Briefing for the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Ms Victoria Tauli-Corpuz

March 2017

Executive Summary

The National Congress of Australia’s First Peoples is pleased to welcome Ms Tauli-Corpuz to Australia. Congress is a representative body for Aboriginal and Torres Strait Islander Peoples, and advocates for self-determination and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

Despite committing itself to implementing the United Nations Declaration on the Rights of Indigenous Peoples at the World Conference on Indigenous Peoples in 2014, the Australian Government has been hesitant to adopt many international recommendations which would assist it in doing so. These include legal provisions to prevent the enactment of discriminatory laws and a plan of action for supporting our rights. Furthermore, the Government is yet to take steps recommended by the former Special Rapporteur on the Rights of Indigenous Peoples, Mr James Anaya, to ensure that our communities are not exploited by extractive industries and other corporations.

Despite repeated calls for self-determination from the Aboriginal and Torres Strait Islander community, the Australian Government continues to pursue paternalistic policies which prevent us from attaining self-governance. Of note is the continuation of the Northern Territory Intervention under the new brand of the Stronger Futures policy. This policy has led to over-policing in our communities, the forced participation in work for the dole schemes which pay individuals far less than an average reward rate, and the perpetuation of stigma against us.

Although the Native Title Act provides some protections for our land, native title has been significantly weakened through successive government policies and High Court rulings. Pastoral leases extinguish native title where there is a conflict of rights, and corporate and political interests regularly take precedence over our connection to land, as demonstrated in the controversy surrounding the construction of the Hindmarsh Island Bridge.

Australia’s development policies for Aboriginal and Torres Strait Islander communities continue to be assimilationist in nature. The Community Development Program has forced many individuals into work-for-the-dole programs and forms of employment with little cultural relevance to us. Although some health and education outcomes have improved, a lack of culturally appropriate services and bilingual teaching has stymied progress in these areas. Furthermore, the reorganisation of development funding under the Indigenous Advancement Strategy has led to the collapse of small organisations unable to engage in competitive bidding processes and the inflation of bureaucratic costs.

Incarceration rates of Aboriginal and Torres Strait Islander people continue to increase in Australia, with a “tough on crime” attitude

leading to the jailing of our people for minor crimes and a refusal to provide basic rehabilitative and educational services to those who have been imprisoned. A lack of accountability in correctional centres has led to a culture of abuse. Particularly troubling are the revelations of the abuse of children in the Don Dale Correctional Facility which have led to a Royal Commission into the Protection and Detention of Children in the Northern Territory.

Encouragingly, however, the Australian Government appears open to some aspects of the Redfern Statement, a policy drafted by Aboriginal and Torres Strait Islander leaders and communities which emphasises self-determination for our people. However, the Government’s commitment to the principles of the Redfern Statement is presently very limited, and more must be done to ensure that the assimilationist and paternalistic mistakes made by past governments are not repeated.About the National Congress of Australia’s First Peoples

The National Congress of Australia’s First Peoples (“Congress”) is pleased to welcome Ms Tauli-Corpuz to Australia.

Congress is a representative body for Aboriginal and Torres Strait Islander Peoples. Established in 2010, Congress has grown steadily and now comprises over 180 organisations and almost 9,000 individual members, who elect a board of directors.

Congress advocates self-determination and the implementation of the United Nations Declaration on the Rights of Indigenous peoples. Congress believes that Aboriginal and Torres Strait Islander people should be central in decisions about our lives and communities, and in all areas including our lands, health, education, law, governance, and economic empowerment. It promotes respect for our cultures and recognition as the core of the national heritage.

To date, Congress’s main foci have been Aboriginal and Torres Strait Islander issues in the areas of health, education, land and sea rights, justice, Constitutional recognition, and sovereignty. In addition, Congress has been involved in a wide range of other issues, including cultural maintenance and development, including languages; government relations, including treaty discussions; employment and economic empowerment; housing; family violence; children and youth; disabilities; and governance and leadership.

The Australian Government’s Response to International Recommendations

In 2012, the then-Special Rapporteur on the Rights of Indigenous Peoples, Mr James Anaya, was invited to Australia by Congress as part of his undertaking to study and report on the impact of extractive industries

operating within or near the territories of Indigenous peoples. The Special Rapporteur participated in a round table focused on the rights that Aboriginal and Torres Strait Islander peoples derive from the United Nations Declaration on the Rights of Indigenous People (“UN Declaration”). Despite the recommendations produced during this round table and in the Special Rapporteur’s 2013 report, the Australian Government has continued to pursue policies that erode our ability to protect our land and to meaningfully engage in negotiations.

Participants of the round table noted that the rights enshrined in the UN Declaration, including the right to self-determination and the right to pursue social, economic, and cultural development, have insufficient practical application in Australia.1 In particular, they noted that while the Native Title Act has given Aboriginal and Torres Strait Islander peoples a place in negotiations on the use of our land, extractive industries continue to benefit from significant advantages over us, such as better legal representation, greater awareness of and the law, and short negotiation periods.2 Furthermore, meaningful community engagement with corporations requires better education of our rights, the building of the necessary resources and knowledge to prevent damage to our cultural sites and communities, and the ability to exercise self-determination.3

In his 2013 report to the Human Rights Council of the United Nations, the Special Rapporteur noted that the preferred model for resource extraction and development is through the development of initiatives and enterprises operated by Indigenous peoples.4 In the absence of these enterprises, governments must provide the means by which to ensure that Indigenous people give free and informed consent to all developments occurring on their land, through processes such as legal frameworks, intervention where negotiations between Indigenous people and corporations appear exploitative, or provisions for communal ownership of resources.5

Although the Australian Government has noted an interest in pursuing reforms to bring about greater transparency for agreements secured under the Native Title Act, progress has unfortunately been slow.6 Aboriginal and Torres Strait Islander peoples continue to experience severe disadvantages in negotiations with extractive industries. Furthermore, recent developments in the allocation of funding to

1 National Congress of Australia’s First Peoples, First Peoples and Extractive Industries: Good Practices, Report of Round Table (2012), 2.2 Ibid.3 Ibid, 3.4 United Nations, Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya; Extractive industries and indigenous peoples, A/HRC/24/41 (1 July 2013), 4.5 Ibid, 5-6.6 National Congress of Australia’s First Peoples, 2012, 4.

