2012 Face the Facts - Chapter 1

Face the Facts (2012)

Back to Contents

• 1.1 Who are Aboriginal and Torres Strait Islander peoples?
• 1.2 How many Aboriginal and Torres Strait Islander people are there?
• 1.3 Where do Aboriginal and Torres Strait Islander peoples live?
• 1.4 How widely are Aboriginal and Torres Strait Islander peoples’ languages spoken in Australia?
• 1.5 Do Aboriginal and Torres Strait Islander peoples experience disadvantage?
• 1.6 Do Aboriginal and Torres Strait Islander peoples get special treatment from the government?
• 1.7 Overcoming Aboriginal and Torres Strait Islander peoples’ disadvantage
• 1.8 What is the ‘Northern Territory Emergency Response’?
• 1.9 Does the Australian Constitution recognise Aboriginal and Torres Strait Islander peoples?
• 1.10 What is the Declaration on the Rights of Indigenous Peoples?
• 1.11 What is the right to self-determination?
• 1.12 What is reconciliation?
• 1.13 Who are the Stolen Generations?
• 1.14 What is the Apology?
• 1.15 What is native title?

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Questions and Answers about Aboriginal and Torres Strait Islander Peoples

1.1 Who are Aboriginal and Torres Strait Islander peoples?

Aboriginal and Torres Strait Islander peoples are the first peoples of Australia.^[1] They hold a unique place in Australian history and continue to make an essential contribution to our ongoing national development and identity.

Over time, the following definition has been agreed within the community and Australian Government to identify when someone is an Aboriginal and/or Torres Strait Islander person. The person:

• is of Aboriginal and/or Torres Strait Islander descent
• identifies as an Aboriginal and/or Torres Strait Islander person, and
• is accepted as an Aboriginal and/or Torres Strait Islander person by the community in which he or she lives.^[2]

Aboriginal and Torres Strait Islander peoples retain their cultural identity whether they live in urban, regional or remote areas of Australia. There is a great diversity of cultures, languages, kinship structures and ways of life among Aboriginal and Torres Strait Islander peoples across Australia.

Aboriginal peoples and Torres Strait Islander peoples have distinct cultures. Aboriginal peoples are comprised of many different language and/or tribal groups, while Torres Strait Islanders are from the Torres Strait Islands region. Some Torres Strait Islander peoples have moved to mainland Australia either through forced removal or for employment and education.

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1.2 How many Aboriginal and Torres Strait Islander people are there?^[3]

It is estimated that Aboriginal and Torres Strait Islander people represent 2.5% of the Australian resident population. At the 2006 Census, this was estimated to be 517 174 people of whom:

• 90% identified as Aboriginal peoples
• 6% identified as Torres Strait Islander peoples
• 4% identified as both Aboriginal and Torres Strait Islander peoples.^[4]

Torres Strait Islanders accounted for 6.4% of the Indigenous population and 0.1% of the total Australian population.^[5]

Age

Young people make up a large proportion of all Aboriginal and Torres Strait Islander peoples. In 2006, 37.6% of the Aboriginal and Torres Strait Islander population was aged 14 years or less, compared to 19.1% of the non-Indigenous population.^[6]

In 2006 the median age of Aboriginal and Torres Strait Islander peoples was 21 years, compared with 37 years for non-Indigenous Australians.^[7]

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1.3 Where do Aboriginal and Torres Strait Islander peoples live?

Almost one third (32%) of Aboriginal and Torres Strait Islander people live in major cities such as Sydney, Brisbane and Melbourne.^[8]

The majority of Torres Strait Islanders live in Queensland, including the Torres Strait Islands (64%)^[9], with 15% living in New South Wales and 6% in Victoria.^[10]

Remoteness

Remoteness reflects the distance people have to travel to obtain services.^[11] Of the 68% of Aboriginal and Torres Strait Islander peoples who live outside major cities, 43% live in regional areas, 9% in remote areas, and 15% in very remote areas (like Tenant Creek or discrete Aboriginal communities).^[12]

By comparison, the majority of non-Indigenous people live in major cities (69%) and less than 2% in remote and very remote Australia.^[13]

Figure 1.1: Proportion of the Australian population, State and Territory, 2006^[14]

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1.4 How widely are Aboriginal and Torres Strait Islander peoples’ languages spoken in Australia?

Prior to the colonisation of Australia, it is estimated there were 250 distinct Aboriginal and Torres Strait Islander people’s languages (incorporating 600 dialects). According to the National Indigenous Languages Survey Report 2005, most of the original languages are no longer spoken. Today only 18 Aboriginal and Torres Strait Islander languages are spoken by all generations of people within a given language group, and even these languages are endangered.^[15]

In 2008, nationally, 11% of Aboriginal and Torres Strait Islander peoples aged 15 years and over spoke an Aboriginal or Torres Strait Islander language as their main language at home. In remote areas this figure rose to 42%.^[16]

Among Aboriginal and Torres Strait Islander children aged 4–14 years, and living in remote areas, 63% spoke, or spoke some words, of an Aboriginal or Torres Strait Islander language, while 35% of children aged 4–14 years in urban areas spoke, or spoke some words, of an Aboriginal or Torres Strait Islander language.^[17]

Among Torres Strait Islander peoples, 56% spoke, or spoke some words of, an Indigenous language compared with 39% of Aboriginal people.^[18]

Read more about Aboriginal languages, Aboriginal English and Creoles (which combine English and Aboriginal and Torres Strait Islander languages) here.

A national approach to Indigenous languages

A strong connection with language and culture can benefit Aboriginal and Torres Strait Islander peoples in other parts of their life, including their social, emotional and health wellbeing.^[19]

In 2009, the Australian Government launched Indigenous Languages – A National Approach 2009 which endeavours to preserve Aboriginal and Torres Strait Islander peoples’ languages by increasing information about these languages in Australian life and supporting language programs in schools.

There are concerns that this National Approach might not be enough to stop the decline in usage of Aboriginal and Torres Strait Islander languages, as governments are not obliged to comply with or implement it. This is highlighted in the Northern Territory where current education policy prevents schools from following bilingual education models by enforcing compulsory teaching in English for the first four hours of schooling each day.^[20]

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1.5 Do Aboriginal and Torres Strait Islander peoples experience disadvantage?

Aboriginal and Torres Strait Islander peoples experience poorer outcomes across all measures of quality of life, such as health, education, employment and housing. They are also over-represented in the criminal justice system and the care and protection systems, compared to non-Indigenous people.

Health

(a) Life expectancy

In 2005–2007, the average life expectancy of Aboriginal and Torres Strait Islander peoples was approximately 10–11 years less than for non-Indigenous Australians.^[21] For men, life expectancy is estimated to be 67.2 years (compared to 78.7 for non-Indigenous men) and for women 72.9 years (compared to 82.6 for non-Indigenous women).^[22]

(b) Mortality rates

In some states,^[23] mortality rates for Aboriginal and Torres Strait Islander peoples remain at twice the rates for non-Indigenous people. This is despite a national 27% decline in mortality rates for Aboriginal and Torres Strait Islander peoples between 1991 and 2009.^[24] To close the gap in the mortality rate of the two groups it is vital that both relative and absolute gains are made by Aboriginal and Torres Strait Islander peoples. Relative gains are important because non-Indigenous people in Australia also made significant health gains in this time period, and these work to keep the gap widening.

