Social Justice Report 2006
Appendix 2: Summary of the Social Justice
Commissioner’s main findings and messages on ending family violence and
abuse in Indigenous communities
This appendix summarises the main findings from research and consultations
conducted by the Human Rights and Equal Opportunity Commission between 2001 and
2006 that relate to family violence and abuse in Indigenous communities. The
summary has also been published in a more detailed research paper prepared by
the Social Justice Commissioner in 2006 entitled Ending family violence and
abuse in Aboriginal and Torres Strait islander communities: Key
The prevalence of family violence and abuse in Indigenous communities is
becoming well known as a result of media attention and more open community
discussion in recent years. As a result there is greater awareness of the social
and cultural harm that this violence is inflicting, predominantly on Indigenous
women and children, and often across generations.
The Social Justice Commissioner is committed to working with Indigenous
communities and governments to end family violence in Indigenous communities.
Over the past five years, the Social Justice Commissioner has actively
engaged in public discussions, undertaken research, and consulted with
Indigenous communities about how best to address family violence. Through this
work, he has drawn attention to the fact that Indigenous Australians are
entitled to live their lives in safety and full human dignity, and sought to
ensure that program responses to family violence in Indigenous communities are
built on solid evidence and facts. Above all, the Social Justice Commissioner
has sought to emphasise that violence against women and children has no place in
Indigenous customary laws and no place in contemporary Indigenous communities.
Much of the work presented in the summary is the result of consultation with
Indigenous peoples, in recognition of the fact that addressing family violence
will require partnerships with Indigenous peoples and communities. We need to
ensure that the day-to-day realities that exist in Indigenous communities are
recognised and reflected in any policy responses to family violence. We also
need to ensure that policy responses are holistic and able to address the range
of causal factors that contribute to family violence. Only in this way will
Indigenous Australians be able to enjoy their right to live in safety, free from
family violence and abuse.
Family violence – key messages
- Family violence is abhorrent and has no place in Aboriginal or Torres Strait
Islander societies. It is a scourge that is causing untold damage and trauma
among Indigenous communities, to our women and children, and to the fabric of
- Indigenous, women, children and men are entitled to live their lives in
safety and full human dignity. This means without fear of family violence or
abuse. This is their cultural and their human right.
- Violence and abuse is a criminal matter. If an Indigenous person commits an
offence they should be dealt with by the criminal justice system just as any
other person would be. There should also be swift intervention from care and
protection systems to ensure that the ‘best interests of the child’
is the primary consideration.
- Government officials and community members should be fearless and bold in
reporting suspected incidents of violence and abuse. This means addressing the
code of silence that exists in many Indigenous communities about these issues.
And it means government officers meeting their statutory obligations, meeting
their duty of care and taking moral responsibility in the performance of their
duties as public officials.
- Violence relates to almost every aspect of policy making and service
delivery to Indigenous communities. The solutions to family violence and abuse
in Indigenous communities are complex, multi-faceted and require long term focus
and commitment to address. They require bi-partisan political will and
leadership at the highest levels of government.
- Governments must work in partnership with Indigenous peoples and communities
to identify and implement solutions to address family violence and abuse.
- We need to adopt a holistic approach to address the causes and the
consequences of family violence in Indigenous communities.
- We can no longer accept the making of commitments to address Aboriginal and
Torres Strait Islander inequality without putting in place processes and
programs to match the stated commitments. Programs and service delivery must be
adequately resourced and supported so that they are capable of achieving the
- We can also not accept the failure of governments to commit to an urgent
plan of action. It is not acceptable to continually state that the situation is
tragic and ought to be treated with urgency, and then fail to put into place
bold targets to focus policy making over the short, medium and longer term or to
fund programs so they are capable of meeting these targets.
Ten key challenges in addressing family violence
- Turn government commitments into action: Governments have been
making commitments to address family violence for some time already. What we
need is concerted, long term action which meets these commitments.
- Indigenous participation: This action must be based on genuine
partnership with Indigenous peoples and with our full participation.
- Support Indigenous community initiatives and networks: There
are significant processes and networks already in place in Indigenous
communities to progress these issues. We need to support them to lead efforts to
stamp out violence, including by developing the educational tools to assist them
to identify and respond to family violence.
- Human rights education in Indigenous communities: There is a
need for broad based education and awareness-raising among Indigenous
communities. Working with communities to send strong messages that violence
won’t be tolerated, that there are legal obligations and protections, and
that individuals have rights, are critical if we are to stamp out family
- Don’t forget our men and don’t stereotype them as
abusers. Family violence is fundamentally an issue of gender equality.
We need strong leadership from women, but we also need the support of Indigenous
men if we are to make progress in stamping out violence. Indigenous men need to
model appropriate behaviour, challenge violence and stand up against it, and
support our women and nurture our children.
- Look for the positives and celebrate the victories. There are good things happening in Indigenous communities, even if the national
media is not interested in reporting them. We need to confront family violence,
but also do so by reinforcing the inherent worth and dignity of Indigenous
peoples, not by vilifying and demonising all Indigenous peoples.
- Re-assert our cultural norms and regain respect in our
communities. Family violence and abuse is about lack of respect
for Indigenous culture. We need to fight it as Indigenous peoples, and rebuild
our proud traditions and community structures so that there is no place for fear
- Ensure robust accountability and monitoring mechanisms: There
must be accountability measurements put into place to hold governments to their
commitments. This requires the development of robust monitoring and evaluation
mechanisms. These will also allow us to identify and celebrate successes.