Aboriginal and Torres Strait Islander development organisations under the Indigenous Advancement Strategy have led to the defunding of groups owned and operated by us, or located within the communities which they assist. This is likely to further exacerbate the difficulties which we experience in gaining the access to the resources and knowledge that we require in order to benefit from the limited protections offered under the Native Title Act.7 Indeed, it is discouraging to note that successive Labor and Liberal governments have proceeded along the path of “practical reconciliation,” with a focus on assimilationist policies such as the Northern Territory Intervention, education programs, and work for the dole schemes, as opposed to programs designed to enhance our self-determination and ability to make decisions for ourselves.8 In order to build the capacity to protect ourselves from exploitation and to look after our land, attitudes in government towards us must change.

It is important to note, however, that corporations also have an enormous role to play in encouraging the creation of mutually beneficial agreements with Aboriginal and Torres Strait Islander people. At the round table, many participants noted that companies seeking to deal with us must first ensure that they have a thorough understanding of our culture, our heritage, and the diverse ways in which we are connected to and obliged to protect our land.9 This has been echoed in the Special Rapporteur’s report, in which he noted that companies have a responsibility to abide by international human rights standards independently of the efforts made by governments to promote them.10 Furthermore, the Special Rapporteur suggested the implementation of good practices, which include the inclusion of Indigenous peoples at all stages of decision making and negotiations, as a means of ensuring that our rights are always respected when land is being developed.11

Despite Australia’s commitment to work towards adopting the rights framework outlined in the 2014 Outcomes Document of the World Conference on Indigenous Peoples, very little progress has been made towards either the protection of Aboriginal and Torres Strait Islander people from discrimination or the provision to us of the means of self-governance.12 The Australian Government’s refusal to accept several of 7 Senate Finance and Public Administration References Committee, Parliament of Australia, Commonwealth Indigenous Advancement Strategy tendering processes (2016), 21-22.8 See Andrew Gunstone, The failure of the Howard Government’s “practical” reconciliation policy (Clayton: Monash University, 2008).9 National Congress of Australia’s First Peoples, 2012, 3.10 United Nations, Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya; Extractive industries and indigenous peoples, 14-15.11 Ibid.12 See United Nations, General Assembly, Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, A/RES/69/2 (25 September 2014).

the 61 recommendations relating directly to Aboriginal and Torres Strait Islander peoples advanced by the Report of the Working Group on the Universal Periodic Review in 2015 is especially discouraging. Only 45 of the recommendations have been accepted. A further 6 recommendations will be considered, without any stipulation as to how, why, for what purpose, and for how long they will be considered. The remaining 10 recommendations have been “noted,” indicating that there will be no action taken towards adopting them.13 Many of the recommendations that remain unaccepted relate directly to our rights to self-governance and freedom from discrimination. The Australian Government refuses to consider non-discrimination provisions in the Constitution. Furthermore, it refuses to introduce judicially-enforceable human rights laws, thereby retaining its ability to enact racially discriminatory laws in the future. Indeed, despite its proclaimed support for the United Nations Declaration on the Rights of Indigenous Peoples, the Government has refused to commit itself to enacting a plan for its implementation.

Despite the positive outlook on Aboriginal and Torres Strait Islander affairs that it presented in its submission to the 2015 Universal Periodic Review,14 the Australian Government has done little to uphold, and in some cases has wound back, legislative protections which benefit our people. The recent parliamentary inquiry into the operation of sections 18C and 18D of the Racial Discrimination Act 1975, which operate to protect Aboriginal and Torres Strait Islander people and other minorities from racial vilification, is being pursued in the name of “freedom of speech” and without consideration for our and others’ freedom from discrimination. Likewise, the cutting of funds from Aboriginal and Torres Strait Islander health, education, housing, and economic services has created a crisis in our affairs. As revealed by the recent Australian National Audit Office report, the “streamlining” of funding for Aboriginal and Torres Strait Islander services under the Indigenous Advancement Strategy has led to the collapse of organisations owned and run by our people, and the wastage of funds meant for our development on bureaucratic costs.

Governance

In his 2010 report, Mr Anaya noted the need for a “more integrated” approach to addressing Aboriginal and Torres Strait Islander disadvantage which accounts not only for socioeconomic wellbeing, but also self-determination and the strengthening of cultural bonds.15 Unfortunately, the Australian Government has continued to enact 13 See United Nations, Human Rights Council, Report of the Working Group on the Universal Periodic Review, Australia; Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/31/14/Add. 1 (29 February 2016).14 United Nations, General Assembly, National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 16/21*; Australia, A/HRC/WG.6/23/AUS/1 (7 August 2015), 7-9.

assimilationist policies without the consultation of Aboriginal and Torres Strait Islander leaders and communities. These policies include the effective continuation of the Northern Territory Intervention, economic development programmes geared solely towards mainstream employment, culturally inappropriate school curricula, and the closure of remote communities in Western Australia.

