Indigenous Justice Conference
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1 The Australian Institute of Judicial Administration Indigenous Justice Conference University of South Australia, Adelaide, 18 July 2013 Current Issues in Delivering Indigenous Justice Challenges for the Courts NATIONAL CONGRESS OF AUSTRALIA S FIRST PEOPLES Presented by Ms. Tammy Solonec (LLB) Director Chamber Three Convener Justice Working Group
2 INTRODUCTION I start with our protocol of acknowledging the traditional owners of this land. I acknowledge the Kaurna (Garna) people and their Elders past and present and thank them for their custodianship of this land. I also acknowledge the Nunga people of South Australia. Thank you also to Jack Buckskin for your moving Welcome to Country. Thank you to the organisers for the opportunity to speak at this seminar about current issues in delivering Indigenous Justice and in particular challenges for the courts. DEDICATION TO NEIL GILLESPIE Before I begin however, I would like to acknowledge the sudden passing this weekend just gone of Mr. Neil Gillespie. Neil was a fierce advocate for Aboriginal and Torres Strait Islander people, especially here in South Australia, where he was the CEO of the Aboriginal Legal Rights Movement of South Australia between 2000 and I had the pleasure of knowing and working with Neil both in my capacity as a lawyer with the Aboriginal Legal Service of Western Australia and as a member of the Indigenous Peoples Organisations (IPO) Network, where through international mechanisms and the United Nations Neil actively pursued justice and fairness our people. Highlights of Neil s international advocacy including lodging a complaint about the inequity in funding between Aboriginal Legal Services and mainstream legal aid with the CERD Committee, and lobbying for compensation for Aboriginal people affected by the British nuclear tests at Maralinga between 1955 and 1963, part of the Woomera Prohibited Area. Locally and recently, he was known to have criticized departing Premier Mike Rann in 2011 of his handling of Aboriginal affairs during his terms in office, saying he had "failed to ensure that Aboriginal people have access to justice". As a person, Neil was always supportive of me and other young Aboriginal and Torres Strait Islander people coming through, but most of all, he was a kind man who was always there for others, including his beloved wife Vicky and his children, including of course his son, who most of you will know as the successful cricketer Jason Gillespie. Neil will be sadly missed by all of us who work in this field of Indigenous advocacy, especially as it relates to access to justice and I would like to dedicate this speech to him. In his honour, I would now like to ask that we all pause for a minute s silence. Thank You. PAUSE FOR ONE MINUTE S SILENCE Page 2
3 Today I have been asked to speak to you about current issues in delivering justice for Aboriginal and Torres Strait Isalnder peoples and in particular challenges for the courts. I speak to you today as a representative of the National Congress of Australia s First Peoples. We are the new national representative body for Aboriginal and Torres Strait Islander peoples in Australia. At Congress, our individual and organisational members have let us know that justice needs to a priority advocacy issue. On this basis we have formed a Justice Working Group, of which I am the Convener, and have developed a Justice Policy, which forms the basis of the information that I will share with you today. THE EXPERIENCE The statistics about Indigenous incarceration and victimization in Australia are alarming and is of serious concern to our people. Here is just a snapshot: Our people are 14 times more likely to be incarcerated; 1 Our youth are almost 24 times more likely to be in youth detention; 2 Our people are 23 times more likely to be hospitalized for assault (and our women are 35 times more likely); 3 and Our children are 10 times more likely to be a ward of the state, 4 with our children currently making up 31% of all children in state care, 5 despite them only making 4.2% of all Australian children and young people. 6 It is important to note that the numbers and proportion of our people incarcerated has been increasing in recent years and is projected to increase significantly over the next 20 years due to various factors, including our growing population. It is important to note that we have a large youth population. In 2011, 35.9% of the Aboriginal and Torres Strait Islander population was less than 14 years, 7 where as only 3.8% were aged 65 years and over. 8 This is the opposite of the mainstream population, whose aging baby boomers make up the majority. 1 Australian Bureau of Statistics, Prisoners in Australia 2011, Cat no , p 8, (accessed 6 June 2012). 2 Australian Institute of Health and Welfare, Juvenile Justice in Australian , Juvenile Justice Series no. 10. Cat No JUV 10, p.7, < (accessed 15 August 2012). 3 Productivity Commission 2011, p Australian Institute of Health and Welfare Australian Institute of Health and Welfare 2012(1), p28. 6 Australian Bureau of Statistics (ABS), 2011 Census Counts Aboriginal And Torres Strait Islander Peoples, (accessed 7 February 2013). 7 Ibid. 8 Ibid. Page 3