- Changing the mindset: We require a change in mindset of
government from an approach which manages dysfunction to one that supports
functional communities. Current approaches pay for the consequences of
disadvantage and discrimination. It is a passive reactive system of feeding
dysfunction, rather than taking positive steps to overcome it. We need a
pro-active system of service delivery to Indigenous communities focused on
building functional, healthy communities.
- Targeting of need: Let us be bold in ensuring that program
interventions are targeted to address need and overcome disadvantage. As it
stands, government programs and services are not targeted to a level that will
overcome Indigenous disadvantage. Hence, they are not targeted in a way that
will meet the solemn commitments that have been made. They are targeted to
maintain the status quo.
Defining family violence in Indigenous
- Indigenous concepts of violence are much broader than usual mainstream
definitions of domestic violence. For Indigenous peoples, the term family
violence better reflects their experiences.
- Family violence involves any use of force, be it physical or non-physical,
which is aimed at controlling another family or community member and which
undermines that person’s well-being. It can be directed towards an
individual, family, community or particular group. Family violence is not
limited to physical forms of abuse, and also includes cultural and spiritual
abuse. There are interconnecting and trans-generational experiences of violence
within Indigenous families and communities.
- There are significant deficiencies in the availability of statistics and
research on the extent and nature of family violence in communities. What data
exists suggests that Indigenous people suffer violence, including family
violence, at significantly higher rates than other Australians do. This
situation has existed for at least the past two decades with no identifiable
- Indigenous women’s experience of discrimination and violence is bound
up in the colour of their skin as well as their gender. The identity of many
Indigenous women is bound to their experience as Indigenous people. Rather than
sharing a common experience of sexism binding them with non-Indigenous women,
this may bind them more to their community, including the men of the community.
- Strategies for addressing family violence in Indigenous communities need to
acknowledge that a consequence of this is that an Indigenous woman ‘may be
unable or unwilling to fragment their identity by leaving the community, kin,
family or partners’ as a solution to the violence.
Designing programs to address family
- There are currently a patchwork of programs and approaches to addressing
family violence in Indigenous communities among federal, state and territory
governments. However, there remains a lack of coordination and consistency in
approaches to addressing these issues between governments and among different
government agencies. Significant gaps also exist.
- There are three recurring strategic aspects that need to be present to
address family violence in Indigenous communities, namely that:
- programs be community-driven (with leadership from men as well as women);
- community agencies establish partnerships with each other and with relevant
government agencies; and
- composite violence programs are able to provide a more holistic approach to
- An emphasis solely on criminal justice responses to family violence poses
two main concerns for Indigenous women:
- The first is that the system is generally ineffective in addressing the
behaviour of the perpetrator in the longer term. The effect of imprisonment is
to remove them from the community and then, without any focus on rehabilitation
or addressing the circumstances that led to the offending in the first place, to
simply return them to the same environment.
- The second is that there are a range of barriers in the accessibility and
cultural appropriateness of legal processes which discourage Indigenous women
from using the criminal justice system in the first place.
- The first is that the system is generally ineffective in addressing the
- Existing programs addressing Indigenous family violence programs can be
categorised into the following broad areas of intervention:
- Support programs - Accessible and appropriate counselling is
essential, not only for the victims and perpetrators of violence, but also for
family and community members who not only deal with the issue of violence
itself, but to also provide post-violence counselling to family members.
- Identity programs – Identity programs aim to develop within the
individual, family or community, a secure sense of self-value or self-esteem.
This can be achieved through diversionary programs and also through therapy
based programs that focus on culturally specific psychological or spiritual
healing. All these programs may be accessed prior to, and after involvement with
violence, and offer a longer-term response through attempting to change the
situational factors underlying violence.
- Behavioural change (men and women’s groups) – As the
majority of family violence is perpetrated by men, strong support for
men’s behavioural reform programs is required. Complementary groups and
support services for Indigenous women should be run parallel to men’s
programs, and complementary preventative/intervention programs for youth be an
integral part of the whole strategy.
- Night patrols - Have the potential to build cooperation and mutual
respect and support with local police. Night patrols, particularly in remote
areas, use and strengthen Indigenous mechanisms for social control, thereby
ensuring that traditional methods are afforded a key role in the control of
anti-social behaviour, minor criminal infractions and potentially serious
criminal incidents in the Indigenous community.
- Refuges and Shelters - While an important part of any family violence
intervention strategy, they are not a sufficient response to the difficulties
produced by high levels of violence in Indigenous communities. They represent a
reactive strategy in addressing the underlying causes, thereby creating no
possibility of a change in the pattern of violent behaviour. Refuges and
women’s shelters need to be coupled with other proactive strategies
targeted at the perpetrators of violence and other situational factors.
- Justice programs – These programs are characteristically aimed
at the perpetrators of violence. They aim to mediate between people in conflict,
designate appropriate cultural punishments for offenders, and reduce the
likelihood of re-offending.
- Dispute resolution – Anecdotal evidence suggests that success
has been achieved where impartial members of the Indigenous community are used
as facilitators and traditional dispute-resolution techniques are incorporated
into mediation processes.
- Education and awareness raising – Education and training
programs are vital to raise awareness about family violence prevention; as well
as develop skills within communities to resolve conflicts and identify the need
for interventions with perpetrators. There are (currently) no educational
programs targeted at young children for use in Indigenous pre-schools and
schools. With the knowledge we now have about the detrimental effects of
violence on children, or witnessed by children and the generational cycles by
which violence is transmitted, it is essential to provide violence prevention
education programs within pre-schools and schools.
