young people and human rights
sentencing and Indigenous youth
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:
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
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.
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
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
- 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
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.
education with programs based on teaching solely in English will not necessarily
improve students' educational experience and may come at considerable
- Places concerns
about mandatory detention laws within the context of long held, and
widely accepted, concerns of Indigenous over-representation in criminal
- reviews statistics
on mandatory sentencing and the criminal justice system;
- outlines the
key human rights principles applying to the mandatory sentencing debate;
- 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
- 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.
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)
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.
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.
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
- 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.
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.