4 I have included the statistic about our children in child protection in these statistics because it is an emerging priority area of concern for us in Australia, and because of the clear links between children in child protection, becoming youth in juvenile detention, becoming adults in prison. And I have included the statistic about victimization because violence against our people and in particular our women is another key concern for us, and it is important that victims are considered when talking about criminal justice, and that we understand the dynamic between victims and perpetrators, especially in the situation of domestic, family and lateral violence. Because, to look at the criminal justice system in isolation is amiss of the true situation of economic, social and cultural factors to Indigenous offending. We must look broader than the offenders and their offending to begin to understand why our people are so overrepresented in the criminal justice system. I make the point of referring to the criminal justice system, rather than just incarceration, because our people are overrepresented in all contact with the system. We are more likely to be victims, more likely to have contact with police, more likely to be charged with offences, more likely to be convicted offences, and more likely to receive harsher sentences for offences, including receiving higher fines. We are less likely to receive police cautions, less likely to be receive sentences which are alternatives to incarceration, less likely to be granted parole once incarcerated, and less likely to receive access to rehabilitative and through care programs. The cycle then continues, with our people more likely to repeat offend. However, even restricting it to the criminal justice system is too narrow. We also need to consider the overrepresentation and special circumstances relating to our peoples experiences with other areas of law including child protection law, family law and civil law, such as tenancy, discrimination, defamation and vilification. UNDERLYING CAUSAL FACTORS The reasons for Indigenous overrepresentation in the justice system involve a complex interplay of historical and contemporary factors and social determinants. I don t have time today to go into the historical factors, but if you are interested in learning more I would encourage you to consider the reports of: The Royal Commission into Aboriginal Deaths in Custody, released in 1991 which investigated 99 deaths and made 339 recommendations; The Bringing Them Home Report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, released in 1995; and The Country Report from the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, released in June See references at the end of this paper. Page 4
5 The historical factors outlined in these reports have lead to our people suffering from multiple contemporary disadvantage that increase our likelihood of coming into contact with the justice system and being incarcerated. For example, data tells us that the following groups of people are overrepresented in the criminal justice system and prisons: those affected by substance abuse; those with auditory hearing loss; those with a cognitive and/or mental disability; those who have received limited formal education; those who have been the victim of family or domestic violence; those who were a ward of the state (including members of the Stolen Generations); and of course those who are poor. Aboriginal and Torres Strait Islander people are overrepresented in all these groups. In addition to this, the overrepresentation is perpetuated by the disproportionate impact that a tough law and order regime has on disadvantaged minority groups, including Indigenous peoples and by targeting, over policing and discrimination against our people by the very individuals that uphold the laws including policy makers, police and the judiciary. This includes laws like mandatory sentencing, which take away the ability of the judiciary to consider circumstances, and the increasing overregulation in Australia. The justice system is also extremely focused on the offender, which means there is often little support, compassion or resources for victims. It is the most vulnerable and disadvantaged people in our society who end up in prison and although there are some people who do require rehabilitation and who the public need to be protected from, there are many, many who do not need to be locked up. When we consider the system like this, it becomes clear that although it is called a justice system, when it comes to being Aboriginal or Torres Strait Islander, it is hardly a just system. Unfortunately in Australia, there is a lack of political leadership to address these grave concerns and projected increases in overrepresentation, and little to hold Governments to account. The incarceration and victimization of our people has been normalized and there is a sense of Government and broader community apathy about the situation. This is complicated further by our Federal system of Government, where crime and justice are the responsibility States and Territories. Instead of trying to reduce incarceration, political leaders push tough on crime law and order campaigns, pumping out more and more laws with harsher penalties, incarcerating more and more people. Although such rhetoric may assist with the popular vote during elections, and make the broader community feel safer (whether it in reality makes them more safe or not), the fact of the matter is that the tough on crime approach to justice is simply not sustainable. Page 5
