Pacific Preparatory Meeting

Pacific Preparatory Meeting World Conference on Indigenous Peoples Centre for Indigenous Excellence, Sydney, 19 March 2013 Justice for Indigenous Peoples NATIONAL CONGRESS OF AUSTRALIA S FIRST PEOPLES Presented by Ms. Tammy Solonec (LLB) Director Chamber Three Convener Justice Working Group

INTRODUCTION I start with our protocol of acknowledging the traditional owners of this land. I acknowledge that we are meeting today on the lands of the Gadigal Peoples of the Eora Nations and acknowledge them and the Koori Peoples of New South Wales generally, and pay respects to their Elders and Ancestors. I also acknowledge each of you here today, and the expertise and passion you all bring, in being selected to work on this important issue of preparing for the World Conference on Indigenous Peoples, on behalf of the Indigenous Peoples of the Pacific. Thank you for the opportunity to present at this meeting about Justice for Indigenous Peoples. Today I am speaking on behalf of the National Congress of Australia s First Peoples, the national representative body for Indigenous 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 Convener, and have developed a Justice Policy, which forms the basis of the information that I will share with you today. My presentation will be specific to Australia, so I look forward to the contributions of other Pacific Indigenous Peoples about justice in our time for discussion following my presentation, about to learning about the issues with regards to justice that are being face in your home communities. Please also note that my comments today will be focused on relatively short- term solutions aimed at addressing the crippling dysfunction in our communities and families that result from our overrepresentation in the justice system, and primarily the criminal justice system. Our long- term goals however remain focused on our communities being self- determining and capable of driving our own economic, cultural, social and political development. I note that the theme for the Expert Mechanism on the Rights of Indigenous Peoples this year is Access to Justice for Indigenous Peoples, including Truth and Reconciliation Processes and that this theme is broader than my presentation today, but to be considered when we commence our discussions shortly. I also note that Paul Coe has requested discussions about Government accountability and the question of sovereignty and that we have agreed to include those discussions in this session. I welcome the comments of Mr Coe, because I do note that my presentation is specific to the criminal justice system and our experiences within it and that the word justice is much broader. It will be up to us today to decide what we want to incorporate in regards to justice in our recommendations and in the outcome document that will be finalised on Thursday. To illustrate the breadth of the word justice take for example the concept note of the EMRIP Study on Access to Justice, which states that as well as a consideration of Truth and Reconciliation Processes, that study will include considerations of the following: Page 2

procedures and tools within state justice systems to provide fairness and equality in legal processes including interpretation services, training for judges, adequate legal representation, adequate legal aid and the need for cultural sensitivity; the high incarceration rates of Indigenous individuals, including women and youth; the collective nature of the right to access to justice for Indigenous peoples together with the right to access to justice for Indigenous individuals; the role of other economic, social and cultural factors to Indigenous offending; Indigenous peoples jurisdiction over their territories and members; recognition of Indigenous peoples jurisprudential approaches to justice and its attainment; violence against Indigenous women and children; Indigenous women s access to justice under Indigenous peoples juridical systems; failures to recognise the legal personality of Indigenous peoples and their representative institutions; the role of alternative dispute mechanisms; the role of restorative justice approaches and traditional and Indigenous laws; the provision of measures to recognise and protect Indigenous peoples lands, territories and resources as held under Indigenous peoples customs and practices; impunity in relation to Indigenous peoples rights violations caused by non- Indigenous actors, including business enterprises; the relationship between Indigenous peoples access to justice and other Indigenous peoples rights; competing jurisdictional authority between Indigenous and non- Indigenous justice systems; complexities with the international legal system s ability to respond to Indigenous peoples claims to justice under it, especially with respect to historical grievances; and the role played by international, regional and domestic human rights focused institutions in ensuring access to justice for Indigenous peoples. As you can see this is an extensive list and if we are not able to narrow our recommendations and consideration of the word justice we could end up taking the whole 10,000 words just on this topic. We need to be careful to consider what are the most pressing issues with regards to justice, and how the word is defined. Obviously, today I won t have time today to go into each of these areas and as I said before, my presentation will focus on the overrepresentation of our Aboriginal and Torres Strait Islander people in the justice system (and particularly the criminal justice system) of this country. Page 3

