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Social Justice Report 2001: Summary

Social Justice Report 2001

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  • Summary

    Ten Years on from the Royal Commission into Aboriginal Deaths in Custody

    2. Mutual Obligation, Welfare Reform and Indigenous
    Participation: A Human Rights Perspective

    Indigenous Governance and Community Capacity-Building

    4. Laws Mandating Minimum Terms of Imprisonment ("Mandatory
    Sentencing" and Indigenous People

    5. Juvenile Deversionary Schemes and Indigenous People

    6. Reconcilation - National Progress One Year On


    1. TEN

    The year 2001 marked
    the tenth anniversary of the final report of the Royal Commission into
    Aboriginal Deaths in Custody.

    … while
    it is in people's nature to celebrate anniversaries, it must be said
    that this anniversary is a sad one. There is less to celebrate some
    ten and a half years after the Royal Commission's findings than we
    might have hoped for…

    the sense
    of urgency and commitment to addressing Indigenous over-representation
    in criminal justice processes has slowly dissipated. Indigenous people
    have continued to die in custody at high rates in the decade since
    the Royal Commission, and the average rate of Indigenous people in
    corrections has steadily increased on a national basis since the Royal
    Commission. Yet in 2001 this hardly raises a murmur of discontent
    yet alone outrage among the broader community. These facts either
    go unnoticed, or perhaps even worse in the age of reconciliation,
    are simply accepted and not challenged. As a consequence, Indigenous
    affairs seem to have become a series of anniversaries - operating
    as an annual reminder of the unfulfilled promises and commitments
    of governments. (Social Justice Report 2001, p7)

    How far have
    we progressed?

    Advances in the
    decade since the Royal Commission include:

    • the establishment
      of Aboriginal Justice Councils across the country;
    • vast improvements
      in coronial and statistical collection systems;
    • the development
      of the National Indigenous Legal Studies Curriculum to support Aboriginal
      field officers in legal services;
    • the provision
      of support mechanisms in custody for Indigenous detainees; and
    • the development
      of Indigenous community justice initiatives - eg. night patrols and
      mechanisms which recognise customary law.

    At a broader level,
    the Royal Commission has made a significant contribution to the collective
    understanding of the history of Australia. However, there have been
    major policy regressions in other areas. The lack of adequate progress
    by governments is indicated by:

    • The increased
      rate of over-representation of Indigenous people in criminal justice
      processes and the continued high number of deaths in custody since
      the release of the Royal Commission's recommendations;
    • The poor implementation
      of the recommendations of the Royal Commission; and
    • The lack of
      adequate progress in addressing the underlying issues which lead to
      contact with the criminal justice system.

    Rate of Indigenous
    over-representation since the Royal Commission

    The level of over-representation
    has in fact worsened - rather than improved - since the Royal Commission.

    The number
    of Indigenous prisoners has increased at an average rate of 8% per
    year since 1991, compared with an increase in the non-Indigenous prisoner
    population of 3% per year on average. This has meant that the number
    of Indigenous prisoners in 1999 made up 20% of the total prisoner
    population in 1999 compared to 14% in 1991. That a group that constitutes
    just over 2% of the total population provides 20% of the country's
    prisoners is shocking. (Social Justice Report 2001, p12)

    The rate of imprisonment
    of Indigenous prisoners increased to a national average almost 14 times
    the rate of non-Indigenous prisoners in 1999. Statistics for 2000 and
    2001 have worsened - with the Indigenous rate of imprisonment 14.9 times
    the non-Indigenous rate on a national basis for the June 2001 Quarter.

    The rates of juvenile detention have fallen significantly in
    the twenty years from 1981 to 2000, by nearly half for males and nearly
    two thirds for females. Despite this, Indigenous juveniles remain grossly
    over-represented in juvenile corrections and the rate of over-representation
    has increased. In 2000, Indigenous juveniles were in juvenile corrections
    at a rate 15.5 times more than the non-Indigenous rate, compared to
    13 times in 1993. Since 1997, Indigenous juveniles in corrections have
    consistently made up approximately 42% of the total juvenile detention

    Perhaps most worrying of all is the rise in imprisonment of Indigenous
    women since the Royal Commission. The total number of Indigenous female
    prisoners on a national basis increased by 262% between 1991 and 1999,
    and their rate of imprisonment nearly doubled during this period. At
    the end of the June 2001 quarter, Indigenous women were incarcerated
    at a rate 21 times that of non-Indigenous women. In Western Australia
    the incarceration rate was 29.7 times the non-Indigenous rate, while
    it was 26.3 times the non-Indigenous rate in New South Wales. Despite
    this, Aboriginal women remain largely invisible to policy makers and
    program designers with very little attention devoted to their specific
    situation and needs.

    Deaths in custody
    since the Royal Commission

    The Royal Commission
    found that Indigenous people did not die at a greater rate than non-Indigenous
    people in custody but in proportion to their size of the custodial population.
    During the past decade Indigenous deaths in custody have continued at
    a substantial rate and one similar to that in the decade leading up
    to the Royal Commission.

    A total of 115
    Indigenous people died in custody in the period from 1990 to 1999, compared
    to 110 people in the period from 1980 to 1989. This constituted a slight
    fall in the average annual rate of Indigenous deaths in custody from
    4.4 persons per 100,000 to 3.8. Over the ten years from 1990 to 2000,
    18% of all people who died in custody were Indigenous.

    Ten years
    on we should not be facing a situation where rates of over-representation
    have worsened like this and deaths in custody have not been significantly
    reduced. The lack of concern and urgency from governments to rectify
    this is distressing. As the Royal Commission stated, this situation
    would not be tolerated if it occurred in the non-Indigenous community.
    (Social Justice Report 2001, p16)

    of the recommendations of the Royal Commission

    $400 million was
    allocated by the Commonwealth government for the implementation of the
    Royal Commission's recommendations. While the implementation process
    superficially appeared to be extensive, it has been spectacularly unsuccessful:

    … the
    implementation process has been piecemeal and ad hoc. There have not
    been whole-of-government responses to all the recommendations, integrating
    programs across departments and between levels of government to ensure
    coordinated outcomes. The focus of the reporting process has also
    not been on an assessment of pre-agreed, negotiated outcomes which
    measure real achievements. It has been simply responding to individual
    recommendations in isolation from the rest of the report. (Social
    Justice Report 2001, p18)

    The reporting process
    was fundamentally flawed for a number of reasons. First, it did not
    result in accurate evaluations of progress at any level due to the lack
    of independence and evaluation in each annual government report. Second,
    governments generally took the 'public relations approach' to the reporting
    process, re-packaging existing programs as an implementation response
    at the end of each year (ie, it has been a decentralised and retrospective
    process which makes a critical examination of the response meaningless
    and does not allow long-term planning).

    Accompanying this
    flawed process of reporting over the last decade has been a nationwide
    trend towards tougher 'law and order' policies. The impact of this approach
    has contradicted efforts to address Indigenous over-representation in
    custody. At the same time as 'promoting or reporting on activities which
    aim to reduce Aboriginal contact with the criminal justice system …
    major government initiatives, policy and legislation seem to increase
    that contact'. Particularly worrying in this regard is the often unnoticed,
    incremental, yet growing impact of public order regulation on Indigenous
    people, operating as a de facto criminalisation of Indigenous people
    and being the entry point to more serious offending.

    The report highlights
    concerns in relation to the impact of public order laws in New South
    Wales and Victoria (pp19-21), as well as in the Northern Territory (pp21-23)
    where zero tolerance policing and trespass notices in shopping malls
    have combined with mandatory sentencing to produce an unwelcome environment
    for youths and Indigenous people in public spaces. This over-regulation
    reached new depths in the NT with the passage of the Public Order
    and Anti-Social Conduct Act 2001
    (NT). This act raises significant
    concerns with regard to the recommendations of the Royal Commission,
    as well as the International Convention on the Elimination of All Forms
    of Racial Discrimination. It is a discriminatory form of public order
    regulation which must be repealed.