6 For Aboriginal and Torres Strait Islander people, it is not socially sustainable, and for everyone else, it is not financially sustainable, with enormous costs associated with incarceration. Over $2.6 billion is spent on adult imprisonment in Australia every year. 10 As Aboriginal and Torres Strait prisoners make up about a quarter of the adult prison population, approximately $650 million is spent on Indigenous adult imprisonment a year. If we add to that cost of incarceration the costs of other aspects of the criminal justice system including for police, the judiciary and legal aid, we start to get a true picture of the enormous financial burden that our justice system imposes on society. WAYS FORWARD The time for change is imminent and around the world, particularly in Western countries that have inherited the British system of justice, policy makers are looking for alternatives. Calls for reform to the justice system from Aboriginal and Torres Strait Islander people are growing stronger each day and projects aimed at reducing contact with the justice system are appearing everywhere. Rather than go into detail about particular programs, I will talk about national reforms that we are advocating for. These reforms are about a pushing for a shift in thinking, a change in the rhetoric, from tough on crime to smart on crime approaches (also referred to solution based policy ), using prevention, early intervention, diversion and rehabilitation. In particular, there is a push for programs that involve the participants learning their Indigenous cultures. There are a number of programs in Australia that have had positive results in diverting our people from the justice system and slowing recidivism rates by offering rehabilitative programs in prison, which are founded on the concept of culture as a preventative mechanism. Justice Reinvestment Overarching this shift in thinking is a push for the national adoption of Justice Reinvestment in Australia. Justice Reinvestment is a concept that emerged in the United States and which has been having success in reducing incarceration. It is designed to help reverse the high levels of incarceration and to improve the lives and the well being of communities by diverting people away from jails and the criminal justice system to community led development programs. Under this approach, a portion of the public funds that would have been spent on covering the costs of imprisonment are diverted to local communities that have a high concentration of offenders deemed high risk communities. 10 Australian Institute of Criminology, Australian Crime: Facts and Figures 2008, p 110. At 031D 415C B544 8CE865A3CA0C%7Dfacts_and_figures_2008.pdf (viewed 14 February 2013). Page 6
7 The money is invested in community programs, services and activities that are aimed at addressing the underlying causes of crime in those communities. This includes programs based on culture as a preventative mechanism as noted earlier. Such local and community owned initiatives are more aligned with Indigenous cultural values and self determination, than top down punitive approaches. The Australian Federal Government has recently investigated Justice Reinvestment as an option for dealing with the substantial overrepresentation of Aboriginal and Torres Strait Islander people in the justice system through a Senate Inquiry led by South Australian Senator Penny Wright. 11 The inquiry received a high level of participation with over 125 written submissions received, and a number of verbal submissions at the Inquiry hearings held in Perth, Sydney and Canberra. The Inquiry released its report on 20 June 2013 and recommended that the Commonwealth Government take a lead role in developing Justice Reinvestment in Australia including with regards to data collection and sharing, by providing a long term sustainable funding, by establishing a Justice Reinvestment clearinghouse, and by conducting trials of Justice Reinvestment including in a remote Indigenous communities. We eagerly await the response of the Government to the report. Justice Targets Another national reform we are seeking which was also recommended by the Justice Reinvestment Senate Inquiry is the adoption of Justice Targets, as part of the national Close the Gap Framework. This framework is one that the Governments of Australia have committed to which provides long term, measurable and