Despite its position as a unifying element among Aboriginal and Torres Strait Islander groups, and the fact that it comprises over 180 organisations and close to 9,000 individual members, Congress has recently experienced a severe funding crisis, and its staff has shrunk from over 40 employees to only a very small number at present. Furthermore, the Indigenous Land Council has recently informed Congress that it intends to lease the building which it currently occupies to a different tenant. This building, originally constructed for the purpose of housing Redfern-based organisations, will now be occupied by a state-wide body. Encouragingly, the Australian Government has recently agreed to provide Congress with a baseline level of funding, although this is only enough to sustain its day-to-day operations and does not allow it to pursue advocacy work. Without the funding and infrastructure required to attain sustainability and independence, it will be difficult for Congress to continue to act as a body which facilitates engagement with Aboriginal and Torres Strait Islander peoples, develops culturally appropriate and consultative policy, and advocates our rights to the Australian Government.

The efforts of successive Labor and Liberal governments to continue the policies introduced under the Northern Territory Emergency Response (or “the Intervention”) in 2007 have been particularly disquieting. Despite the concerns raised by Mr Anaya about their stigmatising effects upon our people, the Northern Territory Emergency Response was replaced in 2012 with the “Stronger Futures” policy, with the vast majority of its features being retained. These include the prohibition of considerations of customary law in bail and sentencing decisions; the introduction of compulsory income management and the cashless BasicsCard; “work for the dole” schemes geared towards assimilation into the mainstream economy; and greatly increased police presence in our communities.16

Of note is the introduction of the BasicsCard, a cashless debit card to which the vast majority – 92% - of government payment recipients had

15 United Nations, Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya; Situation of the Indigenous peoples of Australia, A/HRC/15/37/Add. 4 (1 June 2010), available from http://unsr.jamesanaya.org/docs/countries/2010_report_australia_en.pdf, 2. 16 See “Stronger Futures laws condemned after passing Senate,” ABC News (29 June 2012), available at http://www.abc.net.au/news/2012-06-29/stronger-futures-laws-rushed-through-senate/4100288?pfmredir=sm.

their funds transferred within their first week on income management.17 The BasicsCard cannot be used to purchase goods such as alcohol, gambling, and pornography, and no cash can be withdrawn from it. Although some BasicsCard users report positive outcomes, such as a reduction in “humbugging” (financial harassment from other family members) and greater ease in paying for living expenses, there are many concerning effects which put into question its suitability as a long-term solution for Aboriginal and Torres Strait Islander economic development.18 Many individuals report being unable to pay for second-hand goods or to purchase goods at markets (and therefore being forced to purchase more expensive products); being forced to pay additional fees or meet minimum spend limits; being unable to use the BasicsCard where it is not accepted, including on public transport;19 and experiencing stigma and shame due to being marked out as a welfare or income management recipient whenever they make a purchase.20 These negative outcomes are symptomatic of the Australian Government’s insistence upon removing our rights and responsibilities – it should be no surprise that Aboriginal and Torres Strait Islander peoples do not behave as wished when things are done “for and to” us instead of with us.

Despite these shortcomings, both the Intervention and the Stronger Futures policy have received some support from a limited number of Aboriginal and Torres Strait Islander leaders. Although few agree with all aspects of the Australian Government’s policy, some, such as Noel Pearson, have argued for the necessity of government intervention in communities with high levels of gambling, alcohol, and substance addiction; unemployment; and child sexual abuse, with the ultimate aim of building the capacity of these communities to engage in decision making and development.21 It is Congress’s view that we should be allowed to make autonomous decisions as to how to improve our communities. It is up to individual communities to decide whether interventional measures are appropriate, and they should be undertaken only in consultation with those communities, and not applied uniformly to all Aboriginal and Torres Strait Islander groups.

Land Rights

Despite the progress made towards the recognition of native title through the Native Title Act and the Mabo decision, Aboriginal and

17 J Rob Bray et al, Evaluating New Income Management in the Northern Territory: Final Evaluation Report (Kensington: University of New South Wales, 2014), 122.18 Ibid, 202.19 Ibid, 201.20 Ibid, 241.21 “Pearson fears for Indigenous parents’ freedom,” ABC News Online (22 June 2007), available at http://www.abc.net.au/news/2007-06-22/pearson-fears-for-indigenous-parents-freedom/78106.

Torres Strait Islander people continue to face significant challenges in accessing and exercising our land rights.

As the result of the 1995 Hindmarsh Island Royal Commission, the land rights of Aboriginal and Torres Strait Islander people are still far too easily dismissed, especially when commercial interests are involved. The Royal Commission dismissed claims made by Ngarrindjeri women that Hindmarsh Island was a sacred site as a “hoax” and allowed the construction of the Hindmarsh Island Bridge despite significant community concerns. This finding has since been discredited by anthropologists,22 Justice John von Doussa of the Federal Court of Australia,23 and the South Australian Government.24 In addition, after the Ngarrindjeri challenged Australian Government legislation allowing the construction to proceed, the High Court ruled in Kartinyeri v Commonwealth that the Government could enact laws to the detriment of a particular race.25 As a result, the Howard Government was able to expressly prevent the Racial Discrimination Act from operating over the Hindmarsh Island area.

The strength of native title claims has been further undermined by the Wik Peoples v Queensland decision, in which the High Court of Australia held that native title could co-exist with pastoral leases, but that pastoral leases would extinguish native title where there was a conflict of rights.26 The High Court’s decision was made following significant public outcry over the Mabo decision and unfounded fears that suburban backyards could become subject to native title claims. This has made it far more difficult for Aboriginal and Torres Strait Islander people to protect our land when corporate developments threaten to destroy it.

