Social Justice Report 2001: Chapter 1: Ten years on from the Royal Commission into Aboriginal Deaths in Custody

Social Justice Report 2001

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Chapter 1: Ten years on from the Royal Commission into Aboriginal Deaths in Custody

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

The Royal Commission into Aboriginal Deaths in Custody

Ten years on from the Royal Commission - how far have we progressed?

Rates of Indigenous over-representation and deaths in custody

Implementation of the Royal Commission recommendations

Addressing the underlying causes of Indigenous over-representation in custody

Lessons for the future

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

The year 2001 marked the tenth anniversary of the final report of the Royal Commission into Aboriginal Deaths in Custody. The 5 volumes and 339 recommendations that comprise the national report of Commissioner Johnston remain among the most extensive, frank and devastating examinations of the impact of colonialism on the Indigenous peoples of this country.

But 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 reports of the Royal Commission provided the impetus for the reconciliation process and identified the necessity for the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. They marked a turning point in the recognition of the wrongs of the past, and did so unreservedly.

They also provided great optimism that serious attention would be devoted to overcoming the systemic, structural discrimination that Indigenous people face in Australian society as a result of colonialism. But while some genuine efforts to this end have been made in the decade since the Royal Commission and continue to be made today, 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.

While this year is the tenth anniversary of the Royal Commission, next year will be the tenth anniversary of the rejection of the Mabo decision which rejected terra nullius and recognised the continued existence of native title. It is also the fifth anniversary of the Bringing them home report. Again we will have anniversaries of events where the fundamental recognition and acknowledgement of wrongs committed in the past have not been matched by adequate remedy and redress by government.

It is also close to a year and a half since the release of the Australian Declaration towards Reconciliation and the Roadmap to Reconciliation , and a year since the final report and recommendations to government by the Council for Aboriginal Reconciliation. These documents were the result of a ten year process partly instigated by the Royal Commission, the National Report of which identified reconciliation as ‘an essential commitment on all sides if change is to be genuine and long ter [1]

I ask myself of this, is it adequate that at the end of a sustained ten year process of reconciliation the government has failed to provide a national response and detailed plan of action for implementation of the recommendations of the Council for Aboriginal Reconciliation and has instead dismissed them as of symbolic rather than practical application? The symbolism of this approach is crystal clear – it shows a demonstrable lack of respect for the distinctive cultures of Indigenous people and a lack of commitment to seeking a just accommodation of our distinct identities within the Australian societal fabric.

I offer these introductory comments in order to paint a picture of the broader context in which we must evaluate our progress as a nation ten years on from the Royal Commission. For ultimately, the Royal Commission was about exposing a system of public institutions that have utterly failed Aboriginal people, and about making a series of proposals to guide governments in how to ‘right’ the wrongs through greater respect for Indigenous cultures and on the basis of effective participation and self-determination.

The Royal Commission into Aboriginal Deaths in Custody

The Royal Commission into Aboriginal Deaths in Custody was established to investigate the deaths of 99 Indigenous people in the custody of police, prison or juvenile detention centres between 1 January 1980 and 31 May 1989. The circumstances of each person whose death was examined by the Royal Commission differed vastly, yet the Commission found that in each case ‘facts associated… with their Aboriginality played a significant and in most cases dominant role in their being in and dying in custody’. [2]

While there was no evidence of an overall pattern of abuse, neglect or racism common to all the deaths, the Royal Commission concluded that the reasons for Indigenous deaths in custody were unambiguous:

Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody. However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community. [3]

Put simply, Aboriginal people died in custody in disproportionate numbers because they were in custody in disproportionate numbers. The Royal Commission offered forthright condemnation of this fact: ‘Too many Aboriginal people are in custody too often… (It) is totally unacceptable and… would not be tolerated if it occurred in the non-Aboriginal community’. [4]

The recommendations of the report focused on the necessity to reduce Indigenous over-representation at every stage of the criminal justice system. The Royal Commission saw that this task lay at two levels – first, ‘and in some ways the most immediate and in many ways the least difficult, is at the level of the criminal justice system itself’. [5] The report examined the processes of the criminal justice system from the initial point of contact with the police through to the point of sentencing, as well as the practices of coroners following a person’s death.

Key factors identified by the Royal Commission in this regard were the often petty nature of much contact with the police and the way that this contact escalated into more serious offending and contact – with particular concern expressed at the ‘crucial importance which detention for public drunkenness occupies in Aboriginal custodial over-representation’, [6] as well as other forms of public order regulation. The key principle which underpinned the recommendations of the Commission in this regard was that imprisonment should be a measure of last resort, with the use of alternatives to custody and diversionary mechanisms where appropriate.

A focus on the criminal justice system alone, however, was not going to change the overall life circumstances which drew Indigenous people into the criminal justice system’s web:

the more fundamental causes for the over-representation of Aboriginal people in custody are not to be found in the criminal justice system but in those factors which bring Aboriginal people into conflict with the criminal justice system in the first place... the most significant contributing factor is the disadvantaged and unequal position in which Aboriginal people find themselves in society – socially, economically and culturally. [7]

Central to the approach of the report was the contention that the current circumstances of Indigenous people in this country are a direct consequence of the history of colonisation – a history which was well known to historians and Indigenous people, but which was not well enough known among non-Indigenous society. ‘From that history many things flow which are of central importance to the issue of Aboriginal over-representation in custody’. [ 8]

In particular, the Royal Commission noted that this history was one of:

deliberate and systematic disempowerment of Aboriginal people starting with dispossession of their land and proceeding to almost every aspect of their life… (with) every turn in the policy of government and the practice of the non-Aboriginal community… postulated on the inferiority of Aboriginal people… Every step of the way is based upon an assumption of superiority and every new step is an entrenchment of that assumption. [9]

The Commission acknowledged that this was often ‘guided by the best of motives’ but that it was also always done ‘in the sure knowledge that (Aboriginal) people needed our superior ideas and skills… Aboriginal peoples were never treated as equals and certainly relations between the two groups were conducted on the basis of inequality and control’. [10] href="#10">[10] This inequality manifested itself greatest at the point of contact between Indigenous and non-Indigenous societies – namely, through policing and the criminal justice system – which one criminologist has appropriately described as ‘an efficient mechanism for the State to manage race conflicts and crosscultural [11]

Addressing Indigenous over-representation in the criminal justice system in a lasting manner therefore required fundamental change to the existing relationship between the mainstream society and Indigenous communities. It required that the control over Indigenous people’s lives be removed from the public institutions of the mainstream society, particularly those formalised through the police and criminal justice system, and that the unequal basis of the relationship be remedied by addressing the profound economic, social and cultural disadvantage experienced by Indigenous peoples. Ultimately, it required an end to the domination of Aboriginal people, and the re-empowerment and return of control of Aboriginal lives and communities to Aboriginal hands.