    This trend
    in relation to public order regulation is in my view one of the most
    distressing developments since the Royal Commission. The seriousness
    of this approach extends beyond the penalties that these offences
    impose. The Royal Commission vividly demonstrated the cycle of criminalisation
    that many Indigenous people fall into. These laws can operate to introduce
    Aboriginal people into the criminal justice system and potentially
    into a pattern of more serious offending, and appear to do so for
    limited - if any - broader social benefit. (Social Justice Report
    2001, p23)

    The inadequate
    implementation of the Royal Commission's recommendations by all governments,
    accompanied by the introduction of regressive laws and policies that
    contradict its main goals, have most certainly contributed to the lack
    of progress in addressing Indigenous over-representation in the criminal
    justice process during the past decade.

    Addressing the
    underlying causes of over-representation of Indigenous people

    The Royal Commission
    continually emphasised the central importance of addressing the underlying
    issues which contribute to the likelihood of contact by Indigenous people
    with the criminal justice system. While governments have committed themselves
    time and again to addressing these issues as a matter of urgency and
    priority, progress in this area since the Royal Commission has been

    Commitments such
    as the Ministerial Summit on Deaths in Custody (1997) and the COAG National
    Commitment (1992) have been largely not implemented. Government programs
    and inter-governmental coordination continue to lack sufficient accountability
    and transparency.

    However, there
    have been some pleasing developments by state governments in relation
    to the 1997 Ministerial Summit in the past two years. Justice Agreements
    have been concluded with representative Indigenous organisations in
    most states. These are broadly in line with the commitment to the development
    of multilateral agreements for the coordination of Commonwealth-State
    funding and service delivery arrangements. The Queensland and Victorian
    agreements, which set measurable outcomes and targets with monitoring
    and evaluation mechanisms, are a welcome, if somewhat belated response
    to the issues raised by the Royal Commission. Notably, however, the
    state with the second highest rate of over-representation - New South
    Wales - has not begun to develop such an agreement.

    One of the consequences
    of the failure to implement commitments such as the Ministerial Summit
    and COAG National Commitment has been the lack of priority and urgency
    with which governments have pursued the task of addressing Indigenous
    disadvantage over the past decade. Later chapters in the report examine
    the limits and failures of practical reconciliation in this regard.


    The experiences
    and the mistakes of the ten years since the Royal Commission must be
    built on in order to frame a better future. Indigenous communities cannot
    afford a continuation of present rates of incarceration and deaths in

    The lack of
    progress in addressing the concerns of the Royal Commission offers
    us a stark reminder of what is at stake in this country with reconciliation.
    As a society, we cannot afford to look back in ten years time on the
    reconciliation process with the same regrets that we now do on the
    Royal Commission. (Social Justice Report 2001, p30)

    Chapter 6 of the
    report examines the progress towards reconciliation in more detail.


    Mutual obligation
    and welfare reform

    A mutual obligation
    approach has been adopted to reform the welfare system in recent years.
    This approach asserts that government assistance is not a right or entitlement
    but must be reciprocated by recipients through meeting a range of obligations
    and responsibilities. This may include performing certain duties such
    as seeking work, undertaking training or accepting temporary employment
    in exchange for income support. It is often accompanied by an understanding
    that some form of active participation, geared towards greater 'self
    reliance', is preferable to 'welfare passivity' or 'dependency'.

    Mutual obligations
    - some general concerns

    There are a range
    of general concerns with a mutual obligation approach, which often impact
    more greatly on Indigenous peoples. This approach assumes that all citizens
    are on a more or less equal footing, that there is little difference
    between their circumstances, and that most people exercise a degree
    of choice in regard to their employment situation.

    The emphasis on
    self reliance in mutual obligation policy promotes a view that wider
    social problems associated with welfare dependency can be addressed
    through changing the circumstances of individual lives. But the lack
    of employment opportunities available for certain groups means that
    mutual obligation policies are likely to be harsher in their impact
    on them than on other sections of society. Significant factors contributing
    to increasing poverty and inequality include: locational disadvantage,
    lack of education and employment skills, and family history of unemployment
    or precarious employment.

    The expectation
    that all adult individuals, including women, Indigenous and disabled
    peoples, will participate in mutual obligation activities further has
    the potential to increase the injustices and inequities experienced
    by the disadvantaged, as illustrated by the harsh penalties incurred
    as a result of 'breaching':

    Research by
    ACOSS and others indicates that 'breaching' places a greater burden
    on already disadvantaged jobseekers. For example, from June 1997 to
    March 1998 national breach rates were 'consistently higher among Indigenous
    identifiers by a factor of about one-and-a-half in relation to activity
    test breaching and a factor of two in administrative breaching.' (Social
    Justice Report 2001, p40)

    In contrast to
    the demands placed on unemployed citizens, ways of enforcing the obligations
    of other sectors of the community such as business are unclear. Some
    have promoted the notion of 'social partnerships' for building up communities.
    However, the inequalities between business and other players, such as
    the precarious position of some disadvantaged communities and whether
    they can offer business adequate incentives to work with them, need
    careful consideration.

    Mutual obligation,
    practical reconciliation and Indigenous welfare reform

    Mutual obligation
    fits hand in glove with the government's current 'practical reconciliation'
    approach to Indigenous policy. Practical reconciliation focuses on issues
    relating to Indigenous disadvantage in the areas of education, health,
    housing and employment as opposed to other 'symbolic' issues, such as
    the need for a treaty or an apology, said not to lead to concrete change.

    But while mutual
    obligation can be seen as integral to the process of practical reconciliation,
    to date there has been very little focus on the Indigenous specific
    dimensions of welfare dependency in debates about general welfare reform
    and mutual obligation. This is a main criticism of the McClure report
    on welfare reform and the government response to it. It is also evident
    in the inequities between the operational funding support provided to
    Work for the Dole programs compared to the Indigenous specific Community
    Development Employment Projects (CDEP), meaning that CDEP remains a
    'poor cousin of the mainstream' program.

    Mutual obligation
    and practical reconciliation share a number of features in common: they
    focus on the individual's relationship to the State; are emotive at
    a simplistic level, particularly in the language used to explain them;
    and are ahistorical - they give little attention to the underlying causes
    of Indigenous disadvantage and admit no contemporary consequences.

    The context
    of Indigenous marginalisation

    Current Indigenous
    employment and welfare reform policy strives for equality of participation
    in the formal economy and through increased 'self-reliance'. This is
    a necessary focus and is to be welcomed. But such an approach is limited.
    It does not acknowledge the broader fabric of social and economic factors
    that contribute to the level of Indigenous disadvantage and economic

    The 'practical'
    focus on addressing welfare dependency through mutual obligation means
    that a range of inter-related factors - social, cultural, political
    and historical - integral to reversing Indigenous marginalisation
    are being consistently obscured from the social policy lens. (ibid,

    In particular,
    historical, demographic, geographic and cultural factors make improvements
    to Indigenous employment rates and economic participation difficult
    to facilitate. These include poor health, low educational levels of
    Indigenous people (which is of increasing concern with the rapid technological
    change in the labour market), over-crowding of living conditions and
    low self-esteem. These factors are often compounded in remote areas
    where there is a lack of business development and employment opportunities,
    and where long distances can make it difficult to undertake mutual obligation

    Urging self-reliance
    for many Indigenous people in this context, without acknowledging
    or adequately addressing these underlying factors, is fanciful. When
    combined with punitive, coercive measures it is potentially vindictive…
    it can in fact further demoralise (people) if support is inadequate.

    As a consequence,
    the mutual obligation approach over-stretches itself in its application
    to Indigenous welfare reform by assuming that 'the intensity and scale
    of … personal and social problems, wrongly attributed to welfare
    dependency, can be addressed through mechanisms which both enable,
    and ultimately compel, individuals to engage with the formal economy'.
    (ibid, p54)

    Mutual obligation
    and Indigenous cultural values
    Mutual obligation is often said to be consistent with Indigenous cultural
    values such as reciprocity and an emphasis on community. Noel Pearson
    has been prominent in advocating mechanisms for restoring traditional
    values such as 'reciprocity' to address social breakdown and community
    dysfunction. He has also argued that a rights-based welfare regime has
    given way to passivity and a sense of entitlement.

