HREOC Social Justice Report 2002: Media Pack

Social Justice Report 2002

Media Pack

Media summary

This document is intended to provide a brief overview of the main findings of the Social Justice Report 2002. See the executive summary of the report for a more detailed description of the reports findings.

The Social Justice Report 2002 discusses initiatives currently underway or in development at the federal, state and territory levels in relation to Aboriginal and Torres Strait Islander Affairs. The report commends the following positive developments in Indigenous policy:

The commitment of governments at all levels to partnerships with Indigenous peoples, including through statements of commitment to negotiate service delivery arrangements with Indigenous organisations and commitments to negotiation justice agreements;
The commitment of the federal government to principles for the equitable provision of services to Indigenous peoples as part of its response to the Commonwealth Grants Commission's report on Indigenous funding;
Recognition by governments of the central importance of capacity building of Indigenous communities and of supporting and developing Indigenous governance structures;
The commitment of the Council of Australian Governments to processes for addressing Indigenous disadvantage, including the establishment of a framework for reporting on Indigenous disadvantage, the formulation of action plans at the inter-governmental level in specific areas and a trial in ten communities of a whole-of-government approach to service delivery; and
Support of the federal government at the international level to the effective operation of the newly created UN Permanent Forum on Indigenous Issues.

Overall, however, the Report evidences that the past year has been another difficult one for Indigenous peoples in this country.

In trying to provide a snapshot of the status of Indigenous policy making and achievements by governments over the past year, it is difficult to see any consistent forward trend. There have been marginal improvements in some statistical indicators, but deterioration in others. The policy approaches of governments are ultimately full of inconsistencies, ad hoc developments, and commitments that not only remain unmet but which are not adequately supported by institutional developments.

There have been two particularly worrying trends that have been confirmed over the past year at the federal level. The first is a continuation of the antagonistic and adversarial approach to Indigenous policy by the federal Government.

Substantial bi-partisan support for reconciliation and directions in Indigenous policy has been undermined by the limited focus of the Government. Those areas on which there is common ground are relatively few - and basically relate to agreement on the need to overcome Indigenous disadvantage - and there is even less agreement on what are the best ways to address such issues.

The second worrying trend is the relegation of Indigenous issues to a second tier issue for the Government. While reconciliation was a priority for the second term of the Government, it does not even rate a mention in recent announcements of the Government's strategic long term vision for Australian society.

Indigenous issues are not treated as a national priority, and there are no public commitments to timeframes for achieving results in areas on which there is substantial agreement - such as Indigenous disadvantage.

At the state and territory levels, there is much goodwill being expressed with extensive commitments to partnerships with Indigenous peoples. These partnerships remain works in progress and it is unfortunate that they have not yet been accompanied by the necessary institutional support or action.

The one true highlight of the past year, however, has been the demonstration through a range of processes that Indigenous peoples are not going to sit back and wait for governments' to solve the various problems faced in communities.

Indigenous communities across the country are demonstrating that they are not passive victims but distinct peoples fighting hard for the survival and recognition of their cultural distinctiveness. Indigenous communities across the country know what they want and are working towards building their capacity and striking agreements with governments to implement it.

Given the minimal framework for Indigenous policy being set by the federal government, the report deliberately seeks to place Indigenous issues within a broader context. The report highlights the differences between self-determination and self-empowerment; practical reconciliation and progressive realization and a rights framework for addressing Indigenous disadvantage; and by considering international developments in the recognition of Indigenous rights. Each demonstrates the severely constrained approach that has been adopted by the federal Government and hints at the potential in a broader, rights-based approach.

The Report raises significant human rights concerns about the following developments in Indigenous affairs in relation to:

Reconciliation;
Self-determination;
Indigenous women in the criminal justice system; and
International negotiations on Indigenous rights.

Reconciliation (Chapters 3 and 4)

The report notes current developments in reconciliation including:

Public statements by Minister Ruddock on the Government's direction in Indigenous affairs, including on agreement making, partnerships and treaty processes;
Budget announcements on Indigenous specific expenditure;
Responses to the documents of the Council for Aboriginal Reconciliation and report of the Commonwealth Grants Commission; and
The reconciliation framework of the Council of Australian Governments.