Among Aboriginal and Torres Strait Islander children, between 1997–99 and 2007–09,

• the mortality rate for infants (less than 1 year old) improved but continues to be 1.6 to 3 times the rate for non-Indigenous infants
• mortality rates for children aged 1–4 years remained constant but also continue to be 1.8 to 3.8 times the rate for non-Indigenous children.^[25]

(c) Causes of death

In 2009, the four major causes of death for Aboriginal and Torres Strait Islander peoples were:

• cancer (19.3% of total deaths)
• heart disease (15.3% of total deaths)
• external causes (13%)
• diabetes (8% of total deaths).^[26]

The number of deaths due to diabetes was significantly lower among non-Indigenous people (2.9%).^[27]

In 2009, intentional self-harm and land transport accidents were the two leading external causes of death for Aboriginal and Torres Strait Islander peoples.^[28]

(d) Preventable deaths

Many deaths are considered avoidable or preventable because they are attributable to ‘lifestyle’ factors (e.g. smoking or alcohol consumption); or to conditions that can be effectively treated if detected early enough, including through primary health care.

In 2010, Aboriginal and Torres Strait Islander peoples died from preventable causes at four times the rate of non-Indigenous Australians, a significant contributor to the health and life expectancy gap between the two groups. The most common conditions or events causing avoidable mortality were ischaemic heart disease, some cancers (particular lung cancer), diabetes and suicide. In terms of the number of potentially avoidable deaths, the greatest opportunities to reduce mortality for Aboriginal and Torres Strait Islander peoples relate to primary health care and preventative health activities (e.g. anti-smoking drives).^[29]

Figure 1.2: Selected underlying causes of death as proportion of total deaths, by Indigenous status 2009 ^(b)(c)[30]

(a) Includes deaths of persons identified as Aboriginal, Torres Strait Islander or both Aboriginal and Torres Strait Islander.

(b) See Explanatory Notes 73-84 for further information on specific issues relating to 2009 data.

(c) Causes of death data for 2009 are preliminary and subject to a revisions process. See Technical Note: Causes of Death Revisions and Explanatory Notes 28-32.

(e) Long term health conditions and disability

Overall, half of all Aboriginal and Torres Strait Islander peoples aged over 15 have a disability or long term health condition.^[31]

In comparison to non-Indigenous Australians Aboriginal and Torres Strait Islander adults continue to experience:

• ten times the rate of kidney disease^[32]
• three times the rate of diabetes, asthma and heart disease^[33]
• 1.6 times the rate of circulatory problems^[34]
• twice the rates of profound or severe core activity restrictions.^[35]

Aboriginal and Torres Strait Islander peoples in non-remote areas are also 50% more likely to have a physical disability, and three times as likely to have an intellectual disability, than non-Indigenous Australians.^[36]

(f) Mental health

In 2008, approximately one third of Aboriginal and Torres Strait Islander peoples reported experiencing high or very high levels of psychological distress. People with a disability or long-term health condition, victims of violence and those who experienced discrimination were more likely to suffer from psychological distress.^[37]

Recent studies show that despite having poor quality of life indicators, 72% of Aboriginal and Torres Strait Islander peoples aged 15 years and over-reported being a happy person all or most of the time.^[38] Those in remote areas reported greater levels of happiness (78%) than people in more urbanised areas (71%).^[39]

(g) Children

Aboriginal and Torres Strait Islander children (0–4 years old) are hospitalised for respiratory diseases at almost twice the rate of non-Indigenous children.^[40]

In 2008, an estimated 7% of Aboriginal and Torres Strait Islander children (0–14 years) experienced eye or sight problems and 9% had ear or hearing problems.^[41]

 

Factors contributing to adverse health outcomes

(a) Racism

A growing body of evidence suggests that discrimination and racism are linked to a range of adverse health conditions among Aboriginal and Torres Strait Islander peoples, such as smoking, substance use, psychological distress and poor self-assessed health status.^[42]

Aboriginal and Torres Strait Islander peoples continue to experience high levels of racism. In 2008, 27% of Aboriginal and Torres Strait Islander peoples over the age of 15 reported experiencing discrimination in the preceding 12 months; in particular by the general public, in law and justice settings and in employment.^[43]

 

(b) Access to health facilities

Aboriginal and Torres Strait Islander peoples have less access to health services and facilities than non-Indigenous Australians. This may be due to a scarcity of accessible and culturally appropriate services, marginalisation and experiences of discrimination.^[44] These issues can affect Aboriginal and Torres Strait Islander peoples living in both urban and regional settings.

Aboriginal and Torres Strait Islander peoples living in remote areas have significantly less access to health clinics, pharmacies and hospitals compared to other Aboriginal and Torres Strait Islander peoples.^[45]

 

Education

Over recent years, more Aboriginal and Torres Strait Islander students are staying at school through to the completion of Year 12. Retention rates for Aboriginal and Torres Strait Islander students from Year 7 through to Year 12 increased from 35% in 1999 to 45% in 2009.^[46]

The proportion of Aboriginal and Torres Strait Islander students who received a Year 12 certificate also increased from 18% in 2001 to 22% in 2008.^[47] Those who lived in cities were more likely to have completed Year 12 than those living in remote areas (29% and 16% respectively).^[48]

Non-school qualification rates among Aboriginal and Torres Strait Islander peoples have also improved in recent years. In 2008, 40% of Aboriginal and Torres Strait Islander peoples nationally aged 25–64 years attained a non-school qualification, up from 32% in 2002.^[49] In major cities, 50% of Aboriginal and Torres Strait Islander peoples aged 25–64 years held a non-school qualification, compared with 41% in regional areas and 26% in remote areas.^[50]

However, in 2008, approximately 40% of Aboriginal and Torres Strait Islander peoples aged 18–24 were neither employed nor studying, compared to 10% of non-Indigenous people.^[51]

Employment and income

In 2010, nationally, 46% of Aboriginal and Torres Strait Islander peoples aged 15 years and over were employed and 18% were unemployed.^[52]

Of those participating in the labour force, 62% lived in major cities,^[53] with men participating at significantly higher rates than women – 62% compared to 50%.^[54]

(a) Community Development Employment Projects (CDEP)

The CDEP program is an Australian Government funded initiative for unemployed Aboriginal and Torres Strait Islander peoples. It funds Aboriginal and Torres Strait Islander peoples’ community organisations to pay participants working on community projects and generates opportunities for jobs and training.^[55]. Program participants are classified as ‘employed’ and the income from this work replaces income support payments and unemployment benefits.

Since July 2009, the CDEP program has been discontinued in non-remote communities where the economy is well established.^[56]

Figure 1.3: Participation rate, Indigenous persons aged 15 years and over – 2005 to 2010^[57]

(b) Income

Almost half (49%) of Aboriginal and Torres Strait Islander households earn an income in the bottom quarter of the national average.^[58] In 2006, the average weekly household income for Aboriginal and Torres Strait Islander peoples ($460) was only 62% that of non-Indigenous people ($740).^[59]

Housing

In 2008:

• the majority (69%) of Aboriginal and Torres Strait Islander adults lived in rental accommodation
• 29% owned their homes (20% with a mortgage and 8.5% without).^[60]

In comparison, 72% of non-Indigenous households own their homes and 26% rent.^[61]

Nationally, 27.5% of Aboriginal and Torres Strait Islander peoples lived in overcrowded conditions.In remote areas, this figure increased to 48%.^[62]

In 2008, there were major structural problems with 26% of Aboriginal and Torres Strait Islander peoples’ homes across Australia.^[63]

Aboriginal and Torres Strait Islander peoples are over-represented in homelessness assistance programs. For example, in 2005–2006, they made up 17% of those who accessed the Supported Accommodation Assistance Program,^[64] a joint Commonwealth and State funded program for people who are homeless, escaping family violence, or at risk of homelessness.

