"No More Just Tinkering at the Edges"
Human Rights Day Oration by Distinguished Professor Larissa Behrendt AO
9 December 2022
I pay my respects to the Gadigal and the Elders who have kept knowledge on this country and shared so generously this unceded land.
Before I start, I would like to thank the Commission for the honour of the 2021 Human Rights Medal. The award reflects a long-term effort and not only by me but by many dedicated and passionate colleagues so I want to acknowledge that I truly share this honour with the extraordinary team at Jumbunna Research, including those who started the Research Unit with me, Craig Longman, Jason deSantolo, and Paddy Gibson. And the current team headed by our in-coming Director, Lindon Coombes, and those leading legal reform work, including Alison Whittaker, Latoya Rule and Chris Cunneen.
Jumbunna has been strengthened by Paul Gray’s leadership in our child protection work and Daryle Rigney’s work in our nation building space. It’s a great big, team and I can’t name everyone, but each of them stands with me in receiving this acknowledgment.
I also want to acknowledge our out-going PVC Indigenous Leadership and Engagement, Michael McDaniel and our acting PVC Robynne Quiggin who have unquestioningly supported our work.
And we couldn’t do what we do without support from the leadership at UTS. I would like to specifically acknowledge Vice Chancellor Andrew Parfitt who has been one of our greatest champions and who has deeply appreciated the importance our community-led work and advocacy.
But most of all, a human rights award like this belongs to the First Nations people and communities who have given us the privilege of working with them – who have shown the most bravery and who have had the most at stake in standing up against human rights violations. So, this medal should be seen as recognition of their leadership and determination to change the system.
Usually, I put my notes together for a speech like this at the last moment. I hate public speaking so I put it off until I can no longer think about it.
But this time, I started earlier. Motivated. I started writing after attending the memorial service in Adelaide for fifteen-year-old Cassius Turvey. I wrote with sorrow for the reminder that we live in a country where you can be killed for simply being black and lamenting the message this senseless, hateful killing sends to our young people.
This pain, felt by mob around the country, was exacerbated by a comment by the Western Australian Police Commissioner describing the attack as a case of being “in the wrong place at the wrong time.” I was angered by the unreflective ignorance that reinforced that there is no place that it is safe to be a black person in Australia.
It was the same week that there was a media story about the treatment of young people incarcerated within Western Australia’s Banksia Hill Juvenile Detention Centre. Those of us working within the sector were long aware of the abuses there. And it was reminiscent of what had emerged from the Don Dale Youth Detention Centre in the Northern Territory about the treatment of young people – of children – in detention that included being restrained, being kept naked, being sprayed with tear gas and with water and being kept in cells with no running water, no air conditioning, no fans, and no direct supply of air.
And this was against the work that week of the Federal Inquiry into missing and murdered First Nations women and children that is highlighting the human face of the over-representation of First Nations women as victims of violent crime and what seems like police indifference in the investigations into crimes against them.
It was a week where there was a reminder that the justice system of this country often fails to treat offenders – even if they are children – humanely and, at the same time, offers little to no justice to First Nations victims of crime.
Another week to be counted among so many, when people came out in force to protest a death that shouldn’t have happened.
Tonight, I would like to reflect on what human rights really means for First Nations peoples in Australia, particularly in relation to the criminal justice and child protection systems. And I want to challenge those organisations and individuals who advocate for the human rights of their fellow Australians to also reflect on what is needed for real and impactful reform. To call for our human rights advocates to be brave and visible – to speak not when it is easy, but when it is hard.
The Royal Commission into Aboriginal Deaths in Custody in 1991 still stands today as the most comprehensive catalogue for needed reform across the criminal justice and wider legal system. Its 339 recommendations included imprisonment as a last resort, improved training across the criminal justice system, improved health services, better education of the broader community and the need for a guiding principle of self-determination.
The recommendations of the Royal Commission are echoed in the coronial findings in individual cases of subsequent deaths in custody – particularly about training and reform of police or custodial procedures.
I assert that every death in custody that occurs due to a failure to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody is a preventable death.
