A Community Guide to the 2009 Social Justice and Native Title Reports

Cover of A Community Guide to the 2009 Social Justice and Native Title Reports2009 Social Justice and Native Title Reports

A Community Guide

Please be aware that this publication may contain the names or images of Aboriginal and Torres Strait Islander people who may now be deceased.


A Note from the Commissioner

In my role as Aboriginal and Torres Strait Islander Social Justice Commissioner, I produce two annual reports on Aboriginal and Torres Strait Islander peoples’ human rights issues – the Social Justice Report and the Native Title Report.

The reports, which are tabled in federal Parliament, analyse the major changes and challenges in Indigenous affairs over the past year. They also include recommendations to government that promote and protect the rights of Aboriginal and Torres Strait Islander peoples.

This Community Guide gives a brief overview of some of the key issues in both reports for 2009.

In this year’s Social Justice Report I focus on three areas: justice reinvestment to reduce Indigenous over-representation in the criminal justice system; protection of Indigenous languages; and sustaining Aboriginal homeland communities.

At their core these issues speak to the need for strong communities. This might be through reinvesting money in crime prevention and keeping people out of prison; protecting language and culture that is the glue which keeps communities together; or supporting strong homelands as a model of community development and self-determination.

Our communities are not just where we come from, but who we are. They represent our family connections, proud history and rich culture. I hope that they remain strong and can in turn sustain future generations. My final Social Justice Report provides some new ideas and recommendations to do this.

In this year’s Native Title Report, I review important developments in native title law and policy that occurred during 2008-2009. During this time, the Australian Government pursued its commitment to improving the operation of the native title system.

I also consider further legislative and policy options for creating a just and equitable native title system.

Finally, I provide an update on Indigenous land tenure reform across Australia. I then set out principles that governments should follow when implementing such reforms.

Tom Calma is the Aboriginal and Torres Strait Islander Social Justice CommissionerTom Calma is the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Tom, an Aboriginal elder from the Kungarakan tribal group and a member of the Iwaidja tribal group of the Northern Territory, commenced his term in July 2004.

As Commissioner, he advocates for the recognition of the rights of Indigenous peoples in Australia and seeks to promote respect and understanding of these rights among the broader Australian community.

Tom has been involved in Indigenous affairs at a local, community, state, national and international level and has worked in the public sector for over 35 years.


Justice Reinvestment: a new solution to the problem of Indigenous over-representation in the criminal justice system

Indigenous over-representation in the criminal justice system is a significant social justice issue that needs urgent attention. Some worthy initiatives have been developed since the Royal Commission into Aboriginal Deaths in Custody in 1991. However, what we are doing is simply not working.

Justice reinvestment is a localised criminal justice policy approach, that first emerged in the United States. Under this approach, a portion of the public funds that would have been spent on covering the costs of imprisonment are diverted to local communities that have a high concentration of offenders. The money is invested in community programs, services and activities that are aimed at addressing the underlying causes of crime in those communities.

Justice reinvestment still retains prison as a measure for dangerous and serious offenders. However, justice reinvestment actively shifts the focus away from imprisonment to the provision of community-wide services that prevent offending. Justice reinvestment is not just about reforming the criminal justice system – it is about trying to prevent people from getting involved in the system in the first place.

Justice reinvestment is as much about economics as it is about good social policy. Justice reinvestment asks the question: is imprisonment good value for money? In Australia, we spend increasing amounts on imprisonment, yet prisoners are not being rehabilitated, and rates of return to prison are high. This is a particular problem among Aboriginal and Torres Strait Islander communities.

Indigenous imprisonment rates in Australia are unacceptably high

  • Nationally, Indigenous adults are 13 times more likely to be imprisoned than non-Indigenous adults.
  • Indigenous juveniles are 28 times more likely to be placed in juvenile detention than their non-Indigenous counterparts.


There is a lot we can learn from justice reinvestment policies in the United States, and emerging interest in this approach in the United Kingdom. I consider these examples in this year’s Social Justice Report.

Justice Reinvestment: A success story

Imprisonment rates are dropping in places where justice reinvestment is being implemented. For example, there was a 72% drop in juvenile incarceration in Oregon, USA, after money was reinvested in well-resourced restorative justice and community service programs for juvenile offenders.


We need to be bold and creative to shape better solutions to Indigenous offending. That is why in this year’s Social Justice Report I look to justice reinvestment as a new approach that may hold the key to unlocking Indigenous Australians from the cycle of crime and increasing imprisonment rates.