- Holistic composite programs – Programs which are comprised of
elements of the above categories. These operate to target different forms of
violence in the community, target different categories of offenders or victims,
or employ different methods of combating or preventing violence.
- Support programs - Accessible and appropriate counselling is
- The implementation of composite programs, particularly in communities
displaying multiple forms of increasing violence, is shown to be an emerging and
preferred approach that reflects a more systematic way of combating violence,
combining both proactive and reactive methods which target different age and
- An issue for governments introducing services is how to best trigger such
programs in communities where they are obviously needed while at the same time
creating a climate whereby the programs are community-originating, motivated and
controlled. The Violence in Indigenous Communities
report (by Memmott, Stacy,
Chambers and Keys, herein the Memmott report) recommends ‘that government
agencies take a regional approach to supporting and coordinating local community
initiatives, and assisting communities to prepare community action plans with
respect to violence’.
A human rights based approach to overcoming
- Australia has legal obligations in international human rights treaties to
address the disadvantage experienced by Indigenous Australians, including in
relation to family violence issues and the social and economic conditions which
contribute to violence. Article 2 of the International Covenant on Economic,
Social and Cultural Rights requires that the government ‘take steps to
the maximum of its available resources, with a view to achieving progressively the full realization of’ rights ‘by all appropriate means’ [emphasis added].
- This obligation means that governments must progressively achieve the full
realisation of relevant rights and to do so without delay. Steps must be
deliberate, concrete and targeted as clearly as possible towards meeting the
obligations recognized in the Covenant.
- This also requires that governments establish timeframes for the achievement
of outcomes and identify appropriate indicators, in relation to which they
should set ambitious but achievable benchmarks, so that the rate of progress can
be monitored and, if progress is slow, corrective action taken. Setting
benchmarks enables government and other parties to reach agreement about what
rate of progress would be adequate.
- This is fundamentally an issue of government accountability for service
delivery and outcomes. It requires governments’ actions to match the
commitments that they make, and for governments to demonstrate that they have a
plan for when outcomes will be achieved – ie, that programs are
benchmarked with targets and goals.
- Indigenous peoples have the right to full and effective participation in
decisions which directly or indirectly affect their lives. Such participation
should be based on the principle of free, prior and informed consent, which
includes governments providing information which is accurate, accessible, and in
a language the indigenous peoples can understand.
- Governments should establish transparent and accountable frameworks for
engagement, consultation and negotiation with indigenous peoples and
communities. This should allow for the full and effective participation of
indigenous men, women and young people in the design, negotiation,
implementation, monitoring, evaluation and assessment of outcomes.
Recognising Aboriginal customary law consistently
with human rights
- Aboriginal customary law does not condone family violence and abuse, and
cannot be relied upon to excuse such behaviour. Perpetrators of violence and
abuse do not respect customary law and are not behaving in accordance with it.
- Aboriginal customary law must be applied consistently with human rights
standards. At no stage does customary law override the rights of women and
children to be safe and to live free from violence.
- Any attempts to recognise Aboriginal customary law in a manner inconsistent with human rights standards would place Australia in breach
of its obligations under international law and activate a duty on the part of
the federal government to nullify or override such breaches.
- There will be many instances where there will be no conflict between
individual and collective rights (as expressed through customary law), and where
they will be able operate in an interdependent manner. The recognition of
Aboriginal customary law and collective rights has the capacity to strengthen
social structures within Aboriginal communities as well as the observance of law
Balancing customary law with human rights
- There will, however, be other circumstances where individual and collective
rights are in opposition and a balance must be struck. This does not mean that
collective and individual rights are irreconcilable. Decisions made under the
Optional Protocol to the ICCPR and General Comments interpreting the scope of
the ICCPR by the United Nations Human Rights Committee in relation to Article 27
of the Covenant, for example, provide guidance on how this contest between
collective and individual rights should be resolved.
- The Human Rights Committee has noted that Article 27 applies to indigenous
peoples, and that it creates a positive obligation on governments to protect
- The Committee has, however, placed limits on those measures that can be
recognised. So while it acknowledges that positive measures by governments may
be necessary to protect the identity of a minority and the rights of its members
to enjoy and develop their culture and language and to practise their religion,
it also notes that such positive measures must respect the provisions of
Articles 2.1 and 26 of the Covenant. These Articles relate to the principle of
non-discrimination and how it applies in relation to the treatment between
different minorities, as well as the treatment between the persons belonging to
a minority group and the remainder of the population.
- Similarly, the Committee notes that 'none of the rights protected under
Article 27 of the Covenant may be legitimately exercised in a manner or to an
extent inconsistent with other provisions of the Covenant'. This includes, for
example, Article 6 (the inherent right to life); Article 7 (torture or cruel,
inhuman or degrading treatment); and Article 23 (requirement of free and
informed consent for marriage).
- The rights which persons belonging to minorities enjoy under Article 27 of
the Covenant in respect of their language, culture and religion, do not
authorise any State, group or person to violate the right to the equal enjoyment
by women of any Covenant rights, including the right to equal protection of the
- The Committee has also stated that female genital mutilation is a practice
that breaches Articles 6 and 7 of the Covenant, despite the cultural
significance of the practice in some societies; and has expressed concern about
domestic violence, including forced sexual intercourse, within the context of
- The provisions of the ICCPR are also to be read consistently with the
interpretation of similar relevant rights under other conventions such as the International Convention on the Elimination of All Forms of Discrimination
Against Women (‘CEDAW’) and the Convention on the Rights of
the Child (‘CRC’).