The death of 22-year-old Ms Dhu in 2014 is an example of that tragedy. There was her young age, the fact that she was a victim of domestic violence when the police arrived at her residence and then decided to arrest her for non-payment of fines, the failure to take her cries for help due to severe pain seriously whilst in custody in the South Hedland lock up, the failure of medical staff to properly examine her on the two occasions she was taken to hospital – she was dead on arrival on the third visit in which she was still handcuffed – and the overall lack of dignity in the way she was treated.
The cause of Ms Dhu’s pain that remained undiagnosed was later determined to be pneumonia and sepsis from broken ribs – an injury sustained three months earlier.
Completely treatable. Completely avoidable.
Ms Dhu’s death could have been avoided if Western Australia did not lock people up for non-payment of fines. It would have been avoided if police officers treated her in the way a victim of domestic violence should be supported. It would have been avoided if Ms Dhu’s cries for help due to her pain had have been taken seriously. And it would have been avoided if the medical staff had taken the time to physically examine her.
The facts of Ms Dhu’s death bare an eerie resemblance to six Aboriginal and Torres Strait Islander women whose deaths were investigated as part of the Royal Commission. These included the cases of Nita Blankett who was refused medical attention while on remand for driving offences and Muriel Binks whose calls for medical attention went unnoticed while in custody for non-payment of $30 in fines.
The Royal Commission recommended that imprisonment not be used as a punishment for non-payment of fines – which is often simply a punishment for poverty. It also recommended that public order offences including drunkenness not carry punishments of incarceration.
In 2017, Aunty Tanya Day fell and hit her head in a cell in Castlemaine after being arrested for public drunkenness. She was left fatally injured on the floor for three hours. A preventable death. And her family powerfully and successfully advocated for the law reform in Victoria that saw the government undertake to decriminalise public drunkenness, no doubt preventing more deaths in custody along the same line.
As the number of Aboriginal children in juvenile detention has grown, so too have the number of Aboriginal children in out-of-home care has been increasing since the National Apology to the Stolen Generations in 2007. The 1997 Bringing them Home report, like the Royal Commission into Aboriginal Deaths in Custody, delivered a comprehensive blueprint in what needed to be done to keep children from out of home care. It has never been rigorously implemented.
While making up only 6 per cent of all children in Australia, today Indigenous children make up 37 per cent of all children in out of home care. Despite the Aboriginal Child Placement Principles, there is also a decrease in the percentage of children who are being removed from their families being placed with Aboriginal and Torres Strait Islander carers.
Child protection continues to be a system that works against Aboriginal and Torres Strait Islander families. It is a system that equates poverty with neglect, is rife with cultural bias, has little investment in prevention and reunification but has a bureaucracy bent on keeping Aboriginal children in- out of home care.
And we know that there is a much higher chance that children in out of home care will end up in the criminal justice system. Of the children at the Don Dale Youth Detention Centre, 60 per cent of the detainees were in state care.
So where do we start to truly implement the blueprint of the recommendations of the Royal Commission and the Bringing Them Home Report.
Firstly, and most fundamentally, First Nations community-controlled organisations must be empowered and genuinely supported.
Fifty years ago, not far from here, in Redfern, the first Aboriginal Legal Service was created. One of our first community-controlled organisations, it was driven by an understanding that the system was oppressing Indigenous people – that it was wielded unfairly and to suppress, often violently. It was a response to over-policing, over-incarceration, and a response to too many suspicious deaths in police custody.
Successive conservative governments have gutted our Aboriginal Legal Services but when funding has been restored, it is never to the same levels. Over time, its funding has been eroded in real terms.
We will not close the gap on over-representation in the criminal justice system until our legal services are properly funded. It is humbling in the work Jumbunna has done partnering with Aboriginal Legal Services, especially with VALS and ALS NSW/ACT to see how much they do on so little.
This underfunding is more absurd when one looks at the evidence that shows that policy and programs work best when they are Indigenous community controlled and led. We see this impact of our sector up close with the work we do with the community-controlled organisations working in child protection, particularly with SNAICC and its Family Matters campaign. And we see it up close with the work of the community-controlled health organisations.