Access to justice

(a) Adult imprisonment

Aboriginal and Torres Strait Islander peoples comprised 26% of the full time adult prison population in Australia in 2010.^[65] The national imprisonment rate for Aboriginal and Torres Strait Islander adults is 14 times higher than for non-Indigenous adults.^[66]

Western Australia has the highest number of Aboriginal and Torres Strait Islander peoples in prison per capita, at 3328.7 per 100 000 in 2009.^[67]

Aboriginal and Torres Strait Islander people are disproportionately represented at the less serious end of the scale in convicted offences. In 2010:

• the majority of Aboriginal and Torres Strait Islander peoples were imprisoned for ‘acts intended to cause injury’ (32.9%). Comparatively, 15% of non-Indigenous prisoners were incarcerated for this type of offence.^[68]
• Aboriginal and Torres Strait Islander prisoners also had higher proportions of unlawful entry offences (14.8% of Aboriginal and Torres Strait Islander prisoners, compared to 10.2% of non-Indigenous prisoners).^[69]

By comparison, non-Indigenous prisoners were more likely to be convicted of:

• homicide (10.7% of non-Indigenous prisoner offences, compared to 6.1% of Aboriginal and Torres Strait Islander prisoners)
• sexual assault (13.2% of non-Indigenous prisoner offences, compared to 10.4% of Aboriginal and Torres Strait Islander prisoners)
• illicit drug offences (13.1% of non-Indigenous prisoner offences, compared to 1.7% of Aboriginal and Torres Strait Islander prisoners).^[70]

(b) Incarceration of Aboriginal and Torres Strait Islander women

In 2009, 8% of Aboriginal and Torres Strait Islander prisoners were women. Although there are fewer Aboriginal and Torres Strait Islander women in custody than men, they are the fastest growing prison population and are severely over-represented.^[71]

While incarceration rates for women generally have increased more rapidly than men over the past decade, the increase in imprisonment of Aboriginal and Torres Strait Islander women has been much greater over the period compared to the increase in rates of non-Indigenous female prisoners.^[72] The imprisonment rate of Aboriginal and Torres Strait Islander women increased by 34% between 2002 and 2006, while the imprisonment rate for Aboriginal and Torres Strait Islander men increased by 22%.^[73]

(c) Juvenile detention

In 2008, an estimated 54% of young people in juvenile detention were from an Aboriginal and/or Torres Strait Islander background.^[74] Aboriginal and Torres Strait Islander young people are 23 times more likely to end up in juvenile detention than their non-Indigenous counterparts.^[75]

Aboriginal and Torres Strait Islander juveniles (aged between 10 and 17 years) and young adults (aged between 18 and 24 years) are more likely to be incarcerated today than at any other time since the release of the Royal Commission into Aboriginal Deaths in Custody final report (RCIADIC) in 1991.^[76]

The final report of the Royal Commission identified poor relations with police, alcohol and substance abuse, deficient education, unemployment, inadequate housing and entrenched poverty, as factors contributing to the disproportionate number of Aboriginal and Torres Strait Islander peoples in detention.

Twenty years later, these same factors have been identified as leading to the continued (and increased) over-representation of Aboriginal and Torres Strait Islander juveniles and young adults in the criminal justice system.^[77]

(d) Deaths in custody

Of the 86 people who died in custody in 2008 (54 in prison and 32 in police custody), 13 were Aboriginal and Torres Strait Islander peoples (15%).^[78]

The Australian Institute of Criminology prepares these figures using the definition in the text box below – derived from the recommendations of RCIADIC – to determine whether a case can be deemed a death in custody.^[79]

 

Although the Australian Institute of Criminology has found that Aboriginal and Torres Strait Islander peoples are no more likely to die in custody than non-Indigenous people,^[80] their over-representation in the criminal justice system has led to Aboriginal and Torres Strait Islander peoples making up a significant number of deaths in custody.

Factors contributing to over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system

As noted above, the Royal Commission into Aboriginal Deaths in Custody 1991 Final Report acknowledged that the long history of inequality and disadvantage in areas such as health, housing, education, employment and income were closely linked to the disproportionate number of Aboriginal and Torres Strait Islander peoples in custody.^[81]

The 1997 Bringing them home report found that the trauma experienced by Aboriginal and Torres Strait Islander children who were removed from their parents resulted in reduced levels of education which lowered emp[82]yment and income opportunities.⁸² Research also shows that Aboriginal and Torres Strait Islander peoples who were removed from their parents as part of the [83] are at significantly higher risk of arrest.⁸³

(a) Family violence

It can be difficult to estimate the incidence of violence against women in Aboriginal and Torres Strait Islander communities due to under-reporting. However the Overcoming Indigenous Disadvantage: Key Indicators 2009 report indicated:

• Aboriginal and Torres Strait Islander women were 35 times more likely than non-Indigenous women to be hospitalised due to family-violence related assaults^[84]
• Aboriginal and Torres Strait Islander women experienced family violence at a rate of 45 per 1000 population, compared to 3.3 per 1000 population for non-Indigenous women.^[85]

 

 

(b) Children in out-of-home care

Aboriginal and Torres Strait Islander children are over-represented in the Australian out-of-home care system. In 2009–10, approximately 32% of all children in out-of-home care were identified as Aboriginal or Torres Strait Islander, representing a 9% increase from 10 512 children in 2008–09 to 11 468 children in 2009–10.^[86] Aboriginal and Torres Strait Islander children were almost ten (9.7) times more likely than other children to be placed in care.^[87]

In 2009–10, 70.5% of Aboriginal and Torres Strait Islander children in out-of-home care were placed according to the Aboriginal and Torres Strait Islander Child Placement Principle, which has been endorsed in legislation or policy in all Australian states and territories. The Principle states that it is preferable for a child to be placed with:

1. their extended family
2. the child’s Indigenous community
3. other Indigenous people.^[88]

A shortage of Aboriginal and Torres Strait Islander carers means that states and territories often fail to place children in accordance with the Principle. Research indicates that the recruitment of appropriate Aboriginal and Torres Strait Islander carers is restricted by the disproportionately high number of Aboriginal and Torres Strait Islander children compared to adults; and the reluctance of some Aboriginal and Torres Strait Islanders to be associated with the ‘welfare’ system.^[89]

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1.6 Do Aboriginal and Torres Strait Islander peoples get special treatment from the government?

Generally, Aboriginal and Torres Strait Islander peoples receive the same level of public benefits as non-Indigenous people. Individuals do not receive additional public benefits because they are from an Aboriginal or Torres Strait Islander background.

Specific government programs – not additional income – have been introduced for Aboriginal and Torres Strait Islander peoples because they are the most economically and socially disadvantaged group in Australia.

Examples include:

• Community Development Employment Projects, in remote Aboriginal communities
• Aboriginal Medical Services and Aboriginal Legal Services
• Indigenous Employment Program
• Aboriginal and Torres Strait Islander peoples’ education programs, such as the Indigenous Tutorial Assistance Scheme.

These programs supplement and provide a culturally appropriate alternative to those available to the non-Indigenous Australian community. They are also necessary because Aboriginal and Torres Strait Islander peoples can face significant barriers to using mainstream services, including discrimination.

Specific medical and legal services are also available for other groups of people in Australia, such as low-income and migrant communities.

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1.7 Overcoming Aboriginal and Torres Strait Islander peoples’ disadvantage

Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner

The Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner is a statutory position that is appointed by the federal Attorney-General. The Aboriginal and Torres Strait Islander Social Justice Commissioner is a member of the Australian Human Rights Commission.

This role was established in response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody and also has specific functions under the Native Title Act 1993 (Cth).

Read more about the position of Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda here.

Every year, the Aboriginal and Torres Strait Islander Social Justice Commissioner produces:

• a Social Justice Report which communicates key human rights issues facing Aboriginal and Torres Strait Islander peoples, as well as recommendations related to changes in government policies and programs to improve the exercise and enjoyment of the rights of Aboriginal and Torres Strait Islander peoples
• a Native Title Report, which communicates key human rights issues related to native title, lands, territories and resources, as well as ways in which a practical and positive dialogue between Aboriginal and Torres Strait Islander peoples and non-Indigenous groups (using the land) can be enhanced.

