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Social Justice Report 2006

Social Justice Report 2006

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  • Appendix 2: Summary of the Social Justice
    Commissioner’s main findings and messages on ending family violence and
    abuse in Indigenous communities

    This appendix summarises the main findings from research and consultations
    conducted by the Human Rights and Equal Opportunity Commission between 2001 and
    2006 that relate to family violence and abuse in Indigenous communities. The
    summary has also been published in a more detailed research paper prepared by
    the Social Justice Commissioner in 2006 entitled Ending family violence and
    abuse in Aboriginal and Torres Strait islander communities: Key
    issues.[1]

    The prevalence of family violence and abuse in Indigenous communities is
    becoming well known as a result of media attention and more open community
    discussion in recent years. As a result there is greater awareness of the social
    and cultural harm that this violence is inflicting, predominantly on Indigenous
    women and children, and often across generations.

    The Social Justice Commissioner is committed to working with Indigenous
    communities and governments to end family violence in Indigenous communities.

    Over the past five years, the Social Justice Commissioner has actively
    engaged in public discussions, undertaken research, and consulted with
    Indigenous communities about how best to address family violence. Through this
    work, he has drawn attention to the fact that Indigenous Australians are
    entitled to live their lives in safety and full human dignity, and sought to
    ensure that program responses to family violence in Indigenous communities are
    built on solid evidence and facts. Above all, the Social Justice Commissioner
    has sought to emphasise that violence against women and children has no place in
    Indigenous customary laws and no place in contemporary Indigenous communities.

    Much of the work presented in the summary is the result of consultation with
    Indigenous peoples, in recognition of the fact that addressing family violence
    will require partnerships with Indigenous peoples and communities. We need to
    ensure that the day-to-day realities that exist in Indigenous communities are
    recognised and reflected in any policy responses to family violence. We also
    need to ensure that policy responses are holistic and able to address the range
    of causal factors that contribute to family violence. Only in this way will
    Indigenous Australians be able to enjoy their right to live in safety, free from
    family violence and abuse.

    Family violence – key messages

    • Family violence is abhorrent and has no place in Aboriginal or Torres Strait
      Islander societies. It is a scourge that is causing untold damage and trauma
      among Indigenous communities, to our women and children, and to the fabric of
      Indigenous cultures.
    • Indigenous, women, children and men are entitled to live their lives in
      safety and full human dignity. This means without fear of family violence or
      abuse. This is their cultural and their human right.
    • Violence and abuse is a criminal matter. If an Indigenous person commits an
      offence they should be dealt with by the criminal justice system just as any
      other person would be. There should also be swift intervention from care and
      protection systems to ensure that the ‘best interests of the child’
      is the primary consideration.
    • Government officials and community members should be fearless and bold in
      reporting suspected incidents of violence and abuse. This means addressing the
      code of silence that exists in many Indigenous communities about these issues.
      And it means government officers meeting their statutory obligations, meeting
      their duty of care and taking moral responsibility in the performance of their
      duties as public officials.
    • Violence relates to almost every aspect of policy making and service
      delivery to Indigenous communities. The solutions to family violence and abuse
      in Indigenous communities are complex, multi-faceted and require long term focus
      and commitment to address. They require bi-partisan political will and
      leadership at the highest levels of government.
    • Governments must work in partnership with Indigenous peoples and communities
      to identify and implement solutions to address family violence and abuse.
    • We need to adopt a holistic approach to address the causes and the
      consequences of family violence in Indigenous communities.
    • We can no longer accept the making of commitments to address Aboriginal and
      Torres Strait Islander inequality without putting in place processes and
      programs to match the stated commitments. Programs and service delivery must be
      adequately resourced and supported so that they are capable of achieving the
      stated goals.
    • We can also not accept the failure of governments to commit to an urgent
      plan of action. It is not acceptable to continually state that the situation is
      tragic and ought to be treated with urgency, and then fail to put into place
      bold targets to focus policy making over the short, medium and longer term or to
      fund programs so they are capable of meeting these targets.

    Ten key challenges in addressing family violence
    and abuse
    [2]

    1. Turn government commitments into action: Governments have been
      making commitments to address family violence for some time already. What we
      need is concerted, long term action which meets these commitments.
    2. Indigenous participation: This action must be based on genuine
      partnership with Indigenous peoples and with our full participation.
    3. Support Indigenous community initiatives and networks: There
      are significant processes and networks already in place in Indigenous
      communities to progress these issues. We need to support them to lead efforts to
      stamp out violence, including by developing the educational tools to assist them
      to identify and respond to family violence.
    4. Human rights education in Indigenous communities: There is a
      need for broad based education and awareness-raising among Indigenous
      communities. Working with communities to send strong messages that violence
      won’t be tolerated, that there are legal obligations and protections, and
      that individuals have rights, are critical if we are to stamp out family
      violence.
    5. Don’t forget our men and don’t stereotype them as
      abusers
      . Family violence is fundamentally an issue of gender equality.
      We need strong leadership from women, but we also need the support of Indigenous
      men if we are to make progress in stamping out violence. Indigenous men need to
      model appropriate behaviour, challenge violence and stand up against it, and
      support our women and nurture our children.
    6. Look for the positives and celebrate the victories. There are good things happening in Indigenous communities, even if the national
      media is not interested in reporting them. We need to confront family violence,
      but also do so by reinforcing the inherent worth and dignity of Indigenous
      peoples, not by vilifying and demonising all Indigenous peoples.
    7. Re-assert our cultural norms and regain respect in our
      communities.
      Family violence and abuse is about lack of respect
      for Indigenous culture. We need to fight it as Indigenous peoples, and rebuild
      our proud traditions and community structures so that there is no place for fear
      and intimidation.
    8. Ensure robust accountability and monitoring mechanisms: There
      must be accountability measurements put into place to hold governments to their
      commitments. This requires the development of robust monitoring and evaluation
      mechanisms. These will also allow us to identify and celebrate successes.
    9. Changing the mindset: We require a change in mindset of
      government from an approach which manages dysfunction to one that supports
      functional communities. Current approaches pay for the consequences of
      disadvantage and discrimination. It is a passive reactive system of feeding
      dysfunction, rather than taking positive steps to overcome it. We need a
      pro-active system of service delivery to Indigenous communities focused on
      building functional, healthy communities.
    10. Targeting of need: Let us be bold in ensuring that program
      interventions are targeted to address need and overcome disadvantage. As it
      stands, government programs and services are not targeted to a level that will
      overcome Indigenous disadvantage. Hence, they are not targeted in a way that
      will meet the solemn commitments that have been made. They are targeted to
      maintain the status quo.