Self-determination was a key recommendation of both the Royal Commission into Aboriginal Deaths in Custody and the ‘Bringing them Home’ report. In its true form, it means the greater transfer of decision-making, policy development, program design and delivery to Indigenous people and it speaks to the role played by community-controlled organisations.
This is not an abstract idea. Indigenous self-determination works.
When strategy rests in Indigenous hands, it better reflects the interests, values, vision, and concerns of the Indigenous group that will be affected, and not those of non-Indigenous government bureaucrats, funders, or other external bodies. The focus is on what community members think is important and what they know works.
Self-determination increases accountability to the community. When decision makers must face the consequences of their decisions – positive or negative – the quality of decisions improves.
Such services are better placed to find the people who fall through the cracks, to actively bring people in through the doors, to work across agencies through informal networks and understand community dynamics and the appropriate cultural leadership.
Self-determination has been proven to work in health – take as evidence with the work done by the Aboriginal community-controlled health organisations in rolling out COVID information to communities across the country well ahead of any government programs. And it offers the best strategy in child protection. Our Aboriginal and Torres Strait Islander legal services need to be resourced to work similarly in justice.
We need a strong, properly supported, empowered, self-determining First Nations community-controlled sector to see the changes needed in policy.
Secondly, public policy must be evidenced based, and the siren call of popularism must be confronted.
We know that tough on crime strategies, so popular with state and territory governments, are incompatible with reducing over-representation of First Nations peoples in the criminal justice system. This is particularly so in relation to reforms to bail legislation that limit judicial discretion and inevitably result in increased prison populations due to the increased number of people on remand. For example, including the lack of a permanent address (in other words, homelessness) as a factor that gives rise to a presumption against bail, sees an increase in incarceration rates. Mandatory sentencing has a similar effect.
The reality of tough of crime must be called out. It has to be challenged and Human Rights advocates voices have to be heard clearly within the public debate.
A clear example of this is the campaign to raise the age of criminal responsibility to 14. Not to 12. To 14. I want to acknowledge the work of the Raise the Age campaign and Change the Record who have lobbied tirelessly for this important policy change that would see the number of our young people in prison drastically reduce and us forced to find better ways to deal with anti-social behaviour.
Over my time working in this space, it has been the work of these grassroots, community-led campaigns – like Raise the Age, like Family Matters – have been the most important agents of change.
I think of the work done by the Bowraville families who are still working after over thirty for justice for the murders of Colleen Walker-Craig, Evelyn Greenup, and Clinton Speedy-Duroux. They continue to advocate for changes to the system that will see charges brought against a suspect in these murders. They have changed laws and fought a David and Goliath battle against the legal profession, including the Bar Association and the Law Society, for legal reform that would be a pathway to them getting their day in court.
And I think of advocates like Karen Robinson Iles whose advocacy for others now also includes her taking on the Queensland and NSW police forces for failure to properly investigate the violent crimes perpetrated against her as a child. And she is not just seeking justice for herself, she is seeking to ensure that police are judged against a duty of care and a minimum duty to investigate child sex crimes.
And I think of the work of people like Aunty Josie Crawshaw with their campaigning to close the Don Dale Youth Detention Centre.
I have observed that the clients and communities that we have worked with who have suffered injustice have fought for justice for loved ones and to make sure what has happened to them does not happen to others. And they have done that while being largely silenced and marginalised by the system.
That is why, the attack on the right to protest is an insidious one. Protest is a basic freedom within a healthy democracy. The act of peaceful protest and is an important mechanism for drawing attention to injustice and a strategy in the process of law reform. It is a way for the marginalised, who the system is silencing, to sharpen their message. Attacks on the rights to protest are an insidious attack on the rights of the marginalised and we cannot hope for change if we are cutting off the one of the key ways to agitate for it.
And it is here I wish to make my third point in how real change can be achieved – the responsibility of those committed to human rights to raise their voice when issues are difficult, when public opinion is not on your side and when it is easy to be muted.
Martin Luther King Jr once said that, in the end, it is not the words of our enemies that we will remember, but the silence of our friends.