Both reports are tabled in Parliament.

Close the Gap

The Close the Gap Campaign calls on Australian governments to commit to:

• achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians within 25 years
• achieving equality of access to primary health care and health infrastructure within ten years for Aboriginal and Torres Strait Islander peoples.

The Campaign, established in 2006, is run by a coalition of over 40 national health and human rights peak bodies and experts under the leadership of the Aboriginal and Torres Strait Islander Social Justice Commissioner.

 

National representative bodies

Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples have the right to participate in decision-making in matters that affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions.

A national representative body is a key mechanism to enable this contribution, through partnerships with government, the private sector and the Australian community.

Over the past 50 years there have been four main national Aboriginal and Torres Strait Islander peoples’ representative bodies in Australia:

• the National Consultative Committee (established in 1973)
• the National Aboriginal Conference (1977–1984)
• the Aboriginal and Torres Strait Islander Commission (1989–2005)^[90]
• the National Congress of Australia’s First Peoples.

(a) The National Congress of Australia’s First Peoples

The National Congress of Australia’s First Peoples (National Congress) was established in May 2010. The National Congress has an Executive Board of eight directors, led by male and female co-chairs.

In April 2011, Jody Broun and Les Malezer became the first elected co-chairs of the Congress. The Board is supported by an Ethics Council, which provides independent expert advice.

 

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1.8 What is the ‘Northern Territory Emergency Response’?

The ‘Northern Territory Emergency Response’ (NTER), also known as the ‘Northern Territory Intervention’, was announced by former Prime Minister John Howard on 21 June 2007^[91] in response to the Northern Territory Board of Inquiry report, Ampe Akelyernemane Meke Makarle: The Little Children are Sacred Report.

Intervention measures in the Northern Territory National Emergency Response legislation^[92] included:

• suspending the operation of the Racial Discrimination Act 1975 (Cth) (RDA) in relation to the provisions of the NTER and exempting the operation of the Northern Territory’s anti-discrimination laws
• applying income management to welfare payment recipients in the 73 prescribed areas
• banning the possession, transportation, sale and consumption of alcohol in prescribed areas
• the expansion of drug and alcohol rehabilitation services
• bans on the possession of pornographic materials which have been refused classification or identified as ‘restricted material’ and auditing of publicly funded computers
• increased police presence and expansion of night patrol services in prescribed communities
• compulsory health checks for all Aboriginal and Torres Strait Islander children
• compulsorily acquiring five-year leases over prescribed areas
• removing the permit system for common public areas, road corridors and airstrips for prescribed communities on Aboriginal and Torres Strait Islander peoples’ land
• improved quality of the physical community through intensive clean up, including rubbish removal and painting and repair of infrastructure and housing
• the appointment of managers of all government business in prescribed communities.^[93]

The measures raised a number of concerns regarding the rights and well-being of Aboriginal and Torres Strait islander peoples in the region, particularly the suspension of the RDA and the compulsory acquisition of land and compulsory income management in 73 prescribed communities. These actions were undertaken in contradiction of the first recommendation of The Little Children are Sacred Report that states: “[i]t is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.”^[94]

 

The Northern Territory Emergency Response was reviewed in 2008 by the NTER Review Board and recommendations were made to change some of the original measures. The Australian Government and Northern Territory Government Response to the Report of the NTER Review Board was released in May 2009.

In August 2009 the Australian Government consulted with Aboriginal communities on ways that a limited number of NTER measures could be redesigned.^[95] Chapter 3 of the Native Title Report 2010 considers the consultation process for the redesigned measures and the measures relating to land.

The core measures of the NTER were retained, while other measures were redesigned. A key outcome of this process was legislation, the Social Security and other legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth), passed on 21 June 2010, which reinstated^[96] the Racial Discrimination Act in the Northern Territory with respect to the operation of the NTER.

Measures which were redesigned as part of the 2010 amendments included:

• income management schemes applying to all people receiving income support in the Northern Territory, not just prescribed areas
• customised alcohol restrictions for some communities, based on alcohol management plans administered by the Department of Families, Housing, Community Services and Indigenous Affairs
• individual communities can request to have the restriction on prohibited pornographic and very violent material lifted, at the discretion of the Minister
• a land owner subject to a five-year lease may request the Commonwealth to enter into good faith negotiations on the terms and conditions of a voluntary lease over the land
• greater transparency in the licensing procedures for community stores.^[97]

The NTER budgetary measures end in June 2012 while the NTER legislative measures are due to end in August 2012.

In mid-2011 the Australian Government conducted a six week consultation across the Northern Territory to discuss future approaches beyond the NTER.^[98]

On 23 November 2011, the Stronger Futures in the Northern Territory package of legislative measures were introduced into the Australian parliament. This package includes three Bills:

• the Stronger Futures in the Northern Territory Bill 2011, which contains measures aimed at reducing alcohol harm, improving food security in remote communities, and economic development in town camps and community living areas
• the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011, which proposes the repeal of the Northern Territory National Emergency Response Act 2007 and amends several Commonwealth laws relating to existing measures, including the pornography restrictions and the prohibitions on considering customary law in bail and sentencing decisions
• Elements of the Social Security Legislation Amendment Bill 2011, which applies beyond the Northern Territory, will also have an impact on Aboriginal communities in the Northern Territory. The Bill extends income management legislation to allow referrals by recognised State or Territory authorities to trigger income management. This Bill also extends the School Enrolment and Attendance Measure (SEAM) to all Remote Service Delivery communities to Alice Springs, Tennant Creek, and remaining schools in Katherine, Alyangula and Nhulunbuy.

The Commission’s submission to the Senate Community Affairs Legislation Committee Stronger Futures in the Northern Territory Bill 2011 and two related Bills, examines these measures.

While the NTER has delivered some benefits, such as more resources for policing and infrastructure, these were basic support services readily available to the rest of Australia. The Northern Territory Emergency Response Evaluation Report 2011, released in November 2011, has found that despite some improvement, health, education, employment, housing and safety outcomes remain well below those for non-Indigenous people, and that it is difficult to attribute outcomes to individual measures.^[99]

 

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1.9 Does the Australian Constitution recognise Aboriginal and Torres Strait Islander peoples?

The Australian Constitution does not currently recognise Aboriginal and Torres Strait Islander peoples and it contains provisions that permit and anticipate racial discrimination (section 51(xxvi), and section 25).

In recent years, there has been growing community discussion and support for updating the Constitution to reflect the reality of modern Australia and the offending Constitutional provisions.

In December 2010, the Australian Government appointed an Expert Panel to consult with the Australian community about options to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. The Panel delivered its report Recognising Aboriginal and Torres Strait Islander peoples in the Constitution to the Prime Minister on 19 January 2012.

 

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1.10 What is the Declaration on the Rights of Indigenous Peoples?

In September 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). The Australian Government officially endorsed the Declaration on 3 April 2009.

The Declaration does not contain any new rights, but sets out how existing human rights standards apply to the situation of indigenous peoples.

It affirms the right to free, prior or informed consent. This means that when making policies, laws or undertaking activities that affect indigenous peoples, governments and other parties (for example, corporations) should negotiate with indigenous peoples with the aim of obtaining their consent. This should result in processes where governments and corporations and indigenous peoples can work together equally to arrive at solutions and agreements that all parties can accept.

 

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1.11 What is the right to self-determination?

Self-determination is the right of all peoples of the world to “freely determine their political status and freely pursue their economic, social and cultural development” (article 1 of the International Convention on Civil and Political Rights).^[100]

Self-determination is a collective right – belonging to ‘peoples’ – rather than an individual right.

