aboriginal and Torres
Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission of Australia

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Issue 2: Non-discrimination
and equality

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Also available:

• Issue
  1: Identity and culture
• Issue
  3: Law and public order, including juvenile justice

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Introduction

This submission is
made by the Aboriginal and Torres Strait Islander Social Justice Commissioner
on behalf of the Human Rights and Equal Opportunity Commission (HREOC)
of Australia. In recent years the Commissioner has undertaken many activities
relating to the rights of Indigenous children. This submission provides
an overview of the inequality and discrimination faced by Aboriginal and
Torres Strait Islander children in Australia, and key concerns in relation
to the Convention on the Rights of the Child in addressing this.

Two separate submissions
have also been made which provide an overview of law and justice issues
relating to Indigenous children and an overview of issues relating to
the challenges faced by Indigenous youth in coming to terms with their
identity.

The submission also
includes an appendix which extracts from the most recent observations
of the UN human rights committees on Indigenous peoples in Australia.

Non-discrimination and Equality:
the situation of Indigenous children in Australia

Indigenous Australians
remain the most disadvantaged of all Australians. There are clear disparities
between Indigenous and non-Indigenous Australians across all indicators
of quality of life. In August 2000, the Committee on Economic, Social
and Cultural Rights expressed concern about this as follows:

The Committee
expresses its deep concern that, despite the efforts and achievements
of the State party, the indigenous populations of Australia continue to
be at a comparative disadvantage in the enjoyment of economic, social
and cultural rights, particularly in the field of employment, housing,
health and education.

An overview of related
concerns expressed by the UN human rights treaty committees is provided
in Appendix 2.

The following
table provides an overview of key indicators of quality of life for Indigenous
children.⁽¹⁾

Indicator	Selected statistics
Environmental health - water, power, sewerage	2001 survey found 56 communities where water has failed testing, nearly 1000 communities are not connected to state grid electricity, over 1000 communities with septic or other non-town sewerage systems.
Life expectancy	Indigenous people live approximately 20 years less than non-Indigenous people. Indigenous males 56.3 years, non-Indigenous 77 years. Indigenous females 62.8 years, non-Indigenous 82.4.
Infectious diseases	Scabies in many remote communities affect up to 50% of children, meningococcal is 5 times the national rate, tuberculosis is 15 per 100,000 for Indigenous people compared to 1.2 per 100,000 non-Indigenous.
Infant mortality	Indigenous infant mortality rates are 2 1/2 times that of non-Indigenous infant mortality. Indigenous perinatal mortality rate (ie, deaths of foetus or during birth) is twice that of non-Indigenous rate.
Birth weight	Babies born to Indigenous mothers are twice as likely to be of low birth weight (13%), compared with non-Indigenous mothers (6.5%)
Substance abuse	While Indigenous people are less likely to drink alcohol, those who do are far more likely to consume at hazardous levels. The prevalence of smoking is at least twice the rate of non-Indigenous.
Juvenile justice	Indigenous juveniles make up 43% of all juveniles in detention, despite comprising less than 4% of the total juvenile population. The level of over-representation of Indigenous juveniles in detention is 20 times the non-Indigenous rate.
Child protection	Indigenous children are over-represented in care and protection systems across Australia by 3.2 times the non-Indigenous rate. This over-representation increases with the seriousness of the intervention, with Indigenous children placed under care and protection orders and out-of-home care at 5.9 and 6.3 times the non-Indigenous rates respectively.
Income	Average gross household income for Indigenous persons was $364 per week, or 62% of the corresponding income for non-Indigenous persons.
Unemployment and welfare	22% of Indigenous males are unemployed compared to 8% of Indigenous males; and 18% of Indigenous females compared to 7% of non-Indigenous females. This does not include Indigenous people participating in Community Development Employment Projects (a 'work for the dole' equivalent program). 1 in 6 Indigenous people classified as employed work on CDEP.
Education	32% of Indigenous Australians did not complete year 10 schooling, compared to 18% of non-Indigenous Australians. 18% of Indigenous Australians did complete school to year 12, compared to 41% of non-Indigenous Australians.
Housing	Home ownership rates among Indigenous households are significantly lower than non-Indigenous households (32% compared to 69%). Households with Indigenous persons were more than twice as likely to be living in rental accommodation than non-Indigenous households. These are relevant factors in explaining inter-generational poverty among Indigenous people.
Teenagers (aged 15-19 years) at risk of poverty	44% of all Indigenous teenagers are likely to be at risk of entering into poverty, compared to 15% of non-Indigenous teenagers. This situation worsens further in remote and very remote regions of Australia. The rate of risk of poverty is calculated according to the number of people that are either not in full-time work or education or combining part time work and education.