    Defining family violence in Indigenous
    communities[3]

    • Indigenous concepts of violence are much broader than usual mainstream
      definitions of domestic violence. For Indigenous peoples, the term family
      violence
      better reflects their experiences.
    • Family violence involves any use of force, be it physical or non-physical,
      which is aimed at controlling another family or community member and which
      undermines that person’s well-being. It can be directed towards an
      individual, family, community or particular group. Family violence is not
      limited to physical forms of abuse, and also includes cultural and spiritual
      abuse. There are interconnecting and trans-generational experiences of violence
      within Indigenous families and communities.
    • There are significant deficiencies in the availability of statistics and
      research on the extent and nature of family violence in communities. What data
      exists suggests that Indigenous people suffer violence, including family
      violence, at significantly higher rates than other Australians do. This
      situation has existed for at least the past two decades with no identifiable
      improvement.
    • Indigenous women’s experience of discrimination and violence is bound
      up in the colour of their skin as well as their gender. The identity of many
      Indigenous women is bound to their experience as Indigenous people. Rather than
      sharing a common experience of sexism binding them with non-Indigenous women,
      this may bind them more to their community, including the men of the community.
    • Strategies for addressing family violence in Indigenous communities need to
      acknowledge that a consequence of this is that an Indigenous woman ‘may be
      unable or unwilling to fragment their identity by leaving the community, kin,
      family or partners’ as a solution to the violence.

    Designing programs to address family
    violence[4]

    • There are currently a patchwork of programs and approaches to addressing
      family violence in Indigenous communities among federal, state and territory
      governments. However, there remains a lack of coordination and consistency in
      approaches to addressing these issues between governments and among different
      government agencies. Significant gaps also exist.
    • There are three recurring strategic aspects that need to be present to
      address family violence in Indigenous communities, namely that:
      • programs be community-driven (with leadership from men as well as women);
      • community agencies establish partnerships with each other and with relevant
        government agencies; and
      • composite violence programs are able to provide a more holistic approach to
        community violence.
    • An emphasis solely on criminal justice responses to family violence poses
      two main concerns for Indigenous women:
      • The first is that the system is generally ineffective in addressing the
        behaviour of the perpetrator in the longer term. The effect of imprisonment is
        to remove them from the community and then, without any focus on rehabilitation
        or addressing the circumstances that led to the offending in the first place, to
        simply return them to the same environment.
      • The second is that there are a range of barriers in the accessibility and
        cultural appropriateness of legal processes which discourage Indigenous women
        from using the criminal justice system in the first place.
    • Existing programs addressing Indigenous family violence programs can be
      categorised into the following broad areas of intervention:
      • Support programs - Accessible and appropriate counselling is
        essential, not only for the victims and perpetrators of violence, but also for
        family and community members who not only deal with the issue of violence
        itself, but to also provide post-violence counselling to family members.
      • Identity programs – Identity programs aim to develop within the
        individual, family or community, a secure sense of self-value or self-esteem.
        This can be achieved through diversionary programs and also through therapy
        based programs that focus on culturally specific psychological or spiritual
        healing. All these programs may be accessed prior to, and after involvement with
        violence, and offer a longer-term response through attempting to change the
        situational factors underlying violence.
      • Behavioural change (men and women’s groups) – As the
        majority of family violence is perpetrated by men, strong support for
        men’s behavioural reform programs is required. Complementary groups and
        support services for Indigenous women should be run parallel to men’s
        programs, and complementary preventative/intervention programs for youth be an
        integral part of the whole strategy.
      • Night patrols - Have the potential to build cooperation and mutual
        respect and support with local police. Night patrols, particularly in remote
        areas, use and strengthen Indigenous mechanisms for social control, thereby
        ensuring that traditional methods are afforded a key role in the control of
        anti-social behaviour, minor criminal infractions and potentially serious
        criminal incidents in the Indigenous community.
      • Refuges and Shelters - While an important part of any family violence
        intervention strategy, they are not a sufficient response to the difficulties
        produced by high levels of violence in Indigenous communities. They represent a
        reactive strategy in addressing the underlying causes, thereby creating no
        possibility of a change in the pattern of violent behaviour. Refuges and
        women’s shelters need to be coupled with other proactive strategies
        targeted at the perpetrators of violence and other situational factors.
      • Justice programs – These programs are characteristically aimed
        at the perpetrators of violence. They aim to mediate between people in conflict,
        designate appropriate cultural punishments for offenders, and reduce the
        likelihood of re-offending.
      • Dispute resolution – Anecdotal evidence suggests that success
        has been achieved where impartial members of the Indigenous community are used
        as facilitators and traditional dispute-resolution techniques are incorporated
        into mediation processes.
      • Education and awareness raising – Education and training
        programs are vital to raise awareness about family violence prevention; as well
        as develop skills within communities to resolve conflicts and identify the need
        for interventions with perpetrators. There are (currently) no educational
        programs targeted at young children for use in Indigenous pre-schools and
        schools. With the knowledge we now have about the detrimental effects of
        violence on children, or witnessed by children and the generational cycles by
        which violence is transmitted, it is essential to provide violence prevention
        education programs within pre-schools and schools.
      • Holistic composite programs – Programs which are comprised of
        elements of the above categories. These operate to target different forms of
        violence in the community, target different categories of offenders or victims,
        or employ different methods of combating or preventing violence.
    • The implementation of composite programs, particularly in communities
      displaying multiple forms of increasing violence, is shown to be an emerging and
      preferred approach that reflects a more systematic way of combating violence,
      combining both proactive and reactive methods which target different age and
      gender groups.
    • An issue for governments introducing services is how to best trigger such
      programs in communities where they are obviously needed while at the same time
      creating a climate whereby the programs are community-originating, motivated and
      controlled. The Violence in Indigenous Communities
      report[5]
      (by Memmott, Stacy,
      Chambers and Keys, herein the Memmott report) recommends ‘that government
      agencies take a regional approach to supporting and coordinating local community
      initiatives, and assisting communities to prepare community action plans with
      respect to violence’.