The Royal Commission did not underestimate the difficulties of this task. It identified a number of essential prerequisites which must exist in order for Indigenous people to be in a position to freely determine their own destinies. First, it required ‘the desire and capacity of Aboriginal people to put an end to their disadvantaged situation and to take control of their lives’. [12] [12] This aspiration the Commission was confident existed, despite the evident social dysfunction in many Indigenous communities. Second, it required assistance and understanding from the broader community, with bi-partisan political support for funding to redress historically derived Indigenous disadvantage while at the same time allowing Indigenous societies to be self-dete [13]

What was required was a process of reconciliation to end the unequal position that Indigenous people occupy in Australian society and to embrace our diversity and cultural distinctiveness. The final recommendation of the Royal Commission called for political leadership for such a process – with bi-partisan support and acknowledgement of its urgency and necessity. In doing so, the Report integrally linked the outcomes of the reconciliation process to the need to address the underlying causes of Indigenous over-representation in criminal justice processes.

Ten years on from the Royal Commission – how far have we progressed?

The Royal Commission laid a solid foundation for governments to address the over-representation of Indigenous people in custody and in custodial deaths. It clearly identified the challenges facing government and provided 339 steps to assist in meeting those challenges. There have clearly been advances in the decade since the Royal Commission, but they have not been enough and they have been accompanied by major policy regressions in other areas. Among the advances has been the establishment of Aboriginal Justice Councils across the country. These provide independent scrutiny of government action in relation to criminal justice processes, and greater input into justice policy formulation. There have been vast improvements in coronial and statistical collection systems. There have also been many other initiatives such as the development of the National Indigenous Legal Studies Curriculum to support Aboriginal field officers in legal services as well as the provision of support mechanisms in custody for Indigenous detainees. There have been the development of Indigenous community justice initiatives such as night patrols and mechanisms which recognise customary law and which provide for the input of communities and elders into criminal justice processes, for example, the Aboriginal court in South Australia to the recently introduced circle sentencing trial in New South Wales and Community Justice Groups in Queensland. At a broader level, the Royal Commission has made a significant contribution to the collective understanding of the history of Australia. As I said in the Social Justice Report 2000 , the past ten years:

have seen Indigenous issues become indelibly etched on the national consciousness. The wider community has become aware of a history that was previously only considered orthodox by Indigenous communities. A series of events, particularly the reports of the Royal Commission into Aboriginal Deaths in Custody, the recognition of native title and the documenting of the impact of policies of the forcible removal of Indigenous children from their families, have exposed the foundational myths of our nation’s history… [14] [14] These key events have ensured that at the end of the first decade of the formal process of reconciliation, we find ourselves unable to take the easy road and ignore or forget the past… In many respects, this has been the great advance of the [15]

Clearly, we cannot move forward as a cohesive, inclusive nation without a frank acknowledgement of the history of relations with Indigenous Australians and its impact on the contemporary circumstances of Indigenous communities. This is a highly significant legacy of the Royal Commission.

But it is one thing to acknowledge the truth of our history, and another one entirely to deal with its consequences. There are four main indicators which demonstrate that, despite these advances, governments have not progressed adequately beyond the situation that existed at the time of the Royal Commission and have failed to achieve the lasting change necessary to ensure that Indigenous people can participate in Australian society without discrimination and on the basis of true equality. These are:

• 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.

Rates of Indigenous over-representation and deaths in custody

The most tangible indicator of progress since the Royal Commission is the extent of Indigenous contact with the criminal justice system. Has the rate of over-representation of Indigenous people and the number of deaths in custody been reduced? We could have reasonably expected that lasting improvements for both of these measures would have been realised within a timeframe of ten years. This has not happened. Indigenous people continue to be grossly overrepresented in criminal justice processes, and the level of over-representation has in fact worsened – rather than improved - since the Royal Commission. Figure 1 below shows the imprisonment rate [16] of Indigenous and non-Indigenous persons over the age of 16 and the ratio of Indigenous over-representation for the period 1991 to 1999.

The line graphs shows how 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.

The bar graph shows how the ratio of imprisonment of Indigenous prisoners compared to non-Indigenous prisoners has increased steadily from 1991 to 1999, 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 now 14.9 times the non-Indigenous rate on a national basis for the June 2001 Quarter. [17]

Source: Australian Institute of Criminology [18]

On a state by state basis, the situation was worst in Western Australia and South Australia where Indigenous people were incarcerated at 20.6 and 17 times the rate of non-Indigenous people respectively at 30 June 2001. Even the state with the best record, Tasmania, has nothing to be proud of – Indigenous people are over-represented in custody at 5.2 times the non-Indigenous rate. [19] The rates for Indigenous juveniles are no better. 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 overrepresentation has increased.

Figure 2 shows the incarceration rate of Indigenous and non-Indigenous juveniles (aged 10-17 years) and the ratio of imprisonment rates from 1993 to 1999.

Source: Australian Institute of Criminology [20]

The bar graph shows the consistently high rate of over-representation of Indigenous juveniles in corrective institutions. 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. [21] Since 1997, Indigenous juveniles in corrections have consistently made up approximately 42% of the total juvenile detention population. [22]

Perhaps most worrying of all, however, is the rise in imprisonment of Indigenous women in the decade since the Royal Commission. The total number of Indigenous female prisoners on a national basis increased by 262% between 1991 and 1999. This compares to a rise of 185% in the total female prisoner population. [23]

The rate of imprisonment for Indigenous women has also nearly doubled between 1991 and 1999 from 104 to 207 per 100,000 population. [24] There are three comparisons that indicate the gravity of this situation:

• The rate of women incarcerated per 100,000 for the total female population in 1999 was 15.3 women compared to 207 for Indigenous females. [25] 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. [26] The result of this is that Aboriginal women in New South Wales, for example, consistently constitute between 25-31% of the female prison population at any given time despite comprising approximately 2% of the state’s total female populat [27]

• This rate of over-representation for Indigenous women (compared to total women) is significantly higher than the rate for Indigenous men (compared to total men), despite the national average rate of overrepresentation of Indigenous males being unacceptably high at 14.9 times the non-Indigenous male rate for the June 2001 quarter. [28]

• The rate of imprisonment of 207 Indigenous females per 100,000 is comparable to the rate of imprisonment for non-Indigenous males. This is despite imprisonment generally being a male phenomenon, with males comprising approximately 94% of the total prison population. [29]

These figures are profoundly distressing.