While there are significant
concerns about the level of family violence in Indigenous communities,
there is limited statistical information on the full extent of the issue.
The Western Australian government's Inquiry into Response by Government
Agencies to Complaints of Family Violence and Child Abuse in Aboriginal
Communities (Putting the picture together) indicated that:

• Indigenous women
  account for as much as 50 per cent of all domestic violence incidents
  even though they account for less than 3 per cent of the population;
  and
• Indigenous women
  are 45 times more likely to be victims of violence than non-Aboriginal
  women and 10 times more likely to die as a result.⁽²⁾

Key areas of concern relating
to Indigenous children and inequality

There are three broad
trends that are of great concern associated with these indicators of well-being
for Indigenous children.

The first is that
the age structure of the Indigenous population means that the issues faced
by Indigenous people are unique and are on a scale that is not faced by
non-Indigenous Australians. In common with many other 'western' nations,
the non-Indigenous population of Australia is rapidly ageing, whereas
the Indigenous population is facing increased growth in young age groups.
The difference is illustrated in the following graph.

Graph: Proportion
of Indigenous and non-Indigenous population in specific age groups, 2001

The graph indicates
that the Indigenous population is considerably younger than the non-Indigenous
population with a significant proportion of younger Indigenous people
and relatively few aged over 65. This difference will not change a great
deal over the next twenty years. The following table also illustrates
the magnitude of this issue and the differences between Indigenous and
non-Indigenous Australians.

The focus of governments
in Australia, however, has begun to place greater emphasis on addressing
the impact of an ageing population. Policies and programs will need to
be focused on addressing the unique structure of the Indigenous population,
and hence will need to be focussed on young Indigenous people and families
if they are to make any headway in addressing the inequality experienced
by Indigenous families and children.

This demographic
profile of the Indigenous population in Australia also indicates that
due to the growth of the Indigenous population, it will be difficult to
maintain the current status quo of inequality currently experienced by
Indigenous people, yet alone prevent it from deteriorating even further
in coming years.

The second trend
raised by the current situation of Indigenous people, is that over the
past ten years there has been a distinct lack of progress in improving
the situation faced by Indigenous people and children. The Aboriginal
and Torres Strait Islander Commission recently commented:

The alarming
feature of Indigenous poverty, disadvantage and distress is that it is
worsening rather than improving despite available programs. In particular,
Aboriginal and Torres Strait Islander people experience high levels of
unemployment, poor health outcomes including increasing incidence of serious
disease, far shorter life expectancy than other Australians, high levels
of incarceration and widespread social dysfunction including unacceptable
levels of alcohol and substance abuse. The situation represents a national
emergency, and requires the application of considerable effort and resources.⁽⁴⁾

The third trend is
that it has long been recognised that there is a clear connection between
the level of disadvantage experienced by Indigenous Australians and the
over-representation of Indigenous juveniles and adults in criminal justice
and care and protection systems. The Royal Commission into Aboriginal
Deaths in Custody concluded in 1991 that the over-representation of Indigenous
people in the criminal justice system is inextricably linked to their
socio-economic status. The Report found that:

The single
significant contributing factor to incarceration is the disadvantaged
and unequal position of Aboriginal people in Australian society in every
way, whether socially, economically or culturally.⁽⁵⁾

The emphasis on the
social, economic and cultural disadvantage underlying incarceration and
deaths in custody was a defining characteristic of the Report. It linked
the symptoms of Indigenous distress, such as the high rate of encounters
with the criminal justice system, with the underlying cause of
systemic disadvantage suffered by Indigenous Australians. The RCIADIC
identified as fundamental the disempowerment and marginalisation of Indigenous
people. Accordingly, it identified the necessity that:

principles
of self-determination should be applied to the design and implementation
of all policies and programs affecting Aboriginal people, that there should
be maximum devolution of power to Aboriginal communities and organizations
to determine their own priorities for funding allocations, and that such
organizations should, as a matter of preference be the vehicles through
which programs are delivered.⁽⁶⁾

Factors relevant to the Convention
on the Rights of the Child

The Social Justice
Commissioner, in monitoring the performance of government's in protecting
the rights of Indigenous people, has expressed significant concerns about
the current situation faced by Indigenous children.