It is important to note that although Aboriginal and Torres Strait Islander people are now able to access some native title rights, we are rarely given the ability to control who enters our land, and for what purposes it is used. Only in circumstances where land remains unallocated or especially reserved for Aboriginal and Torres Strait Islander people are we given “exclusive possession”; in all other cases, we are only given the right to live, fish, hunt, perform ceremonies, and take part in other cultural activities on the land.27 This inability to determine the use of our land, despite the existence of “native title,” means that it is once again all 22 See Margaret Simons, The Meeting of the Waters: The Hindmarsh Island Affair (Hodder Headline: 2003).23 Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106.24 David Nason, “Pain eases with apology over Ngarrindjeri secret women’s business,” The Australian (7 July 2010), available at http://www.theaustralian.com.au/news/nation/pain-eases-with-apology-over-ngarrindjeri-secret-womens-business/news-story/14c6b440265844bda517322686d18925.25 (1998) 195 CLR 337.26 (1996) 187 CLR 1.27 Kimberley Land Council, What is native title?, available at http://www.klc.org.au/native-title/what-is-native-title.

too easy for political or corporate interests to supersede the cultural values of our communities.

Furthermore, although the expansion of extractive industries in regional Australia has provided many Aboriginal and Torres Strait Islander communities with economic opportunities, significant challenges remain to ensuring that the agreements negotiated between corporations and those communities are equitable and respect our cultural heritage. Among the potential disadvantages which we face in negotiations are a lack of awareness of what rights we possess, lack of legal representation, economic pressures which may lead to coercion, and the fact that many agreements are subject to non-disclosure or secrecy agreements (meaning they cannot be discussed with the broader community).

Economic Opportunities

Aboriginal and Torres Strait Islander people continue to face significantly higher rates of unemployment and poverty than other Australians. Economic disadvantage is especially problematic in remote communities, where there is often a lack of employment opportunities: in 2014-15, 27.4% of Aboriginal and Torres Strait Islander people over the age of 15 living in remote communities were unemployed, compared to 19.3% in non-remote areas.28 The national unemployment rate for Aboriginal and Torres Strait Islander people was 20.6%, compared to the national average of approximately 5-6%.29 In 2011, 19.3% of Aboriginal and Torres Strait Islander people lived below the poverty line, compared with only 12.4% of other Australians.30

The extent of poverty and unemployment in Aboriginal and Torres Strait Islander communities has exacerbated many of the challenges they continue to face. In many areas where housing is too expensive or in short supply, low levels of income have forced Aboriginal and Torres Strait Islander people into overcrowded or dilapidated housing. The helplessness and shame that many of our people feel when they are unable to find work has led to high rates of alcohol and drug abuse, and the entrenchment of poverty as money is spent on illicit substances as opposed to basic needs. These stresses have led to social dysfunction and the breakdown of our families: Aboriginal and Torres Strait Islander people made up 50% of all suicides in 2010 despite making up only 3% of the population,31 and Aboriginal and Torres Strait Islander women are 34 28 National Aboriginal and Torres Strait Islander Survey 2014-15: Labour Force Characteristics, available at http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4714.0~2014-15~Main%20Features~Labour%20force%20characteristics~6.29 Ibid.30 2012 Poverty Report, analysis of data from the 2011 Household, Income and Labour Dynamics in Australia.31 National Aboriginal Community Controlled Health Organisation, “Raising funds for Elders report into Preventing Self-harm & Indigenous suicide” (16

times more likely to be hospitalised as a result of domestic violence than other women.32

The Australian Government’s approach to economic development has been largely assimilationist in nature. The Community Development Program, introduced in 2015, has forced welfare recipients to undertake 25 hours of work-like activities a week in order to receive their allowance, which amounts to significantly less than a regular award rate. The imposition of strict “No Show No Pay” rules has led to the penalising of approximately 16,000 participants per month during the first 6 months of the program, further exacerbating economic pressures.33 The Community Development Program has also resulted in a significant centralisation of government control over community development: instead of being allowed to decide which activities might be beneficial to the communities in which they operate, service providers are now treated as mere extensions of the Australian Government, and prevented from consulting with us before they undertake development activities.34

Education and Health

As noted in both Mr Anaya’s 2010 report and the Joint NGO Submission for Australia’s 2nd Universal Periodic Review, Aboriginal and Torres Strait Islander people, particularly those living in remote communities, suffer from severe disadvantage in terms of access to health services and education as a result of a lack of adequate funding. This has been further exacerbated by the lack of culturally appropriate health services and barriers to education, such as a lack of bilingual education programmes.35 As the stubbornness of the gap between education and health outcomes between Aboriginal and Torres Strait Islander people and other Australians demonstrates, progress can only be made by consulting us and providing our communities with the resources and means to participate in development programs.

January 2014), available at https://nacchocommunique.com/2014/01/16/naccho-community-support-raising-funds-for-elders-report-into-preventing-self-harm-indigenous-suicide/.32 “Domestic abuse of Indigenous women a ‘national crisis,’” ABC Radio National (4 May 2015), available at http://www.abc.net.au/radionational/programs/latenightlive/crisis-of-domestic-abuse-of-indigenous-women/6442954.33 Lisa Fowkes, “Impact of CDP on income support of participants,” in Job Creation and Income Support in Remote Indigenous Australia: Moving Forward with a Better System, ed. Kirrily Jordan and Lisa Fowkes (Canberra: Centre for Aboriginal Economic Policy Research, 2016), 16.34 Lisa Fowkes, “CDP and the bureaucratic control of providers,” in Job Creation and Income Support in Remote Indigenous Australia: Moving Forward with a Better System, ed. Kirrily Jordan and Lisa Fowkes (Canberra: Centre for Aboriginal Economic Policy Research, 2016), 12.35 Australia’s 2nd Universal Periodic Review: Joint NGO Submission on behalf of the Australian NGO Coalition (Melbourne: Human Rights Law Centre, 2015), 24.