There are two main features which run through the government's practical reconciliation approach:

It marginalises Indigenous people from having any role in setting the priorities or agenda for Indigenous affairs, even under the rubric of 'partnership and agreement-making'.
The efforts of the Government have been directed towards the goal of cementing this reductive approach into place, including at the inter-governmental level with the consequence that the limited processes for accountability are not directed to those issues which the Government does not agree with.

The report concludes that:

The Government's approach emphasises citizenship rights and the ideal of an inclusive society but does not elaborate what recognition the special place that Indigenous people occupy as the 'first Australians' or recognition of Indigenous culture might entail:
The offer of inclusiveness to Indigenous Australians without consideration of the rights and values inherent within Indigenous cultures sounds all too much like invitation to conform to mainstream Australian society without extending a reciprocal invitation to non-Indigenous Australia to examine its relationship to the Indigenous population. Inclusiveness (so defined) ... is potentially a form of neo-assimilation.
The record level of expenditure on Indigenous specific issues in the latest Budget still falls a long way short of the necessary funds projected to meet outstanding deficits across a range of key areas. Significantly the Budget does not provide any increase in the government's existing allocation of $11 million funding for Indigenous-specific family violence projects over a four-year period, despite the intense media attention given to this subject over the past year and the government's use of this issue to reinforce its call for a practical reconciliation.
Developments at the inter-governmental level, as reflected in the Council of Australian Government's Reconciliation Progress Report of April 2002, demonstrate that there is evidence of much good will, but substantial progress is yet to be made in addressing Indigenous disadvantage. Of particular concern is the lack of developments in regard to reporting Indigenous data and the establishment of action plans by each of the Ministerial Councils under COAG.
The agreement by COAG for the Steering Committee for the Review of Commonwealth/State Service Provision (SCRCSSP) to develop a framework for reporting on key indicators of Indigenous disadvantage is a significant institutional development in measuring progress for Indigenous peoples (note: Chapter 4 details a range of concerns with the current draft framework). When assessed from the perspective of human rights standards and recent international developments integrating strategies for poverty eradication and development, it can be seen that it is a partial measure and needs to be built on with other processes and analysis.

Ultimately, the Steering Committee's framework must be acknowledged as a significant development. It is in fact the only positive form of monitoring and evaluation that the Government has provided for practical reconciliation. The overarching concern however is that if constructed and too narrowly focused on practical reconciliation, to the exclusion of other important factors it could be co-opted as a political tool for reinforcing and legitimizing what is ultimately a limited approach to Indigenous issues ... As a result, the framework as a stand alone mechanism has the potential to reinforce practical reconciliation and marginalize further other issues of significance to Indigenous peoples.

Care must be taken, however, to ensure that the Steering Committee framework is not seen as a panacea or as intended to fulfill the monitoring role across the full range of issues. In my view, the greatest deficiency in this process is not the draft indicative framework per se but the fact that it currently exists in isolation from any other form of performance monitoring, particularly on identifying progress on important goals such as capacity building and governance reform, as well as identifying the unmet need and accordingly whether policy approaches are moving forward or in fact regressing.
The agreement by COAG to trial a 'whole-of-government' approach in ten Indigenous communities is to be commended and will be closely scrutinised as it develops.
In order to avoid replication of past problems it is crucial that the fundamental issues concerning Indigenous service delivery be addressed and factored into the trial's processes and evaluation framework. The rights and autonomy of Indigenous partners be respected to ensure effective participation, and for Indigenous ownership of processes and structures be involved in modelling. Equal emphasis needs to be given to the responsibility of governments and government departments and agencies in improving their performance in regard to Indigenous communities.
The Government's response to the Commonwealth Grants Commission's report into Indigenous funding contains a number of important undertakings and commitments, which are made in the context of 'Principles for equitable provision of services to Indigenous people' an agenda that provides an accountability framework for Government. However, the Government's response is confined to issues that fall within the 'practical reconciliation' agenda. The continued narrowing of the government's focus on Indigenous funding to consideration solely of relative need means that some important issues highlighted by the CGC Report are largely disregarded.
The Government's Response to the Final Report of the Council for Aboriginal Reconciliation is certainly not representative of the content of the Council's recommendations: it responds to only one of the Council's six final recommendations, and it outright rejects one of its four, integrated national strategies. The report expresses concern at:

the minimalist response to the 'symbolic' issues raised in the reconciliation documents;
the misrepresentation of self-determination as divisive (see chapter 2 for a thorough analysis of this point);
An emphasis on perceived areas of agreement at the expense of continuing debate on other areas on which the government does not agree; and
A misrepresentation of progress towards meeting the goals of practical reconciliation.