I have thought of that often, this ‘silence of our friends’. At no time have I felt so let down by our allies in the human rights space than when they were silent as the federal government repealed the Racial Discrimination Act in rolling out the Northern Territory intervention.
If a policy can only be implemented by being racially discriminatory, then it is the time for voices to be heard. To question the reasons, to demand the evidence and insist that the First Nations people being subjected to the discrimination be listened to. It was a time of deafening silence to both the Howard government and then, to its shame, the Rudd government, and their same policies in 2008 under the Stronger Futures legislation.
Some placed the fear of putting the government off-side, or risking public funding or dare I say, hopes of personal advancement, ahead of the fundamental responsibility to call out what was manifestly wrong.
I acknowledge George Newhouse of the National Justice Project as one of the few partners Jumbunna could find on the east coast to take on cases in the Northern Territory at this time.
And it has been a little galling to have recently received fundraising requests from a human rights organisation now highlighting conditions in the Northern Territory that have worsened because of the very policies that they remained silent about at the time. Leadership isn’t how you act when it is safe; it is how you step up when it is hard.
And I’m not saying standing up against power is easy. News Limited came for me just as it came for others who stood up to Andrew Bolt and spoke out against the intervention. And I acknowledge the strength of the Human Rights Commission when Gillian Triggs was subjected to similar attack for her principled advocacy on the plight of asylum seekers and damage caused by offshore detention.
But here’s the thing. Change is hard. It will be resisted. It comes with personal discomfort and sometimes at personal cost and risk. You are not challenging the system if you only speak when it feels safe to do so.
I became a lawyer because I wanted to change the world. But when I entered practice, I found I was simply a cog in a wheel processing people through the system. So, I went into research – to work more closely on law reform. And I came to understand that evidence-based suggestions would always be trumped by ideological driven approaches and tough on crime political stances.
So, I came to be deeply interested in creating space for people – through broadcasting or filmmaking to tell their stories – to put the human face on what the impact of failed policies is.
All of these things I have spoken about – of a criminal justice system and child protection system that fail First Nations peoples and the need to speak strongly and fearlessly are manifestations of the big picture for First Nations. The reality of colonisation.
Colonisation is a multi-faceted project. It is virulent and aggressive agenda includes:
- the taking of land (through dispossession, legal fictions and ‘dispersal’, the latter being a euphemism for massacre and genocide);
- the attempt to eradicate culture (outlawing the speaking of language, destroying sacred cultural sites, undermining cultural practices – usually done by positioning them as barbaric and asserting policies of assimilation to indoctrinate the colonised into the culture of the coloniser);
- the control of bodies (restricting and regulating movement, restricting marriage, confining and criminalising);
- the violation of women (as a means of control, assimilation, assertion of conquest and demoralising of the colonised);
- the segregation from colonial society unless assimilated; and,
- the removal of children from their families and communities (also a means of assimilation, control, breaking down of culture and demoralisation).
These colonial strategies have contemporary manifestations:
- Despite gains in native title and land rights that have led to the recognition and reassertion of custodianship over traditional lands, Aboriginal land continues to be affected by the desecration of cultural sites and environmental degradation, particularly by mining;
- The control of Aboriginal and Torres Strait Islander bodies continues with the increasing number of Indigenous people in custody;
- Aboriginal and Torres Strait Islander women continue to be over-represented in statistics tracking victims of crime;
- Exclusion from mainstream institutions and lesser treatment by mainstream services is evident in the socio-economic data and the inability to ‘close the gap’;
- The continual and increasing rates of removal of Aboriginal children from their families.
All these factors evidence a clear continuum between historic colonial assimilationist practices and the contemporary activities of the state.
For First Nations, the system is broken. It was broken when the first colonists arrived in 1788 and used the human fodder from their over-flowing prisons to colonise First Nations land here.
I found it helpful to remember the historical role of the legal system and the police force in the project of colonisation and to understand that there has never been a point where there has been a conscious attempt to change this underlying agenda.
The over-representation of our women, children and men within the criminal system seems to confirm that its colonial project is on-going.