    Pearson's call
    for greater reciprocity and community responsibility is consistent with
    a rights-framework. But there are differences between mutual obligation
    as a social policy principle and reciprocity as a principle of social
    obligation in Indigenous communities. Reciprocity applies to the individual
    and his or her community, family and local group. Mutual obligation
    applies to the relationship between the individual and the State. The
    latter is also aimed at involving individuals in an increasingly mobile
    workforce within a globalised order.

    Traditional forms
    of Indigenous participation may not be easily factored into the mutual
    obligation equation. Many Indigenous Australians may already be involved
    in meeting their obligations to community - for example, through cultural
    activities and family support. These forms of participation may also
    fall short of public policy agendas to stimulate labour market participation.

    Pearson's approach
    is regularly cited as support for the view that rights are not 'practical'
    and do not contribute to improving Indigenous people's lives. Critics
    of the rights agenda often imply that when Indigenous people gained
    citizenship rights in 1967 that this agenda was fully implemented -
    and that a rights approach has failed Indigenous people and should be
    abandoned. But citizenship rights came 170 years late:

    What has fundamentally
    been lacking before and since 1967 is a rights culture that respects
    Indigenous people and provides them with the opportunity to participate
    on an equal footing in Australian society. The refusal to tolerate
    the discriminatory practices of exclusion from welfare, education
    and participation in the mainstream society and economy any longer
    was merely the first step on the road to a culture of rights and respect
    for Indigenous people. It is disingenuous to suggest otherwise. (p61)

    Indigenous empowerment

    The mutual obligation
    approach is yet to transform the relationship between Indigenous people
    and the mainstream society into a more equal one. Although it strives
    for individual empowerment, mutual obligation does so from a position
    in which the government is not prepared to relinquish the power and
    control that it holds.

    The unwillingness
    to change the existing power dynamic ultimately constrains the relevance
    of the mutual obligation approach to achieve lasting and sustainable
    change. Changes to this power dynamic, through the effective participation
    of Indigenous people in decisions that affect them, are essential.

    The terms of reference
    of this approach are 'simply too narrowly focused to fully appreciate
    and take account of the broader context of the everyday lives of Indigenous

    Any commitment
    to overcoming disadvantage should also involve a full democratic partnership
    with Indigenous people, 'ensuring that Indigenous individuals and
    communities are adequately involved in decisions that affect their
    well being, including the design and delivery of programs'. It should
    also provide support for Indigenous autonomy in terms that recognise
    and respect cultural difference and the right to self-determination,
    particularly in the form of strategies for capacity-building and increasing
    self-governance. (ibid, p65)

    The next chapter
    examines approaches for devolving power to the community level through
    development and support for building the capacity of Indigenous communities.
    Within this context, mutual obligation could be more meaningful in the
    longer term.


    Why are governance
    and capacity-building important for Indigenous people?

    relates to 'the abilities, skills, understandings, values, relationships,
    behaviours, motivations, resources and conditions that enable individuals,
    organisations, sectors and social systems to carry out functions and
    achieve their development objectives over time'. Governance concerns:
    'the structures and processes for decision making… [and] is generally
    understood to encompass stewardship, leadership, direction, control
    authority and accountability.' (Social Justice Report 2001, p67)

    Common reasons
    given for focussing on capacity-building and governance include the
    need for increased Indigenous participation in decision-making, better
    coordination and less duplication of services, and greater regional
    and local involvement. A greater focus on governance and capacity-building
    also provides an opportunity for governments to commit to long-term
    processes for redressing Indigenous marginalisation. Building community
    capacity provides a potential vehicle for the renewal of societal structures
    and the political recognition and representation of Indigenous peoples'

    If welfare
    reform is to provide greater opportunities for Indigenous participation,
    then government must take the need for reform of existing funding
    and administrative arrangements seriously. It must recognise the part
    the current community services model has played in generating Indigenous
    welfare dependency and move beyond this to find ways of developing
    and resourcing Indigenous capacity-building and governance arrangements
    that will provide an adequate basis for economic development and self-sufficiency.
    In doing so, it must also take up the challenge of facilitating rather
    than repressing the recognition of the specific characteristics and
    aspirations of Indigenous cultures and societies in Australia. (p97)

    Governance and

    The development
    of governance structures and regional autonomy provides the potential
    for a successful meeting place to integrate the various strands of
    reconciliation. In particular, it is able to tie together the aims
    of promoting recognition of Indigenous rights, with the related aims
    of overcoming disadvantage and achieving economic independence. (Social
    Justice Report 2000, p107)

    The Royal Commission
    into Aboriginal Deaths in Custody emphasised the necessity for a changed
    relationship between Indigenous people and government to address long-standing
    disadvantage, and recommended the use of longer term, more flexible
    forms of funding arrangements.

    Both Reconciliation
    Australia and the Council of Australian Governments have introduced
    strategies supporting capacity-building and governance in their frameworks
    for progressing reconciliation. Government initiatives have also been
    introduced following the Indigenous Community Capacity Building Roundtable
    held in October 2000 and as part of the welfare reform package in the
    2001 federal budget.

    But commitments
    to date have been short-term and minimal in terms of funding support:

    While these
    initiatives are to be welcomed, they only hint at the potential for
    reconfiguring and transforming the relationship of Indigenous communities
    with the mainstream society. Indigenous community capacity and governance
    mechanisms could be furthered through facilitating more effective
    forms of financial and administrative self-government. (Social Justice
    Report 2001, p75)

    Case studies
    of governance and capacity building initiatives

    Current initiatives
    by Indigenous people to create new governance structures and processes
    include: ATSIC Murdi Parki Regional Council Plan, Cape York Peninsula
    Partnerships Plan, Miwatj Regional Council and the Torres Strait Regional
    Authority. The Social Justice Report 2001 focuses on the Mutitjulu
    Community Participation and Partnership Agreement and Yenbena Indigenous
    Training Centre.

    Mutitjulu Community
    Participation and Partnership Agreement

    Budget 2001's welfare
    reform package introduced the Community Participation Agreement (CPA)
    initiative for remote communities. Modelling is now taking place with
    the Mutitjulu Community Council and residents (Anangu people) located
    near Uluru-Kata Tjuta National Park. This CPA's key concept is 'participation':
    all social security recipients at Mutitjulu are to design and negotiate
    their obligations and activities in return for income support, and plan
    for better delivery of services at the local level. Participation activities
    are to be meaningful and flexible, and include everyday cultural, social
    and economic activities in the community. The initiative also aims to
    identify innovative approaches to financial management, to build the
    organisational and management capacity of the community and to explore
    opportunities for partnerships with the business and NGO sectors. This
    CPA model raises the following issues:

    • Coerciveness:
      The initiative seeks to offset the coercive elements of social
      security requirements by adapting compliance measures to suit the
      culture and circumstances of individual Indigenous communities.
    • Financial
      There needs to be a commitment from government beyond
      Budget 2001's 4-year funding period: a 5-10 year commitment is seen
      as necessary for the CPA model to make any inroads on the current
    • Interagency

      Ideally the model would be based on the pooling of resources across
      government agencies providing one incoming financial stream to the
      community. There needs to be clarity about the forms of commitment
      various partners are to make, including to meeting assessable goals
      and objectives over a set time-frame.
    • Flexibility:
      Some of solutions being considered by the Mutitjulu Community will
      probably be relevant and transferable to other communities participating
      in the CPA initiative. But it is essential that design of CPAs remains
      Whatever the future level of success of the CPA initiative, Indigenous
      people should not be restricted to one model as a means of pursuing
      greater autonomy and control over their affairs. Other initiatives
      for furthering Indigenous capacity and governance, including those
      based in native title, should also be encouraged. (p91)
    • Ownership:
      Governance models must be owned by Indigenous people themselves and
      the relationship of Indigenous kinship and authority structures to
      the processes and structures of these models must be taken into account.