- The right to freedom from violence is accepted as implicit in the right to
freedom from discrimination under CEDAW. The Convention also requires that all
appropriate measures should be taken to ‘modify the social and cultural
patterns of conduct of men and women’ so as to eliminate ‘prejudices
and customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women’.
- The Committee on the Elimination of Discrimination Against Women has noted
that traditional practices by which women are regarded as subordinate to men or
as having stereotyped roles, perpetuate widespread practices involving violence
or coercion. These can include: family violence and abuse, forced marriage,
dowry deaths, acid attacks and female circumcision. Such prejudices and
practices may justify gender-based violence as a form of protection or control
of women. The effect of such violence on the physical and mental integrity of
women is to deprive them of the equal enjoyment, exercise and knowledge of human
rights and fundamental freedoms.
- The particular vulnerability of children is recognised by the CRC. Similar
to the ICCPR, the CRC specifically recognises the right of indigenous children
to enjoy their own culture in community with other members of his or her own
group. However, governments have obligations to protect children from
all forms of sexual abuse and all other forms of exploitation prejudicial to any
aspects of the child’s welfare.
Resolving conflicts between human rights and Aboriginal
- Mainstream law should consider apparent conflicts between Aboriginal
customary law and women's individual rights on a case by case basis. It is also
important to recognise that custom and law can adapt to general societal change,
thus allowing resolution of apparent conflict. The potential for conflict should
not be used by government as an excuse to avoid the recognition of Aboriginal
customary law or by Aboriginal communities to condone breaches of human rights.
- In situations where women's human rights are at risk, Indigenous communities
should be encouraged to develop their own solutions to these problems and to
adapt traditional practices to ensure women's human rights. While all attempts
should be made to reconcile women's individual human rights with the rights of
Indigenous peoples to retain and enjoy their culture, HREOC considers that
women's individual human rights must ultimately prevail. HREOC considers that
the recognition of Aboriginal customary law must also take active steps to
ensure women's right to individual safety and freedom from violence.
- HREOC considers that it is preferable for judicial decision makers to be
required to balance Aboriginal customary law issues with human rights standards,
rather than imposing a legislative uniform ban or refusing to recognise certain
- It is also the view of HREOC that international human rights principles are
relevant to the balance that must be achieved in sentencing decisions involving
Aboriginal customary law. Further, a sentence which leads to impermissible
discrimination against a woman or a child under international human rights
principles is an error of law both in the balancing exercise under the
provisions of Sentencing Acts and under the common law.
- The Court of Criminal Appeal of the Northern Territory in a recent decision
(The Queen v GJ) has confirmed that where Aboriginal customary law
conflicts with Territory law, the latter must prevail. The Court also stated
that it has never been the case that the courts of the Northern Territory have
given precedence to Aboriginal customary law when it conflicts with the written
law of the Northern Territory.
- The Court of Criminal Appeal of the Northern Territory also noted that to
date ‘consultation with Aboriginal communities about (these) principles
has too often been perfunctory’ and suggested that it may be an
appropriate matter for HREOC ‘to give consideration to the implementation
of educational programs about (conflicts between customary law and criminal
codes) in Aboriginal communities’.
Indigenous women, imprisonment and post-release
- Indigenous women are increasingly over-represented in criminal justice
processes. This is occurring in the context of intolerably high levels of family
violence, over policing for selected offences, ill health, unemployment and
- There is a consistent pattern indicating that incarcerated Indigenous women
have been victims of assault and sexual assault at some time in their lives.
Indigenous women are also significantly over represented as victims of violent
- A matter of great concern in relation to current debates about addressing
family violence in Indigenous communities are issues of access to justice for
Indigenous women. A matter of particular concern is the limited ability of
funding of Aboriginal and Torres Strait Islander Legal Services (ATSILS) to
provide access to justice for Indigenous women through legal representation and
family violence services.
- There is an urgent need to ensure appropriate funding levels for ATSILS,
Family Violence Prevention Legal Services and Indigenous women’s legal
services, in order to provide a greater focus on the legal needs of Indigenous
women as well as a greater focus on preventative action and community education.
- Links must be drawn and holistic models developed and supported which
address the connections between culture, drug use, alcohol use, separation from
family, violence, poverty, spiritual needs, housing, health, boredom, race
discrimination and gender discrimination.
- Effective pre-and post-release programs should include community based,
Indigenous specific programs to help women deal with the effects of violence and
to help women develop alternative strategies for coping with violence in the
future. People require protection from violent behaviour and alternative
structures for prevention and punishment of violent behaviour which provide more
than imprisonment with all its risks and consequences.
- Effective pre-and post-release programs need to recognise and treat the
complexity of experience of the experience of Indigenous individuals who are
both victims and perpetrators of violence. Programs will also need to provide
support for Indigenous women to reintegrate back into the community. The types
of support required by each woman will be determined by her location and other
issues. For instance, for some women there may be issues of payback, and she may
not be able to return to her community until those issues are resolved. Other
women may need to return to small communities, where contact with the
perpetrator of violence cannot be avoided.
- The issues of healing and wellness are critical issues for Indigenous women
exiting prison. Processes for healing are seen as having the potential to
increase the health and wellbeing of Indigenous women, with a possible outcome
of this being reductions in rates of involvement of Indigenous women in criminal
- Indigenous concepts of healing are based on addressing the relationship
between the spiritual, emotional and physical in a holistic manner. An essential
element of Indigenous healing is recognising the interconnections between and
effects of violence, social and economic disadvantage, racism and dispossession
from land and culture on Indigenous peoples, families and communities.
