Social Justice Report 2001: Summary

Social Justice Report 2001

Summary

1. Ten Years on from the Royal Commission into Aboriginal Deaths in Custody 2. Mutual Obligation, Welfare Reform and Indigenous Participation: A Human Rights Perspective

3. Indigenous Governance and Community Capacity-Building 4. Laws Mandating Minimum Terms of Imprisonment ("Mandatory Sentencing" and Indigenous People 5. Juvenile Deversionary Schemes and Indigenous People 6. Reconciliation - National Progress One Year On Recommendations 3. Indigenous Governance and Community Capacity-Building 4. Laws Mandating Minimum Terms of Imprisonment ("Mandatory Sentencing" and Indigenous People 5. Juvenile Deversionary Schemes and Indigenous People 6. Reconciliation - National Progress One Year On Recommendations Recommendations

1. 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.

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

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

How far have we progressed?

Advances in the decade since the Royal Commission include:

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

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

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

Rate of Indigenous over-representation since the Royal Commission

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

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

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

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

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

Deaths in custody since the Royal Commission

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

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

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

Implementation of the recommendations of the Royal Commission

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

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

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

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

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

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

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

Addressing the underlying causes of over-representation of Indigenous people

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

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

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

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

Reconciliation

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.

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

Chapter 6 of the report examines the progress towards reconciliation in more detail. 2. MUTUAL OBLIGATION, WELFARE REFORM AND INDIGENOUS PARTICIPATION: A HUMAN RIGHTS PERSPECTIVE

Mutual obligation and welfare reform

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

Mutual obligations - some general concerns

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

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

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

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

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

Mutual obligation, practical reconciliation and Indigenous welfare reform

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

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

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

The context of Indigenous marginalisation

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

The 'practical' focus on addressing welfare dependency through mutual obligation means that a range of inter-related factors - social, cultural, political and historical - integral to reversing Indigenous marginalisation are being consistently obscured from the social policy lens. (ibid, p57)

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

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

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

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

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

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

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

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

Indigenous empowerment

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

The unwillingness to change the existing power dynamic ultimately constrains the relevance of the mutual obligation approach to achieve lasting and sustainable change. Changes to this power dynamic, through the effective participation of Indigenous people in decisions that affect them, are essential. (p65)

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

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

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

3. INDIGENOUS GOVERNANCE AND COMMUNITY CAPACITY-BUILDING

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

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

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

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

Governance and reconciliation

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

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

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

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

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

Case studies of governance and capacity building initiatives

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

Mutitjulu Community Participation and Partnership Agreement

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

• Coerciveness: The initiative seeks to offset the coercive elements of social security requirements by adapting compliance measures to suit the culture and circumstances of individual Indigenous communities.

• Financial commitments: There needs to be a commitment from government beyond Budget 2001's 4-year funding period: a 5-10 year commitment is seen as necessary for the CPA model to make any inroads on the current situation.

• Interagency involvement: Ideally the model would be based on the pooling of resources across government agencies providing one incoming financial stream to the community. There needs to be clarity about the forms of commitment various partners are to make, including to meeting assessable goals and objectives over a set time-frame.

• Flexibility : Some of solutions being considered by the Mutitjulu Community will probably be relevant and transferable to other communities participating in the CPA initiative. But it is essential that design of CPAs remains flexible. Whatever the future level of success of the CPA initiative, Indigenous people should not be restricted to one model as a means of pursuing greater autonomy and control over their affairs. Other initiatives for furthering Indigenous capacity and governance, including those based in native title, should also be encouraged. (p91)

• Ownership: Governance models must be owned by Indigenous people themselves and the relationship of Indigenous kinship and authority structures to the processes and structures of these models must be taken into account. … it is important that some of the more fundamental issues concerning the respective roles and authority of Indigenous, government and other partners are re-visited, or in time these new models may run the risk of becoming yet another case of a failed Indigenous policy initiative and a further source of 'blaming the victim'. (p84)

Yenbena Indigenous Training Centre

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

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

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

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

4. LAWS MANDATING MINIMUM TERMS OF IMPRISONMENT ('MANDATORY SENTENCING') AND INDIGENOUS PEOPLE

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

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

Western Australia

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

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

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

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

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

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

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

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

Human rights concerns about mandatory minimum terms of imprisonment

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

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

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

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

The effectiveness of mandatory minimum imprisonment laws

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

• Deterrence: In the NT, reporting trends show that there has been no real change in reporting of property crime in the NT between 1994 and 1998.