The right to self-determination for indigenous peoples is a foundation of the United Nations Declaration on the Rights of Indigenous Peoples. In practice, it means that:

• a government will recognise indigenous peoples’ distinct cultures and forms of social organisation, governance and decision-making
• responsibility and power for decision-making is transferred to indigenous communities so they can make decisions about the issues that affect them.

It is also understood that this right must be exercised consistently with international law. The Declaration does not allow or encourage any action that might damage the territorial integrity or political unity of countries (article 46).

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1.12 What is reconciliation?

Reconciliation is a process of improving, renewing or transforming relations between Aboriginal and Torres Strait Islander peoples and non-Indigenous people for the future.

It is based on:

• understanding the historical relationship between Aboriginal and Torres Strait Islander peoples and non-Indigenous people
• understanding the past injustices and impacts of colonisation and dispossession on Aboriginal and Torres Strait Islander peoples, and
• respecting the cultures, identities and rights of Aboriginal and Torres Strait Islander peoples.

In 1991, the Council for Aboriginal Reconciliation was established for a ten-year period to promote reconciliation between Aboriginal and Torres Strait Islander peoples and the wider Australian community. The Council was established by law, with 25 members appointed by the Australian Government.

In 2000, the Council provided the Australian people and government with a Roadmap for Reconciliation.

In December 2000, Reconciliation Australia, an independent not-for-profit organisation, was established to carry forward the reconciliation agenda.

It works closely with the Close the Gap initiative and holds regular events to promote reconciliation.

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1.13 Who are the Stolen Generations?

The Stolen Generations refers to the generations of Aboriginal and Torres Strait Islander children forcibly removed from their families by compulsion, duress or undue influence, as a result of protectionist and child welfare laws, practices and policies in place in Australia for most of the 1900s.

The purpose of the removals was to ‘merge’, absorb’, or ‘assimilate’ Aboriginal and Torres Strait Islander peoples into the non-Indigenous population to attain a similar manner of living.

The history of the Stolen Generations varies depending on time and place. Non-Indigenous children could also be removed without their parents' consent, but only by a court finding that a child was uncontrollable, neglected or abused.

Table 1.1: State and territory laws authorising forcible removal of Aboriginal and Torres Strait Islander children^[101]

 

Where were the children placed?

Aboriginal and Torres Strait Islander children were forcibly removed from their families and communities to the care of non-Indigenous people with the aim of assimilating them into non-Indigenous society. In Queensland, this often meant separating the children into dormitories on reserves or missions. In New South Wales and Western Australia, many children were trained in Aboriginal and Torres Strait Islander-only institutions to become domestic servants or farm labourers. Other children were transferred to orphanages and children's homes with non-Indigenous children. In other cases, and especially after the 1940s, Aboriginal and Torres Strait Islander children were fostered or adopted into non-Indigenous families.^[102]

How many children were removed?

The full scale of removals is still not known because many records have been lost. In its 1997 Bringing them home report, the Commission estimated that between one-tenth and one-third of all Aboriginal and Torres Strait Islander children were removed from their homes during the years in which forcible removal laws operated.^[103] Subsequent research by Professor Robert Manne estimated the number of Aboriginal and Torres Strait Islander children removed from their families in the period 1910–70 was closer to the figure of one in ten, or between 20 000 and 25 000 individuals.^[104]

What were the consequences of the removals?

Many members of the Stolen Generation have reported that they:

• were forbidden to speak in their own languages
• were told their parents did not want them
• experienced neglect, as well as physical, emotional and sexual abuse
• received little or no education
• were refused contact with their families.^[105]

Separating Aboriginal and Torres Strait Islander children from their parents and communities has been demonstrated to have serious long-term impacts on their safety, well-being, mental health, cultural identity and development.

In many cases, the forced removal of members of the Stolen Generations from their families and communities has prevented them from acquiring language, culture and the ability to carry out traditional responsibilities. It has also made it difficult for these individuals to establish their genealogical links.

Most forcibly removed children were denied the experience of being parented or at least cared for by a person to whom they were attached; for many, this was the most significant of all the major consequences of the removal policies.^[106] Forcible removal also had long term impacts on the physical and mental health of people removed, and long term problems with substance abuse and imprisonment.^[107]In 2008, of those who had experienced removal from their natural family, 35% assessed their health as fair or poor and 39% experienced high or very high levels of psychological distress, compared with 21% and 30% of those not removed.^[108]

The Bringing them home report details the intergenerational consequences and effects of removal.

Many members of the Stolen Generations still have not been reunited with their families. The legacy of forcible removal remains in the lives of Aboriginal and Torres Strait Islander individuals and communities today and contributes to their continued disadvantage.

The Bringing them home report recommended that reparations be made in response to the gross violations of human rights that occurred as a result of the forcible removals. In addition to acknowledgement and an Apology, the Report recommended that reparations should include guarantees against repetition, restitution, rehabilitation and monetary compensation.

Compensation

To date, a national tribunal has not been established to financially compensate members of the Stolen Generations and their families.

An alternative approach was announced by the Australian Government in 2009,^[109] with the establishment of the Aboriginal and Torres Strait Islander Healing Foundation, a national, Indigenous-controlled, not-for-profit organisation that supports community-based healing initiatives to address the traumatic legacy of colonisation, forced removals and other past government policies. The Australian Government allocated $26.6 million to the Foundation over four years to assist in its establishment.^[110]

In 2006, the Tasmanian Government passed legislation that established a $5 million fund to provide payments to eligible members of the Stolen Generations who were removed from their families as children by the state government. The statute also enabled children of deceased members of the Stolen Generations to apply for a payment. The Scheme concluded in February 2008, with 84 members of the Stolen Generations assessed as eligible to receive $58 333 and 22 descendants to receive either $4000 or $5000.

 

One compensation claim has been successful in the Australian courts. In 2009, the South Australian Supreme Court awarded $525,000 in damages to Bruce Trevorrow when it found that his removal at age 13 months was unlawful.

To reach this finding, the Court relied on evidence that in 1949 and 1954 the government’s own legal advice showed that it did not have the authority to remove Aboriginal children unless there was proof that the child was neglected. There was no neglect in Mr Trevorrow’s case, who had been fostered out to a non-Indigenous family after his natural parents had sent him to hospital for a stomach ailment at the age of 13 months. Despite frequent pleas from his natural mother, the government refused to reunite Mr Trevorrow with his family until the law changed and his parents regained legal guardianship when Mr Trevorrow was ten years old and already suffering from a range of emotional and physical problems. He was only able to live with his family for 14 months, and went on to spend the remainder of his childhood life in and out of government institutions.^[111]

 

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1.14 What is the Apology?

On 13 February 2008, the then Prime Minister Kevin Rudd apologised on behalf of all Australians for the laws and policies which afflicted pain, suffering and loss on the Stolen Generations of Aboriginal and Torres Strait Islander peoples.

The Apology was adopted with the support of all political parties.

It was a key recommendation of Bringing them home, the Australian Human Rights Commission’s 1997 report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families.

The report identified that a national apology would contribute to the proper recognition of Aboriginal and Torres Strait Islander peoples as our first nations peoples and to national healing and reconciliation.

 

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1.15 What is native title?

Native title is the name given by Australian law to Aboriginal and Torres Strait Islander peoples' traditional rights to their lands and waters.

Native title rights are not granted by governments and cannot be withheld or withdrawn by Parliament or the Crown. They can, however, be extinguished by an Act of Government.

To have their native title rights recognised, the Aboriginal and Torres Strait Islander group must prove that they continue to have a connection with their land according to their traditional laws.

In many cases, native title rights and interests have been extinguished by the creation of titles and interests in land following colonisation.

Native title cannot be recognised on land which is fully owned (freehold title) by someone else.