- Healing can be context specific. For example, it may be necessary to address
issues of grief and loss- or there may be a more general need to assist
individuals to deal with any trauma they may have experienced. The varying
nature of healing demonstrates that it cannot be easily defined, with healing
manifesting itself differently in different communities.
- Healing is not a program, rather it is a process. Healing is not something
that should only be available at the post-release stage. It should be available
at any point when a woman is ready. This may be before a woman comes into
contact with the criminal justice system, or after she has been in and out of
prison over a number of years. Further, healing in the context of criminal
justice, attempts to help the individual deal with the reasons why they have
offended in the first place. This element of healing is strongly linked to the
notion of restorative justice. For this reason, healing has the potential to fit
within a restorative justice framework.
- There are, however, relatively few programs and services for Indigenous
women exiting prison that presently focus on healing processes in Australia. The
conversion of concepts of healing into actual programs and services is very much
in its infancy here. As the case study of the Yula Panaal Cultural and Spiritual
Healing Program in New South Wales demonstrates, they also face difficulty in
- The traditional approach to distributing available funding for programs and
services is dictated by an economy of scale. This impacts negatively on
Indigenous women as it delivers minimum resources to a population within the
community that has a high level of need. Given that Indigenous women are
manifestly the smallest population in the Australian prison system, it is
somewhat understandable that they are the group with the least amount of
resources directed towards them. However it is precisely this lack of direct
resources that goes someway to maintaining Indigenous women’s distinct
disadvantage in society.
Indigenous youth and criminal justice
- The Aboriginal and Torres Strait Islander population is growing faster than
the non-Indigenous population. The annual rate of growth for Indigenous peoples
has been estimated at 2.3% compared with approximately 1.2% for non-Indigenous
Australians. As a result, the challenges for service delivery to Indigenous
youth will be exacerbated over the coming decades.
- Indigenous males comprise 46 percent of the total national male juvenile
detention population and Indigenous females comprise 57 percent of the total
national female juvenile detention population. Although overall there has been a
decline in rates of detention for both Indigenous and non-Indigenous juveniles,
the ratio of over-representation continues in a stable trend with Indigenous
young people 20 times more likely to be incarcerated than non-Indigenous young
- While there are limited statistics available, it is believed that a
significant percentage of Indigenous juvenile detainees have a disability.
Indigenous young people living in poor physical and social environments
experience higher rates of cognitive / intellectual disabilities and poorer
- There are a range of developmental issues that impact on the cognitive
functioning and mental health of Indigenous young people and their communities
such as Foetal Alcohol Syndrome, petrol sniffing, physical and emotional
violence and poor nutrition.
- The Western Australian Aboriginal Child Health Survey (WAACHS) revealed that Aboriginal children experience a high risk of clinically
significant emotional or behavioural difficulties. It found that there are clear
associations between family and household factors and risk of clinically
significant emotional and behavioural difficulties experienced by Aboriginal
children and young people. The factor most strongly associated with high risk of
clinically significant emotional or behavioural difficulties in children was the
number of major life stress events (e.g. illness, family break up, arrests or
financial difficulties) experienced by the family in the 12 months prior to the
- Similarly Pathways to Prevention, a report developed for the National
Crime Prevention Strategy urges government to focus on early developmental
phases of a child as a means to thwarting future contact with the criminal
- Failures to address issues relating to mental health, child protection,
disability and community service systems contribute to the increased risk of
children entering the juvenile justice system. These failures include lack of
support services, appropriate treatment and behaviour intervention programs,
family based care services and accommodation options; the use of inappropriate
and harmful service practices, such as physical restraint and medication; the
risk or actual occurrence of physical and sexual assault; and the reliance on
the police to resolve challenging behaviour. There is also evidence to suggest
that the lack of support services for children and appropriate policies and
practices to deal with challenging behaviour often leads services to rely on or
view juvenile justice facilities to provide a stable and secure care environment
and as a solution to a complex problem.
- The past decade has seen an increased emphasis on restorative justice
mechanisms for addressing criminal behaviour in Indigenous communities to
address the needs of victims (including of family violence) as well as to make
the system more meaningful to offenders.
- Restorative justice is fundamentally concerned with restoring social
relationships, with establishing or re-establishing social equality in
relationships. That is, relationships in which each person's rights to equal
dignity, concern and respect are satisfied. As it is concerned with social
equality, restorative justice inherently demands that one attend to the nature
of relationships between individuals, groups and communities. Thus, in order to
achieve restoration of relationships, restorative justice must be concerned with
both the discrete wrong and its relevant context and causes.
- This does not necessarily seek to return a relationship to the position
prior to the commission of some wrongdoing, but instead to address the
underlying issues. Restorative justice can thus incorporate concepts of
restitution and healing, while focusing on the transformation of
- There are numerous new initiatives in Australia developing community based
justice mechanisms for Indigenous peoples which are based on restorative justice
principles. Some of these processes, such as Law and Justice Committees in the
Northern Territory and Community Justice Groups in Queensland incorporate a
holistic response to family violence into strategies for addressing offending in
- The last two years have also seen the development of community justice
mechanisms for involvement of Indigenous peoples in sentencing. Examples include
the Ngunga Court and Ngunga Youth Court in South Australia; the Murri Court in
Queensland; the Koori Court in Victoria and circle sentencing in New South
Wales. Generally, these processes seek to incorporate an Aboriginal traditional
customary law approach to the sentencing of Aboriginal offenders within the
framework of existing legislation. While there are variations between the
various models, they all involve Aboriginal Elders sitting alongside the
magistrate to advise on sentencing options, with members of the offender's
family, the victim, the victim's family and other interested community members
participating in the sentencing process.