The increasing rates of the number of Aboriginal and Torres Strait Islander children in out-of-home care show that the colonial project has not altered, despite the recommendations of the ‘Bringing them Home’ report. It is a system that is also broken.
What I have come to learn is that the system will never be fixed with tinkering around the edges – by putting more First Nations people within it as lawyers, judges, court officers, police officers. As Gary Foley noted recently, ‘We have never had so many lawyers, and never had so many of our people in prison.”
Ultimately we need to start a fresh. Departments of child protection need to be replaced by empowered community-controlled organisations and true self determination. Child prisons and juvenile detention centres replaced with treatments that respect the humanity and vulnerability of children and strengthen families and communities. And work towards abolishing incarceration as a way of punishing and controlling.
Crimes of poverty should not be punished by imprisonment. Addiction should not be punished by imprisonment. Mental illness should not be punished by imprisonment. And this is the only way that the insidious nexus between the child protection system and the juvenile justice system will be broken.
None of this should be radical. First Nations people are the world’s oldest living culture, and we did not have a prison on this country until 1788. Nor did we have a department of child protection. Instead, we had a kinship system that meant everyone had a relationship with everyone else – which meant obligations to one another, and to the environment. There were no prisons, there were no orphans, there was no homelessness. Turns out, this was a sustainable system for over 80 000 years.
When Jumbunna Research worked with the Victorian community on the Aboriginal Justice Agreement 4, the community had a long-term vision of an Aboriginal community-controlled justice system.
It is a long-term goal but included Indigenous control over the determination of the goals and aspirations for an Aboriginal justice system, the allocation of resources, the setting of policy and programs agenda for the Victorian government as it applies to Aboriginal peoples’ interaction with the justice system, developing a legislative agenda and holding the government accountable against benchmarks set by the Aboriginal community.
The current Aboriginal Justice Agreement and its embrace of the principle of self-determination was viewed as a stepping-stone towards a longer-term vision. What, one participant asked, would self-determination look like without the mainstream legal system?
Justice reinvestment imagines redirecting the effort to prevention; and similarly, though some might bristle at the language ‘defund the police’ is about redirecting resources towards addressing underlying issues that lead to criminal offending – like mental illness.
Colonial law long ago was used by the British to justify their colonisation of Australia. While the doctrine of terra nullius was overturned in 1992 in the Mabo case, Australia has yet to challenge a more deeply ingrained psychological terra nullius. While more willing to perform welcomes or acknowledgements of country, to embrace National Reconciliation Week and NAIDOC weeks, to hang Aboriginal art works, these are only a superficial embrace of First Nations perspectives and world views unless coupled with true systemic change and tangible outcomes.
In this framework, the failure to implement recommendations of the Royal Commission is not a failure of the system to appropriately deal with an ‘Indigenous problem’ but is complacency about changing the system itself and an indifference to the consequences the status quo is producing. Indigenous people are problematised – we are seen as a problem within the system that needs to be fixed. In fact, it is the system that is the problem and in need of repair.
Representation, truth telling, and treaty offer potential pathways to this deeper change. Self-determination must be its guiding principle. The true challenge is the extent to which the system is willing to shift power and to see such a change as a positive rather than a negative.
So, my message is to use your voice to support the work of grass roots campaigns like raise the age, like family matters, like the petition by the Bowraville families, like the campaign being led by Karen Iles for police to have a duty of care, like the campaign to close the Don Dale Youth Detention Centre.
Understand that our legal system and child protection systems have not broken their projects of colonisation and dream of ways to change that, to truly change its purpose, not just tinker around the edges in attempts to ameliorate its negative impacts.
Support the concept of true self-determination and the leadership of our community-controlled sector.
And we must support and honour the Elders who continue to work tirelessly. Look at Linda Burney leading on the Voice to Parliament and Pat Turner leading the Coalition of Peaks and demanding a seat at the table in Closing the Gap.
Use your privilege to speak for others when they can’t – be brave!
More importantly, use your privilege to create space for those who are being silenced to tell their story with their own voice.
And when they speak, we should listen.
And listen deeply.