Close examination of the gains from reconciliation for Indigenous people listed in Government's response to CAR ... suggests that the government is not providing a very clear delineation of outcomes for Indigenous people but a somewhat limited and even misleading view.

Again, the absence of a long term commitment to overcoming Indigenous disadvantage, with short, medium and long term targets, masks the distinct lack of progress in addressing Indigenous disadvantage within a practical reconciliation approach. There is a continual need for Indigenous organisations to unravel the statements of the Government so that it can be held accountable for the real lack of achievement.

Self-determination (Chapter 2)

The Government's opposition to self-determination is not merely rhetorical. It has consequences and places limitations on the breadth of enjoyment of rights by Indigenous peoples and on their ability to participate meaningfully in processes that affect their lives.

The limited, reductive framework for 'practical reconciliation' excludes consideration of a range of important human rights factors in setting policy. Chapter 2 of the report details limitations in relation to the Government's approach to self-determination.

The Report finds that there are a range of significant differences between the Government's approach to self-determination and the understanding of it that has developed in international law. Ultimately, when we scratch beneath the surface of the Government's rhetoric their approach is exposed as a reductive, minimalist one that is not prepared to accommodate Indigenous aspirations or recognise any distinct status of Indigenous peoples in any meaningful way.

There are five main concerns about the Government's approach, when compared to the fuller understanding of self-determination in international law.

The Government's reliance upon inflammatory, provocative untruths to reject Indigenous self-determination;
The failure, or perhaps refusal, of the Government to accept that any consequences flow from recognising the unique, distinct status of Indigenous peoples in this country.

At present, the relationship between Indigenous people is defined according to little more than the beneficial intentions of Government to improve the life conditions of grossly disadvantaged Indigenous peoples. Such intentions are easily twisted into resentment and frustration at the amount of money spent when the desired improvements are not forthcoming. Defining a peoples' status and rights purely through their experiences of disadvantage is a dominating and disempowering approach. It is not a respectful basis for a relationship.
The lack of recognition of Indigenous peoples' unique status has meant that there is no underlying basis, no guiding principles, for relations between governments and Indigenous peoples.
The Government's current framework is oppositional in its approach and sets up Indigenous peoples as competitors of government.
There is a fear in the Government's approach that Indigenous peoples are going to usurp control and power over matters which they believe more appropriately belong as responsibilities of government. It is a strange, indeed almost paranoid, view of
partnership. It is also, in my view, an unrealistic one that does not accurately reflect Indigenous aspirations nor reflect historical reality.
There is no general acceptance by the Government of the legitimacy of Indigenous peoples being the primary decision makers on matters that affect their daily lives, and for efforts to build the capacity of Indigenous communities being directed at this aim.

Overall, the current approach of the Government to Indigenous policy formulation is introverted and myopic. It is unwilling to build on international developments or to accept that at core we are dealing with problems in relation to Indigenous peoples that are being faced globally. The current Australian approach is at the most conservative end of the spectrum internationally.

True self-determination requires communities to marginalise the role of government in the functioning of their communities. It is a perversion that governments continue to exercise almost total control over many Indigenous communities. It is not a normal functioning of those communities or of government. We must continue to challenge the narrowness of the approach of the government. Communities must also not be discouraged from seeking their own resolutions to the problems that they face as communities. They must continue to reclaim self-determination from the government.

Underlying the Government's concern about Indigenous control is a notion of loss of accountability. Central to the principle of self-determination is a notion of responsibility. Indigenous communities must be accountable for their decision making and expenditure.

Issues of accountability, however, run two ways - accountability to the funding agency and government, and accountability to the community who are intended to benefit from the programme or policy intervention that is made. At present, there is a real imbalance with limited accountability back to Indigenous communities (and to the community as a whole).

Ultimately, however, concern about ensuring adequate lines of accountability is not a reason for not engaging in a substantial process of involving Indigenous people in decision making and programme design and management. It is a reason to do so on an agreed basis, with a clear understanding as to accountability and monitoring requirements.