• Retribution: Removing judicial discretion to determine the length of sentences inevitably leads to harsh and unfair results.

• Rehabilitation: Custodial environments place the emphasis on physical containment rather than on rehabilitation. There are serious concerns about the capacity of the prison system to rehabilitate Indigenous offenders.

• Incapacitation : Courts are in a better position than parliament to make a prediction about an offender's future prospects based on the offender's background and circumstances established by evidence before the court.

• Reparation: Other options to incarceration, such as victim/offender conferences, allow the offender to make direct reparation to the victim.

• Community concern: There has been no real test of whether the laws have addressed community concerns. The serious nature of these offences may be 'indicated' in a variety of ways other than mandatory minimum sentences, such as maximum penalties, guideline judgments and community education.

• Cost effectiveness: While the financial costs of property crime to the community is often emphasised in public debate, the costs of incarceration are themselves high.

• Effect on sentencing principles and operation of the criminal legal processes: These laws undermine sentencing principles which are well-established in Australia and abroad. They also shift discretion from the judiciary to police and prosecutors. Once a matter reaches the sentencing stage the result is inevitable.

Mandatory minimum terms of imprisonment and their impact on Indigenous people

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

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

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

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

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

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

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

5. JUVENILE DIVERSIONARY SCHEMES AND INDIGENOUS PEOPLE

Diversion and restorative justice

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

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

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

Juvenile diversion in the Northern Territory

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Juvenile diversion in Western Australia

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

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

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

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

3) Discretion exercised on the basis of established criteria prescribed by law: A lack of legislative guidance is compounded by a tendency for police policies to be seen as 'guidelines' rather than rules. Indigenous juveniles have not benefited sufficiently from diversionary processes, and tend to be dealt with more harshly by police.

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

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

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

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

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

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

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

Overall, the Western Australian scheme is particularly poor.

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

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

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

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

6. RECONCILIATION - NATIONAL PROGRESS ONE YEAR ON

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

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

Implementing reconciliation

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

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

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

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

1) Direct responses to the reconciliation documents

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

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

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

2) National communiqué by the Council of Australian Governments

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

To date COAG's approach does not provide:

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

3) Reconciliation Australia and Reconciliation Place

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

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

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

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

4) Practical reconciliation

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

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

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

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

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

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

5) Domestic violence and abuse in Indigenous communities

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

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

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

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

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

6) Human rights and reconciliation

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

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

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

The call to abandon rights assumes that they have been tried and failed. That is incorrect. Indigenous rights, ones that recognise Aboriginal people for what they are, and have the capacity to change their dire living circumstances, have never been embraced as a way forward. What is required is that Aboriginal people be given the full enjoyment of their inherent rights through native title and that Indigenous disadvantage be addressed with the full participation of those affected. (pp 218-219).

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

Recommendation 11: The Senate empower the Legal and Constitutional References Committee to conduct an inquiry into the implementation and response to the reconciliation process. The terms of reference of the inquiry should require the Committee to examine the recommendations contained within the Roadmap towards reconciliation, the final report of the Council for Aboriginal Reconciliation and the Social Justice Report 2000 as well as the adequacy of the response of the Federal Government to each of these. In determining the adequacy of the response, the Committee should be required to consider processes by which government agencies have reviewed their policies and programs against the documents of reconciliation; as well as the adequacy of targets and benchmarks adopted and monitoring and evaluation mechanisms.

Recommendation 12: At the time of tabling of the annual Social Justice Report in Parliament, or within 15 sitting days, the Government furnish a response to the report and its recommendations in Parliament. In the event that the Government does not furnish such a response in Parliament, the Senate consider the establishment of a parliamentary inquiry to consider matters that appear in or arise out of the report and its recommendations, and matters to which the Committee believes Parliament's attention should be directed.