    A human rights based approach to overcoming
    Indigenous
    disadvantage[6]

    • Australia has legal obligations in international human rights treaties to
      address the disadvantage experienced by Indigenous Australians, including in
      relation to family violence issues and the social and economic conditions which
      contribute to violence. Article 2 of the International Covenant on Economic,
      Social and Cultural Rights
      requires that the government ‘take steps to
      the maximum of its available resources, with a view to achieving progressively the full realization of’ rights ‘by all appropriate means’ [emphasis added].
    • This obligation means that governments must progressively achieve the full
      realisation of relevant rights and to do so without delay. Steps must be
      deliberate, concrete and targeted as clearly as possible towards meeting the
      obligations recognized in the Covenant.
    • This also requires that governments establish timeframes for the achievement
      of outcomes and identify appropriate indicators, in relation to which they
      should set ambitious but achievable benchmarks, so that the rate of progress can
      be monitored and, if progress is slow, corrective action taken. Setting
      benchmarks enables government and other parties to reach agreement about what
      rate of progress would be adequate.
    • This is fundamentally an issue of government accountability for service
      delivery and outcomes. It requires governments’ actions to match the
      commitments that they make, and for governments to demonstrate that they have a
      plan for when outcomes will be achieved – ie, that programs are
      benchmarked with targets and goals.
    • Indigenous peoples have the right to full and effective participation in
      decisions which directly or indirectly affect their lives. Such participation
      should be based on the principle of free, prior and informed consent, which
      includes governments providing information which is accurate, accessible, and in
      a language the indigenous peoples can understand.
    • Governments should establish transparent and accountable frameworks for
      engagement, consultation and negotiation with indigenous peoples and
      communities. This should allow for the full and effective participation of
      indigenous men, women and young people in the design, negotiation,
      implementation, monitoring, evaluation and assessment of outcomes.

    Recognising Aboriginal customary law consistently
    with human rights[7]

    • Aboriginal customary law does not condone family violence and abuse, and
      cannot be relied upon to excuse such behaviour. Perpetrators of violence and
      abuse do not respect customary law and are not behaving in accordance with it.
    • Aboriginal customary law must be applied consistently with human rights
      standards. At no stage does customary law override the rights of women and
      children to be safe and to live free from violence.
    • Any attempts to recognise Aboriginal customary law in a manner inconsistent with human rights standards would place Australia in breach
      of its obligations under international law and activate a duty on the part of
      the federal government to nullify or override such breaches.
    • There will be many instances where there will be no conflict between
      individual and collective rights (as expressed through customary law), and where
      they will be able operate in an interdependent manner. The recognition of
      Aboriginal customary law and collective rights has the capacity to strengthen
      social structures within Aboriginal communities as well as the observance of law
      and order.

    Balancing customary law with human rights
    standards

    • There will, however, be other circumstances where individual and collective
      rights are in opposition and a balance must be struck. This does not mean that
      collective and individual rights are irreconcilable. Decisions made under the
      Optional Protocol to the ICCPR and General Comments interpreting the scope of
      the ICCPR by the United Nations Human Rights Committee in relation to Article 27
      of the Covenant, for example, provide guidance on how this contest between
      collective and individual rights should be resolved.
    • The Human Rights Committee has noted that Article 27 applies to indigenous
      peoples, and that it creates a positive obligation on governments to protect
      such cultures.
    • The Committee has, however, placed limits on those measures that can be
      recognised. So while it acknowledges that positive measures by governments may
      be necessary to protect the identity of a minority and the rights of its members
      to enjoy and develop their culture and language and to practise their religion,
      it also notes that such positive measures must respect the provisions of
      Articles 2.1 and 26 of the Covenant. These Articles relate to the principle of
      non-discrimination and how it applies in relation to the treatment between
      different minorities, as well as the treatment between the persons belonging to
      a minority group and the remainder of the population.
    • Similarly, the Committee notes that 'none of the rights protected under
      Article 27 of the Covenant may be legitimately exercised in a manner or to an
      extent inconsistent with other provisions of the Covenant'. This includes, for
      example, Article 6 (the inherent right to life); Article 7 (torture or cruel,
      inhuman or degrading treatment); and Article 23 (requirement of free and
      informed consent for marriage).
    • The rights which persons belonging to minorities enjoy under Article 27 of
      the Covenant in respect of their language, culture and religion, do not
      authorise any State, group or person to violate the right to the equal enjoyment
      by women of any Covenant rights, including the right to equal protection of the
      law.
    • The Committee has also stated that female genital mutilation is a practice
      that breaches Articles 6 and 7 of the Covenant, despite the cultural
      significance of the practice in some societies; and has expressed concern about
      domestic violence, including forced sexual intercourse, within the context of
      marriage.
    • The provisions of the ICCPR are also to be read consistently with the
      interpretation of similar relevant rights under other conventions such as the International Convention on the Elimination of All Forms of Discrimination
      Against Women
      (‘CEDAW’) and the Convention on the Rights of
      the Child
      (‘CRC’).
    • The right to freedom from violence is accepted as implicit in the right to
      freedom from discrimination under CEDAW. The Convention also requires that all
      appropriate measures should be taken to ‘modify the social and cultural
      patterns of conduct of men and women’ so as to eliminate ‘prejudices
      and customary and all other practices which are based on the idea of the
      inferiority or the superiority of either of the sexes or on stereotyped roles
      for men and women’.
    • The Committee on the Elimination of Discrimination Against Women has noted
      that traditional practices by which women are regarded as subordinate to men or
      as having stereotyped roles, perpetuate widespread practices involving violence
      or coercion. These can include: family violence and abuse, forced marriage,
      dowry deaths, acid attacks and female circumcision. Such prejudices and
      practices may justify gender-based violence as a form of protection or control
      of women. The effect of such violence on the physical and mental integrity of
      women is to deprive them of the equal enjoyment, exercise and knowledge of human
      rights and fundamental freedoms.
    • The particular vulnerability of children is recognised by the CRC. Similar
      to the ICCPR, the CRC specifically recognises the right of indigenous children
      to enjoy their own culture in community with other members of his or her own
      group.However, governments have obligations to protect children from
      all forms of sexual abuse and all other forms of exploitation prejudicial to any
      aspects of the child’s welfare.