Indigenous women in the criminal justice system (Chapter 5)

This chapter provides a broad overview of issues that Indigenous women face in criminal justice processes. Due to the general dearth of research and statistics it is necessarily broad in its focus, and points to areas requiring follow up action and further investigation. Despite these limitations, what is clear is that there is a crisis in the level and type of contact of Indigenous women with correctional systems in Australia. There is insufficient attention devoted to their circumstances when in custody and insufficient attention to the environmental factors which contribute to their being in custody at all. Indigenous women indeed live in 'a landscape of risk' and suffer at the crossroads of race and gender.

Indigenous women are currently incarcerated at a rate higher than any other group in Australia.
While Indigenous men face unacceptably high rates of incarceration, the rate for Indigenous women is significantly higher and is rising at a faster rate.
The over-representation of Indigenous women occurs in the context of intolerably high levels of family violence, over-policing for selected offences, ill-health, unemployment and poverty.
Studies of Indigenous women in prison reveal experiences of life in a society fraught with danger from violence.
The consequences to the community of the removal of Indigenous women are significant and potentially expose children to risk of neglect, abuse, hunger and homelessness.
Indigenous women also serve comparatively shorter sentences, suggesting a general failure to employ the principle of imprisonment as a last resort. Once imprisoned, recidivism statistics also indicate that Indigenous women are at greater risk of returning to gaol.

A statistical overview of Indigenous women in corrections

a) Rates of incarceration of Indigenous women: The number of Indigenous women incarcerated has increased from 104 in 1991 to 370 Indigenous women in 2001. This represents an increase of 255.8% over the decade. Similarly, rates of over-representation of Indigenous women are higher than for Indigenous men. For the June 2002 quarter, Indigenous women were over-represented at 19.6 times the non-Indigenous rate compared to Indigenous men at 15.2 times.

In New South Wales, Indigenous women represented 30 percent of the total female population in custody in October 2002 despite constituting only 2 percent of the female population of the state.
In Queensland, the growth of Indigenous female offenders in Queensland secure and open custody over the five year period from 1994 -1999 was 204 per cent, compared with an increase of 173 per cent for all female offenders in Queensland over the same period. In February 2001, Indigenous women represented 28.2 per cent of the total female population in Queensland open and secure centres.
In Victoria, of the 4886 prisoners received into Victorian prisons in the 2000-01 period, only 539 were women. Nevertheless, while female representation is low overall, Indigenous women are over-represented, constituting 8% of all female prisoners.
In Western Australia, reception data shows that for the period 1 July 2001 to 30 June 2002, Aboriginal women represented 51.7 per cent of all women received into prison despite constituting 3.2 per cent of the female population of Western Australia.
In the Northern Territory, Indigenous women constituted 57 percent of the total female prison population (they are 26 per cent of the female population of the Territory).

b) Recidivism rates among Indigenous women: National statistical data indicates that nearly 3 in every 4 (76 percent) of all Indigenous prisoners had been previously imprisoned. Recidivism rates for Indigenous compared to non-Indigenous women are higher in all jurisdictions.

c) Types of crime committed by Indigenous women: Statistics on crimes committed by Indigenous women indicate that there is a considerable degree of variation in criminal behaviour across jurisdictions and within regions. There is also a steady and significant increase in most categories of offences. Thus, there were 100% more Indigenous women in prison for homicide related offences in 2001 than 1994, 127% more for assault and related offences, 440% more for robbery, and so on. The increases were reasonably comparable across many offence categories, although of particular significance has been the increase in imprisonment for robbery offences, which outstripped all other changes.