Although some progress has been made with regards to the improvement of Aboriginal and Torres Strait Islander health outcomes, we continue to face many severe disadvantages. Although overall mortality rates for our people have decreased by 15% between 1998 and 2015,36 it has remained 1.7 times higher than that of other Australians since 1998.37 Furthermore, there has been no significant decrease in child mortality rates since 2008; in fact, a small rise was recorded between 2014 and 2015.38 Aboriginal and Torres Strait Islander people continue to die 10 years younger than other Australians, with no significant change being recorded.39 Self-harm continues to be a pressing issue in our communities, with the Aboriginal and Torres Strait Islander suicide rate remaining double that of other Australians. 40 Many causes of self-harm, including substance abuse, loss of communal cohesion, and unemployment remain either unaddressed or unchanged by the Australian Government’s policy. Furthermore, although improvements to health outcomes have been achieved in urban centres, there has been significantly less progress in remote regions due to the centralisation of Aboriginal and Torres Strait Islander services and loss of funding. This lack of progress represents a failure of government policy, and reflects the paramount importance of providing health services which are culturally sensitive and tailored to the requirements of individual communities.

Likewise, limited progress has been made towards the improvement of education outcomes for Aboriginal and Torres Strait Islander people. Rates of Year 12 attainment have increased and are on track to meet the targets set out in the Closing the Gap strategy, with a 16.1% increase being recorded between 2008 and 2014-15.41 However, given that far fewer Aboriginal and Torres Strait Islander students request ATARs (Australian Tertiary Admissions Ranks) or intend to go to university, the extent to which this is a truly useful measure of progress is questionable.42 Furthermore, there has been no real change in school attendance rates between 2014 and 2016, and in fact, attendance fell by 1.6% in the Northern Territory during this period.43 Aboriginal and Torres Strait Islander 15 year-olds are, on average, two-and-a-third years

36 Commonwealth of Australia, Department of Prime Minister and Cabinet, Closing the Gap Prime Minister’s Report 2017, 7. 37 Dan Conifer et al., “Closing the Gap: Australia is Failing on Indigenous disadvantage goals,” ABC News (14 February 2017), available at http://www.abc.net.au/news/2017-02-14/closing-the-gap-report-card-failing/8268450.38 Closing the Gap Prime Minister’s Report 2017, 24. 39 Ibid, 81.40 Ibid, 85.41 Ibid, 43.42 Stéphane Mahutaeu et al, “Educational Outcomes of Young Indigenous Australians” (Adelaide: National Institute of Labour Studies, 2015), 18.43 Closing the Gap Prime Minister’s Report 2017, 36.

behind 15 year-olds of other backgrounds in literacy and numeracy. Across the eight areas used to measure the proportion of children meeting national minimum standards – Years 3, 5, 7, and 9 literacy and numeracy – only Year 9 numeracy is on track, with no or inadequate progress having been made in other areas.44 There remains a large gap in educational outcomes between remote and non-remote communities: the proportion of Year 5 students living in urban areas meeting national standards in numeracy is, for instance, double that of students living in remote regions (84% compared to 42%).45 For more significant improvements to be made, the Australian Government must consult with our communities, implement curricula which are culturally sensitive and do not reiterate colonialist narratives, and provide services such as bilingual education.

Closure of Remote Communities in Western Australia

In 2014, following the Australian Government’s announcement that it would no longer fund essential services in Aboriginal and Torres Strait Islander communities across Australia, the Government of Western Australia announced that it would close between 100 and 150 of the 274 remote communities in the state instead of funding them. Approximately 12,000 people live in these 274 communities, with 1,300 living in 174 of the smallest.46 Despite Premier Barnett’s acknowledgment that this plan would cause significant distress to us, the Western Australian Government has nonetheless committed to continuing this discriminatory policy.

The closure of Aboriginal and Torres Strait Islander communities can only exacerbate the challenges that our people continue to face. The forced relocation of these communities to regional towns has the potential to erase traditional knowledge and culture, since activities such as fishing, hunting, and camping are frequently restricted. Likewise, the loss of access to sites of cultural and spiritual significance to us will further contribute to the lack of a sense of social cohesion. These stresses are likely to result in the worsening of societal and familial tensions, an increase in the rate of domestic violence and substance abuse, and a loss of language and heritage.

The uncertainty faced by Aboriginal and Torres Strait Islander people living in these communities has been aggravated by a lack of consultation. The criteria that will be used to determine which communities will be closed remain unknown, and the Western Australian Government has failed to consider our opinions at all stages in the implementation of this policy.47 It is also worth noting that there is little 44 Ibid, 38.45 Ibid, 39.46 Australians for Native Title and Reconciliation, WA Community Closures, available at https://antar.org.au/campaigns/wa-community-closures.47 Ibid.

evidence to suggest that non-Aboriginal and Torres Strait Islander communities similarly affected by federal funding cuts will be closed. For instance, although the non-Aboriginal and Torres Strait Islander community of Camballin will continue to receive assistance from the Western Australian Government, the nearby community of Looma, inhabited by Aboriginal and Torres Strait Islander people, will not.48

Indigenous Advancement Strategy

Announced by the Abbott Government in 2014, the Indigenous Advancement Strategy was designed to streamline the allocation of government funds to Aboriginal and Torres Strait Islander programs. The policy put to tender most of the $4.8 billion used to fund development organisations, and forced them to engage in a competitive bidding process for contracts with the Government. Many organisations were forced to close or downsize as they were already small and poorly funded, and lacked the expertise and resources required to engage in such a process.49

As a result of the Indigenous Advancement Strategy, there has been a significant decrease in the number of organisations either located in the communities they are serving, or run by Aboriginal and Torres Strait Islander people. $2.2 billion, or over half of the funds allocated up to August 2015, were granted to organisations and businesses not headquartered in the communities they were supposed to work in. Furthermore, Aboriginal and Torres Strait Islander organisations made up only 45% of successful applicants in the first round of funding grants,50 and have thus far received only 26% of all funds allocated under the Indigenous Advancement Strategy.51 Without adequate funding, community organisations are unable to engage in vital frontline work, such as the provision of healthcare services, shelters, and education.52 This strikes at the heart of the self-determination and successful work provided by Aboriginal and Torres Strait Islander organisations across the country. Furthermore, the transfer of power from local groups operated by or in consultation with our people to larger businesses based in urban centres is likely to further exacerbate our loss of self-determination, and reinforce the assumption amongst bureaucrats that they know what is best for us.