Jeanette Gordon, Mona Sunfly, Danika Kingsley (toddler) of the Kukutja people in Balgo, Western Australia.

Left to Right: Jeanette Gordon, Mona Sunfly, Danika Kingsley (toddler) of the Kukutja people in Balgo, Western Australia. This photo was taken during a program with local youth who have come out of incarceration, under the Kutjungka Documentation Project. Photo: Azaria Rogers (2008)


Respecting Indigenous land ownership

During 2008-2009, Australian governments continued to develop policies and implement new laws in relation to Indigenous land.

One of the most important developments is that the Australian Government has linked the provision of funding for essential services to government control over Indigenous land. Many Indigenous communities desperately need funding for housing. In order for some communities to be eligible for housing funding, Indigenous land owners are required to provide a lease or sublease of at least 40 years to the Australian Government.

I am concerned about these policies and the way they impact on Indigenous people across Australia. Governments have referred to these reforms as a way of promoting home ownership and economic development, but this can be misleading. I am also concerned that the Australian Government has not presented these policies in a clear and transparent way.

The Australian Government has also retained measures that were introduced as part of the Northern Territory Emergency Response (also known as the ‘Intervention’). During 2008-2009, the Government threatened to use these powers to compulsorily acquire town camp land in Alice Springs.

These reforms, and continuing policies, provide governments with control over the land. Aboriginal and Torres Strait Islander peoples have fought hard for their rights over their lands to be recognised. Shifting control of land from communities to the government creates a barrier to self-governance. It can also further marginalise Indigenous communities.

Aboriginal and Torres Strait Islander peoples have legitimate concerns about losing control over decision-making in their own communities. In this year’s Native Title Report I call on governments to consider different approaches to Indigenous land reform, and recommend that the Australian Government end compulsory five-year leases.

Governments should focus on providing improved forms of land ownership to Aboriginal and Torres Strait Islander peoples.

[G]overnment initiatives to address the housing needs of indigenous peoples, should avoid imposing leasing or other arrangements that would undermine indigenous peoples’ control over their lands.
Professor S James Anaya, UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people

 Julia Mansour (2008)

Right to Left: Professor S James Anaya (UN Special Rapporteur) and Les Malezer (Foundation for Aboriginal and Islander Research Action) at a public forum hosted by the Indigenous Peoples’ Organisations Network of Australia and the Australian Human Rights Commission on 3 December 2008. Photo: Julia Mansour (2008)


A principled approach

In the Native Title Report 2009 I identify the Australian Government’s approach to land tenure reform. I also highlight developments in land tenure reform in the Northern Territory, Queensland, New South Wales, South Australia and Western Australia.

I set out principles that should underpin the introduction of any land tenure reforms or home ownership schemes. This includes providing the community with clear and appropriate information. Respect for the free, prior and informed consent of Indigenous peoples is at the centre of these principles.


Indigenous Languages: critically endangered

Indigenous languages are critically endangered in Australia. They continue to die out at a rapid rate. Prior to colonisation, Australia had 250 distinct languages, which could be subdivided into 600 dialects. Today, Australia has 100 Indigenous languages, though most of them are in varying stages of extinction. There are only 18 Indigenous languages that are currently spoken by all people in all age groups across a given Indigenous language group. Without intervention, it is estimated that Indigenous language usage will cease in the next 10 to 30 years.

The loss of Indigenous languages in Australia is a loss for all Australians. Cultural knowledge is carried through languages, so the loss of language means the loss of culture. This in turn has the potential to impact on the health and well-being of Indigenous peoples. Significant research shows that strong culture and identity assists us to develop resilience.

Up until the 1970s, Australian government policies and practices banned and discouraged Aboriginal and Torres Strait Islander peoples from speaking our languages. Many of those who were forcibly taken to hostels and missions lost their languages due to the prohibitionist polices and practices of governments and churches.

The preservation and promotion of Indigenous languages

Australian governments should act to preserve and promote Indigenous languages because:

  • Evidence shows improved cognitive functioning in children who are bilingual
  • Minority groups who speak their languages and practice their culture, enjoy better social, emotional and health outcomes than groups who do not
  • Cultural knowledge has been proven to assist in the employment of Indigenous people in Australia
  • There are economic and social costs associated with the loss of languages
  • Indigenous languages have intrinsic value to the people who speak them.