Nationally, Indigenous women comprise nearly 80% of all cases where women are detained in police custody for public drunkenness. Similarly, by comparison to non-Indigenous women, Indigenous women are more likely to be incarcerated for violence. There has been a past general trend of low numbers of Indigenous people imprisoned for drug offences. However, survey data from New South Wales and Victoria indicate wide use of drugs including narcotics. A further significant factor in the incarceration of Indigenous women is fine defaulting.

d) Over-policing: A further concern about Indigenous women's contact with criminal justice processes relates to the potential over-policing of Indigenous women. For example, in New South Wales, the Select Committee into the Increase in Prison Population found in 2001 that the most significant contributing factor to increases in the rates of incarceration of Indigenous women was the increase in the remand population. There was no evidence to suggest that an in increase in actual crime accounted for the prison increase, although increases in police activity and changes in judicial attitudes to sentencing were also important.

e) Sentencing patterns for Indigenous women: Indigenous women tend to receive shorter sentences than non-Indigenous women. General rates of over-representation tend to indicate that Indigenous women are not being provided with non-custodial sentencing options. Shorter sentences also appear to be linked to high rates of incarceration for public order offences.

f) Characteristics of Indigenous women who are imprisoned: In general Indigenous women in gaol are slightly younger than non-Indigenous women. There are no national figures for Indigenous women prisoners with children, but a majority of incarcerated women are mothers. Indigenous women also often enter custody with poor physical or mental health. Research in Victoria has revealed that many women self harm soon after release from prison. This includes drug overdose & other types of self harm. In NSW in comparison to a non-Indigenous woman, an Aboriginal woman is:

Four times more likely to be murdered;
More than twice as likely to be the victim of sexual assault, or sexual assault against children;
Four times more likely to be a victim of assault;
Seven times more likely to be a victim of grievous bodily harm.

Accompanying these factors is a strong argument that Aboriginal women receive poor responses from police to complaints about violence and other disturbances.

Experiences of Indigenous women in corrections

While there are limits on the statistics that are available on Indigenous women in corrections, there is sufficient data to indicate serious problems underlying Indigenous women's contact with corrections. The reasons derive in part from a combination of the ongoing impact of colonisation on the culture, laws and traditions of Indigenous communities, poverty and other forms of socio-economic disadvantage. This manifests in many ways including alcohol and drug use, homelessness and violence. Research has identified a strong correlation between imprisonment of Indigenous women and the experience of sexual assault and separation from family. The impact of alcohol related crime, and increasingly in some jurisdictions, drug related crime requires further investigation.

Indigenous women in corrections experience:

Disruption to family life: The imprisonment of Indigenous women impacts on the women, children and community who remain to take care of the children.
Pregnancy: Indigenous women in detention often present with compromised health. When these women give birth their children may require hospitalisation in intensive care units until they are stabilised.
Provision of health care: Where women are treated in hospitals outside the correctional facility, it is important to prove a standard of care which meets requirements for privacy. Protocols between the correctional institution and hospital for dealing with inmates could prevent this experience for women. A secure area where women could be received and treated within the hospital may alleviate some of the problems.
Visits with Family and Friends: Families are often not aware of the exact location of prisoners, or of conditions attached to visits. The need for liaison officers to reach communities with information about their incarcerated family members is stressed.
Disruption to cultural responsibilities and dislocation from community: An individual woman's sense of shame can be a powerful block to accessing vital support. In some instances women may also be facing payback and may not tell authorities about it, and may become itinerant as a result.
Dislocation from Services: Indigenous women experience dislocation from services as a result of incarceration. This may be experienced as loss of housing and loss of medical or dental programs among others. Indigenous women in remote communities suffer particular dislocation from services.
Housing: Chronic homelessness and the loss of accommodation due to incarceration creates one of the most urgent needs of Indigenous women post-release.

Election driven law and order campaigns primed to drive up incarceration, a lack of government action to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody and lack of judicial activism to implement the recommendations of the Royal Commission on non custodial sentences are some obvious and ongoing causes of over representation.

Criminal conduct by Indigenous women must be viewed as a symptom and offenders as the casualties of colonisation. Links must be drawn and holistic models developed and supported which address the connections between culture, drug use, alcohol use, separation from family, violence, poverty, spiritual needs, housing, health, boredom, race discrimination and gender discrimination.

Indigenous women are disadvantaged by the lack of services designed for them. This is an example of intersectional discrimination. It is a consequence of a rights and policy structure which identifies groups of needs and rights holders such as women and Indigenous people, but fails to provide for the needs of people who dwell at the intersection of these groups.

There is an increasing understanding of the vulnerability of Indigenous women to the impact of a lack of post-release resources. Evidence indicates that women are at serious risk of self-harm and harm from others in the period immediately after incarceration. It is important that rehabilitation be undertaken in prison and continued on release.