      … it
      is important that some of the more fundamental issues concerning
      the respective roles and authority of Indigenous, government and
      other partners are re-visited, or in time these new models may run
      the risk of becoming yet another case of a failed Indigenous policy
      initiative and a further source of 'blaming the victim'. (p84)

    Yenbena Indigenous
    Training Centre

    Yenbena Indigenous
    Training Centre is located at Barmah near Echuca in northern Victoria
    and has been in operation since March 2001. It was established by Yorta
    Yorta Nation Aboriginal Corporation to provide targeted and culturally
    appropriate training for Indigenous young people in the area in order
    to increase employment, community participation and capacity-building

    The Yorta Yorta
    Aboriginal community found that Commonwealth programs such as Work for
    the Dole and CDEP did not provide adequate skilling and mentoring for
    successful transition from mutual obligation-type activities to employment.
    The community sought alternative Commonwealth and State with a view
    to tailoring a training program to meet their own needs.

    Yenbena is now
    a registered training provider, and offers courses in response to identified
    training needs in the local area. All training modules are linked to
    placements and each employee has a pathway in which future jobs are
    identified. The program's flexibility enables the Yorta Yorta Aboriginal
    community to integrate cultural knowledge with training without having
    to create a separate opportunity. For example, courses (such as communication
    skills, business administration and community work) are customised to
    suit the local context and provide culturally-specific training. Elders
    also play a significant role as trainers and mentors.

    While this initiative
    is creative, self-directing and enterprising, it essentially seeks to
    'fill the gaps' where the Commonwealth is not providing appropriate
    funding for programs to meet Indigenous employment needs.


    In April 2000 the
    Senate requested HREOC to inquire into all aspects of mandatory sentencing
    regimes in the Northern Territory (NT) and Western Australia (WA), and
    assess their continued impact on Indigenous Australians. HREOC also
    decided to develop a methodology against which to evaluate diversionary
    schemes in the NT and WA, and to assess these schemes on this basis
    (see next chapter).

    The NT government
    repealed mandatory sentencing laws for juvenile and adult property offenders
    on 18 October 2001. The review remains pertinent as sentencing laws
    continue to operate in WA and as there is also a risk that mandatory
    sentencing laws will continue to be considered and introduced in Australia
    despite the arguments against their use.

    Western Australia

    Mandatory sentencing
    or 'three strikes' laws came into effect in WA in 1996. For adults,
    the Criminal Code (WA) requires the court to impose a sentence
    of at least 12 months imprisonment for a person convicted of home burglary
    who has previously served a custodial sentence on at least two occasions
    for home burglary. For juveniles (offenders aged 10 - 17 years inclusive),
    the WA laws require a 12 month sentence in a juvenile facility for the
    third or subsequent strike of home burglary. The laws apply to children
    as young as ten years of age. Juveniles sentenced under the laws are
    not eligible for parole until they have served at least six months -
    or 50 per cent - of their sentence. This is in contrast to adults sentenced
    to imprisonment, who are eligible for parole after serving one third
    of their sentence.

    The WA Government
    reviewed the operation of the mandatory sentencing provisions in 2001.
    The review found that rates of imprisonment for burglary 'have had little
    effect on sentencing patterns of adult burglary offenders'. There was
    also 'no reduction in the number of offences committed after the introduction
    of the amendments'. The review identified a lack of clarity in the operation
    of the laws, particularly in determining whether someone is a third
    striker, as well as the capacity for the laws to produce 'unfairly harsh
    and counterproductive outcomes'. By implication, the system of strikes
    has also resulted in some offenders being treated more leniently than
    they might otherwise be.

    In relation to
    juveniles, the review admits that 'while it is likely that for the most
    part juveniles sentenced to detention would have gone into detention
    anyway, a few would not and for others shorter terms may have been
    considered more appropriate
    '. The review also found in relation
    to juveniles that the mandatory detention provisions have a degree of
    arbitrariness and unfairness due to the calculation of strikes and the
    exercise of discretion to divert some juveniles but not others (concern
    about the lack of access to diversion for young Aboriginal offenders
    in WA is discussed in detail in the next chapter).

    Despite these very
    significant concerns, the WA Attorney-General's response to the review
    was that it demonstrated that 'the overwhelming majority of those convicted
    under the laws have an appalling history of offending' and that 'juveniles
    caught by the laws had, on average, 50 prior convictions'. As a consequence,
    he concluded that 'he was satisfied the laws were targeting a very real
    problem with serious property offences'.

    Research conducted
    by the WA Aboriginal Justice Council contradicts this claim. The Council
    examined the circumstances of the 110 third strike cases (involving
    73 Indigenous juveniles) which could be identified in the records of
    the Aboriginal Legal Service of WA. This review found that 73 Indigenous
    juveniles accounted for the 110 third strike sentences that could be
    identified. Of these, 54 individuals were dealt with just once and 19
    individuals more than once (with only four individuals dealt with under
    the three strikes law four times or more).

    It is disingenuous
    to suggest that the WA laws target the most serious repeat offenders
    and accordingly must remain. They do not. Serious repeat offenders
    are sentenced to terms of imprisonment of greater length than the
    mandatory minimum. The laws are irrelevant for such offenders. (Social
    Justice Report 2001, p112)

    The WA provisions
    are more complex than those in the NT and have avoided much scrutiny
    because of this. But we must remember that the WA provisions impose
    much harsher penalties on juveniles than the NT laws ever did - 12
    months minimum detention as opposed to 28 days. Like the NT provisions,
    the WA laws have resulted in situations of injustice, with individuals
    receiving sentences that are disproportionate to the circumstances
    of their offending.

    I call for
    the WA Government to repeal its mandatory detention provisions and
    for the federal Parliament to exercise its responsibilities to ensure
    compliance by the WA Government with Australia's international human
    rights obligations by overriding the laws if necessary. (Social Justice
    Report 2001, p130)

    Human rights
    concerns about mandatory minimum terms of imprisonment

    The following concerns
    relate to the imposition of mandatory minimum terms of detention for
    juveniles. They apply equally to the NT and WA laws:

    • Best interests
      of the child as a primary consideration (article 3.1, Convention on
      the Rights of the Child (CROC))
    • Children require
      special measures of protection (article 24, International Covenant
      on Civil and Political Rights (ICCPR))
    • Detention of
      children as a measure of last resort (article 37(b), CROC)
    • A variety of
      dispositions must be available for child offenders (article 40.4,
    • Rehabilitation
      and reintegration of a child offender should be the essential aim.
      A child offender should be treated in a manner which takes into account
      his or her age (article 40.1, CROC)

    The following concerns
    relate to the imposition of mandatory minimum terms of detention for
    juveniles and adults. They apply equally to the NT and WA laws:

    • Sentence must
      be reviewable by a higher tribunal (article 40.2 (b), CROC; article
      14.5, ICCPR)
    • Detention must
      not be arbitrary (article 37(b), CROC; article 9.1, ICCPR)
    • Laws and policies
      must be non-discriminatory and ensure equality before the law (article
      2, article 26, ICCPR; article 2.1(a), (c) and 5(a) International Convention
      on the Elimination of All Forms of Racial Discrimination (CERD))
    • Physical and
      mental condition must be taken fully into account (Principle 5, Declaration
      on the Rights of Disabled Persons; Principle 6, Declaration on the
      Rights of Mentally Retarded Persons)
    • Ensuring consistency
      of international obligations across all levels of government (article
      50, ICCPR; article 2, CERD)

    The effectiveness
    of mandatory minimum imprisonment laws

    The manner in which
    mandatory minimum imprisonment laws in both the NT and WA breach human
    rights obligations is so substantial that the laws cannot be seen as
    socially useful or acceptable. There are also a range of other reasons,
    grounded in the practical operation of the laws, which render them ineffective
    as well:

    • Deterrence:
      In the NT, reporting trends show that there has been no real change
      in reporting of property crime in the NT between 1994 and 1998.
    • Retribution:
      Removing judicial discretion to determine the length of sentences
      inevitably leads to harsh and unfair results.
    • Rehabilitation:
      Custodial environments place the emphasis on physical containment
      rather than on rehabilitation. There are serious concerns about the
      capacity of the prison system to rehabilitate Indigenous offenders.
    • Incapacitation:
      Courts are in a better position than parliament to make a prediction
      about an offender's future prospects based on the offender's background
      and circumstances established by evidence before the court.
    • Reparation:
      Other options to incarceration, such as victim/offender conferences,
      allow the offender to make direct reparation to the victim.
    • Community
      There has been no real test of whether the laws have
      addressed community concerns. The serious nature of these offences
      may be 'indicated' in a variety of ways other than mandatory minimum
      sentences, such as maximum penalties, guideline judgments and community
    • Cost effectiveness:
      the financial costs of property crime to the community is often emphasised
      in public debate, the costs of incarceration are themselves high.
    • Effect on
      sentencing principles and operation of the criminal legal processes:

      These laws undermine sentencing principles which are well-established
      in Australia and abroad. They also shift discretion from the judiciary
      to police and prosecutors. Once a matter reaches the sentencing stage
      the result is inevitable.

    Mandatory minimum
    terms of imprisonment and their impact on Indigenous people

    These laws impact
    disproportionately on Indigenous people in both the NT and WA.

    • In WA, Aboriginal
      juveniles account for 81 per cent of all identified 'three strikes'
      juvenile cases. However, they make up one third of all offenders before
      the Children's Court.
    • In the NT in
      2000/2001, approximately 79 per cent of prisoners sentenced for all
      property offences were Indigenous. Only 28.5 per cent of the NT population
      are Indigenous.

    The Commonwealth
    Government has argued that these are not discriminatory because they
    apply equally to Indigenous and non-Indigenous offenders. However, Article
    1.1 of CERD includes racial discrimination 'in purpose or effect'. Governments
    are required to take different impacts on particular racial groups into

    Factors that can
    lead to disproportionate impacts on Indigenous people include:

    • Selection of
      offences subject to mandatory detention: Eg. Targeting offences overwhelmingly
      committed by Indigenous people, especially young people, while specifically
      excluding offences generally committed by non-Indigenous people.
    • Exercise of
      police discretion: Studies have shown Indigenous people are overrepresented
      at all stages of the pre-court process. The coexistence of mandatory
      sentencing laws and juvenile diversion programs runs the risk of 'bifurcating'
      juvenile justice, with first time offenders being diverted and repeat
      offenders, who are largely Indigenous, being perceived by the courts
      as 'hard core' juvenile offenders.\
    • Socio-economic
      disadvantage: Socio-economic factors, such as educational disadvantage
      and a lack of employment opportunities, play a large role in determining
      rates of offending. Recognising the social context of young Indigenous
      offenders is extremely important for crime prevention policy. If detention
      has become a routine means for marginalised and disadvantaged young
      Indigenous people to access a different experience, it is questionable
      whether this functions as a deterrent at all.

    From whatever perspective
    they are examined, mandatory detention laws in WA and the NT are bad
    law. They are ineffective in deterring crime and rehabilitating offenders,
    they are costly and they are manifestly unjust.

    … in
    the context of 10 years since the Royal Commission, we must remain
    alive to the consequences of these laws. The removal of young people
    to detention centres and prisons far away from their communities has
    a particularly painful resonance for Indigenous families and communities.
    The Bringing them home report outlined the impact that child removal
    policies have had in the past. As one submission to that inquiry stated,
    'The juvenile justice system is mimicking the separation policies
    of the past'. (ibid, p130)


    Diversion and
    restorative justice

    Diversion is the
    term applied to measures to 'divert' offenders from the formal criminal
    justice system. Options for diversion include verbal and written warnings,
    formal cautions, victim-offender or family conferencing, or referral
    to formal or informal community-based programs.

    There has been
    increased focus on diversion in the 1990s as a form of restorative justice,
    a process whereby all the parties with a stake in a particular offence
    come together to resolve collectively how to deal with the aftermath
    of the offence and its implications for the future. This process seeks
    to ensure that offenders are able to accept responsibility for their
    offending behaviour and any on the community or victims.

    All Australian
    states and territories offer some form of diversionary programs for
    juveniles, and some offer diversion for adults. The Social Justice
    Report 2001
    evaluates juvenile diversion schemes in NT and WA, and
    gives a brief overview of schemes in all other states and territories
    of Australia as well as New Zealand (see Appendix 1 of report). These
    diversionary schemes are assessed against best practice human rights
    principles based on international standards as well as recommendations
    from the Royal Commission into Aboriginal Deaths in Custody and the
    Bringing them home and Seen and heard reports (see pp
    135-37 of report for overview of principles).

    Juvenile diversion
    in the Northern Territory

    The NT has one
    of the highest rates of juvenile detention in corrective institutions
    in Australia. Indigenous people represented approximately 73 per cent
    of juvenile detainees in the NT in June 2000. The potential of juvenile
    diversionary mechanisms to break the cycle of juvenile offending has
    only been introduced relatively recently in the NT, as a means to temper
    the impact of mandatory sentencing legislation on juveniles.

    An evaluation of
    the NT scheme needs to bear in mind that the scheme is relatively new.
    This report examines the model of diversion in the NT and makes some
    preliminary observations on the operation of the scheme so far (see
    pp138-154 of report for overview of the scheme).

    The introduction
    of the NT Pre-Court Juvenile Diversion Scheme is a positive development
    in the NT. The first twelve months have seen rapid progress in the
    unveiling of the scheme. However, there have been a range of concerns
    that have come to the Commission's attention during consultations
    about the new scheme… some of these may relate to the scheme's
    relative newness. However, further concerns are more fundamentally
    to do with the conception of the model itself and its application
    to the cultural and socio-economic factors affecting Indigenous people
    in the NT. (Social Justice Report 2001, pp 154-55)

    Comments and concerns
    about the NT scheme are raised under the following 10 human rights principles:

    1) Viable alternatives
    to detention:
    Human rights principles require that a range of community-based
    diversionary options be available, adequately resourced and planned
    and implemented through adequate consultation. To date, there are limited
    community based alternatives, due in part to the poor level of infrastructure
    and service networks in many communities. There are program gaps in
    many under-resourced areas, eg lack of programs for petrol sniffers
    in Central Australia. There has been no systematic approach to encouraging
    Indigenous participation in designing and delivering diversionary processes.

    2) Availability
    of diversion at all stages of the criminal justice process:
    NT scheme performs well on this criteria, with a wide variety of forms
    of diversion available at the pre-court and post-court stages, and for
    a wide variety of offences.

    3) Discretion
    exercised on the basis of established criteria prescribed by law:

    The legislation setting up the pre-court diversion scheme is extremely
    bare, leaving most matters to police standing orders. There has been
    limited parliamentary scrutiny of the way diversion operates in practice,
    raising concern about the scheme's transparency. A particular concern
    with the scheme is the level of discretion vested in police, at all
    stages of the process. This concern is exacerbated by the history and
    continuation of poor relations between Indigenous people and the NT

    4) Training
    of law enforcement officials involved in the administration of diversion
    to meet the needs of young people:
    While there has been extensive
    formal training of police in diversion, there are no specialised government
    services which meet the needs of juveniles. The lack of specialised
    youth services is a serious impediment to the effective implementation
    of diversionary approaches in the NT.

    5) Diversion
    requires the informed consent of the child or his/her parents:
    are no requirements for young people to access legal advice prior to
    consenting to diversion or during a victim/offender conference. These
    factors need to be monitored to ensure that they do not contribute to
    coercive diversionary outcomes.

    6) Young people
    are provided with procedural safeguards throughout the diversionary
    Safeguards such as access to a lawyer, right to silence,
    presumption of innocence, confidentiality and right to privacy are not
    adequate under the NT scheme. The provision of interpreter services
    has improved protection of procedural safeguards, though this needs
    to be subject to ongoing monitoring.