Despite this, Aboriginal women remain largely invisible to policy makers and program designers with very little attention devoted to their specific situation and needs. This is of critical importance, particularly because of the impact that imprisonment has on Indigenous families and communities (especially through separation from children). As noted earlier, 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. Given the above figures on incarceration and the increasing rates of over-representation over the past 10 years, it follows that Indigenous deaths in custody are likely to have continued during the past decade 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. [30] 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. [31] Over the ten years from 1990 to 2000, 18% of all people who died in custody were Indigenous. [32]

There were some significant changes related to the deaths in custody in the decade since the Royal Commission. In the decade prior to the Royal Commission 61% of Indigenous deaths occurred in police custody. This was reduced to 18% in the decade since. Correspondingly, the occurrence of Indigenous deaths in prison rose from 39% in the decade prior to the Royal Commission to 78% in the decade since. [33] The reduction of the number of deaths in police custody may reflect the implementation of the relevant recommendations of the Royal Commission, such as changes to circumstances in which Indigenous prisoners are held in police custody and cell conditions. It also reflects the transfer of the site of deaths to prison custody. The Australian Institute of Criminology has noted that the number of Indigenous deaths in prison custody has doubled in the decade since the Royal Commission, as did the Indigenous prison population. [34] This appears to confirm the validity of the finding of the Royal Commission that Indigenous people die in custody in rates proportionate to which they are held in custody.

Ten years on we should not be facing a situation where rates of overrepresentation 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.

This point is illustrated by research in Victoria which considered the rates of over-representation of Indigenous people between 1993 and 1997. After stating the rate at which alleged Indigenous male offenders are processed by the police in Victoria, the researchers noted that this rate ‘potentially ranks them statistically amongst the most arrested groups of people anywhere’, and that if this rate applied ‘to the non-Indigenous male community, then in the year 1996/97 alone arrests of non-Aborigines would number in the vicinity of half a million! e [35] This is but one illustration of the magnitude of the crisis that currently exists across this country.

Implementation of the Royal Commission recommendations

The second indicator of governmental progress in the past decade is the level of implementation of the recommendations of the Royal Commission.

The Royal Commission was an extensive inquiry process that resulted in 99 reports on each of the individuals who died in custody, as well as regional reports and the five volume national report. This process ended upon submission of the final national report in 1991. The responsibility for implementing the Commission’s findings rested with governments and their service delivery agencies. The first recommendation of the Royal Commission made clear that governments should do this through a process agreed in partnership and after consultation with Indigenous organisations. The responsibility and accountability for monitoring and evaluating the implementation of the report’s recommendations also lay with governments at the federal, state and territory levels. $400 million was allocated by the Commonwealth government for the implementation of the Royal Commission’s recommendations. Each jurisdiction produced an annual implementation report for a period of 6 years. Towards the end of this process there was also a national Ministerial Summit to examine the status of the implementation of the recommendations. There were a number of independent reviews of implementation during this timeframe, by ATSIC and HREOC, criminologists and a Federal parliamentary committee. This implementation process, while superficially appearing extensive, has been spectacularly unsuccessful. The reporting process was fundamentally flawed for a number of reasons. [36] 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.

The NSW Aboriginal Justice Advisory Council (AJAC) has argued, for example, that of the 299 recommendations that apply to the NSW government a minimum of 140 of them have not been implemented in any meaningful way, with a range of other recommendations also not fully implemented. [37] This is despite a claim to the contrary by the NSW government in their 1998 implementation report. An example of this is the NSW government response to recommendation 62 of the Royal Commission which calls on governments to recognise that the problems affecting Indigenous juveniles are so widespread and have such potentially disastrous repercussions, and accordingly to devise strategies designed to reduce the rate of separation of juveniles from their families, be it through care and protection or the juvenile justice system. The government has cited the Young Offenders Act 1997 as proof of its implementation of the recommendation, and it is certainly a positive development. But they have failed to mention those laws and practices which militate against the objective of the recommendation by creating a situation of greater contact with criminal justice processes, particularly through repressive public space and public order regulation. I discuss the particular impact of public order regulation in greater detail shortly.

Second, governments generally took what my predecessor called the ‘public relations approach’ to the reporting process, re-packaging existing programs as an implementation response at the end of each year. The NSW AJAC nominates this as the principal problem with implementation of the Royal Commission’s recommendations, because of the ‘decentralised and retrospective nature’ of the government reporting process:

responding to a recommendation at the end of a reporting period has meant that agencies have responded with activity that most closely matches recommendations rather than pro-actively examining how to implement the specific requirements of a recommendation. [38]

This makes a critical examination of the response meaningless and does not allow long term planning.

This approach has also meant that 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. [39] Ultimately, it means that the ‘implementation report’ is nothing more than a piece of empty government rhetoric, and is treated by government as an end in itself.

As my predecessor, Commissioner Dodson, stated when examining the reality of government claims of implementation in 1996:

Australian governments claim to have implemented the overwhelming bulk of Royal Commission recommendations. Implementation is not support for recommendations or the planning of policies distant from the site of death. Implementation is outcomes. This means changing legislation, changing priorities, changing cultures and changing procedures. While there are discernable improvements, [there is] a large gap between the rhetoric of implementation reports and the circumstances of the deaths of 96 Aboriginal people [since the Royal Commission] [40] …

Commissioner Dodson referred to a six stage plan for implementation of the Royal Commission recommendations by government departments:

1) Reviewing current activities; 2) Developing policies and programs; 3) Setting goals or targets; 4) Allocating responsibility for implementation; 5) Ensuring adequate communication and training supports the plans; and 6) Establishing evaluation mechanisms. [41]

The implementation process for the Royal Commission has rarely moved beyond this first stage. Accompanying this flawed process of reporting over the last decade has been a nationwide trend towards tougher ‘law and order’ policies. Such ‘tough on crime’ approaches to criminal justice have ranged from zero tolerance in the Northern Territory to truth in sentencing in NSW, to crackdowns on activities in public spaces across the country with the introduction of alcohol dry zones (such as recently introduced in Adelaide) to laws which provide police with additional powers to move people along (the Public Order and Anti-Social Conduct Act 2001 ct Act 2001(NT)) or remove them to a safe house for their Children (Protection and Parental Responsibility) Act 1997 (NSW)), to provisions allowing police to remove people who are drunk into protective custody to the continued prosecution for summary offences such as offensive behaviour and language.