RECOMMENDATIONS

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

JUVENILE DIVERSIONARY SCHEMES IN THE NORTHERN TERRITORY

Recommendation 1: A Juvenile Justice Division be established and adequately resourced within the NT Department of Justice. Prime responsibility for coordinating pre-court and post-court diversion, especially family and victim-offender conferences and referral to programs, be transferred from NT Police and NT Corrections to specialist Youth Case Workers in the Juvenile Justice Division. NT Police retain a Juvenile Diversion Division to implement the continued significant police involvement in diversionary processes.

Recommendation 2: As an urgent priority, a review be undertaken by the Department of Justice to establish program needs across the Territory, particularly as they relate to regional areas and Indigenous people. The terms of the review should include examining methods for coordinating youth service delivery in justice, health and welfare related areas across government departments, including through the NT Police proposal for community youth development units, and the potential for Aboriginal customary law to be recognised through diversionary processes. The review should be conducted on the basis of widespread consultation, particularly with Indigenous organisations.

Recommendation 3: The NT Law Reform Commission be empowered through legislation to conduct an independent review of the operation of pre-court and post-court diversionary schemes every four years. The review be required to consider compliance with human rights standards and to be conducted on the basis of widespread consultation with Indigenous organisations, communities and young offenders.

Recommendation 4: The Juvenile Justice Act 1993 (NT) and Police Administration Act 1978 (NT) be amended to provide legislative detail on juvenile diversionary processes. The amendments should require the police to inform the young person that they are entitled to access to a legal advocate or a registered local community advocate (for example, in remote areas) at any stage of the process and to facilitate contact immediately if so required; and should require an admission of guilt prior to a diversionary option, other than a verbal warning, being offered. The amendments should also provide for review of decisions regarding diversion, and independent monitoring and evaluation provisions (as outlined above). In relation to Indigenous young people, the legislation should specify that they are entitled to an interpreter as well an interview friend (in accordance with the Anungu rules).

Recommendation 5: A children's legal service be established and appropriately resourced, including through the provision of a 24 hour phone hotline for children's legal advice.

Recommendation 6: It be made an offence to publish material identifying a defendant or a young person who has participated in a diversionary option under the age of 18 years.

JUVENILE DIVERSIONARY SCHEMES IN WESTERN AUSTRALIA

Recommendation 7: The Young Offenders Act 1994 (WA) be amended to include greater detail on the operation of diversionary options in WA, rather than matters integral to the process being contained in Police General Orders. The amendments should include the following as a minimum:

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

Recommendation 8: The Department of Justice consult regional councils of the Aboriginal and Torres Strait Islander Commission and Aboriginal community organisations about the adequacy of current community based diversionary programs for Indigenous juvenile offenders, particularly in regional areas, and their form, organisation, management and coordination in the future.

Recommendation 9: Juvenile Justice Teams and conferencing processes be adequately funded in regional areas. Funding be provided for the employment of Aboriginal workers, and the training of Aboriginal people in local communities to act as conference facilitators.

Recommendation 10: The Department of Justice coordinate the development of consistent record keeping on diversionary processes across all agencies, particularly the Department of Justice, Police and Children's Court. Record keeping must identify the ethnicity of offenders in order to identify the extent of any racial bias in referral processes. This data should be subject to ongoing and independent monitoring and evaluation.

RECONCILIATION

Recommendation 11: The Senate empower the Legal and Constitutional References Committee to conduct an inquiry into the implementation and response to the reconciliation process. The terms of reference of the inquiry should require the Committee to examine the recommendations contained within the Roadmap towards reconciliation , the final report of the Council for Aboriginal Reconciliation and the Social Justice Report 2000 as well as the adequacy of the response of the Federal Government to each of these. In determining the adequacy of the response, the Committee should be required to consider processes by which government agencies have reviewed their policies and programs against the documents of reconciliation; as well as the adequacy of targets and benchmarks adopted and monitoring and evaluation mechanisms.

Recommendation 12: At the time of tabling of the annual Social Justice Report in Parliament, or within 15 sitting days, the Government furnish a response to the report and its recommendations in Parliament. In the event that the Government does not furnish such a response in Parliament, the Senate consider the establishment of a parliamentary inquiry to consider matters that appear in or arise out of the report and its recommendations, and matters to which the Committee believes Parliament's attention should be directed.