    Resolving conflicts between human rights and Aboriginal
    customary law

    • Mainstream law should consider apparent conflicts between Aboriginal
      customary law and women's individual rights on a case by case basis. It is also
      important to recognise that custom and law can adapt to general societal change,
      thus allowing resolution of apparent conflict. The potential for conflict should
      not be used by government as an excuse to avoid the recognition of Aboriginal
      customary law or by Aboriginal communities to condone breaches of human rights.
    • In situations where women's human rights are at risk, Indigenous communities
      should be encouraged to develop their own solutions to these problems and to
      adapt traditional practices to ensure women's human rights. While all attempts
      should be made to reconcile women's individual human rights with the rights of
      Indigenous peoples to retain and enjoy their culture, HREOC considers that
      women's individual human rights must ultimately prevail. HREOC considers that
      the recognition of Aboriginal customary law must also take active steps to
      ensure women's right to individual safety and freedom from violence.
    • HREOC considers that it is preferable for judicial decision makers to be
      required to balance Aboriginal customary law issues with human rights standards,
      rather than imposing a legislative uniform ban or refusing to recognise certain
      practices.
    • It is also the view of HREOC that international human rights principles are
      relevant to the balance that must be achieved in sentencing decisions involving
      Aboriginal customary law. Further, a sentence which leads to impermissible
      discrimination against a woman or a child under international human rights
      principles is an error of law both in the balancing exercise under the
      provisions of Sentencing Acts and under the common law.
    • The Court of Criminal Appeal of the Northern Territory in a recent decision
      (The Queen v GJ) has confirmed that where Aboriginal customary law
      conflicts with Territory law, the latter must prevail. The Court also stated
      that it has never been the case that the courts of the Northern Territory have
      given precedence to Aboriginal customary law when it conflicts with the written
      law of the Northern Territory.[8]
    • The Court of Criminal Appeal of the Northern Territory also noted that to
      date ‘consultation with Aboriginal communities about (these) principles
      has too often been perfunctory’ and suggested that it may be an
      appropriate matter for HREOC ‘to give consideration to the implementation
      of educational programs about (conflicts between customary law and criminal
      codes) in Aboriginal communities’.

    Indigenous women, imprisonment and post-release
    support needs[9]

    • Indigenous women are increasingly over-represented in criminal justice
      processes. This is occurring in the context of intolerably high levels of family
      violence, over policing for selected offences, ill health, unemployment and
      poverty.
    • There is a consistent pattern indicating that incarcerated Indigenous women
      have been victims of assault and sexual assault at some time in their lives.
      Indigenous women are also significantly over represented as victims of violent
      crime.
    • A matter of great concern in relation to current debates about addressing
      family violence in Indigenous communities are issues of access to justice for
      Indigenous women. A matter of particular concern is the limited ability of
      funding of Aboriginal and Torres Strait Islander Legal Services (ATSILS) to
      provide access to justice for Indigenous women through legal representation and
      family violence services.
    • There is an urgent need to ensure appropriate funding levels for ATSILS,
      Family Violence Prevention Legal Services and Indigenous women’s legal
      services, in order to provide a greater focus on the legal needs of Indigenous
      women as well as a greater focus on preventative action and community education.
    • Links must be drawn and holistic models developed and supported which
      address the connections between culture, drug use, alcohol use, separation from
      family, violence, poverty, spiritual needs, housing, health, boredom, race
      discrimination and gender discrimination.
    • Effective pre-and post-release programs should include community based,
      Indigenous specific programs to help women deal with the effects of violence and
      to help women develop alternative strategies for coping with violence in the
      future. People require protection from violent behaviour and alternative
      structures for prevention and punishment of violent behaviour which provide more
      than imprisonment with all its risks and consequences.
    • Effective pre-and post-release programs need to recognise and treat the
      complexity of experience of the experience of Indigenous individuals who are
      both victims and perpetrators of violence. Programs will also need to provide
      support for Indigenous women to reintegrate back into the community. The types
      of support required by each woman will be determined by her location and other
      issues. For instance, for some women there may be issues of payback, and she may
      not be able to return to her community until those issues are resolved. Other
      women may need to return to small communities, where contact with the
      perpetrator of violence cannot be avoided.
    • The issues of healing and wellness are critical issues for Indigenous women
      exiting prison. Processes for healing are seen as having the potential to
      increase the health and wellbeing of Indigenous women, with a possible outcome
      of this being reductions in rates of involvement of Indigenous women in criminal
      justice processes.
    • Indigenous concepts of healing are based on addressing the relationship
      between the spiritual, emotional and physical in a holistic manner. An essential
      element of Indigenous healing is recognising the interconnections between and
      effects of violence, social and economic disadvantage, racism and dispossession
      from land and culture on Indigenous peoples, families and communities.
    • Healing can be context specific. For example, it may be necessary to address
      issues of grief and loss- or there may be a more general need to assist
      individuals to deal with any trauma they may have experienced. The varying
      nature of healing demonstrates that it cannot be easily defined, with healing
      manifesting itself differently in different communities.
    • Healing is not a program, rather it is a process. Healing is not something
      that should only be available at the post-release stage. It should be available
      at any point when a woman is ready. This may be before a woman comes into
      contact with the criminal justice system, or after she has been in and out of
      prison over a number of years. Further, healing in the context of criminal
      justice, attempts to help the individual deal with the reasons why they have
      offended in the first place. This element of healing is strongly linked to the
      notion of restorative justice. For this reason, healing has the potential to fit
      within a restorative justice framework.
    • There are, however, relatively few programs and services for Indigenous
      women exiting prison that presently focus on healing processes in Australia. The
      conversion of concepts of healing into actual programs and services is very much
      in its infancy here. As the case study of the Yula Panaal Cultural and Spiritual
      Healing Program in New South Wales demonstrates, they also face difficulty in
      attracting operational
      funding.[10]
    • The traditional approach to distributing available funding for programs and
      services is dictated by an economy of scale. This impacts negatively on
      Indigenous women as it delivers minimum resources to a population within the
      community that has a high level of need. Given that Indigenous women are
      manifestly the smallest population in the Australian prison system, it is
      somewhat understandable that they are the group with the least amount of
      resources directed towards them. However it is precisely this lack of direct
      resources that goes someway to maintaining Indigenous women’s distinct
      disadvantage in society.