targeted health outcomes for Aboriginal and Torres Strait Islander people through a National Partnership to Close the Gap for Indigenous Health Outcomes and a Statement of Intent for the Close the Gap Indigenous Health Equality Campaign. The Close the Gap Campaign is led by Indigenous and non Indigenous national health peak organisations and includes six measureable targets for closing the gap between Indigenous and non Indigenous Australians. We are advocating for this Framework to be extended to the justice system. We think there should be two targets to (1) halve the rate of incarceration; and (2) halve the rate of hospitalisation from assaults. It is important to balance these competing (but inter related) aspects of justice for our people and to hold Governments to account. 11 Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia, at x.htm (accessed 20 February 2013). Page 7
8 Indigenous Legal Aid Culturally appropriate legal representation that is accessible to Indigenous people is an important component of access to justice. Whilst we are fortunate to have specific Indigenous Legal Aid Services in Australia, they are chronically underfunded as compared to mainstream Legal Aid, and rely on Federal funding and are not supported by States and Territories. This of course was one of the key advocacy issues of Neil Gillespie, who this speech is dedicated to. We are advocating for a National Partnership Agreement on Indigenous Legal Aid, which is contributed to by the Federal and State and Territory Governments. We want the States and Territories to support and foster our Aboriginal organisations, rather than continually mainstream our services. Changes to Judicial and Police Culture Another important series of reforms that is required involves changing the culture within the justice system, and in particular police culture. For example, with regards to Juvenile Justice, one of the simplest and most effective ways of reducing incarceration rates, is for police to give out more cautions and warnings. We are not saying that bad behavior should be ignored, on the contrary, the youth can be cautioned and diverted into youth related programs, rather than charged and detained. Once a child is detained and their liberty removed, incarceration becomes normalized and the deterrents are reduced. It is important that the concept of imprisonment as a last resort is adopted, especially with regards to children and youth. However, in order for this to occur, there needs to be a change in the mindset of police, including through training in the historical, social and contemporary factors that lead to offending and through encouragement to move from paramilitary ways of operating which are focused on punishment, to more socially based roles which are focused on correction and diversion. We need police to be seen positively in Indigenous communities, engaging with youth, rather than being seen as people to be afraid of. As well as training and encouragement, legislative reform may be required to ensure that police give warnings where possible, especially where children and youth are concerned. Increased Indigenous Participation in the Justice System There is also an urgent need for Aboriginal and Torres Strait Islander people to be more involved in the justice system and in particular in high level decision making. As well as more lawyers, police and Judges, we need Indigenous people in legal supporting roles and in Parliament. Whilst we have seen increasing numbers of Indigenous lawyers through the success of programs such as the Aboriginal Pre Law Programs, few of those lawyers end up working in the criminal justice system because they are recruited into government, mining companies, native title law and the corporate sector. There is an urgent need for targeted recruitment programs and identified Indigenous positions across the justice system, to assist our people to make to change the culture from within. Page 8
9 Ratify the Optional Protocol to the Convention Against Torture Our final recommendation is about the conditions of detention, because there are many of our people who are locked up in increasingly crowded prisons, without access to services and their families, lands and cultures. Congress is urging the Government and all States and Territories to ratify the Optional Protocol to the Convention Against Torture, which will allow United Nations inspectors to inspect all places of detention in Australia (including prisons, police lockups and refugee detention centres), and which requires the set up of a National Preventative Mechanism. Although the Federal Government, States and Territories unanimously agreed to do this in July 2012 it requires the passing of legislation in Federal Parliament and in each State and Territory. We want to ensure that the ratification timetable is kept on target and that Aboriginal and Torres Strait Islander people and organisations are involved in its development. LAY DOWN THE CHALLENGE WHAT CAN YOU DO? With this information in mind, I would like to return to the topic of this conference of current