In some cases, Aboriginal and Torres Strait Islander and non-Indigenous interests in land can co-exist. Where it has not, it is measured against a bundle of rights, which range from a right of access to hunt, fish or gather, to exclusive possession. This depends on the evidence to substantiate a claim. For example, Aboriginal and Torres Strait Islander peoples may be able to visit their country freely even though it is on a cattle station. However, wherever there is a conflict between the two sets of interests, the non-Indigenous interest will prevail.

How many native title determinations have been made?

The National Native Title Tribunal 2010–2011 Annual Report states that as at 30 June 2011, there were 160 registered determinations of native title (including 119 that native title exists) and 497 registered indigenous land use agreements.^[112]

Is native title the same as land rights?

Native title is not the same as land rights. Land rights are granted through state-based legislation, while native title is federal law that recognises rights based on the traditional laws and customs that existed before colonial occupation.

A land rights grant may cover traditional land, an Aboriginal reserve, an Aboriginal mission or cemetery, Crown land or a national park. Native title only covers land on which a traditional relationship continues to exist from the time of colonisation.

Native title landmarks

1992: First recognition of native title – the Mabo case

In the Mabo case of 1992, the High Court of Australia recognised the native title rights of the Meriam people of the Torres Strait.

The decision recognised for the first time that Aboriginal and Torres Strait Islander peoples who have maintained a continuing connection with their country, according to their traditions and customs, may have their rights to land under traditional law recognised in Australian law.

 

1993: The Native Title Act 1993 (Cth)

The Native Title Act 1993 (Cth) was passed to recognise and protect surviving native title rights throughout Australia and set up a process for settling claims and conflicts about native title.

 

1996: The question of pastoral leases – the Wik case

In the Wik case, the High Court held that pastoral leases in Queensland do not necessarily cancel out native title rights and interests and that they could co-exist with the rights of pastoralists.

 

1998: The Wik amendments to the Native Title Act

In response to the Wik case, the Australian Government amended the Native Title Act to:

• reduce the right to negotiate so that it only applies to mining activities and some compulsory acquisitions
• validate leases granted by governments that were thought to be invalid because of native title, and confirmed the extinguishment of native title on a range of leases and other land tenures, such as freehold land
• upgrade pastoral leaseholds by increasing the activities that could take place under the lease without having to negotiate with native title holders
• introduce ‘Indigenous Land Use Agreements’, which provide native title groups with an opportunity to negotiate binding agreements with others, including pastoralists and mining companies, about their lands and waters.

The amendments also set out conditions that native title applications need to be registered on the Register of Native Title Claims.

The issue of the level of proof required for Aboriginal and Torres Strait Islander peoples to have their native title recognised was considered by the United Nations Committee for the Elimination of all forms of Racial Discrimination (CERD) in 2005^[113] and was found to be in breach of Australia's international human rights obligations. CERD has continued to criticise the Australian Government for its failure to amend the native title legislation, in particular the high standard of proof required of claimants.^[114]

2001: Croker Island (Commonwealth v Yarmirr)

The Croker Island case recognised that native title could exist on sea country but that any native title rights that were recognised must not exclude the rights of any other person.

 

2002: Ward (Western Australia v Ward)

In the Ward case, the High Court found that native title is made up of a bundle of rights and that these rights can be extinguished either in part or as a whole. One way native title rights are extinguished is by the grant of inconsistent non-Indigenous interests in the same area of land. For example, the creation of a pastoral lease in Western Australia extinguishes the right of the traditional owners to exclusive possession of that land. However, it does not extinguish the rights of the traditional owners to enter the land in order to hunt or fish or perform ceremonies, because these rights can co-exist with the rights of the pastoralist. In the case of freehold, native title is completely extinguished.

 

2002: Yorta Yorta (Members of the Yorta Yorta Community v Victoria)

The High Court found that in order to have native title recognised the claimant group must show that it, or its members, have practised their traditional laws and customs continuously since European settlement.

 

2009: Native Title Amendment Act 2009 (Cth)

This Act amended the Native Title Act 1993 (Cth) by giving the Federal Court the central role in managing native title claims, including determining whether claims will be mediated by the Court, the National Native Title Tribunal or another individual or body.^[115]

2010: Native Title Amendment Act (No.1) 2010 (Cth)

The amendments in this Act created a new native title process for the construction of public housing and infrastructure in communities on Indigenous held land which is, or may be, subject to native title. The new process provides for consultation with native title parties about the delivery of housing and infrastructure, and ensures native title is not extinguished by these projects. It also provides for compensation where native title is affected.^[116]

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^[1] The Australian Human Rights Commission understands the importance of using appropriate terminology when referring to Aboriginal and Torres Strait Islander peoples. The Commission recognises there is strong support for the use of Aboriginal and Torres Strait Islander peoples, First Nations and First Peoples. The word ‘peoples’ recognises that Aborigines and Torres Strait Islanders have a collective, as well as an individual, dimension to their lives. This is affirmed by the United Nations Declaration on the Rights of Indigenous Peoples. Accordingly, the term Aboriginal and Torres Strait Islander peoples is used throughout this publication.

^[2] Department of Aboriginal Affairs, Report on a review of the administration of the working definition of Aboriginal and Torres Strait Islander (1981).

^[3] Note: The statistics demonstrated in section 1.2 and 1.3 of this publication are experimental. The Australian Bureau of Statistics recommends these as the official measure of the Aboriginal and Torres Strait Islander population. The statistics are based on the 2006 Census of Population and Housing counts of Aboriginal and Torres Strait Islander Australians, adjusted for a net undercount measured by the Post Enumeration Survey, and replace the preliminary estimates released in 2007. Australian Bureau of Statistics, Experimental Estimates of Aboriginal and Torres Strait Islander Australians 1991–2021, Catalogue No. 3238.0 (15 August 2009). ‘Technical note – estimated Aboriginal and Torres Strait Islander Australian resident Population Method of Calculation.’ At www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/3238.0.55.001Technical%20Note1Jun%202006?opendocument&tabname=Notes&prodno=3238.0.55.001&issue=Jun%202006&num=&view= (viewed 1 December 2011).

^[4] Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Australians 2006 Catalogue No. 4713 (4 May 2010 Reissue). At www.abs.gov.au/ausstats/abs@.nsf/mf/4713.0 (viewed 10 June 2011).

^[5] Australian Bureau of Statistics, Experimental Estimates of Aboriginal and Torres Strait Islander Australians, Catalogue No. 3238.0.55.001 (19 August 2008). At www.abs.gov.au/ausstats/abs@.nsf/mf/3238.0.55.001 (viewed 10 February 2011).

^[6] Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2011, (August 2011). At www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 25 August 2011).

^[7] Productivity Commission Fact Sheet : Children and Young People 2011 (2011). At www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 25 August 2011).

^[8] Australian Bureau of Statistics, note 4.

^[9] Australian Bureau of Statistics, above.

^[10] Australian Bureau of Statistics, above.

^[11] Productivity Commission, Remote Areas Factsheet 2011 (August 2011). At www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 25 August 2011).

^[12] Productivity Commission, above. The ABS defines a discrete Indigenous community as: A geographic location, bounded by physical or cadastral (legal) boundaries, and inhabited or intended to be inhabited predominantly by Indigenous people, with housing or infrastructure that is either owned or managed on a community basis. This definition covers discrete communities in urban, rural and remote areas. See: Australian Bureau of Statistics, Community Housing and Infrastructure Needs Survey (2002).

^[13] Productivity Commission, above.

^[14] Productivity Commission, note 6, p 3. At www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 10 September 2011).

^[15] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2009 (2009), Chapter 3. At www.humanrights.gov.au/social_justice/sj_report/sjreport09/chap3.html (viewed 5 July 2011).

^[16] Aboriginal and Torres Strait Islander Social Justice Commissioner, above.

^[17] Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Social Survey, Catalogue No. 4714.0 (2008). At http://abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/4714.0Main%20Features52008?opendocument&tabname=Summary&prodno=4714.0&issue=2008&num=&view (viewed 25 August 2011).