    Indigenous youth and criminal justice
    systems[11]

    • The Aboriginal and Torres Strait Islander population is growing faster than
      the non-Indigenous population. The annual rate of growth for Indigenous peoples
      has been estimated at 2.3% compared with approximately 1.2% for non-Indigenous
      Australians. As a result, the challenges for service delivery to Indigenous
      youth will be exacerbated over the coming decades.
    • Indigenous males comprise 46 percent of the total national male juvenile
      detention population and Indigenous females comprise 57 percent of the total
      national female juvenile detention population. Although overall there has been a
      decline in rates of detention for both Indigenous and non-Indigenous juveniles,
      the ratio of over-representation continues in a stable trend with Indigenous
      young people 20 times more likely to be incarcerated than non-Indigenous young
      people.
    • While there are limited statistics available, it is believed that a
      significant percentage of Indigenous juvenile detainees have a disability.
      Indigenous young people living in poor physical and social environments
      experience higher rates of cognitive / intellectual disabilities and poorer
      mental health.
    • There are a range of developmental issues that impact on the cognitive
      functioning and mental health of Indigenous young people and their communities
      such as Foetal Alcohol Syndrome, petrol sniffing, physical and emotional
      violence and poor nutrition.
    • The Western Australian Aboriginal Child Health Survey (WAACHS) revealed that Aboriginal children experience a high risk of clinically
      significant emotional or behavioural difficulties. It found that there are clear
      associations between family and household factors and risk of clinically
      significant emotional and behavioural difficulties experienced by Aboriginal
      children and young people. The factor most strongly associated with high risk of
      clinically significant emotional or behavioural difficulties in children was the
      number of major life stress events (e.g. illness, family break up, arrests or
      financial difficulties) experienced by the family in the 12 months prior to the
      survey.
    • Similarly Pathways to Prevention, a report developed for the National
      Crime Prevention Strategy urges government to focus on early developmental
      phases of a child as a means to thwarting future contact with the criminal
      justice system.
    • Failures to address issues relating to mental health, child protection,
      disability and community service systems contribute to the increased risk of
      children entering the juvenile justice system. These failures include lack of
      support services, appropriate treatment and behaviour intervention programs,
      family based care services and accommodation options; the use of inappropriate
      and harmful service practices, such as physical restraint and medication; the
      risk or actual occurrence of physical and sexual assault; and the reliance on
      the police to resolve challenging behaviour. There is also evidence to suggest
      that the lack of support services for children and appropriate policies and
      practices to deal with challenging behaviour often leads services to rely on or
      view juvenile justice facilities to provide a stable and secure care environment
      and as a solution to a complex problem.

    Restorative justice
    models[12]