THE EXPERIENCE First let me explain the experience. The statistics about incarceration and victimisation of Aboriginal and Torres Strait Islander people in Australia are alarming and are of serious concern. 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 hospitalised 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 our large youth population and existing trends. 7 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 victimisation 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. I will talk more about this and in particular violence against our women tomorrow morning. 1 Australian Bureau of Statistics, Prisoners in Australia 2011, Cat no 4517.0, p 8, http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/7b05cd44a0e2fc8aca25795f000dbd0f/$file/45170_ 2011.pdf (accessed 6 June 2012). 2 Australian Institute of Health and Welfare, Juvenile Justice in Australian 2010-11, Juvenile Justice Series no. 10. Cat No JUV 10, p.7, <http://www.aihw.gov.au/workarea/downloadasset.aspx?id=10737422614&libid=10737422614> (accessed 15 August 2012). 3 Productivity Commission 2011, p4.124-5. 4 Australian Institute of Health and Welfare 2011 5 Australian Institute of Health and Welfare 2012(1), p28. 6 Australian Bureau of Statistics (ABS), 2011 Census Counts Aboriginal And Torres Strait Islander Peoples, http://www.abs.gov.au/ausstats/abs@.nsf/lookup/2075.0main+features32011 (accessed 7 February 2013). 7 In 2011, 35.9% of the Australian Indigenous population was less than 14 years, where as only 3.8% were aged 65 years and over. This is the opposite of the mainstream population, whose aging baby boomers make up the majority. Ibid. Page 4

It is important to look at these broader social issues, 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 justice system and particularly 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 Aboriginal and Torres Strait Islander 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 do note that the situation of dispossession, discrimination, oppression and institutionalisation that have been suffered by our people is similar to that which has been suffered by Indigenous Peoples in many other nations around the world, and in particular in countries that share similar stories of colonisation to us, including New Zealand and Canada. If you are interested in learning more I would encourage you to read and 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 2010. 8 8 See references at the end of this paper. Page 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 who had experiences similar to the Boarding Schools that have been outlined in other presentations this week); and of course those who are poor. In Australia, our 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 for the judiciary to consider circumstances, and 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 societies 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 Indigenous, 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 victimisation of our people has been normalised 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 of provinces, which we refer to as States and Territories. Page 6

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. For our peoples, 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. 9 As Aboriginal and Torres Strait Islander prisoners make up about a quarter of the adult prison population, approximately $650 million is spent on imprisoning our men and women each year. If we add to that the costs of other aspects of the criminal justice system including juvenile detention and the costs association with 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 countries that have inherited the British system of justice, policy makers are looking for alternatives. In Australia, calls for reform to the justice system, especially 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. 9 Australian Institute of Criminology, Australian Crime: Facts and Figures 2008, p 110. At http://www.aic.gov.au/documents/e/4/0/%7be4031e6f- 031D- 415C- B544-8CE865A3CA0C%7Dfacts_and_figures_2008.pdf (viewed 14 February 2013). Page 7

Under this approach, a portion of the public funds that would have been spent on imprisonment are diverted to local communities that have a high concentration of offenders deemed high risk communities and calculated through a system of standardised data collection. 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. The Australian Federal Government is currently investigating Justice Reinvestment as an option for Australia through a Senate Inquiry, 10 and we are hopeful of a positive outcome. Justice Targets Another national reform we are seeking 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 campaigns for Aboriginal and Torres Strait Islander people. On that point it is important to note that Indigenous Peoples in Australia face disadvantage in all social indicators, including areas like health, housing and employment, and that this disadvantage increases the likelihood of contact with the justice system. The Close the Gap Campaign is led by 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. 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 Legal Aid Services for Aboriginal and Torres Strait Islander people 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. We are advocating for a National Partnership Agreement on Indigenous Legal Aid, which is contributed to by the Federal and provincial Governments. We want the States and Territories to support and foster our Aboriginal organisations, rather than continually mainstream our services. 10 Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia, at http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=legcon_ctte/justice_reinve stment/index.htm (accessed 20 February 2013). Page 8

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 normalised and 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 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. 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 Finally, there is an urgent need for Indigenous peoples 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 and there is an urgent need for targeted recruitment programs across the justice system, to assist Indigenous people to change the culture from within. Thank you again for the opportunity for me to deliver this message from the National Congress of Australia s First Peoples. Page 9

REFERENCES Productivity Commission 2011: Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission, Canberra http://www.pc.gov.au/ 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 <http://www.aifs.gov.au/cfca/pubs/factsheets/a142117/index.html > Australian Bureau of Statistics (2013) A POPULATION OVERVIEW: POPULATION SIZE AND AGE STRUCTURE, viewed 01 March 2013 <http://www.abs.gov.au/ausstats/abs@.nsf/lookup/4725.0chapter110apr%202011 > 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 < http://www.humanrights.gov.au/social_justice/bth_report/index.html > Australian Government Royal Commission in to Aboriginal Deaths in Custody Viewed 01 March 2013, http://www.austlii.edu.au/au/other/indiglres/rciadic/ 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 <http://www.ohchr.org/en/issues/ipeoples/srindigenouspeoples/pages/countryreports.aspx> Page 10