Issues that pre- and post-release programs need to address include:

Housing issues: Housing has been identified as the most important basic need of women leaving gaols. Some women may be able to access public housing, but this needs to be in place before their release date. Transition accommodation is perhaps the most important service for women, especially if they have children.
Dealing with Violence: Effective pre and post release programs should include community based, Indigenous specific programs to help women deal with the effects of violence and to help women develop alternative strategies for coping with violence in the future. People require protection from violent behaviour and alternative structures for prevention and punishment of violent behaviour which provide more than imprisonment with all its risks and consequences.
Children and Families: Women need support to maintain contact with their children while they are incarcerated. Where that is not possible, they need to be provided with information as to the well being of their children. Women need support when they resume contact with their children. They need practical advice on how to deal with family court procedures and departments of community services.
Kinship Obligations: Aboriginal women in custody are ever-conscious of the impact their absence has on the day to day lives of their families and children. This creates stress on them during the period of their custodial sentence, and creates additional stresses on them when they return home. Programs which are sensitive to the kinship obligations of Indigenous women and supportive of these roles are important. Indigenous women have identified help with family and community relationships as an issue they want help with.

Some women may face another form of dispossession because of the impact of violent relationships on their lives. They may not be able to return to their home community, as a result of their own or other people's violence. In either scenario, women need support to re-enter potentially volatile situations. Pre- and post-release programs need to be sensitive to kinship obligations, and to support Indigenous women to work with their customary obligations and to positively re-integrate into the community in which they will live.
Financial Issues, Employment, Education and Training: There is an absence of consistent data in relation to educational background of prisoners available. On the issue of employment and education programs within the prison Margaret Cameron of the Australian Institute of Criminology notes that 'no formal consideration has been given to the needs of ATSI women.' A recent survey of NSW women noted that 84% of the women said they would like to work on release.
Access to health services: The high incidence of health problems among Aboriginal women is an indicator that pre and post release programs should target the health needs of Aboriginal women. The high incidence of deaths in custody attributable to natural causes indicates an urgent need for better health care while in custody, and better health care on release. There is also a specific need to address drug abuse among Indigenous women.

International approach of the Government to Indigenous issues (Chapter 6)

The International Decade of the World's Indigenous People began on 10 December 1994 and runs until 9 December 2004. Chapter 6 of the report surveys current developments in Indigenous rights at the international level within the context of the objectives of the International Decade.

There are still two years remaining in the International Decade for the World's Indigenous People. There have been some significant achievements in the Decade to date, most importantly the establishment of the Permanent Forum on Indigenous Issues and the appointment of a Special Rapporteur on the situation and fundamental freedoms of Indigenous people. These mechanisms, however, continue to face serious issues relating to their capacity and budget.

Despite the extraordinary variety of achievements in the recognition of Indigenous rights and the participation of Indigenous peoples at the international level over the past thirty years there remains a great distance to be travelled for international law to provide full and non-discriminatory recognition of Indigenous peoples' rights and for the objectives of the International Decade to be met ... Indigenous peoples remain greatly concerned at the overall lack of achievement during the Decade to date and at the fragile status of those measures that have been realised.

The Australian government plays an active and vital role at the United Nations on issues related to the protection and promotion of Indigenous human rights. The Government has made a positive contribution in supporting the establishment and funding of the Permanent Forum on Indigenous Issues. The report, however, expresses concern at the Government's approach in international forums on Indigenous issues whereby they have:

opposed recognition of self-determination for Indigenous peoples, and accordingly have contributed to the unacceptable lack of progress in negotiations on a draft Declaration on the Rights of Indigenous Peoples;
Argued for the dismantling of the Working Group on Indigenous Populations at the UN, and withheld any funding contributions to UN activities relating to Indigenous issues while the Working Group continues to exist.

The report makes 3 recommendations to the Government relating to its approach to Indigenous issues at the international level. These are that the Government:

Continue to support the provision of adequate resourcing from the United Nation's Regular Budget to the Permanent Forum on Indigenous Issues;
Contribute funding to activities of the Permanent Forum on Indigenous Issues (and for ATSIC to match the Government's contribution); and
support the continued existence of the Working Group on Indigenous Populations and seek to strengthen its mandate and role.

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19 March 2003.

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