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’. [42] The most obvious and offensive example of this is the existence of mandatory sentencing regimes in the Northern Territory and Western Australia alongside government commitments to enforce the principle of imprisonment as a sanction of last resort (recommendation 92 of the Royal Commission). 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. Indeed, a plethora of public order laws and increased surveillance and regulation of public space in the past decade has operated as a control mechanism for dealing with what is essentially characterised, either deliberately or not, as ‘the Indigenous problem’.

Some examples of new or amended laws since the Royal Commission include provisions in NSW which enable police to search people they suspect of carrying dangerous implements, [43] allow police to require people in public areas to supply their name and address when requested [44] and provide police with the power to ‘move on’ people where they believe that they are obstructing others or causing fear in [45] [45] as well Children (Protection and Parental Responsibility) Act 1997 997 (NSW); and the continued criminalisation of offensive language and offensive conduct in sections 4 and 4a Summary Offences Act 1988 (NSW).

These laws have undoubtedly disproportionately impacted on Indigenous people. For example, based on 1998 data, Aboriginal people were grossly overrepresented for criminal proceedings for offensive language and offensive conduct, making up over 20% of all prosecutions despite being 1.8% of the NSW population. 14.3% of all Aboriginal people appearing in Local Court in NSW appeared on at least one charge of offensive conduct or language. [46] This means that they are 15 times more likely to be prosecuted for these charges than non-Indigenous people (a figure which quite incredulously rises to over 80 times the state average in Inverell and Richmond River). [47]

In one out of every four cases in which an Indigenous person was charged with offensive language or conduct, they were also charged with offences against the police – either resist arrest or assault police. [48]

The NSW Bureau of Crime Statistics and Research has also recently shown that the main categories of offences on which Indigenous people are convicted in New South Wales are good order offences (including offensive conduct), as well as offences against justice (such as breach of court order and resist arrest) and violent offences. In the case of good order and justice offences, there is a higher discretion in police as to whether to lay charges in the first place. [49] Similarly, a review of the operation of the Children (Protection and Parental Responsibility) Act 1997 (NSW) in Moree and Ballina demonstrated a clearly disproportionate impact on Indigenous people being removed from the street. [50]

Part 3 of the Act provides that in designated towns (council areas which are approved for the purposes of the Act), police have the power to remove unaccompanied young people under the age of 16 from a public place where they determine that the person is ‘at risk’. In this context, ‘at risk’ means that they are in danger of physical harm or abuse, or about to commit an offence.

The Act is an amended version of one introduced in 1994 which was widely condemned for breaching human rights and the recommendations of the Royal Commission. In the first six months of operation of the Act in Moree, 95 young people were picked up by the police. In 91 of these occasions, the young person was Aboriginal. The review of the Act’s operation found that:

the Act has impacted almost solely on Aboriginal young people to the extent that it may be grounds for a complaint of indirect racial discrimination to domestic and international bodies. Police are taking young people home during the day as well as in the evening, sometimes while these young people are involved in cultural activities. The Act has sanctioned widespread over-surveillance and control of young people.

Young people have been incorrectly told there are curfews in place and areas of town are ‘no-go zones’. The Act has significantly changed behaviour patterns of young people and limited their freedom to move around town. [51]

It is immaterial whether laws such as this one intend these results. The principleof non-racial discrimination clearly applies to discrimination, that are evidenced through such disproportionate impacts, that is intentional or by effect . [52]

These figures are to an extent the result of a continuation of the history of poor relations between Indigenous people and the police, which are confrontational and which may be linked to the visibility of Aboriginal people in public spaces.

It is difficult to see the public interest and social purpose that are served by targeting Aboriginal people in this way. There needs to be greater vigilance from the NSW government in ensuring that there is adequate scrutiny of the operation of these laws, and indeed, serious consideration of the need for these laws to operate at all. I can see no justification for the continued existence of laws criminalising offensive language or conduct (with other, more appropriate options existing for charging people where such conduct causes harm) nor the Children (Protection and Parental Responsibility) Act 1997 (NSW). These provisions should be repealed immediately.

This situation is, of course, not unique to New South Wales. Recent analysis of police records in Victoria from 1993 to 1997 demonstrates that many of the key concerns identified by the Royal Commission have not been addressed. In particular, public drunkenness and summary offences such as indecent language, resisting arrest and offensive behaviour remain a significant factor in Indigenous over-representation in custody, accounting for almost one quarter of all processings of Indigenous people during the period. [53]

Indigenous offenders were also more likely to be dealt with through more formal processes such as arrest, rather than through cautioning, across all offence categories. [54] In relation to summary offences, for example, Indigenous juveniles were arrested 36.1% of the time, compared to just 15.4% for non-Indigenous juveniles; with Indigenous juveniles cautioned just 4.6% of the time compared to 35.6% for non-Indigenous juveniles. [55] This is despite recommendation 239 of the Royal Commission (for police to give preference to forms of processing other than arrest) and the existence of Victorian government instructions to police that alleged offenders should be processed according to the seriousness of the offence, with arrest only to be used in extreme circumstances and as a last resort. Perhaps the most extreme form of public order regulation has occurred in the Northern Territory, 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 overregulation reached new depths with the passage of the Public Order and Anti-Social Conduct Act 2001 (NT) earlier in the year.

This Act targets a group of Aboriginal people colloquially referred to as ‘longgrassers’, Aboriginal people who have come into Darwin or other large towns from communities, perhaps for medical treatment or to visit family, and who sleep out in public parks in the dry season. The Act allows police to move people on from a variety of locations including public places, shops, malls, railway stations and, quite extraordinarily, from private places which are adjacent to public places, or places that are designated by regulation to fall within the scope of the Act (through a ‘Place of Anti-social conduct declaration’), for example, a private residence. The Act provides police with powers to direct a person to stop engaging in behaviour which may constitute anti-social conduct (the definition of which is highly ambiguous in section 3 of the Act), and to leave the place for 3 days and not return, detain goods which contribute to the anti-social conduct, require names and addresses of offenders, and conduct searches of the person and their property.