48 Ibid.49 Senate Finance and Public Administration References Committee, 21-22.50 Anna Henderson, “Majority of grants from Indigenous Advancement Strategy first round given to non-Aboriginal groups,” ABC News (5 May 2015), available at http://www.abc.net.au/news/2015-05-05/majority-of-indigenous-grants-go-to-non-aboriginal-organisations/6444534.51 National Congress of Australia’s First Peoples, “Congress Asserts That We Have the Solutions So Work With Us” (7 February 2017).52 Ibid.

The poor implementation of the Indigenous Advancement Strategy has further contributed to the profoundly negative effect it has had on our communities. A lack of accountability due to a reliance on primarily verbal negotiations with organisations; a failure to assess funding applications in accordance with policy guidelines; and inadequate record-keeping of meetings with Aboriginal and Torres Strait Islander leaders has made assessment of the policy’s effectiveness and efficiency difficult.53 The rapidness of the reorganisation of Aboriginal and Torres Strait Islander programs has also led to confusion, amongst both local community members and service providers, and in many cases has led large amounts of money to be spent on administration costs instead of our wellbeing.54

The result of the Indigenous Advancement Strategy has been the continued failure to meet the targets set out by the Australian Government in its “Closing the Gap” goals. The target to halve the gap between the employment rate of Aboriginal and Torres Strait Islander people and other Australians by 2018 remains unlikely to be reached. Likewise, little progress has been made overall in the attempt to close the gap in life expectancy between Aboriginal and Torres Strait Islander people and other Australians, despite reasonably large decreases in the number of fatal instances of circulatory diseases. The rate of school attendance amongst our communities remains similarly unchanged. In order to meet these targets, the Australian Government must begin to work with us and provide funding for organisations which further our self-determination, instead of continuing to pursue a paternalistic and assimilationist approach to engagement with Aboriginal and Torres Strait Islander communities.

Incarceration Rates

Despite representing only 3% of Australia’s total population, Aboriginal and Torres Strait Islander people make up 27% of the Australian prison population.55 Since 2004, the number of our people in detention has increased by 88%, and it is predicted that by 2020, one in two of all prisoners in Australia will be of Aboriginal and Torres Strait Islander descent.56 This rapid rise in the incarceration rate has been contributed to by discriminatory treatment, imprisonment for minor offences, and a

53 Ibid; see also Australian National Audit Office, Indigenous Advancement Strategy (2017), 52-53.54 Senate Finance and Public Administration References Committee, 16-17.55 “‘A national crisis’: Indigenous incaraceration rates 25 years on,’” SBS News (15 April 2016), available at http://www.sbs.com.au/news/article/2016/04/15/national-crisis-indigenous-incarceration-rates-worse-25-years.56 Law Council of Australia, “Change the Record on Indigenous Imprisonment” (30 April 2015), available at https://www.lawcouncil.asn.au/lawcouncil/images/1518_--_Change_the_record_on_indigenous_imprisonment2.pdf.

failure to provide adequate rehabilitation, leading to recidivism. Indeed, most of the 339 recommendations released by the Royal Commission into Aboriginal Deaths in Custody in 1991, many of which specifically address these issues, have not been addressed by state, territory, and federal governments.57 Discouragingly, governments have been hesitant to implement even basic recommendations such as increased public accountability and training to assist police officers and prison guards in understanding the duty of care they owe to detainees.58

Aboriginal and Torres Strait Islander people continue to face discriminatory treatment at the hands of police officers and the justice system, despite insistences from police commissioners and government ministers to the contrary. The over-policing of our communities and the distrust caused by this discrimination has exacerbated social tensions, and damaged our ability to feel self-determined and like valued members of society. We face discrimination at all levels of the justice system: we are far more likely to be arrested for minor crimes, such as failing to pay fines; we are either not provided with adequate legal representation or represented by lawyers who are hostile to us; we are commonly refused bail even where the risk of escape or to the public is low; and we are sentenced under inflexible sentencing acts which do not take into account customary law and often lead to recidivism.59 As the continuation of the policies of the Intervention under the Stronger Futures policy has demonstrated, it appears unlikely that a change to this callous attitude towards our welfare will be ameliorated in the future.

The “tough on crime” rhetoric of the Australian Government has translated into abuses of power, whereby police officers target us because we are seen as more likely to be criminals. Many Aboriginal and Torres Strait Islander people are arrested for swearing at police or disorderly conduct even if they are drunk, suffering from mental illness, homeless, or have been deliberately provoked by police officers through physical and verbal assault.60 The discretion given to police to not punish individuals for such offences is rarely used for our benefit. In some circumstances, such as in remote Western Australian communities, where there is often little accountability, our people have been arrested for “shouting”.61 The selective criminalisation of minor offences has created cycles of poverty which only further increase incarceration rates. 57 See Clayton Utz, Review of the Implementation of RCIADIC (Chippendale: Amnesty International Australia, 2015), available at https://changetherecord.org.au/review-of-the-implementation-of-rciadic-may-2015.58 Ibid, 309-316.59 “Australia’s indigenous incarceration crisis,” AlJazeera (14 December 2014), available at http://www.aljazeera.com/indepth/features/2014/12/australia-indigenous-incarceration-crisis-2014121472549972623.html.60 Creative Spirits, Aboriginal Culture – Law & Justice – Aboriginal-police relations, available at https://www.creativespirits.info/aboriginalculture/law/aboriginal-police-relations.