A main concern is
the failure of Australian governments to meet their obligations to progressively
realise improvements in the socio-economic conditions of Indigenous people
(in accordance with Article 2 of ICESCR, and Articles 2 and 4 of CROC).
Concern has been expressed about the absence of an appropriate framework
for establishing benchmarks and targets, with identifiable timeframes
for achieving improvements. Associated to this is the failure to conduct
negotiations with Indigenous peoples to set appropriate benchmarks that
reflect the cultural priorities of Indigenous peoples, rather than imposing
non-Indigenous goals and objectives. The Social Justice Commissioner convened
a workshop on this issue in November 2002, the results of which are available
at: www.humanrights.gov.au/social_justice/sjreport_02/chapter4.html

Despite this concern,
Australia has moved closer to a position which would allow such benchmarks
to be set. In recent years all Australian governments have made commitments
to addressing Indigenous disadvantage (through the Council of Australian
Governments) and have established a national reporting framework on Indigenous
disadvantage. Governments have also agreed to two significant processes:

• The conduct of
  whole of government trials to coordinate all service delivery to particular
  Indigenous communities; and
• The establishment
  of action plans at the inter-governmental level in each area of responsibility
  (eg health, education, housing etc).

These developments
have, however, yet to result in an approach that is consistent with Australia's
obligations of progressive realisation of economic, social and cultural
rights under ICESCR and CROC.

A related concern
is the limited role that the government is prepared to provide Indigenous
peoples in setting the priorities for Indigenous communities and more
broadly, the limited recognition that they are prepared to provide to
the unique status of Indigenous Australians. The Social Justice Report
2002 explains this concern as follows:

The Government seeks
to limit the recognition of Indigenous peoples' status as if they were
an undifferentiated minority group whose needs can be addressed under
the umbrella of say multiculturalism and by guaranteeing sameness of treatment
or opportunities for the same level of development. Indigenous peoples'
circumstances, however, do not fit comfortably under such a banner.

It is a reality of
21st century Australia that Indigenous peoples are different, and
that the expression of their cultures does involve unique forms of protection
that do not apply to other Australians. A more wide-ranging definition
of equality, which focuses on outcomes (such as in terms of equality of
protection of culture) rather than on inputs (such as by purely guaranteeing
equality of opportunities, as if there were a level playing field) is
needed.

At present, the relationship
between Indigenous people is defined according to little more than the
beneficial intentions of Government to improve the life conditions of
grossly disadvantaged Indigenous peoples. Such intentions are easily twisted
into resentment and frustration at the amount of money spent when the
desired improvements are not forthcoming. Defining a peoples' status and
rights purely through their experiences of disadvantage is a dominating
and disempowering approach. It is not a respectful basis for a relationship.⁽⁷⁾

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Endnotes

1.
This table is adapted from Aboriginal and Torres Strait Islander Commission,
Submission to the Senate Community Affairs Committee Inquiry into poverty
and financial hardship in Australia, July 2003, www.aph.gov.au/senate/committee/clac_ctte/poverty/submissions/sub244.doc
and Australian Bureau of Statistics and Australian Institute of Health
and Welfare, The health and welfare of Australia's Aboriginal and Torres
Strait Islander Peoples 2003, Government of Australia, Canberra 2003.

2.
Clark, op.cit, p41.

3.
This table is based on material in: Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social Justice Report 2002, pp58-60.

4.
ATSIC, Submission to the Senate Community Affairs Committee Inquiry
into poverty and financial hardship in Australia, op.cit.

5.
ibid, p15.

6.
Quoted in Commonwealth Grants Commission, Report on Indigenous Funding
2001, Canberra 2001, p89.

7.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2002, pp48-49.

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Appendix 1: Concluding observations
of human rights committees on Australia relating to Indigenous children

Committee against Torture:
November 2000

53. The Committee
recommends that:

(g) The State party
continue its efforts to address the socio-economic disadvantage that,
inter alia, leads to a disproportionate number of indigenous Australians
coming into contact with the criminal justice system (UN Doc: A/56/44,
paras 47-53, 21 November 2000)

Committee on Economic,
Social and Cultural Rights: August 2000

15. The Committee
expresses its deep concern that, despite the efforts and achievements
of the State party, the indigenous populations of Australia continue to
be at a comparative disadvantage in the enjoyment of economic, social
and cultural rights, particularly in the field of employment, housing,
health and education (UN Doc E/C.12/1/Add.50, 1 September 2000)

Human Rights Committee:
July 2000

With respect to article
1 of the Covenant, the Committee takes note of the explanation given by
the delegation that rather than the term "self-determination", the Government
of the State party prefers terms such as "self-management" and "self-empowerment"
to express domestically the principle of indigenous peoples' exercising
meaningful control over their affairs. The Committee is concerned that
sufficient action has not been taken in that regard. The State party should
take the necessary steps in order to secure for the indigenous inhabitants
a stronger role in decision-making over their traditional lands and natural
resources (art. 1, para. 2).