Failure to comply with any of these directions can result in a fine or imprisonment. Police can make such directions where they have a ‘reasonable apprehension’ that the person ‘is about to’ or might engage in anti-social conduct. If a private place is designated to be a place of anti-social conduct then its occupants forfeit a range of civil liberties. Police are then able to enter at any time (including with force), search without warrant, confiscate property and give directions to residents, visitors and passers-by. These provisions were justified by the then Police Minister by stating that people who engage in antisocial conduct in their own homes deserve to ‘forfeit the social and legal rights that are usually attached to private places’. [56] In introducing the Bill, the then Chief Minister and Attorney-General of the Northern Territory explained the new law as follows:

The Bill is really a matter of police knowing clearly what their powers are on activities that are not necessarily illegal but anti-social and distasteful and force law-abiding citizens to leave the area. I’m talking about drunkenitinerants creating problems in public areas, taking over public areas, taking over parks so children feel unsafe going there. [57]

There are a number of concerns about this explanation and the Act. First, it explicitly targets ‘itinerants’ or ‘long-grassers’ (as they were referred to in the Ministerial Statement on Law and Order which announced the Bill). [58] f="#58">[58] This is a colloquial reference to a particular group of Indigenous people in the Nor [59] f="#59">[59] Second, if such ‘itinerants’ are breaching the law by ‘creating problems in public areas’ then there is already provision to arrest them for fighting, offensive lan Summary Offences Act 1979 >Summary Trespass Act 1987 ( nd [60] The Act is therefore redundant to the extent that it replicates existing provisions. This leaves the real operation of the Act in that area of conduct which the Chief Minister describes as ‘not necessarily illegal but anti-social and distasteful’ and which forces law-abiding citizens to leave the public area.

In other words, the Act provides a wide, highly ambiguous discretion which police can exercise in ‘reasonable’ circumstances when there ‘might’ be an act of anti-social conduct at some time in the future. It allows them to direct equally law-abiding citizens to leave an area. It provides totally unwarranted levels of police discretion, with extraordinary scope for over-policing, and ‘fertile ground for harassment of disadvantaged people’. [61] It 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 (particularly Articles 2 and 5).

The newly elected government in the Northern Territory has pledged to repeal this Act in early 2002. It constitutes a particularly despicable example of discriminatory public order regulation and must be repealed at the earliest time. 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. [62] and appear to do so for limited – if any – broader social benefit.

This form of public order regulation stands in stark contrast to recent developments in relation to restorative justice mechanisms and the development of alternatives to custody which are specifically aimed to avoid incarceration and reduce such contact. It is also in contrast to broader, more holistic community governance processes which seek to deal with the cumulative, underlying factors such as poor health, education, housing and unemployment, the consequences of which are often reflected in criminal behaviour.

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

Addressing the underlying causes of Indigenous over-representation in custody.

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. Addressing the racial and economic exclusion faced by Indigenous people – through the oppressive control exercised by the State over every aspect of their lives and the resultant entrenched socio-economic disadvantage – was the longer term imperative identified by the Royal Commission, necessary for any change to be lasting.

Progress in addressing these issues since the Royal Commission has been unsatisfactory. Time and again, all governments have agreed on the necessity to address the underlying causes of over-representation for long term change and have committed themselves to this purpose as a matter of urgency and priority. At the National Ministerial Summit on Deaths in Custody in 1997, for example, relevant Ministers at the Commonwealth, state and territory level (except the Northern Territory) stated that:

Ministers: (a) agree that the primary issues of concern are the significant over-representation of Indigenous people at all stages of the criminal justice process…; (c) acknowledge that addressing the underlying issues is fundamental to the achievement of any real, long term solutions to the issue of indigenous incarceration and deaths in custody; and (d) recognise that it will take the combined effort of Commonwealth, State and Territory Governments and Indigenous people and the widercommunity to effectively address Indigenous over-representation. [63]

Accordingly, they agreed the following resolution:

To address the over-representation of Indigenous peoples in the criminal justice system Ministers agreed, in partnership with Indigenous peoples, to develop strategic plans for the coordination of Commonwealth, State and territory funding and service delivery for Indigenous programs and services, including working towards the development of multilateral agreements between Commonwealth, State and Territory governments and Indigenous peoples and organisations to further develop and deliver programs. The focus of these plans will address: underlying social, economic and cultural issues; justice issues; customary law; law reform; funding levels and will include: jurisdictional targets for reducing the rate of over-representation of Indigenous people in the criminal justice system; planning mechanisms; methods of service delivery; monitoring and evaluation. [64]

The then Social Justice Commissioner and the Aboriginal and Torres Strait Islander Commission (ATSIC) attended the Summit and refused to be signatories to this resolution. This was due to concerns that ‘the summit outcomes unfortunately replicate the vague, generalised approaches of the past which have been marked by refusal to commit to achieving specific measurable outcomes within specific time frames’. [65]

State governments had resisted attempts to specify a timeframe for the coordination of Commonwealth – State funding and service delivery arrangements and the development of multi-lateral agreements, or even, as proposed by the federal Attorney-General, to commit to the resolution to the ‘prompt’ development of strategic plans for such coordination. The Commonwealth government also used the Summit to effectively withdraw from processes to implement the Royal Commission, seeing it as almost exclusively a responsibility for the states and territories. [66]

The Ministerial Summit commitment was not the first such commitment that had been made to coordination of service delivery, reduction of Indigenous disadvantage and participation of Indigenous organisations. The National Commitment to improved outcome in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders had been made by the Council of Australian Governments in 1992 . [67] It committed governments to negotiate national benchmarks and targets, and to put into place adequate statistical collection, monitoring and evaluation mechanisms after consultation and with the participation of Indigenous communities and organisations. A revised national commitment was made by the Council of Australian Governments in November 2000 through their National Communiqué on reconciliation. [68]

The Ministerial Summit commitment and the COAG National Commitment have been largely not implemented. Government programs and inter-governmental coordination continue to lack sufficient accountability and transparency. On 26 September 2001, the Senate once more called for a renewed commitment by the federal government to address these issues, by calling for it to reaffirm:

its commitment to addressing the unacceptably high levels of social, economic and cultural disadvantage experienced by Aboriginal peoples and Torres Strait Islanders in recognition that this disadvantage contributes to Indigenous over-representation in our gaols; and in consultation with Aboriginal peoples and Torres Strait Islander and their representative organisations, as well as state and territory governments, to commit to reviewing the rate at which Indigenous persons appear in court and the rate at which they are taken into custody. [69]

There have, however, 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, which are broadly in line with the commitment to the development of multilateral agreements for the coordination of Commonwealth – State funding and service delivery arrangements. Notably, however, the state with the second highest rate of over-representation – New South Wales – has not begun to develop such an agreement.