Many Aboriginal and Torres Strait Islander people cannot afford to pay fines and are jailed when they fail to do so, leading to unemployment and further difficulties in the future.62 Likewise, due to a lack of services and facilities required to obtain licences and insurance, our people are frequently jailed for the combination of driving unregistered, uninsured, and unlicensed.63 This, in combination with disqualification periods for driving offences, often has negative consequences on individuals’ ability to travel to work or manage their families.

High rates of recidivism have further contributed to an increase in Aboriginal and Torres Strait Islander incarceration. In New South Wales, the reconviction rate is 86% for Aboriginal and Torres Strait Islander people.64 In many cases, recidivism is caused by a lack of rehabilitation services within prisoners and discrimination encountered by our people both while imprisoned and following their release. There are very few services available for the treatment of substance abuse, and only basic access to education and training programs is provided. This, in combination with the substandard conditions in which prisoners are kept, has contributed to a rise in the cases of mental illness amongst our people within prisons.65 Once they are released, Aboriginal and Torres Strait Islander prisoners can find it difficult to find employment due to stigma and lack of skills, increasing the chance that they may relapse into substance abuse, or turn to crime in order to survive.

In addition to facing the same discriminatory treatment that affects all of our people, our women are subject to a number of additional factors which make them more likely to come into contact with the criminal justice system. For instance, high rates of domestic violence and foetal alcohol syndrome in our communities commonly lead to the degradation of our women’s mental health, and render them incapable of being productive members of society. A 2003 report by the Aboriginal Justice Advisory Council interviewing 104 Aboriginal women in custody found that education levels were poor, with only 2% having completed the Higher School Certificate and none with tertiary education qualifications.66 Further, the women interviewed had insufficient housing, where 15% were homeless or had no fixed address, 55% living in Department of Housing, 5% in caravans, and 18% in private rentals.67 61 Elizabeth Murray, “Selective policing under fire,” Koori Mail (31 January 2007).62 Creative Spirits, Aboriginal culture – Law & Justice – Aboriginal Prison Rates, available at https://www.creativespirits.info/aboriginalculture/law/aboriginal-prison-rates.63 Ibid.64 “Back to prison,” ABC Radio National (18 May 2014), available at http://www.abc.net.au/radionational/programs/backgroundbriefing/2014-05-18/5452044.65 Creative Spirits, Aboriginal culture – Law & Justice – Aboriginal Prison Rates.66 Aboriginal Justice Advisory Council, Speak Out Speak Strong Aboriginal Women in Custody Research Project (2003), 25.67 Ibid, 29.

Shockingly, 70% of the Aboriginal women reported that they were victims of child abuse, and at least 70% were victims of sexual assault.68 Several other forms of assault were also reported, including neglect and physical violence, with many women experiencing multiple forms of assault as both children and adults.69 This left them carrying the burden of trauma, which many reported led them to turn to drugs and/or alcohol as a coping strategy. In the words of the report,

There is a substantial link between Aboriginal women who were victims of child sexual assault, and victims of violent abuse as adults and who use illicit drugs, particularly heroin. Approximately 98% of women who are victims of child sexual assault and have a drug problem were also victims of violent abuse as adults.70

The report clearly evidences how poorly the incarcerated Aboriginal women scored in terms of the social determinants of criminality, experiencing significant disadvantage from a young age which continues into adulthood. This demonstrates that the Australian Government cannot solve rising rates of imprisonment by threatening us with a “tough on crime” attitude. Instead, we must be given the means to solve the broader social issues which lead our people towards crime. It is only by addressing the key risk factors for criminality, which our people disproportionately are affected by, that these appallingly high incarceration rates may be ameliorated.

Ultimately, high rates of incarceration within our communities must also be understood as the result of the dispossession of land, destruction of culture, and societal collapse imposed upon Aboriginal and Torres Strait Islander people by centuries of white colonialism and paternalism. A loss of self-determination has led to a feeling of helplessness amongst our people, and discouraged us from working towards community welfare and feeling like valued members of society. Although reform of the justice system is sorely needed, any long-lasting solution to incarceration rates must address the lack of autonomy we current possess over our own affairs.

Removal of Children from Communities

Between the 1910s and 1970s, many Aboriginal and Torres Strait Islander children were separated from their families and communities under the policy of Assimilation, now better known as the Stolen Generations. The policy was designed to essentially ensure that our people would “die out,” and that our culture be erased and replaced with that of white Australians. Those that experienced this separation and were placed in state care frequently experienced sexual, physical, and emotional abuse, including being told that they had been abandoned by 68 Ibid, 51.69 Ibid.70 Ibid.

their families; received little affection from their caretakers; and were barely educated with the expectation that they would serve primarily as manual labourers.

Since Kevin Rudd’s apology to the Stolen Generations in 2008, the number of children in care has risen by 65% to 15,455 in June 2015.71 In Queensland, Aboriginal and Torres Strait Islander children are nine times more likely to be removed from their families than children of other backgrounds.72 Despite a wide variety of circumstances in which these removals occur, the vast majority appear to be due to risks faced by our children, such as domestic violence and parental substance abuse. Indeed, due to the legacy of the Stolen Generations, distrust of government bodies due to racism, and feelings of shame, it is likely that child abuse and neglect is underreported in our communities.73

The rate of Aboriginal and Torres Strait Islander child removals is evidence that the effects of the policy of Assimilation are still being felt today. Many of those who lived in state care during the Stolen Generations period now lack adequate parenting skills, having never experienced what it is like to live in a normal, functioning family.74 A sense of shame instilled in us due to our culture and heritage has contributed to a loss of social cohesion and a sense of despair. Indeed, the cultural erasure we experienced caused the loss oral traditions which were tens of thousands of years old, and in many cases destroyed key parts of our familial and kinship connections. High rates of substance abuse and mental illness amongst our people must also be seen as partially the result of the grief and helplessness experienced by both parents and children as a result of their separation.