    7) Young people
    are provided with human rights safeguards throughout the diversionary
    Studies show that police contact has increased for Indigenous
    youth since the introduction of cautioning systems in other jurisdictions.
    While issuing more formal cautions may have reduced contact with the
    courts, it may have increased contact with the police. There needs to
    be monitoring to ensure that this 'net widening' effect does not arise
    in the NT. Early statistics show that Indigenous youth are accessing
    the scheme at an equal rate to non-Indigenous youth.

    8) Complaints
    and review mechanisms relating to the exercise of discretion to divert:

    There are very few checks or balances on the discretion exercised by
    police at all stages of the Northern Territory pre-court diversion scheme.
    There is no oversight of the quality of the admission made by the young
    person or the type of diversion offered by the informant. No decision
    made by a police officer during the diversionary process can be reviewed
    or appealed under the legislation.

    9) Independent
    monitoring and evaluation mechanisms for the scheme:
    While a series
    of reports and evaluations of the scheme are required, they cannot be
    called independent as they are conducted by NT Police or the Commonwealth

    10) Self-determination
    of Indigenous peoples:
    Indigenous involvement remains piecemeal
    and uncoordinated, and police retain primary control over the processes.
    Some Indigenous people in the NT have expressed an interest in other
    means of dealing with juvenile offenders which could be seen as restorative,
    such as the use of elements of customary law. Self-determination requires
    more than offering Indigenous communities involvement in a diversionary
    system that has already been established along non-Indigenous lines
    without adequate consultation and partnership.

    The Social Justice
    Commissioner has made 6 recommendations for improving the NT scheme
    and to address the concerns raised in the report (see end of summary).

    Juvenile diversion
    in Western Australia

    The level and nature
    of contact of Indigenous people with the WA criminal justice system
    has been a matter of great concern for several decades. The level of
    over-representation of Indigenous people in WA is consistently the highest
    in the country. There also continues to be a large number of deaths
    in custody, both Indigenous and non-Indigenous.

    While the diversionary
    options established in the Young Offenders Act 1994 (WA) reflect a number
    of human rights principles, HREOC's consultations indicated these are
    often ignored in the Act's practical operation. Particular concerns
    on the scheme are as follows.

    1) Viable alternatives
    to detention:
    There are concerns that diversion through the operation
    of the juvenile justice teams (JJTs) in country regions is not available
    as an alternative to detention. Statistics show that cautioning and
    referrals to JJTs is much more prevalent in Perth. Community-based programs
    in country areas for Indigenous youth are also lacking.

    2) Availability
    of diversion at all stages of the criminal justice process:
    demonstrate that, while police referrals represent the main pathway
    to JJTs, court referrals are high. In many instances young people do
    not get diverted at the earliest possible stage.

    3) Discretion
    exercised on the basis of established criteria prescribed by law:

    A lack of legislative guidance is compounded by a tendency for police
    policies to be seen as 'guidelines' rather than rules. Indigenous juveniles
    have not benefited sufficiently from diversionary processes, and tend
    to be dealt with more harshly by police.

    4) Training
    of law enforcement officials involved in the administration of diversion
    to meet the needs of young people:
    Current police training is inadequate
    to deal with decision-making relating to diversion. A large proportion
    of police do not sufficiently understand diversionary processes, with
    police in non-metropolitan areas more reluctant to become engaged in
    the JJT process - they do not see it as 'police work'.

    5) Diversion
    requires the informed consent of the child or his/her parents:
    the Act requires that the young person and a responsible adult consent
    to participation in a referral to JJT, there are no safeguards such
    as the provision of legal advice and an interpreter if necessary, which
    has the potential to undermine the informed nature of the consent given.

    6) Young people
    are provided with procedural safeguards throughout the diversionary
    There is no statutory obligation in WA for interpreters
    to be used at any stage of the criminal justice system. One of the most
    serious concerns about the JJT diversionary process relates to the status
    of records of involvement in the process at some later judicial event,
    which may be read out to establish the 'circumstances of the offence'.
    This contradicts the purpose of diversion and has the effect of 'up-tariffing'
    young people when decisions are made regarding punishment (ie, it results
    in higher level dispositions for an offence).

    7) Young people
    are provided with human rights safeguards throughout the diversionary
    Concerns range from the failure to take the age and maturity
    of the young person into account, failure to promote the rehabilitation
    and social reintegration of the young offender and failure to ensure
    that diversionary options are culturally appropriate and non-discriminatory
    in their impact. The most significant issue is that of net widening
    - the failure of Indigenous youth to benefit from diversion through
    the exercise of police or court discretion combined with increased contact
    with police.

    8) Complaints
    and review mechanisms relating to the exercise of discretion to divert:

    The court may refer a young person who has been charged with an offence
    to a JJT whether or not the person has been found guilty, or has pleaded
    guilty to the charge. There is currently no mechanism for young people
    to appeal against decisions made in relation to cautions or JJT decisions
    and outcomes. Legal representation at the point of diversion is also

    9) Independent
    monitoring and evaluation mechanisms for the scheme:
    An evaluation
    completed in 1998 raised concern about the adequacy of monitoring mechanisms.
    The unacceptably high non-recording of ethnicity, or at least Aboriginality,
    on the children's court information system was highlighted as a matter
    of urgency.

    10) Self-determination
    of Indigenous peoples:
    The focus is on the juvenile justice teams
    as an early intervention option within the framework of the juvenile
    justice system, rather than as part of an overall shift in orientation.

    Overall, the Western
    Australian scheme is particularly poor.

    A number of
    concerns have been raised … about the accessibility of diversionary
    options for Indigenous people, and the limited role for and participation
    of Indigenous people in these. At base, the process suffers from a
    lack of support from Indigenous people and is seen as culturally inappropriate.
    Given the crisis rates of removals of Indigenous juveniles through
    criminal justice processes, this is of serious concern and is totally

    The process
    somehow has to be 'given back' to the Indigenous community. Currently,
    it is not working well enough for Indigenous people and their families.
    Diversionary program options for Indigenous young people, particularly
    in regional areas, need to be negotiated with In
    communities to ensure that they are relevant and able to meet the
    needs of the community. (ibid, p186)

    The Social Justice
    Commissioner has made 4 recommendations for improving the WA scheme
    and to address the concerns raised in the report (see end of summary).

    The primary
    aim of diversion should be to slow down the rate of entry into the
    system and reduce the likelihood of Indigenous youth being labelled
    repeat offenders. The curren
    t (WA) system is not equipped to meet
    this task. (Social Justice Report 2001, p175)


    This chapter implements
    the proposal by the Council for Aboriginal Reconciliation for the Social
    Justice Commissioner to monitor progress towards reconciliation on an
    annual basis. It reviews the first year since the final report of Council
    was provided to the Parliament and focuses on measures adopted to ensure
    reconciliation is ongoing; processes for measuring and evaluating outcomes
    and the leadership of the federal government.

    In particular,
    it examines the response to the Roadmap for reconciliation (May
    2000), the recommendations of the final report of the Council for Aboriginal
    Reconciliation (December 2000) and the recommendations of the Social
    Justice Report 2000
    (December 2000).


    An adequate implementation
    process should include the following stages: reviewing current activities;
    developing policies and programs; setting goals or targets; allocating
    responsibility for implementation; and establishing evaluation mechanisms.
    Vital to a successful process is also federal leadership, including
    forms of leverage to ensure compliance of States and Territories.

    In relation
    to reconciliation… it is reasonable to expect that at the end
    of a ten year process, governments would at least engage in the stages
    outlined above…

    It can also
    be reasonably expected that a ten year, multi-million dollar process,
    which is of such pivotal importance to the development of Australian
    society, would receive a formal response so that all members of the
    Australian community are clear as to the level of commitment provided
    by the government. We should also expect national coordination of
    reconciliation in order to prevent a repeat of the mistakes of the
    past, especially in regard to ensuring adequate accountability, transparency,
    effective monitoring and long term planning. (Social Justice
    2001, p195).