- A NSW report on circle sentencing in Nowra has been conducted to review the
first twelve months of operation. The review found that circle sentencing helps
to break the cycle of recidivism, introduces more relevant and meaningful
sentencing options for Aboriginal offenders with the help of respected community
members, reduces the barriers that currently exist between the courts and
Aboriginal people, leads to improvements in the level of support for Aboriginal
offenders, incorporates support for victims, promotes healing and
reconciliation, increases the confidence and generally promotes the empowerment
of Aboriginal people in the community.
- While these processes have been considered successful in their initial
years, they are limited to dealing with particular non-violent offences.
Accordingly, offences relating to violence and sexual offences cannot be
addressed within these sentencing processes.
- The NSW Aboriginal Justice Advisory Committee has proposed the extension of
community controlled justice mechanisms to deal with family violence. This
involves establishing localised justice mechanisms and healing centres combined
with alternative sentencing processes for offenders which seek to establish
formal links with local Aboriginal communities. In this approach, community
justice and healing centres would be established as a single point of contact
for victims of family violence.
- There are similarities in this proposal with the Northern Territory Law and
Justice Committee and Queensland Community Justice Group approaches, as well as
similarities with the roles of services established under the Family Violence
Prevention Legal Service Program. It also provides what the Memmott report, as
discussed earlier, identified as a holistic composite set of programs for
addressing family violence.
- It also has similarities to Canadian models for addressing sex offending by
Indigenous peoples. The Canadian approach emphasises the need for restorative
justice, community-based initiatives beyond the justice system such as
victim-offender mediation, family group conferencing, sentencing circles and
formal cautioning. It also highlights the gaps that exist in addressing
Aboriginal sex offender needs and the need for Aboriginal control of
appropriately cultural services. The report Aboriginal Sexual Offending in
Canada identifies four areas where action is necessary to address Aboriginal
sexual offending: community development; program development; research and human
resources. The effectiveness of
this model and whether aspects could be transferred to the Australian context,
particularly in regard to community capacity-building and service coordination,
is an avenue for further investigation.
- These models and proposals suggest that the full potential of community
justice mechanisms for addressing family violence has not been explored
sufficiently, and may provide an appropriate way forward for addressing some
aspects of need.
- The criminal justice system is extremely poor at dealing with the underlying
causes of criminal behaviour and makes a negligible contribution to addressing
the consequences of crime in the community. One of the consequences of this, and
a vital factor that is often overlooked, is that Indigenous victims of crime and
communities are poorly served, if served at all, by the current system.
- Accordingly, the current system disadvantages Indigenous peoples from both
ends. It has a deleterious effect on Indigenous communities through
over-representation of Indigenous peoples in custody, combined with the lack of
attention it gives to the high rate of Indigenous victimisation, particularly
through violence and abuse in communities. Reform to criminal justice processes,
including through community justice initiatives, must be responsive to these
- There are limited services which target Indigenous victims of crime. A
number of existing victim support services and victims compensations services,
in particular, also do not record Indigenous status of their clients. This makes
it difficult to assess whether services are being accessed and are meeting the
needs of Aboriginal peoples and Torres Strait Islanders.
- Poor mental health contributes to the crisis of family violence, anti-social
behaviour, substance misuse, confrontation with the legal system, low
participation in schooling and employment that are seen in a significant number
of Aboriginal and Torres Strait Islander communities.
- There is currently no national data collection process that is able to
provide accurate information on the incidence of mental health disorders or
treatment occurring among Indigenous peoples in Australia. All we know is that
suicide, substance abuse and family and community violence are problems and
there are services in place in some communities to address these. Most of the
data we have about mental ill-health in Indigenous adults is that gleaned after
crisis situations, when the mental health issue results in hospitalisation.
- The Western Australian Aboriginal Child Health Survey, published in April
2005, surveyed a sample of approximately 5,000 children. It reported that one in four (1:4) Aboriginal children are at high risk of
developing clinically significant emotional or behavioural difficulties. This
compares to about one in six or seven (1:6/7) of non-Indigenous children.
- Research has also indicated that children with poor mental health have a
greater tendency to develop into adults with poor mental health.
- Suicide and other forms of self-harm: In 1998, Indigenous males
committed suicide at 2.6 times the rate in the non-Indigenous population; for
Indigenous females the rate is double that of females in the non-Indigenous
population. In 2000-01, Indigenous males were hospitalised at 2.2 times the rate
of males in the general population and Indigenous females at 2.0 times the rate
of females in the general population for intentional self-injury. The National
Health Survey in 2001 reported 10% of Indigenous peoples were likely to consume
alcohol at risk or high-risk levels, compared with 11% of non-Indigenous people.
However, this finding contrasts with other sources that report Indigenous
peoples consume alcohol at risk levels twice that of the non-Indigenous
community. Apart from alcohol, substance abuse is reported to be higher in
- Indicators for other forms of harm behaviours: Violence is
symptomatic of poor mental health in perpetrators and is associated with
substance abuse. It is also a stressor to the mental health of victims. Violence
kills Indigenous peoples at four times the rate of the non-Indigenous
population. Reported physical, or threatened physical, violence, appears to have
doubled over 1994 - 2002: 12.9% of respondents in 1994 identifying as victims,
compared to 24.3% of respondents in 2002 in Indigenous social surveys. In 2001,
Indigenous females were 28.3 times more likely to be hospitalised for assault
than non-Indigenous females; males at 8.4 times the non-Indigenous rate.