The Committee recommends
that the State party take further steps in order to secure the rights
of its indigenous population under article 27 of the Covenant. The high
level of exclusion and poverty facing indigenous persons is indicative
of the urgent nature of these concerns. In particular, the Committee recommends
that the necessary steps be taken to restore and protect the titles and
interests of indigenous persons in their native lands, including by considering
amending anew the Native Title Act, taking into account these concerns.

Legislation regarding
mandatory imprisonment in Western Australia and the Northern Territory,
which leads in many cases to imposition of punishments that are disproportionate
to the seriousness of the crimes committed and would seem to be inconsistent
with the strategies adopted by the State party to reduce the over-representation
of indigenous persons in the criminal justice system, raises serious issues
of compliance with various articles of the Covenant. The State party is
urged to reassess the legislation regarding mandatory imprisonment so
as to ensure that all Covenant rights are respected (UN Doc: A/55/40,
paras.498-528, 24 July 2000)

Committee on the Elimination
of Racial Discrimination: March 2000

15. The Committee
notes with grave concern that the rate of incarceration of indigenous
people is disproportionately high compared with the general population.
Concern is also expressed that the provision of appropriate interpretation
services is not always fully guaranteed to indigenous people in the criminal
process. The Committee recommends that the State party increase its efforts
to seek effective measures to address socio-economic marginalization,
the discriminatory approach to law enforcement and the lack of sufficient
diversionary programmes.

16. The Committee
expresses its concern about the minimum mandatory sentencing schemes with
regard to minor property offences enacted in Western Australia, and in
particular in the Northern Territory. The mandatory sentencing schemes
appear to target offences that are committed disproportionately by indigenous
Australians, especially juveniles, leading to a racially discriminatory
impact on their rate of incarceration. The Committee seriously questions
the compatibility of these laws with the State party's obligations under
the Convention and recommends to the State party to review all laws and
practices in this field.

18. The Committee
acknowledges the efforts being made to increase spending on health, housing,
employment and education programmes for indigenous Australians. Serious
concern remains at the extent of the continuing discrimination faced by
indigenous Australians in the enjoyment of their economic, social and
cultural rights. The Committee remains seriously concerned about the extent
of the dramatic inequality still experienced by an indigenous population
that represents only 2.1 per cent of the total population of a highly
developed industrialized State. The Committee recommends that the State
party ensure, within the shortest time possible, that sufficient resources
are allocated to eradicate these disparities. (UN Doc: CERD/C/304/Add.101,
19 April 2000)

Committee on the Rights
of the Child: October 1997

13. While noting
the information provided by the delegation of the State party on a number
of programmes to raise health standards for Aboriginal and Torres Strait
Islander children and the State party's intention to start a two-year
anti-racism campaign, the Committee is nonetheless concerned about the
special problems still faced by Aboriginals and Torres Strait Islanders,
as well as by children of non-English-speaking backgrounds, with regard
to their enjoyment of the same standards of living and levels of services,
particularly in education and health.

22. The Committee
is also concerned about the unjustified, disproportionately high percentage
of Aboriginal children in the juvenile justice system, and that there
is a tendency normally to refuse applications for bail for them. The Committee
is particularly concerned at the enactment of new legislation in two states,
where a high percentage of Aboriginal people live, which provides for
mandatory detention and punitive measures of juveniles, thus resulting
in a high percentage of Aboriginal juveniles in detention.

32. The Committee
encourages the State party to take further steps to raise the standards
of health and education of disadvantaged groups, particularly Aboriginals,
Torres Strait Islanders, new immigrants, and children living in rural
and remote areas. The Committee is also of the view that there is a need
for measures to address the causes of the high rate of incarceration of
Aboriginal and Torres Strait Islanders children. It further suggests that
research be continued to identify the reasons behind this disproportionately
high rate, including investigation into the possibility that attitudes
of law enforcement officers towards these children because of their ethnic
origin may be contributing factors. (UN Doc: CRC/C/15/Add.79, 10 October
1997)

Committee on the Elimination
of Discrimination Against Women: August 1997

394. The Committee
noted with concern that violence against women, notwithstanding major
efforts, remained a central concern to Australian women, 7 per cent of
whom experienced some type of violence in the course of a year. It noted
the absence of data concerning violence against Aboriginal and Torres
Strait Islander women and assessment of programmes directed at reducing
such violence.

397. The Committee
was concerned at the continuing adverse situation of Aboriginal and Torres
Strait Islander women. Major causes of concern included a higher incidence
of maternal mortality, lower life expectancy, reduced access to the full
range of health services, a high incidence of violence, including domestic
violence, and high unemployment rates. Their situation, as well as that
of migrant women, was further compromised by an apparent rise in racism
and xenophobia. (UN Doc: A/52/38/Rev.1, Part II, paras 365-408, 12 August
1997)

Last updated 11 September 2003.