    • The past decade has seen an increased emphasis on restorative justice
      mechanisms for addressing criminal behaviour in Indigenous communities to
      address the needs of victims (including of family violence) as well as to make
      the system more meaningful to offenders.
    • Restorative justice is fundamentally concerned with restoring social
      relationships, with establishing or re-establishing social equality in
      relationships. That is, relationships in which each person's rights to equal
      dignity, concern and respect are satisfied. As it is concerned with social
      equality, restorative justice inherently demands that one attend to the nature
      of relationships between individuals, groups and communities. Thus, in order to
      achieve restoration of relationships, restorative justice must be concerned with
      both the discrete wrong and its relevant context and causes.
    • This does not necessarily seek to return a relationship to the position
      prior to the commission of some wrongdoing, but instead to address the
      underlying issues. Restorative justice can thus incorporate concepts of
      restitution and healing, while focusing on the transformation of
      relationships.
    • There are numerous new initiatives in Australia developing community based
      justice mechanisms for Indigenous peoples which are based on restorative justice
      principles. Some of these processes, such as Law and Justice Committees in the
      Northern Territory and Community Justice Groups in Queensland incorporate a
      holistic response to family violence into strategies for addressing offending in
      communities.
    • The last two years have also seen the development of community justice
      mechanisms for involvement of Indigenous peoples in sentencing. Examples include
      the Ngunga Court and Ngunga Youth Court in South Australia; the Murri Court in
      Queensland; the Koori Court in Victoria and circle sentencing in New South
      Wales. Generally, these processes seek to incorporate an Aboriginal traditional
      customary law approach to the sentencing of Aboriginal offenders within the
      framework of existing legislation. While there are variations between the
      various models, they all involve Aboriginal Elders sitting alongside the
      magistrate to advise on sentencing options, with members of the offender's
      family, the victim, the victim's family and other interested community members
      participating in the sentencing process.
    • A NSW report on circle sentencing in Nowra has been conducted to review the
      first twelve months of operation. The review found that circle sentencing helps
      to break the cycle of recidivism, introduces more relevant and meaningful
      sentencing options for Aboriginal offenders with the help of respected community
      members, reduces the barriers that currently exist between the courts and
      Aboriginal people, leads to improvements in the level of support for Aboriginal
      offenders, incorporates support for victims, promotes healing and
      reconciliation, increases the confidence and generally promotes the empowerment
      of Aboriginal people in the community.
    • While these processes have been considered successful in their initial
      years, they are limited to dealing with particular non-violent offences.
      Accordingly, offences relating to violence and sexual offences cannot be
      addressed within these sentencing processes.
    • The NSW Aboriginal Justice Advisory Committee has proposed the extension of
      community controlled justice mechanisms to deal with family violence. This
      involves establishing localised justice mechanisms and healing centres combined
      with alternative sentencing processes for offenders which seek to establish
      formal links with local Aboriginal communities. In this approach, community
      justice and healing centres would be established as a single point of contact
      for victims of family violence.
    • There are similarities in this proposal with the Northern Territory Law and
      Justice Committee and Queensland Community Justice Group approaches, as well as
      similarities with the roles of services established under the Family Violence
      Prevention Legal Service Program. It also provides what the Memmott report, as
      discussed earlier, identified as a holistic composite set of programs for
      addressing family violence.
    • It also has similarities to Canadian models for addressing sex offending by
      Indigenous peoples. The Canadian approach emphasises the need for restorative
      justice, community-based initiatives beyond the justice system such as
      victim-offender mediation, family group conferencing, sentencing circles and
      formal cautioning. It also highlights the gaps that exist in addressing
      Aboriginal sex offender needs and the need for Aboriginal control of
      appropriately cultural services. The report Aboriginal Sexual Offending in
      Canada
      identifies four areas where action is necessary to address Aboriginal
      sexual offending: community development; program development; research and human
      resources.[13] The effectiveness of
      this model and whether aspects could be transferred to the Australian context,
      particularly in regard to community capacity-building and service coordination,
      is an avenue for further investigation.
    • These models and proposals suggest that the full potential of community
      justice mechanisms for addressing family violence has not been explored
      sufficiently, and may provide an appropriate way forward for addressing some
      aspects of need.

    Victims of
    crime[14]

    • The criminal justice system is extremely poor at dealing with the underlying
      causes of criminal behaviour and makes a negligible contribution to addressing
      the consequences of crime in the community. One of the consequences of this, and
      a vital factor that is often overlooked, is that Indigenous victims of crime and
      communities are poorly served, if served at all, by the current system.
    • Accordingly, the current system disadvantages Indigenous peoples from both
      ends. It has a deleterious effect on Indigenous communities through
      over-representation of Indigenous peoples in custody, combined with the lack of
      attention it gives to the high rate of Indigenous victimisation, particularly
      through violence and abuse in communities. Reform to criminal justice processes,
      including through community justice initiatives, must be responsive to these
      factors.
    • There are limited services which target Indigenous victims of crime. A
      number of existing victim support services and victims compensations services,
      in particular, also do not record Indigenous status of their clients. This makes
      it difficult to assess whether services are being accessed and are meeting the
      needs of Aboriginal peoples and Torres Strait Islanders.

    Mental
    health[15]

    • Poor mental health contributes to the crisis of family violence, anti-social
      behaviour, substance misuse, confrontation with the legal system, low
      participation in schooling and employment that are seen in a significant number
      of Aboriginal and Torres Strait Islander communities.
    • There is currently no national data collection process that is able to
      provide accurate information on the incidence of mental health disorders or
      treatment occurring among Indigenous peoples in Australia. All we know is that
      suicide, substance abuse and family and community violence are problems and
      there are services in place in some communities to address these. Most of the
      data we have about mental ill-health in Indigenous adults is that gleaned after
      crisis situations, when the mental health issue results in hospitalisation.
    • The Western Australian Aboriginal Child Health Survey, published in April
      2005, surveyed a sample of approximately 5,000 children. It reported that one in four (1:4) Aboriginal children are at high risk of
      developing clinically significant emotional or behavioural difficulties. This
      compares to about one in six or seven (1:6/7) of non-Indigenous children.
    • Research has also indicated that children with poor mental health have a
      greater tendency to develop into adults with poor mental health.
      • Suicide and other forms of self-harm: In 1998, Indigenous males
        committed suicide at 2.6 times the rate in the non-Indigenous population; for
        Indigenous females the rate is double that of females in the non-Indigenous
        population. In 2000-01, Indigenous males were hospitalised at 2.2 times the rate
        of males in the general population and Indigenous females at 2.0 times the rate
        of females in the general population for intentional self-injury. The National
        Health Survey in 2001 reported 10% of Indigenous peoples were likely to consume
        alcohol at risk or high-risk levels, compared with 11% of non-Indigenous people.
        However, this finding contrasts with other sources that report Indigenous
        peoples consume alcohol at risk levels twice that of the non-Indigenous
        community. Apart from alcohol, substance abuse is reported to be higher in
        Indigenous communities.
      • Indicators for other forms of harm behaviours: Violence is
        symptomatic of poor mental health in perpetrators and is associated with
        substance abuse. It is also a stressor to the mental health of victims. Violence
        kills Indigenous peoples at four times the rate of the non-Indigenous
        population. Reported physical, or threatened physical, violence, appears to have
        doubled over 1994 - 2002: 12.9% of respondents in 1994 identifying as victims,
        compared to 24.3% of respondents in 2002 in Indigenous social surveys. In 2001,
        Indigenous females were 28.3 times more likely to be hospitalised for assault
        than non-Indigenous females; males at 8.4 times the non-Indigenous rate.
    • Mental ill-health among Indigenous peoples must be understood in a holistic
      context. As the National Aboriginal Health Strategy put it
      ‘[h]ealth to Aboriginal peoples is a matter of determining all aspects of
      their life, including control over their physical environment, of dignity, of
      community self-esteem, and of justice. It is not merely a matter of the
      provision of doctors, hospitals, medicines or the absence of disease and
      incapacity’.[16]
    • The combination of problems suffered within Indigenous communities is the prime example of negative social determinants of health in Australia.
      Violence and addiction in communities undermines the resilience of members and
      erodes the capacity of communities to support the mental health of members. The
      impact of addiction on communities has been most closely observed in relation to
      alcoholism, although petrol sniffing and other substance abuse must be
      considered in relation to some communities.
    • Social support and social cohesion are associated with good mental health.
      Studies show that people in long-term, familial relationships and close-knit
      communities are better able to deal with stress and will live longer than those
      who do not.
    • Strengthening communities and culture clearly has potentially positive
      implications for the mental health of community members. Likewise, policies and
      programs that erode the strength and culture of communities can be considered as
      having negative impacts on community members.