    The report identifies
    and examines six key features of the federal government's approach to

    1) Direct responses
    to the reconciliation documents

    To date, 'there
    has been no formal, comprehensive public response by the federal government
    to the reconciliation documents handed to the government at Corroboree
    2000 or the recommendations of the Council for Aboriginal Reconciliation's
    final report of December 2000. This is despite the passage of twelve
    months since the final report and eighteen months since the documents
    of reconciliation were released' (Social Justice Report 2001, p196).
    There has also been no response to the recommendations of the Social
    Justice Report 2000.

    There is limited
    material available which explicitly identifies the government's views
    on the recommendations in anything more than a general sense. We know
    generally that they are committed to 'practical reconciliation' but
    not specifically their response to the Council's documents or the Social
    Justice Report.

    In terms of
    an implementation process it is difficult, in fact, to identify any
    public material that demonstrates that the government has engaged
    in a good faith process to consider the Council's recommendations
    through reviewing their current programs and policies and consulting
    and negotiating with Indigenous people about ways to improve these…
    Not only has the federal government not explicitly responded to the
    CAR documents, they have quite deliberately sought to shut down debate
    and avoid any engagement about them by stating that they are committed
    to practical reconciliation (Social Justice Report, p198).

    2) National
    communiqué by the Council of Australian Governments

    The most significant
    development in the government's national leadership on this issue has
    been the November 2000 communiqué on reconciliation from Council
    of Australian Governments (COAG). In keeping with the CAR report's first
    recommendation, the communiqué commits itself to addressing Indigenous
    disadvantage through a nationally-coordinated reconciliation framework
    based on partnerships and shared responsibilities with Indigenous communities;
    programme flexibility; and coordination between government agencies,
    with a focus on local communities and outcomes. The Ministerial Council
    on Aboriginal and Torres Strait Islander Affairs (MCATSIA) is to coordinate
    and monitor this process, including a periodic review of progress on
    reconciliation. COAG has since produced a performance monitoring framework,
    but is yet to make this public.

    To date COAG's
    approach does not provide:

    … a total
    response to the recommendations of CAR or by itself as an adequate
    response of governments. This is due first to the fact that the communiqué
    does not respond to significant aspects of the Council for Aboriginal
    Reconciliation's recommendations, particularly issues that relate
    to the recognition of rights and some of the symbolic aspects of CAR's
    proposals. (p200)

    3) Reconciliation
    Australia and Reconciliation Place

    After CAR made
    its final report, the federal government provided funding for the construction
    of Reconciliation Place in the Parliamentary triangle and for the establishment
    of Reconciliation Australia, with full tax deductibility status for
    all donations.

    While Reconciliation
    Place has the potential to provide long overdue acknowledgement to the
    place of Indigenous Australians in our history, there are indications
    that it may not meet this purpose. There has been significant disquiet
    among Indigenous people over the lack of consultation about the contents
    of the square, the design of the square as well as a number of components
    contained within it, such as the representation of the removal of Indigenous
    people from their families.

    Australia has been presented by the federal government as the 'successor'
    to the Council for Aboriginal Reconciliation. However, it is a not-for
    profit private company rather than a government authority, and its operation
    and objectives have not been mandated by Parliament. Accordingly its
    relationship with government at all levels is based on goodwill. Its
    level of funding means that it will not have the capacity that CAR did
    to provide ongoing, nationally significant public awareness activities
    regarding reconciliation. Reconciliation Australia also has limited
    ability to ensure adequate processes of monitoring and evaluation in
    contrast to those proposed by CAR in the Reconciliation Bill 2000.

    There is a
    danger that the reconciliation walks from last year will be the high
    watermark of support for reconciliation, as national attention (necessarily
    related to the ability of Reconciliation Australia and the government
    to keep a national profile for reconciliation) slowly dissipates….
    better results may have been achieved with a more active leadership
    role being played by the Commonwealth, including through the use of
    forms of leverage to ensure compliance such as performance conditions
    on grants to states and territories (p203).

    4) Practical

    The government's
    'practical reconciliation' approach has continued independently of,
    and without reference to or assessment against, the Council's recommendations.
    It instead promotes a focus on 'those things where we agree on reconciliation'
    - namely, the areas of the reconciliation documents and report in keeping
    with the Coalition's longstanding Indigenous policy focus on practical

    This approach creates
    an arbitrary distinction between practical and symbolic measures - it
    does not acknowledge the inter-relationship between different issues
    and approaches or the need for multi-dimensional solutions. It lacks
    sufficient accountability for government programs - with inadequate
    performance indicators and benchmarks and monitoring and evaluation
    mechanisms. Similarly, it does not provide Indigenous people with a
    central role in determining priorities:

    Practical reconciliation
    seeks to address Indigenous people on a restrictive basis of equality.
    Ultimately it is assimilationist in approach, aiming for formal equality
    with only limited recognition of cultural difference. It seeks to
    maintain rather than transform the relationship of Indigenous people
    to the mainstream society. (p205)

    The lack of participation
    on equal terms is also evident in the dismissive approach to what have
    been termed 'symbolic issues' of reconciliation.

    One of the
    main concerns with this approach is that it clearly misconceives,
    or misrepresents, the purpose of a number of initiatives. Agreement
    making processes and a treaty are not symbolic measures - they are
    about a fundamental realignment of the relationship between Indigenous
    people and the State. They are about ensuring the effective participation
    of Indigenous people… (The government's response) is a 'take
    it or leave it approach' to reconciliation (p207).

    In Budget 2001,
    the government announced 'its commitment to reconciliation and reducing
    Indigenous disadvantage through a boost of more than $327 million to
    spending on Indigenous affairs'. While increases to funding and new
    initiatives are welcome, the definition of Indigenous-specific is extremely
    broad and includes all expenditure that in some way relates to Indigenous
    people. Some of the funding identified as Indigenous-specific is also
    clearly detrimental to Indigenous people's advancement, such as funding
    to oppose native title applications. Although Indigenous-specific programs
    are often strategic and targeted, they are not in position to replicate
    the level of services and expertise provided by mainstream programs.
    The focus should instead be outcomes-based. Shortfalls from projected
    funding needs in Budget 2001 also indicate that the need to develop
    a more fundamental and far-reaching understanding of social justice
    and equity in addressing Indigenous disadvantage.

    5) Domestic
    violence and abuse in Indigenous communities

    Some of the national
    debate about reconciliation over the past twelve months has focussed
    on domestic violence and abuse in Indigenous communities. Calls were
    made by ATSIC, Reconciliation Australia and the federal Minister for
    Reconciliation and Aboriginal and Torres Strait Islander Affairs for
    re-assessment of national coordination of this issue.

    While these calls
    received some support, such as MCATSIA's commitment to a 7-point action
    plan, there is a need for further commitments to drive a whole-of-government
    approach across all relevant Commonwealth, state and territory agencies
    and departments, including appropriate responses to requests for additional
    funding and services. Service delivery to Indigenous Australians is
    a shared responsibility between all levels of government: primary responsibility
    for issues of family violence rests with health and community service
    agencies in Federal, State and Territory governments. An awareness of
    the prevalence of violence in Indigenous peoples' lives, particularly
    those of women and children, is not new and has been the subject of
    a series of reports as well as a recent policy focus for both ATSIC
    and the Office for the Status of Women.

    The government
    has used the renewed interest in violence to reinforce its practical
    reconciliation approach - for example, as evidence that 'public debate
    is finally beginning to catch up with the government's emphasis on practical
    assistance', and that a focus on rights did not have the capacity to
    'make a practical difference to people's lives.' However:

    representatives have articulated a number of common elements for achieving
    effective outcomes in response to family violence issues. These include
    the need for national coordination of a holistic and strategic long-term
    strategy rather than quick-fix, short-term solutions, and to ground
    policy on Indigenous family violence in self-determination and cultural

    This stands
    in contrast to the Federal Government's claim that the renewed focus
    on family violence has led to a 'turning point' for Indigenous people
    in which they have recognised the need to eschew a rights-agenda and
    accept a practical reconciliation approach. (p216)

    6) Human rights
    and reconciliation

    None of the recommendations
    of CAR or the Social Justice Report 2000 relating to rights have
    been responded to or implemented. The content of rights has also been
    misrepresented by the government (see chapter 2: Mutual obligation relating
    to the misappropriation of Noel Pearson's arguments about reciprocity
    and responsibility). Of particular concern is the failure to distinguish
    between two types of human rights: citizenship rights and inherent rights.