- Suicide and other forms of self-harm: In 1998, Indigenous males
- Mental ill-health among Indigenous peoples must be understood in a holistic
context. As the National Aboriginal Health Strategy put it
‘[h]ealth to Aboriginal peoples is a matter of determining all aspects of
their life, including control over their physical environment, of dignity, of
community self-esteem, and of justice. It is not merely a matter of the
provision of doctors, hospitals, medicines or the absence of disease and
- The combination of problems suffered within Indigenous communities is the prime example of negative social determinants of health in Australia.
Violence and addiction in communities undermines the resilience of members and
erodes the capacity of communities to support the mental health of members. The
impact of addiction on communities has been most closely observed in relation to
alcoholism, although petrol sniffing and other substance abuse must be
considered in relation to some communities.
- Social support and social cohesion are associated with good mental health.
Studies show that people in long-term, familial relationships and close-knit
communities are better able to deal with stress and will live longer than those
who do not.
- Strengthening communities and culture clearly has potentially positive
implications for the mental health of community members. Likewise, policies and
programs that erode the strength and culture of communities can be considered as
having negative impacts on community members.
- There are significant links between substance abuse and violence. The links
between substance and abuse and violence mean that strategies to prevent and
mitigate substance abuse also need to address the impacts of substance abuse on
- Potential responses to address the impacts of substance abuse need to
address the those directly affected by substances, those potentially at risk of
taking up substances at dangerous levels, and the impacts on those who come into
contact with people affected by substances.
- Typically, responses to address substance abuse are based on three phase
health frameworks that include prevention measures, intervention strategies, and
measures to overcome the impacts of those disabled through substance abuse. They
- Primary interventions – to reduce recruitment into substance
- Secondary interventions – seeking to achieve abstinence and
- Tertiary intervention – providing services to the permanently
- Primary interventions – to reduce recruitment into substance
- The social impacts of sniffing are as follows:
Petrol sniffing poses a range of problems to sniffers, their
families, communities and to the wider society. Among the problems which have
been associated with petrol sniffing are: serious health consequences including
death or long-term brain damage, social alienation of sniffers, social
disruption, vandalism and violence, increased inter-family conflict and reduced
morale on communities, incarceration of sniffers and costs to the health system
in terms of acute care and providing for the long-term
- In introducing liquor licence conditions and restrictions in Indigenous
communities on alcohol the Racial Discrimination Act 1975 (Cth) must be
- HREOC's Alcohol Report, published in
1995, considers the fact that
while you might be detracting from the rights of the individual to alcohol by
virtue of introducing restrictions, you may be in fact conferring rights on the
group as a result (known as 'collective rights'). In the Alcohol Report, the Commission reasoned that alcohol restrictions could be conceived
as conferring some benefits in terms of the 'collective rights' it might promote
in Indigenous communities. Such benefits might be a reduction in the incidence
of violent crime, a reduction in the rate of Indigenous incarceration, and an
increase in money available for food.
- In order to not breach the RDA, alcohol restrictions would need be
classified as a class of 'benefit conferral'. They must also meet all of
the criteria for special measures, namely that:
- It confers a benefit on some or all members of a class, and membership of
this class is based on race, colour, descent or national or ethnic origin;
- It is for the sole purpose of securing adequate advancement of the group so
that they may enjoy and exercise equally with others, their human rights and
fundamental freedoms; and
- The protection given is necessary so the group may enjoy and exercise
equally with others, their human rights and fundamental freedoms.
- It confers a benefit on some or all members of a class, and membership of
- While not determinative, in his decision in Gerhardy v Brown, High
Court Justice Brennan noted HREOC's Alcohol Report and stated:
The wishes of the beneficiaries of the measure are of great
importance (perhaps essential) in determining whether a measure is taken for the
purpose of securing their advancement. In the Alcohol Report, Commissioner
Antonios concluded: alcohol restrictions imposed upon aboriginal groups as a
result of government policies which are incompatible with the policy of the
community will not be special
- This highlights the importance of ensuring informed, real community
consultation when considering alcohol restrictions in Indigenous
- Evidence also suggests that alcohol restrictions in isolation of any
mechanism to address why people are abusing alcohol actually entrench the
problems that the restrictions were designed to stop.
 Aboriginal and Torres Strait
Islander Social Justice Commissioner, Ending family violence and abuse in
Aboriginal and Torres Strait Islander communities: Key issues – An
overview paper of research and findings by the Human Rights and Equal
Opportunity Commission 2001-2006, Human Rights and Equal Opportunity
Commission, Sydney, 2006, available at http://www.humanrights.gov.au/social_justice/familyviolence/family_violence2006.html accessed 24 January 2007.
ten issues are discussed in more detail in a speech delivered by the Social
Justice Commissioner at a national forum on Ending violence in Indigenous
communities that was convened in Parliament House in Canberra on 19 June
2006. The full speech is available at: http://www.humanrights.gov.au/speeches/social_justice/violence20060619.html accessed 25 January 2007.
 For a
more detailed consideration of Indigenous perspectives on family violence, see
Social Justice Commissioner, Social Justice Report 2003, Human Rights and
Equal Opportunity Commission, Sydney, 2004, chapter 5 – Addressing family
violence in Indigenous communities, p157-161, available at http://www.humanrights.gov.au/social_justice/sjreport03/data/chap5.html accessed 25 January 2007.