    Substance abuse
    issues[17]

    • There are significant links between substance abuse and violence. The links
      between substance and abuse and violence mean that strategies to prevent and
      mitigate substance abuse also need to address the impacts of substance abuse on
      communities.
    • Potential responses to address the impacts of substance abuse need to
      address the those directly affected by substances, those potentially at risk of
      taking up substances at dangerous levels, and the impacts on those who come into
      contact with people affected by substances.
    • Typically, responses to address substance abuse are based on three phase
      health frameworks that include prevention measures, intervention strategies, and
      measures to overcome the impacts of those disabled through substance abuse. They
      include:

      • Primary interventions – to reduce recruitment into substance
        abuse;
      • Secondary interventions – seeking to achieve abstinence and
        rehabilitation;
      • Tertiary intervention – providing services to the permanently
        disabled.
    • The social impacts of sniffing are as follows:

      Petrol sniffing poses a range of problems to sniffers, their
      families, communities and to the wider society. Among the problems which have
      been associated with petrol sniffing are: serious health consequences including
      death or long-term brain damage, social alienation of sniffers, social
      disruption, vandalism and violence, increased inter-family conflict and reduced
      morale on communities, incarceration of sniffers and costs to the health system
      in terms of acute care and providing for the long-term
      disabled...[18]

    • In introducing liquor licence conditions and restrictions in Indigenous
      communities on alcohol the Racial Discrimination Act 1975 (Cth) must be
      considered.[19]
    • HREOC's Alcohol Report, published in
      1995,[20] considers the fact that
      while you might be detracting from the rights of the individual to alcohol by
      virtue of introducing restrictions, you may be in fact conferring rights on the
      group as a result (known as 'collective rights'). In the Alcohol Report, the Commission reasoned that alcohol restrictions could be conceived
      as conferring some benefits in terms of the 'collective rights' it might promote
      in Indigenous communities. Such benefits might be a reduction in the incidence
      of violent crime, a reduction in the rate of Indigenous incarceration, and an
      increase in money available for food.
    • In order to not breach the RDA, alcohol restrictions would need be
      classified as a class of 'benefit conferral'. They must also meet all of
      the criteria for special measures, namely that:

      • It confers a benefit on some or all members of a class, and membership of
        this class is based on race, colour, descent or national or ethnic origin;
      • It is for the sole purpose of securing adequate advancement of the group so
        that they may enjoy and exercise equally with others, their human rights and
        fundamental freedoms; and
      • The protection given is necessary so the group may enjoy and exercise
        equally with others, their human rights and fundamental freedoms.
    • While not determinative, in his decision in Gerhardy v Brown, High
      Court Justice Brennan noted HREOC's Alcohol Report and stated:

      The wishes of the beneficiaries of the measure are of great
      importance (perhaps essential) in determining whether a measure is taken for the
      purpose of securing their advancement. In the Alcohol Report, Commissioner
      Antonios concluded: alcohol restrictions imposed upon aboriginal groups as a
      result of government policies which are incompatible with the policy of the
      community will not be special
      measures.[21]

    • This highlights the importance of ensuring informed, real community
      consultation when considering alcohol restrictions in Indigenous
      communities.
    • Evidence also suggests that alcohol restrictions in isolation of any
      mechanism to address why people are abusing alcohol actually entrench the
      problems that the restrictions were designed to stop.