    It appears
    from a close analysis of the arguments opposing a rights approach
    to Indigenous issues that it fails to distinguish between the two
    types of rights relevant to Indigenous peoples; citizenship rights
    and inherent rights. What are actually being attacked as the cause
    of the horrendous and irresponsible violence in some Indigenous communities
    are the rights that came with citizenship. That is, the right of Aboriginals
    to be treated the same as non-Aboriginals, without being discriminated
    against on the basis of their race. The right to leave a mission or
    reserve without first seeking permission. The right to vote. The right
    to enter a pub and buy alcohol. The right to unemployment benefits
    when out of work. The right to enter a de facto relationship. The
    right to formal equality.

    Yet of those
    attacking the rights approach as producing no improvement in Aboriginal
    lives, no one has suggested that the solution is to take these rights
    away and force Aboriginal people back to the mission or the reserve
    under the supervision of the Crown, the police or the church. To do
    so would strike at the very core of Australian society as well as
    marginalise Aboriginal communities and their problems even more than
    is presently the case. These rights do not need to be abandoned, they
    need to be augmented. The real problem with citizenship rights…
    is that they are not capable of transforming the poverty and destitution
    that marks so many Aboriginal people's lives. They were not intended
    for this purpose…

    The call to
    abandon rights assumes that they have been tried and failed. That
    is incorrect. Indigenous rights, ones that recognise Aboriginal people
    for what they are, and have the capacity to change their dire living
    circumstances, have never been embraced as a way forward. What is
    required is that Aboriginal people be given the full enjoyment of
    their inherent rights through native title and that Indigenous disadvantage

    be addressed with the full participation of those affected. (pp 218-219).

    The report makes
    two recommendations to ensure greater accountability and transparency
    by the federal government in relation to reconciliation, namely:

    The Senate empower the Legal and Constitutional References Committee
    to conduct an inquiry into the implementation and response to the reconciliation
    process. The terms of reference of the inquiry should require the Committee
    to examine the recommendations contained within the Roadmap towards
    reconciliation, the final report of the Council for Aboriginal Reconciliation
    and the Social Justice Report 2000 as well as the adequacy of the response
    of the Federal Government to each of these. In determining the adequacy
    of the response, the Committee should be required to consider processes
    by which government agencies have reviewed their policies and programs
    against the documents of reconciliation; as well as the adequacy of
    targets and benchmarks adopted and monitoring and evaluation mechanisms.

    At the time of tabling of the annual Social Justice Report in
    Parliament, or within 15 sitting days, the Government furnish a response
    to the report and its recommendations in Parliament. In the event that
    the Government does not furnish such a response in Parliament, the Senate
    consider the establishment of a parliamentary inquiry to consider matters
    that appear in or arise out of the report and its recommendations, and
    matters to which the Committee believes Parliament's attention should
    be directed.


    In submitting this
    report I am required to make any recommendations as to actions that
    should be taken by governments to improve the recognition of the human
    rights of Indigenous people.


    A Juvenile Justice Division be established and adequately resourced
    within the NT Department of Justice. Prime responsibility for coordinating
    pre-court and post-court diversion, especially family and victim-offender
    conferences and referral to programs, be transferred from NT Police
    and NT Corrections to specialist Youth Case Workers in the Juvenile
    Justice Division. NT Police retain a Juvenile Diversion Division to
    implement the continued significant police involvement in diversionary

    As an urgent priority, a review be undertaken by the Department
    of Justice to establish program needs across the Territory, particularly
    as they relate to regional areas and Indigenous people. The terms of
    the review should include examining methods for coordinating youth service
    delivery in justice, health and welfare related areas across government
    departments, including through the NT Police proposal for community
    youth development units, and the potential for Aboriginal customary
    law to be recognised through diversionary processes. The review should
    be conducted on the basis of widespread consultation, particularly with
    Indigenous organisations.

    The NT Law Reform Commission be empowered through legislation
    to conduct an independent review of the operation of pre-court and post-court
    diversionary schemes every four years. The review be required to consider
    compliance with human rights standards and to be conducted on the basis
    of widespread consultation with Indigenous organisations, communities
    and young offenders.

    The Juvenile Justice Act 1993 (NT) and Police Administration
    Act 1978
    (NT) be amended to provide legislative detail on juvenile
    diversionary processes. The amendments should require the police to
    inform the young person that they are entitled to access to a legal
    advocate or a registered local community advocate (for example, in remote
    areas) at any stage of the process and to facilitate contact immediately
    if so required; and should require an admission of guilt prior to a
    diversionary option, other than a verbal warning, being offered. The
    amendments should also provide for review of decisions regarding diversion,
    and independent monitoring and evaluation provisions (as outlined above).
    In relation to Indigenous young people, the legislation should specify
    that they are entitled to an interpreter as well an interview friend
    (in accordance with the Anungu rules).

    A children's legal service be established and appropriately resourced,
    including through the provision of a 24 hour phone hotline for children's
    legal advice.

    It be made an offence to publish material identifying a defendant
    or a young person who has participated in a diversionary option under
    the age of 18 years.


    The Young Offenders Act 1994 (WA) be amended to include
    greater detail on the operation of diversionary options in WA, rather
    than matters integral to the process being contained in Police General
    Orders. The amendments should include the following as a minimum:

    • create a presumption
      that police will divert young people unless a range of specified criteria
      are not met;
    • provide for
      review of decisions regarding diversion;
    • require that
      a young person is informed that they are entitled to access to a legal
      advocate at any stage of the process;
    • require that
      an interpreter be freely available at all stages in the process where
      there is doubt about the ability of the young person to understand
      the proceedings or express themself in English; and
    • provide that
      previous cautions and justice team referrals cannot be cited in court
      as though they form part of a prior record.

    The Department of Justice consult regional councils of the Aboriginal
    and Torres Strait Islander Commission and Aboriginal community organisations
    about the adequacy of current community based diversionary programs
    for Indigenous juvenile offenders, particularly in regional areas, and
    their form, organisation, management and coordination in the future.

    Juvenile Justice Teams and conferencing processes be adequately
    funded in regional areas. Funding be provided for the employment of
    Aboriginal workers, and the training of Aboriginal people in local communities
    to act as conference facilitators.

    The Department of Justice coordinate the development of consistent
    record keeping on diversionary processes across all agencies, particularly
    the Department of Justice, Police and Children's Court. Record keeping
    must identify the ethnicity of offenders in order to identify the extent
    of any racial bias in referral processes. This data should be subject
    to ongoing and independent monitoring and evaluation.


    The Senate empower the Legal and Constitutional References Committee
    to conduct an inquiry into the implementation and response to the reconciliation
    process. The terms of reference of the inquiry should require the Committee
    to examine the recommendations contained within the Roadmap towards
    , the final report of the Council for Aboriginal Reconciliation
    and the Social Justice Report 2000 as well as the adequacy of
    the response of the Federal Government to each of these. In determining
    the adequacy of the response, the Committee should be required to consider
    processes by which government agencies have reviewed their policies
    and programs against the documents of reconciliation; as well as the
    adequacy of targets and benchmarks adopted and monitoring and evaluation

    At the time of tabling of the annual Social Justice Report in
    Parliament, or within 15 sitting days, the Government furnish a response
    to the report and its recommendations in Parliament. In the event that
    the Government does not furnish such a response in Parliament, the Senate
    consider the establishment of a parliamentary inquiry to consider matters
    that appear in or arise out of the report and its recommendations, and
    matters to which the Committee believes Parliament's attention should
    be directed.