 For a
more detailed consideration of programs to address Indigenous family violence,
see Social Justice Commissioner, Social Justice Report 2003, Human Rights
and Equal Opportunity Commission, Sydney, 2004, chapter 5 – Addressing
family violence in Indigenous communities, p168-191, available at http://www.humanrights.gov.au/social_justice/sjreport03/data/chap5.html accessed 25 January 2007.
 Memmott, P., Stacy, R., Chambers, C. and Keys, C., Violence in Indigenous
Communities – Full Report, Commonwealth Attorney-General’s
Department, Canberra, 2001.
a more detailed examination of a human rights based approach to overcoming
Indigenous disadvantage, see: Social Justice Commissioner, Social Justice
Report 2005, Human Rights and Equal Opportunity Commission, Sydney, 2006,
chapter 2 – Achieving Aboriginal and Torres Strait Islander health
equality within a generation, p9-98, available at http://www.humanrights.gov.au/social_justice/sjreport05/chap2.html
accessed 25 January 2007. See also: Human Rights and Equal Opportunity
Commission and Secretariat of the United Nations Permanent Forum on Indigenous
Issues, Engaging the marginalised: partnerships between indigenous peoples,
governments and civil society, Workshop Report, available at http://www.humanrights.gov.au/social_justice/conference/engaging_communities/index.html#link2 accessed 25 January 2007. See further: Aboriginal and Torres Strait Islander
Social Justice Commissioner, Benchmarking reconciliation and human rights, Seminar, 28-29 November 2002, materials available at www.humanrights.gov.au/social_justice/benchmarking/report.html accessed 25 January 2007.
further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending family violence and abuse in Aboriginal and Torres Strait Islander
communities: Key issues, op cit, section 4B - Recognising Aboriginal
customary law consistently with human rights, p40-60.
Queen v GJ  NTCCA
20. See also
Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
family violence and abuse in Aboriginal and Torres Strait Islander communities:
Key issues, op cit, section 4B – Recognising Aboriginal customary law
consistently with human rights, which summarises the decision of the NT Court of
Criminal Appeal in The Queen v GJ, p54-57.
 See further: Aboriginal
and Torres Strait Islander Social Justice Commissioner, Ending family
violence and abuse in Aboriginal and Torres Strait Islander communities: Key
issues, op cit, section 4E – Indigenous women and imprisonment and
post-release programs, p79-85. See also Social Justice Commissioner, Social
Justice Report 2002, Human Rights and Equal Opportunity Commission, Sydney,
2003, chapter 5 – Indigenous women and corrections: a landscape of
further: Social Justice Commissioner, Social Justice Report 2004, Human
Rights and Equal Opportunity Commission, Sydney, 2005, chapter 2 – Walking
with the women: addressing the needs of Indigenous women exiting prison, p11-66.
 See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Ending family violence and abuse
in Aboriginal and Torres Strait Islander communities: Key issues, op cit,
section 4F – Indigenous youth and the criminal justice system, p86-96. See
also Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous young persons with cognitive disabilities and Australian juvenile
justice systems, Report to Attorney-General’s Department 2005,
available at www.humanrights.gov.au/social_justice/cognitive_disabilities.doc accessed 25 January 2007.
 For further information see Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2003, op cit, chapter 5 –
Addressing family violence in Indigenous communities,
 Hylton, J.H., Aboriginal Sexual Offending in Canada, The Aboriginal Healing Foundation,
 See Aboriginal
and Torres Strait Islander Social Justice Commissioner, Addressing the needs
of Aboriginal and Torres Strait Islander peoples as victims of crime, Speech, launch of White Ribbon Day, 18 November 2005, available at http://www.humanrights.gov.au/speeches/social_justice/victims_of_crime_speech.html accessed 25 January 2007.
 See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending family violence and abuse in Aboriginal and Torres Strait Islander
communities: Key issues, op cit, section 4D - Mental health issues, p68-78.
See also Human Rights and Equal Opportunity Commission, Submission to the
Senate Select Committee on Mental Health 2005, available at http://www.humanrights.gov.au/disability_rights/inquiries/mental/senate05.htm accessed 25 January 2007.
 National Aboriginal Health Strategy Working Group, National Aboriginal Health
Strategy, AGPS, Canberra,
 See further:
Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
family violence and abuse in Aboriginal and Torres Strait Islander communities:
Key issues, op cit, section 4H – Substance Abuse,
 For further
information see Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2003, op cit, chapter 4 –
Responding to petrol sniffing on the Anangu Pitjantjatjara Lands: a case study,
p107-154, available at http://www.humanrights.gov.au/social_justice/sjreport03/data/chap4.html accessed 25 January 2007.
 See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Implications of the Racial Discrimination Act 1975 with reference to state
and territory liquor licensing legislation, Speech, 34th Australasian Liquor Licensing Authorities’ Conference 26-29 October 2004,
Hobart Tasmania, 28 October 2004, available at http://www.humanrights.gov.au/speeches/race/LiquorLicensingAuthoritiesConference.html accessed 25 January 2007.
 Race Discrimination Commissioner, Alcohol Report: Race Discrimination, Human
Rights and the Distribution of Alcohol, Australian Government Publishing
Service, Canberra, 1995, available at http://www.humanrights.gov.au/racial_discrimination/reports/alcohol.html accessed 25 January 2007.
 (1985) 159 CLR 70.