The Victorian Aboriginal Justice Agreement came into effect from July 2000 and seeks to implement a whole-of-government approach to tackle overrepresentation of Indigenous Australians in criminal justice system by also tackling Indigenous disadvantage. It also recommits the government to ‘a rigorous monitoring process across the whole of government with the reintroduction of annual reporting to Parliament’ on the Royal Commission recommendations, while also re-assessing the recommendations to counter growing social problems such as gambling and illicit drugs. [70]

The most extensive, and recent, of these agreements is the Queensland Aboriginal and Torres Strait Islander Justice Agreement that was signed on 19 December 2000. The agreement addresses one of eight key priorities (alongside family violence, reconciliation, economic development, community governance, service delivery, human services and land, heritage and natural resources) adopted by the Queensland government in what has become known as the ‘Ten year partnership’.

The Justice Agreement sets as its long term goal that ‘the rate of Aboriginal and Torres Strait Islander peoples coming into contact with the Queensland criminal justice system be reduced to at least the same rate as other Queenslanders’. The government has agreed with Queensland Indigenous representatives that the appropriate measurable outcome for this is ‘a reduction by 50% in the rate of Aboriginal and Torres Strait Islander peoples incarcerated in the Queensland criminal justice system by the year 2⮊. [71] 71">[71] with a range of supporting indicators including reductions in the number of Indigenous people being arrested, coming before courts, being given custodial sentences, as well as an increase in the proportion of Indigenous people being cautioned (corresponding to a reduction in contact through the rest of the criminal justice system) and an increase in community service orders rather than inc [72]

The agreement is based on the principles of ensuring Indigenous participation, recognition of culture, acknowledgement of the past, respect for Indigenous cultural values, equality before the law, improved coordination of government services, empowerment and self-determination, addressing underlying issues, and implementing the Royal Commission recommendations. [73] The agreement makes explicit that it is not legally binding, but operates instead at the level of a formal public commitment by government. [74]

The adoption of measurable outcomes and targets with monitoring and evaluation mechanisms through agreements like the Queensland and Victorian ones are a welcome, if somewhat belated response to the issues raised by the Royal Commission. Now they must turn the rhetoric of these commitments into action.

One of the consequences of the lack of implementation of 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.

I discuss the approach of governments in addressing Indigenous disadvantage in more detail in chapters 2, 3 and 6 of this report. In brief, redressing Indigenous disadvantage is not merely something that is desirable, but is a matter of obligation in order to guarantee a free and equal society. Governments must take deliberate, concrete steps which are targeted as clearly as possible to reducing existing inequalities as quickly and efficiently as possible through the adoption of benchmarks and targets. Adequate monitoring and evaluation mechanisms are necessary in order that governments will be held accountable to do more than simply manage the existing inequalities in society. This is particularly so where the disadvantage that exists is the consequence of historic systemic discrimination against a particular racial group. [75]

In last year’s report I argued that current funding arrangements are not adequate to meet this objective in a number of ways:

Despite the commitment of significant resources to redress Indigenous disadvantage, there is very little to indicate the priority that governments attach to reducing the inequalities. The 2000 budget paper on Indigenous policy notes the ‘record amount… allocated to targeted Indigenous specific programmes’… At no stage does it identify the reduction of the disparities in enjoyment of rights between Indigenous and non-Indigenous people as the government’s purpose… Also missing from current funding and service delivery arrangements are adequate performance targets, benchmarks and mechanisms to ensure government accountability and transparency… Despite the commitment of significant resources to redress Indigenous disadvantage, there is very little to indicate the priority that governments attach to reducing the inequalities. The 2000 budget paper on Indigenous policy notes the ‘record amount… allocated to targeted Indigenous specific programmes’… At no stage does it identify the reduction of the disparities in enjoyment of rights between Indigenous and non-Indigenous people as the government’s purpose… Also missing from current funding and service delivery arrangements are adequate performance targets, benchmarks and mechanisms to ensure government accountability and transparency…

I also noted that current approaches do not provide sufficient support for Indigenous participation in the design and delivery of services, the setting of priorities and decision making, or for building Indigenous capacity to manage services; and are not sufficiently coordinated between government agencies or across governments. The Commonwealth Grants Commission has also noted that mainstream government services, in urban, rural or remote areas, are not accessible to Indigenous people on an equitable basis:

Mainstream services are intended to support access by all Australians to a wide range of services. Given the entrenched levels of disadvantage experienced by Indigenous people… it should be expected that their use of mainstream services would be at levels greater than those of non-Indigenous Australians. This is not the case … mainstream services do not meet the needs of Indigenous people to the same extent as they meet the needs of non-Indigenous people. In general, Indigenous people experience greater disadvantage and have greater needs than non- Indigenous people and, for geographic, economic and cultural reasons, mainstream services are less accessible to them. [77]

I have also expressed major reservations in my previous social justice reports about the federal government’s overall approach to Indigenous disadvantage, as expressed through the catchcry of ‘practical reconciliation’. [78]

This approach draws distinctions between ‘practical’ or ‘real’ issues and those issues which are categorised as being merely ‘symbolic’. It emphasises addressing Indigenous disadvantage in the key areas of health, housing, education and employment as the real issues whereas other issues, across an ever-expanding range, such as recognition of rights to land and culture, reparations for forcible removal, a treaty process, and self-determination are not seen as of practical benefit. This approach was taken even further in the past year when the Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs proclaimed that public concerns about levels of violence and abuse in Indigenous communities had assured the ascendency of the practical reconciliation approach over a rights based agenda. This approach draws distinctions between ‘practical’ or ‘real’ issues and those issues which are categorised as being merely ‘symbolic’. It emphasises addressing Indigenous disadvantage in the key areas of health, housing, education and employment as the real issues whereas other issues, across an ever-expanding range, such as recognition of rights to land and culture, reparations for forcible removal, a treaty process, and self-determination are not seen as of practical benefit. This approach was taken even further in the past year when the Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs proclaimed that public concerns about levels of violence and abuse in Indigenous communities had assured the ascendency of the practical reconciliation approach over a rights based agenda. [79]

‘Practical reconciliation’ retreats from the approach of the Royal Commission in two significant ways. First, it strips Indigenous disadvantage of its historical context. Over-representation in criminal justice and care and protection processes, high levels of domestic violence and abuse, as well as poor educational attainment and health and high unemployment are not addressed as matters which are fundamentally a consequence of the history of dispossession, protection and control. Practical reconciliation admits no contemporary, ongoing consequences of this history. Consequently, there is nothing particularly distinctive about Indigenous disadvantage or about the response necessary to it.