^[18] Australian Bureau of Statistics, above.

^[19] Aboriginal and Torres Strait Islander Social Justice Commissioner, note 15.

^[20] Aboriginal and Torres Strait Islander Social Justice Commissioner, above, p 93.

^[21] Australian Bureau of Statistics and the Australian Institute of Health and Welfare, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, October 2010, Catalogue No. 4704.0 (17 February 2011). At www.abs.gov.au/AUSSTATS/abs@.nsf/lookup/4704.0Chapter100Oct+2010#SEWB (viewed 8 November 2011). The Close the Gap Campaign steering committee contests the new modelling system adopted by the ABS in 2009, and estimates life expectancy of Aboriginal and Torres Strait Islander peoples is between 10–17 years less than the national average. See Close the Gap Campaign Steering Committee, Shadow Report: On Australian governments’ progress towards closing the gap in life expectancy between Indigenous and non-Indigenous Australians (February 2011), p 15. At https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice (viewed 23 November 2011).

^[22] Australian Bureau of Statistics and the Australian Institute of Health and Welfare, above.

^[23] Steering Committee for the Review of Government Service Provision, Productivity Commission, Report on Government Services 2011, (2011), based on available statistics for WA, NT and SA, Chapter 10, Health Preface. At www.pc.gov.au/gsp/reports/rogs/2011 (viewed 21 September 2011).

^[24] Productivity Commission, note 6, p 13.

^[25] Australian Bureau of Statistics, Causes of Deaths Australia 2009, Catalogue No. 3303.0 (3 May 2011). At www.abs.gov.au/ausstats/abs@.nsf/Products/322A113E8F82259ACA25788400127D82?opendocument (viewed 3 May 2011).

^[26] Australian Bureau of Statistics, above.

^[27] Australian Bureau of Statistics, above.

^[28] Australian Bureau of Statistics, above.

^[29] Australian Health Ministers’ Advisory Council, Aboriginal and Torres Strait Islander Health Performance Framework Report 2010 (May 2011). At www.health.gov.au/internet/publications/publishing.nsf/Content/health-oatsih-pubs-framereport-toc (viewed 12 November 2011).

^[30] Australian Bureau of Statistics, note 25.

^[31] Australian Health Ministers’ Advisory Council, note 29, p ii.

^[32] Australian Bureau of Statistics and Australian Institute of Health and Welfare, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2008, Catalogue No. 4704.0 (29 April 2008), p 104. At www.aihw.gov.au/publication-detail/?id=6442468085 (viewed 23 November 2011).

^[33] Australian Bureau of Statistics and Australian Institute of Health and Welfare, above.

^[34] Australian Bureau of Statistics and Australian Institute of Health and Welfare, above.

^[35] Productivity Commission, Disability Care and Support, Draft Inquiry Report (2011). At www.pc.gov.au/projects/inquiry/disability-support/report (viewed 23 August 2011).

^[36] Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings 2010, Catalogue No. 4430.0 (16 December 2010). At www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4430.02009?OpenDocument (viewed 6 August 2011).

^[37] Australian Bureau of Statistics and the Australian Institute of Health and Welfare, note 21.

^[38] Australian Bureau of Statistics and the Australian Institute of Health and Welfare, above.

^[39] Australian Bureau of Statistics and the Australian Institute of Health and Welfare, above.

^[40] Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander people: An overview 2011 (2011), p 54. At www.aihw.gov.au/publication-detail/?id=10737418989 (viewed 23 November 2011).

^[41] Australian Institute of Health and Welfare, above p 56.

^[42] Y Paradies, A systematic review of empirical research on self-reported racism and health, International Journal of Epidemiology, August (2006) 35(4): 888-901, p 1. At http://ije.oxfordjournals.org/cgi/reprint/dyl056v1 (viewed 23 November 2011).

^[43] Australian Institute of Health and Welfare, note 40.

^[44] Australian Indigenous Health Info net, Disability within the Indigenous community (2011). At www.healthinfonet.ecu.edu.au/related-issues/disability/reviews/disability-within-the-indigenous-community (viewed 23 August 2011).

^[45] Australian Institute of Health and Welfare, note 40.

^[46] Australian Institute of Health and Welfare, above.

^[47] Australian Institute of Health and Welfare, above.

^[48] Australian Bureau of Statistics Education: Educational Attainment, The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples, 2010 Catalogue No. 4704.0 (28 May 2010). At www.abs.gov.au/AUSSTATS/abs@.nsf/lookup/18ECF74FF2A718CBCA2578D40024E581?opendocument (viewed 10 November 2011).

^[49] Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Social Survey 2008, Catalogue No. 4714.0, (30 October 2009). At http://abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/4714.0Main%20Features82008?opendocument&tabname=Summary&prodno=4714.0&issue=2008&num=&view= (viewed 10 August 2011).

^[50] Australian Bureau of Statistics, above.

^[51] Productivity Commission, note 6, Ch. 6.

^[52] Australian Bureau of Statistics, Labour Force Characteristics of Aboriginal and Torres Strait Islander Australians, Estimates from the Labour Force Survey, Catalogue No. 6287.0 (26 June 2011). At www.abs.gov.au/ausstats/abs@.nsf/Products/DE002CD2D834BF14CA2578BD0013E4E8?opendocument (viewed 29 June 2011). ABS employment and unemployment data included only people ‘actively’ looking for employment or registered as unemployed.

^[53] Australian Bureau of Statistics, above.

^[54] Australian Bureau of Statistics, above.

^[55] Australian Bureau of Statistics and Australian Institute of Health and Welfare, note 32.

^[56] Centrelink, Community Development Employment Projects (CDEP), (2009). At www.centrelink.gov.au/internet/internet.nsf/services/cdep.htm (viewed 4 August 2010). See also Department of Families, Housing, Community Services and Indigenous Affairs, Community Development Employment Projects (CDEP) program (2012). At www.fahcsia.gov.au/our-responsibilities/indigenous-australians/programs-services/communities-regions/community-development-employment-projects-cdep-program (viewed 23 July 2012).

^[57] Australian Bureau of Statistics, note 52.

^[58] Australian Bureau of Statistics and Australian Institute of Health and Welfare, note 32, p 22.

^[59] Australian Bureau of Statistics, Population Characteristics: Aboriginal and Torres Strait Islander Australians, Catalogue No. 4713.0 (4 May 2010 Reissue). At www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/4713.0Main%20Features12006?opendocument&tabname=Summary&prodno=4713.0&issue=2006&num=&view= (viewed 1 December 2011).

^[60] Australian Bureau of Statistics and Australian Institute of Health and Welfare, note 40. Note that 2% of respondents did not answer the question.

^[61] Australian Bureau of Statistics and Australian Institute of Health and Welfare, above.

^[62] Australian Bureau of Statistics and Australian Institute of Health and Welfare, above. The ABS uses the following criteria to assess whether a house is overcrowded:

• there should be no more than two persons per bedroom
• a household of one unattached individual may reasonably occupy a bed-sit (i.e. have no bedroom)
• couples and parents should have a separate bedroom
• children aged less than 5 years, of different sexes, may reasonably share a room
• children aged 5 years or over, of different sexes, should not share a bedroom
• children aged less than 18 years and of the same sex may reasonably share a bedroom, and
• single household members aged 18 years or over should have a separate bedroom.

^[63] Australian Bureau of Statistics and Australian Institute of Health and Welfare, above.

^[64] Australian Bureau of Statistics and Australian Institute of Health and Welfare, note 32.

^[65] Australian Bureau of Statistics, Corrective Services Australia, December Quarter 2010, Catalogue No. 4512.0 (17 March 2011). At www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/4512.0Main%20Features2Dec%202010?opendocument&tabname=Summary&prodno=4512.0&issue=Dec%202010&num=&view= (viewed November 21 2011).