    Endnotes

    [1] Aboriginal and Torres Strait
    Islander Social Justice Commissioner, Ending family violence and abuse in
    Aboriginal and Torres Strait Islander communities: Key issues – An
    overview paper of research and findings by the Human Rights and Equal
    Opportunity Commission 2001-2006,
    Human Rights and Equal Opportunity
    Commission, Sydney, 2006, available at http://www.humanrights.gov.au/social_justice/familyviolence/family_violence2006.html accessed 24 January 2007.
    [2] These
    ten issues are discussed in more detail in a speech delivered by the Social
    Justice Commissioner at a national forum on Ending violence in Indigenous
    communities
    that was convened in Parliament House in Canberra on 19 June
    2006. The full speech is available at: http://www.humanrights.gov.au/speeches/social_justice/violence20060619.html accessed 25 January 2007.
    [3] For a
    more detailed consideration of Indigenous perspectives on family violence, see
    Social Justice Commissioner, Social Justice Report 2003, Human Rights and
    Equal Opportunity Commission, Sydney, 2004, chapter 5 – Addressing family
    violence in Indigenous communities, p157-161, available at http://www.humanrights.gov.au/social_justice/sjreport03/data/chap5.html accessed 25 January 2007.
    [4] For a
    more detailed consideration of programs to address Indigenous family violence,
    see Social Justice Commissioner, Social Justice Report 2003, Human Rights
    and Equal Opportunity Commission, Sydney, 2004, chapter 5 – Addressing
    family violence in Indigenous communities, p168-191, available at http://www.humanrights.gov.au/social_justice/sjreport03/data/chap5.html accessed 25 January 2007.
    [5] Memmott, P., Stacy, R., Chambers, C. and Keys, C., Violence in Indigenous
    Communities – Full Report,
    Commonwealth Attorney-General’s
    Department, Canberra, 2001.
    [6] For
    a more detailed examination of a human rights based approach to overcoming
    Indigenous disadvantage, see: Social Justice Commissioner, Social Justice
    Report 2005,
    Human Rights and Equal Opportunity Commission, Sydney, 2006,
    chapter 2 – Achieving Aboriginal and Torres Strait Islander health
    equality within a generation, p9-98, available at http://www.humanrights.gov.au/social_justice/sjreport05/chap2.html
    accessed 25 January 2007
    . See also: Human Rights and Equal Opportunity
    Commission and Secretariat of the United Nations Permanent Forum on Indigenous
    Issues, Engaging the marginalised: partnerships between indigenous peoples,
    governments and civil society,
    Workshop Report, available at http://www.humanrights.gov.au/social_justice/conference/engaging_communities/index.html#link2 accessed 25 January 2007. See further: Aboriginal and Torres Strait Islander
    Social Justice Commissioner, Benchmarking reconciliation and human rights, Seminar, 28-29 November 2002, materials available at www.humanrights.gov.au/social_justice/benchmarking/report.html accessed 25 January 2007.
    [7] See
    further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending family violence and abuse in Aboriginal and Torres Strait Islander
    communities: Key issues,
    op cit, section 4B - Recognising Aboriginal
    customary law consistently with human rights, p40-60.
    [8]The
    Queen v GJ [2005] NTCCA
    20
    . See also
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
    family violence and abuse in Aboriginal and Torres Strait Islander communities:
    Key issues,
    op cit, section 4B – Recognising Aboriginal customary law
    consistently with human rights, which summarises the decision of the NT Court of
    Criminal Appeal in The Queen v GJ, p54-57.
    [9] See further: Aboriginal
    and Torres Strait Islander Social Justice Commissioner, Ending family
    violence and abuse in Aboriginal and Torres Strait Islander communities: Key
    issues,
    op cit, section 4E – Indigenous women and imprisonment and
    post-release programs, p79-85. See also Social Justice Commissioner, Social
    Justice Report 2002,
    Human Rights and Equal Opportunity Commission, Sydney,
    2003, chapter 5 – Indigenous women and corrections: a landscape of
    risk, p135-178.
    [10] See
    further: Social Justice Commissioner, Social Justice Report 2004, Human
    Rights and Equal Opportunity Commission, Sydney, 2005, chapter 2 – Walking
    with the women: addressing the needs of Indigenous women exiting prison, p11-66.
    [11] See Aboriginal and Torres
    Strait Islander Social Justice Commissioner, Ending family violence and abuse
    in Aboriginal and Torres Strait Islander communities: Key issues,
    op cit,
    section 4F – Indigenous youth and the criminal justice system, p86-96. See
    also Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous young persons with cognitive disabilities and Australian juvenile
    justice systems,
    Report to Attorney-General’s Department 2005,
    available at www.humanrights.gov.au/social_justice/cognitive_disabilities.doc accessed 25 January 2007.
    [12] For further information see Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Social Justice Report 2003, op cit, chapter 5 –
    Addressing family violence in Indigenous communities,
    p174-191.
    [13] Hylton, J.H., Aboriginal Sexual Offending in Canada, The Aboriginal Healing Foundation,
    2992, p157.
    [14] See Aboriginal
    and Torres Strait Islander Social Justice Commissioner, Addressing the needs
    of Aboriginal and Torres Strait Islander peoples as victims of crime,
    Speech, launch of White Ribbon Day, 18 November 2005, available at http://www.humanrights.gov.au/speeches/social_justice/victims_of_crime_speech.html accessed 25 January 2007.
    [15] See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending family violence and abuse in Aboriginal and Torres Strait Islander
    communities: Key issues,
    op cit, section 4D - Mental health issues, p68-78.
    See also Human Rights and Equal Opportunity Commission, Submission to the
    Senate Select Committee on Mental Health 2005,
    available at http://www.humanrights.gov.au/disability_rights/inquiries/mental/senate05.htm accessed 25 January 2007.
    [16] National Aboriginal Health Strategy Working Group, National Aboriginal Health
    Strategy,
    AGPS, Canberra,
    1989.
    [17] See further:
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
    family violence and abuse in Aboriginal and Torres Strait Islander communities:
    Key issues,
    op cit, section 4H – Substance Abuse,
    p102-114.
    [18] For further
    information see Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Social Justice Report 2003, op cit, chapter 4 –
    Responding to petrol sniffing on the Anangu Pitjantjatjara Lands: a case study,
    p107-154, available at http://www.humanrights.gov.au/social_justice/sjreport03/data/chap4.html accessed 25 January 2007.
    [19] See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Implications of the Racial Discrimination Act 1975 with reference to state
    and territory liquor licensing legislation,
    Speech, 34th Australasian Liquor Licensing Authorities’ Conference 26-29 October 2004,
    Hobart Tasmania, 28 October 2004, available at http://www.humanrights.gov.au/speeches/race/LiquorLicensingAuthoritiesConference.html accessed 25 January 2007.
    [20] Race Discrimination Commissioner, Alcohol Report: Race Discrimination, Human
    Rights and the Distribution of Alcohol,
    Australian Government Publishing
    Service, Canberra, 1995, available at http://www.humanrights.gov.au/racial_discrimination/reports/alcohol.html accessed 25 January 2007.

    [21] (1985) 159 CLR 70.