An illustration of this approach is the suggestion by the federal government to the recent Commonwealth Grants Commission Inquiry into Indigenous funding need, that the needs of Indigenous people living in urban areas should be met by mainstream programs so that specific Indigenous funding programs can focus on addressing issues facing Indigenous people in rural and remote areas.

The Commonwealth Grants Commission rejected this suggestion as too simplistic. They found that there are significant problems in access to mainstream health, housing and employment services for Indigenous clients in urban areas as they are planned and delivered for the common user. As a result they are unable to cope with the level of disadvantage or special needs of Indigenous people, and may be inaccessible for cultural reasons. In the case of health and housing services, they may be inaccessible due to the historic low income and lack of accumulated wealth of Indigenous families, resulting from intergenerational poverty. [80]

Second, the constrained approach of practical reconciliation does not seek to transform the relationship between government and Indigenous people. It seeks to maintain the existing structure in the delivery of services. Accordingly, it does not change the unequal basis of the relationship and leaves Indigenous people disempowered. Change to this power dynamic, through the effective participation of Indigenous people in decisions that affect them, was seen as a central requirement by the Royal Commission.

Lessons for the future.

I have not examined the inadequacy of governmental responses to the Royal Commission simply in order to reminisce or shrug my shoulders at what could have been. 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 custody.

This report examines a number of crucial developments in the current approach of governments to social justice for Indigenous people: namely, policies regarding welfare dependency and initiatives for developing Indigenous community governance capacity; the importance of the principle of imprisonment as a last resort and the availability of alternatives to detention; and the progress of the reconciliation process. Throughout the report I return to the concerns that have been raised in this introduction. For example, what is the nature of the commitments that have been made by governments at the end of the reconciliation process? What is the process for implementing reconciliation, how does it assure Indigenous participation and how does it overcome the flaws and problems identified by the Royal Commission? How do current approaches seek to facilitate Indigenous control and empowerment? The next section considers the current debate about Indigenous welfare dependency.

Chapter 2 analyses recent welfare reform initiatives which have taken place on the basis of mutual obligation and practical reconciliation. Chapter 3 then considers the need for a more holistic approach to Indigenous economic marginalisation which provides greater emphasis on the development of Indigenous community governance capacity. The chapter provides two detailed case studies of differing approaches to capacity building and service delivery, which demonstrate the ingenuity and determination of Indigenouscommunities to control their destinies and move beyond welfare dependency. The following section then examines two contradictory approaches to criminal justice reform which have been integral to the approach of the Western Australian (WA) and Northern Territory (NT) governments in recent years – namely, so called ‘mandatory sentencing’ laws and juvenile diversionary schemes. It is a great irony that diversionary schemes – based on the principle of providing alternatives to custody and the use of imprisonment as a sanction of last resort should be introduced in the NT as a measure to run concurrently with mandatory sentencing and that both diversion and mandatory sentencing should be so integral to the crime prevention approach of the WA government. These two approaches are clearly contradictory and work towards opposite goals. Chapter 4 provides an overview of recent developments in relation to mandatory sentencing laws in both WA and the NT. Chapter 5 then examines diversionary schemes for juvenile offenders in these jurisdictions and assesses them against human rights standards. These chapters fulfil the requirements of a review requested by the Senate that I had indicated I would undertake through the normal performance of my functions.

The final section of the report then examines the progress towards reconciliation in the first year since the term of the Council for Aboriginal Reconciliation ended. It examines the level of commitment made at the national level to progress reconciliation and to achieve real change to the lives of Indigenous people rather than merely being a populist movement based on the expression of kind sentiment. 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.

1. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1 , AGPS Canberra 1991, pxlviii.

2. ibid , p1.

3. ibid , p6.

4. ibid.

5. ibid , p12.

6. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 3 , AGP Canberra 1991, p3.

7. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1 , op.cit, p15.

8. ibid , p8.

9. ibid , pp9-10.

10. ibid , p10.

11. Broadhurst, R ‘Crime, justice and Indigenous peoples: the ‘new justice’ and settler states Australian and New Zealand Journal of Criminology 105, p105.

12. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, op.cit , p16.

13. ibid , p22.

14. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000 , Human Rights and Equal Opportunity Commission, Sydney 2000, p6.

15. ibid , p8.

16. These data include both sentenced prisoners and remandees.

17. Australian Bureau of Statistics, Corrective services Australia – June Quarter 200 1, ABS Canberra 2001, Table 5, p20.

18. Australian Institute of Criminology, Australian crime – Facts and figures 2000 , AIC Canberra 2001, Figure 52.

19. ibid.

20. Australian Institute of Criminology, Australian crime – facts and figures 2000, op.cit /em>, Figure 59. See a Australian Institute of Criminology, Persons in juvenile corrective institutions 1981- 2000 , AIC Canberra 2001, Table 3 and Figure 2.

21. Australian Institute of Criminology, Persons in juvenile corrective institutions 1981-2000 , AIC Canberra 2001, Table 3 and Figure 2. This over-representation rate reached as high as 17 times the non-Indigenous rate in 1997: Australian Institute of Criminology, Australian crime – facts and figures 2000, op.cit , Figure 59.

22. Australian Institute of Criminology, Australian crime – facts and figures 2000, op.cit , Figure 59.

23. Australian Institute of Criminology, Women in prison – Numbers soar, /em> Media Release, 1 October 2000. See Also: Margaret Camer Women prisoners and correctional programs , Trends and issues in crime and criminal justice – Number 194, Australian Institute of Criminology, Canberra 2001, pp1-2. It must be noted, however, that the female prisoner population is extremely small and constitutes approximately 6% of the total prison population.

24. ibid .

25. ibid.