^[66] Australian Bureau of Statistics, above, p 6.

^[67] House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time – Time for Doing: Indigenous youth in the criminal justice system (2011), pp 9-10. At www.aph.gov.au/house/committee/atsia/sentencing/report.htm (viewed October 2011).

^[68] Australian Bureau of Statistics, Prisoners in Australia, Catalogue No. 4717.0 (9 December 2010). At www.abs.gov.au/ausstats/abs@.nsf/Products/8F9B6EEDFA5933D9CA2577F3000F0B29?opendocument (viewed 10 November 2011).

^[69] Australian Bureau of Statistics, above.

^[70] Australian Bureau of Statistics, above.

^[71] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008 (2009), App 2. At www.humanrights.gov.au/social_justice/statistics/index.html (viewed 10 August 2011).

^[72] Aboriginal and Torres Strait Islander Social Justice Commissioner, above.

^[73] Aboriginal and Torres Strait Islander Social Justice Commissioner, above.

^[74] Australian Institute of Criminology, Trends in juvenile detention in Australia (2011). At www.aic.gov.au/publications/current%20series/tandi/401-420/tandi416.aspx (viewed 10 August 2011).

^[75] Australian Institute of Criminology, above.

^[76] House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, note 67.

^[77] House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, above.

^[78] M Lyneham, J Joudo Larsen, L Beacroft, Deaths in Custody in Australia: National Deaths in Custody Program 2008, Australian Institute of Criminology Monitoring Report (2010), p xi. At www.aic.gov.au/en/publications/current%20series/mr/1-20/10.aspx (viewed 1 December 2011).

^[79] Lyneham, Larsen and Beacroft, above.

^[80] Lyneham, Larsen and Beacroft, above.

^[81] Lyneham, Larsen and Beacroft, above, p 5.

^[82] Human Rights and Equal Opportunity Commission, Bringing them home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997). At www.humanrights.gov.au/social_justice/bth_report/report/index.html (viewed 1 December 2011).

^[83] Human Rights and Equal Opportunity Commission, above.

^[84] Victorian Aboriginal Legal Service Co-operative Limited, Ending over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system (2011). At www.smartjustice.org.au/cb_pages/ending_over-representation.php (viewed 23 July 2012).

^[85] Productivity Commission, Overcoming Indigenous Disadvantage Key Indicators 2009, Fact Sheet: Women, men and children, (2009) At www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 15 August 2011).

^[86] Productivity Commission, above.

^[87] National Child Protection Clearinghouse, Child protection and Aboriginal and Torres Strait Islander Children Resource Sheet, (2011), p 3. At www.aifs.gov.au/nch/pubs/sheets/rs10/index.html (viewed 10 August 2011).

^[88] National Child Protection Clearinghouse, above.

^[89] National Child Protection Clearinghouse, above.

^[90] National Child Protection Clearinghouse, above.

^[91] Aboriginal and Torres Strait Islander Social Justice Commissioner, Building a sustainable National Indigenous Representative Body – Issues for consideration (2008), p 12. At www.humanrights.gov.au/social_justice/repbody/paper.html (viewed 10 September 2011).

^[92] Department of Families, Housing, Community Services and Indigenous Affairs, Emergency Response to protect aboriginal children in the NT (2008). At http://fahcsia.gov.au/about/overview/infocus/Pages/EmergencyResponsetoprotectAboriginalchildrenintheNT.aspx (viewed 29 March 2010).

^[93] The NTER legislation when originally enacted comprised a package of five Acts:

• Northern Territory National Emergency Response Act 2007 (Cth)
• Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth)
• Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth)
• Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007–2008 2007 (Cth)
• Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007–2008 2007 (Cth).

^[94] NTER Review Board, Report of the NTER Review Board 2008 (2008) Chapter 2, Assessment of Key Elements. At www.nterreview.gov.au/docs/report_nter_review/ch2.htm#2_6 (viewed 9 April 2010).

^[95] P Anderson and R Wild, Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007). At www.inquirysaac.nt.gov.au/ (viewed 22 June 2011).

^[96] Commonwealth of Australia, Official Committee Hansard: Reference: Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009, Senate Community Affairs Legislation Committee (4 February 2010), p 3 (C Halbert, Department of Families, Housing, Community Services and Indigenous Affairs). At www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/hearings/index.htm (viewed 22 September 2010).

^[97] The 2009 Welfare Reform Bill was passed unamended as the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth) (2010 Welfare Reform Act). The Australian Human Rights Commission is of the view that while the suspension of the RDA has been lifted, there are some practical limitations on the reinstatement of the RDA which has resulted in only a partial reinstatement of the RDA.

^[98] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth), outline. At www.comlaw.gov.au/comlaw/legislation/bills1.nsf/framelodgmentattachments/40DF878226ED1626CA25767A0005AFF3 (viewed 21 September 2010).

^[99] Australian Government, Stronger Futures in the Northern Territory: Policy Statement (November 2011). At www.indigenous.gov.au/stronger-futures-in-the-northern-territory/ (viewed 1 December 2011).

^[100] Department of Families, Housing community Services and Indigenous Affairs Northern Territory Emergency Response: Evaluation Report 2011 (November 2011), p 3. At www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Pages/nter_evaluation_rpt_2011.aspx (viewed 1 December 2011).

^[101]International Covenant on Civil and Political Rights, 1966, article 17. At www2.ohchr.org/english/law/ccpr.htm (viewed 27 October 2010).

^[102] Table adapted from Human Rights and Equal Opportunity Commission, note 82, Apps 1–7. At www.humanrights.gov.au/social_justice/bth_report/report/appendices_index.html (viewed 18 October 2011).

^[103] Human Rights and Equal Opportunity Commission, note 82, Part 2: Estimating the numbers removed.

^[104] Human Rights and Equal Opportunity Commission, note 82.

^[105] R Manne, "In Denial: The Stolen Generations and the Right." The Australian Quarterly Essay 1 (2001), p 1.

^[106] Human Rights and Equal Opportunity Commission, note 82.

^[107] Human Rights and Equal Opportunity Commission, above.

^[108] Human Rights and Equal Opportunity Commission, above.

^[109] Australian Bureau of Statistics and the Australian Institute of Health and Welfare, note 21.

^[110] The Hon Jenny Macklin, ‘National Healing Foundation consultations start on National Sorry Day’ Media Release, 26 May 2009. At www.jennymacklin.fahcsia.gov.au/mediareleases/2009/Pages/jr_m_healingfoundation_26may09.aspx (viewed 23 November 2011).

^[111] The Hon Jenny Macklin, ‘National Sorry Day’ Media Release, 26 May 2011. At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2011/pages/national_sorry_day_26052011.aspx (viewed 23 November 2011).

^[112] Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Children Belong on the Asset Side of Australia's Wealth Ledger, (Speech to the Secretariat of National Aboriginal and Islander Child Care (SNAICC) National Conference, Adelaide, 19 September 2007). At www.humanrights.gov.au/about/media/speeches/social_justice/2007/indig_children_belong_on_the_asset_side.html (viewed 23 November 2011).

^[113] Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia CERD /C/AUS/CO/14 March 2005 Sixty-sixth session 21 February – 11 March 2005. At www2.ohcr.org/english/bodies/cerd/cerds66.htm (viewed 1 December 2011).

^[114] Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, CERD/C/AUS/CO/15-17, Seventy-seventh session 2–27 August 2010 p 5. At www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 13 September 2010).

^[115] Attorney-General’s Department, Native title reform. At www.ag.gov.au/www/agd/agd.nsf/Page/RWP73DB7F92B8E8CE99CA25723A00803C08#2009Bill (viewed 23 November 2011).

^[116] Attorney-General’s Department, above.