issues in delivering Indigenous justice, and challenges in the courts. In that regard, I would like to lay down a challenge to every one in this room about what you can do. As people who derive our livelihoods from the justice system of Australia we are all the beneficiaries of the sufferings of Aboriginal and Torres Strait Islander peoples and we all have a part to play in overcoming the issues I have outlined today. In particular, I would like you to consider what role the Judiciary has in agitating for system reform. Of course, one of the fundamental principles of our justice system is the doctrine of the separation of powers between the judiciary, the executive and parliament. Whilst I can understand the reasons for this separation, sometimes it can lead to poor decision making. In particular, I believe there is a greater role for the judiciary to play in advising or being consulted about law reform from both the parliamentary and executive arms of government, especially as it relates to criminal justice. It is the judiciary and those who work within the court systems that see day in and day out, the problems afflicting society, and the programs which are working to reduce offending and recidivism. I would encourage you all to become more active in this area and share with us your wisdom, training and ethics to assist us to reform our justice system into a more just system. As an example, in Western Australia, our Chief Magistrate Wayne Martin has been very active in addressing Indigenous incarceration and has spoken at many conferences and seminars and has a voice in the media. The Chief Justice has been able to do this in a way that does not offend the separation of powers doctrines, but which does share his years of knowledge and Page 9
10 experience. I encourage you to think about ways that you can make a difference and about ways that you think the justice system can be reformed. There is also a need for alternatives to incarceration that can provide real options to the judiciary in sentencing. For example, if there were more youth bail hostels, as we have recommended time and time again at the Aboriginal Legal Services, less children would need to be sent to juvenile detention. Successful diversionary programs such as Halo Leadership in Perth and the Yirriman Project in Fitzroy Crossing can, if supported by the system, be offered as alternatives to incarceration. CONCLUSION So in summary, I have today outlined the experiences of Indigenous people in Australia in the justice system and in particular the overrepresentation in the criminal justice system, and I have explained the underlying causes for this experience. I then outlined that in Australia, the trajectories for incarceration of Indigenous people is expected to increase significantly over the next 20 years and that there is an urgent need for reform now. I then explained some of those reforms we are advocating for, including the adoption of Justice Reinvestment and Justice Targets, increased Indigenous participation in the justice system, changing the culture of the justice system to more compassionate approaches to justice which are focused on prevention and diversion, and ratifiying the optional protocol to the Convention Against Torture. I finished the presentation by laying down a challenge to you all and particularly the judiciary in asking what can you do in reforming the system? What role do you and the courts have to play in overcoming the challenges facing Indigenous people? I now have a little time to take questions. Unfortunately I am not able to stay as I have to head to Cairns for our 3 rd Annual National Congress Meeting, which commences tomorrow. For those of you who have not heard, our Co Chair election results were made public this morning with the return of Les Malezer and the new appointment of Kirstie Parker as our female Co Chair. Thank you again for the opportunity for me to deliver this message from the National Congress of Australia s First Peoples. I wish you all good luck over the following days and know that the ancestors will stand with you during this important conference. Page 10
11 REFERENCES Productivity Commission 2011: Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission, Canberra data/assets/pdf_file/0018/111609/key indicators 2011 report.pdf (accessed 01 March 2013) Australian Institute of Health and Welfare 2011, Fact Sheet: Child protection and Aboriginal and Torres Strait Islander Children viewed 01 March 2013 < > Australian Bureau of Statistics (2013) A POPULATION OVERVIEW: POPULATION SIZE AND AGE STRUCTURE, viewed 01 March 2013 < > Human Rights and Equal Opportunity Commission, 1997, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families viewed 01 March 2013 < > Australian Government Royal Commission in to Aboriginal Deaths in Custody Viewed 01 March 2013, United Nations, (2010) Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: Situation of indigenous peoples in Australia* on of indigenous peoples in Australia, viewed 01 March 2013 < Page 11
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