26. Australian Bureau of Statistics, Corrective services Australia – June Quarter 2001 / op.cit , Table 5, p21.

27. Select Committee on the increase in the prison population, Interim report: Issues relating to women , NSW Parliament, Sydney 2000, para 3.12.

28. Australian Bureau of Statistics, Corrective services Australia – June Quarter 2001, op.cit , Table 5, p21.

29. Australian Institute of Criminology, Women in prison – Numbers soar, op.cit, p1.

30. Williams, P, Deaths in custody: 10 years on from the Royal Commission , Trends and Issues in Criminal Justice –Number 203, Australian Institute of Criminology, Canberra 2001, p2.

31. ibid , p5.

32. Collins, L and Mouzos, J, Australian deaths in custody and custody-related police operations 2000 , Trends and Issues in Criminal Justice –Number 217, Australian Institute of Criminology, Canberra 2001, p2.

33. Williams, P, Deaths in custody: 10 years on from the Royal Commission, op.cit , p2.

34. ibid , p6.

35. Gardiner, G, Indigenous people and the criminal justice system in Victoria: Alleged offenders, rates of arrest and over-representation in the 1990s , Criminal Justice Monograph 2001, Centre for Australian Indigenous Studies, Monash University 2001, p27. Emphasis in original. It is notable that rates of over-representation of Indigenous males in Victoria are significantly lower than many other states, where this situation would potentially be far worse.

36. See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous deaths in custody 1989-1996 , Aboriginal and Torres Strait Islander Commission, Canberra 1996, p257.

37. Aboriginal Justice Advisory Council (NSW), Royal Commission into Aboriginal Deaths in Custody: Review of NSW government implementation of recommendations, AJAC NSW, Sydney, 2000, p8.

38. Aboriginal Justice Advisory Council (NSW), Where to from here? 10 years after the Royal Commission, some suggested direction for Aboriginal justice planning , AJAC (NSW), Sydney 2001, p9.

39. ibid.

40. Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous deaths in custody 1989-1996, op.cit , pviii.

41. ibid , p257.

42. Aboriginal Justice Advisory Council (NSW), Royal Commission into Aboriginal Deaths in Custody: Review of NSW government implementation of recommendations , AJAC NSW, Sydney, 2000, p8.

43. The Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW).

44. Crimes Act 1900 (NSW).

45. Summary Offences Act 1988 (NSW), s28.

46. Aboriginal Justice Advisory Council NSW, Policing public order, offensive language and behaviour, the impact on Aboriginal people , AJAC, Sydney 1999, p3.

47. ibid, p4.

48. Aboriginal Justice Advisory Council NSW, Policing public order, offensive language and behaviour, the impact on Aboriginal people, AJAC, Sydney 1999.

49. Baker, J, The scope for reducing indigenous imprisonment rates , NSW Bureau of Crime Statistics and Research – Crime and Justice Bulletin Number 55, Sydney 2001, p3.

50. Aboriginal Justice Advisory Council NSW, A fraction more power – review of the impact of the Children (Protection and Parental Responsibility) Act on Aboriginal people in Moree and Ballina , AJAC NSW 2000.

51. ibid , p19.

52. For detailed discussion of this obligation, see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000 , HREOC Sydney 2000, Chapter 3.

53. Gardiner, G, Indigenous people and the criminal justice system in Victoria: Alleged offenders, rates of arrest and over-representation in the 1990s, op.cit , pp92-93.

54. ibid , pp78-79.

55. ibid, p50.

56. Quoted in Sheldon, J, NT Update: Public Order and Anti-Social Conduct Act (NT), Rights Now, National Children and Youth Law Centre, Sydney, September 2001, p9.

57. Interview quoted in the Northern Territory News, 4 June 2001, and cited in Parity, An illusion of equity: Aboriginal homelessness and NT government policy under the Public Order and Anti- Social Conduct Act 2001 , 14(6) Parity 16, p16.

58. The Hon D Burke, Ministerial statement to the NT Legislative Assembly – Law and order , 5 June 2001

59. Parity, An illusion of equity, op.cit , p Senator Ridgeway, Hansard – Senate, 28 June 2001, p25226.

60. There are also in place Council by-laws such as ss 103,106 Darwin City Council By-laws, and ss 55-56 Alice Springs (Control of Public Places) By-laws . The use of these by-laws has also been the subject of much concern.

61. Sheldon, J, NT Update: Public Order and Anti-Social Conduct Act (NT), op.cit , pp9-10.

62. See for example: Aboriginal Justice Advisory Council, Policing public order, offensive language and behaviour, the impact on Aboriginal people, op.cit; Hunter, B and Borland, J, The Effect of Arrest on Indigenous Employment Prospects , NSW Bureau of Crime Statistics and Research: Crime and Justice Bulletin 45, Sydney 1999.

63. Reproduced in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1996-97 – Fifth report , HREOC Sydney 1997, pp153-54.

64. ibid .

65. ibid , p137.

66. ibid , pp153-54.

67. For a discussion of the National Commitment see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1999 , HREOC Sydney 2000, Chapter 1.

68. This is discussed in more detail in chapter 6 of this report.

69. Senator Ridgeway, Motion, Hansard , Senate, 26 September 2001, pp27281-82.

70. Government of Victoria, Victorian Aboriginal Justice Agreement – a partnership between the Victorian government and the Aboriginal community , Victorian Aboriginal Justice Committee, Melbourne 2000, p3.

71. Queensland Government, Queensland Aboriginal and Torres Strait Islander Justice Agreement, Queensland Government , Brisbane 2001, p11.

72. ibid , p18.

73. ibid , p12.

74. ibid , p11.

75. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, op.cit , pp24-25.

76. ibid , p89.

77. Commonwealth Grants Commission, Report on Indigenous funding, Commonwealth of Australia, Canberra 2001, pp59, 43.

78. For example: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1999 , Chapter Social Justice Report 2000 , pp21-27, pp57-64, and Chapter 4.

79. Ruddock, P, Aborigines reach a turning point, The Age, 23 July 2001, p15. See also: Jonas, W, Moving forward – from ‘practical reconciliation’ to social justice, ustice, Speech, Moving Forward: Achieving reparations for the stolen generations, University of New South Wales, Sydney 15 A www.humanrights.gov.au/movingforward/ . This issue is discussed in greater detail in chapter 6 of this report.

80. Commonwealth Grants Commission, op.cit , pp61-3.