Royal Commission into the Protection and Detention of Children in the Northern Territory

The Royal Commission into the Protection and Detention of Children in the Northern Territory was established in 2016 in response to revelations of the abuse of children detained in juvenile detention facilities in the Northern Territory. On 25 July 2016, the Four Corners program on the

71 Larissa Bernhardt, “Indigenous kids are still being removed from their families, more than ever before,” The Guardian (13 February 2016), https://www.theguardian.com/australia-news/commentisfree/2016/feb/13/eight-years-after-the-apology-indigenous-kids-are-still-being-removed-from-their-families.72 Lindy Kerin, “QLD Indigenous kids 9 times more likely to be removed from their families,” ABC News (14 January 2013), available at http://www.abc.net.au/news/2013-01-14/qld-indigenous-kids-9-times-more-likely-to-be/4463854.73 Janet Stanley, Adam M. Tomison and Julian Pocock, “Child Abuse and Neglect in Indigenous Australian communities,” Child Abuse Prevention Issues, no. 19 (2003): 5.74 Ibid, 7.

Australian Broadcasting Corporation aired an episode called “Australia’s Shame” featuring youth detained at the Don Dale Youth Correctional Facility.75 The episode displayed graphic footage of the mistreatment of youths, including the use of tear gas, spit hoods, and solitary confinement for up to 23 hours a day.

The Royal Commission has revealed the extremely poor conditions in which Aboriginal and Torres Strait Islander children are kept while in detention. Darwin’s Don Dale Youth Detention Centre is old and ageing, and there is no air conditioning, meaning that children are frequently isolated in an extremely hot facility with very little ventilation. Children generally do not complain about the conditions in which they are kept, due to fear of retribution from staff.76 Furthermore, children who possess an “elevated classification,” or who are considered high-risk, are often unable to access educational and therapeutic programs, only furthering the risk that they will continue to relapse into crime.77

Extreme abuses of power and mistreatment of Aboriginal and Torres Strait Islander youths have also been uncovered by the Commission. Dylan Voller, the youth seen in a spit hood in the Four Corners documentary, has testified to being forced to defecate in a pillowcase as a result of the refusal of his guards to allow him to use the restroom while in isolation, and to having been regularly strip searched by guards.78 Furthermore, physical and verbal abuse is frequently used as a means to intimidate and control children in detention, leading Dr Ken Byrne, director of Safeselect, to comment that many guards appear to work at Don Dale because they “just want to hurt kids.”79

It is important to note, however, that although the scope of the Royal Commission is limited to the detention of children in the Northern Territory, the mistreatment of Aboriginal and Torres Strait Islander youths in detention is commonplace throughout Australia. Our children are regularly arrested and placed in custody for extremely minor crimes: in one Western Australian case, a 12 year-old child was detained for possessing stolen goods after being handed a chocolate bar costing 70 75 Caro Meldrum-Hanna, Mary Fallon and Elise Worthington, “Australia’s Shame,” Four Corners, TV, ABC, 2016.76 Neda Vanovac, “Dylan Voller gives evidence before NT royal commission, says he felt like he was ‘going to die,” ABC News (12 December 2016), available at http://www.abc.net.au/news/2016-12-12/dylan-voller-evidence-nt-royal-commission-four-corners-don-dale/8112126.77 Neda Vanovac, “Dylan Voller was set up to fail by the system, NT royal commissioner hears,” ABC News (13 December 2016), available at http://www.abc.net.au/news/2016-12-13/dylan-voller-was-set-up-to-fail-by-the-system-commission-hears/8115498.78 Venovac, 12 December 2016.79 Peter Munro, “Into the dark heart of the Don Dale Detention Centre, focus of NT abuse claims,” Sydney Morning Herald (29 July 2016), available at http://www.smh.com.au/national/behind-locked-doors-what-drives-prison-guards-20160728-gqfunt.html.

cents.80 This has contributed to skyrocketing rates of Aboriginal and Torres Strait Islander youth detention: in New South Wales, 50% of all juveniles in detention are of Aboriginal and Torres Strait Islander background.81 Our children are detained in substandard conditions and routinely subject to abuse. In the Victorian Parkville Youth Justice Precinct, for instance, staff were found to have incited fights between detainees; provided them with tobacco, marijuana, and other contraband; and frequently used excessive force.82 Some 36% of staff members at the precinct were found to be without a Working With Children Check.83 Violence and prolonged periods of isolation are also frequently used as a form of punishment in other jurisdictions.84

The conditions in which Aboriginal and Torres Strait Islander youth such as Dylan Voller are kept demonstrate the failure of the Australian Government to provide realistic opportunities for our children to escape lives of poverty and crime, and to instead work towards bettering their lives and communities. Moreover, the abuses of power revealed by the Four Corners program reveal a basic lack of accountability amongst correctional services workers, and a pervasive culture which accepts the abuse of our people as merely “part of the job” or even as a necessary form of punishment. The Australian Government’s persistent refusal to ratify the Optional Protocol to the Convention Against Torture is particularly frustrating in light of these revelations, as it reveals an unwillingness to take active measures to prevent future abuses, and a sense of complacency towards the suffering of our children.

Redfern Statement

Encouragingly, the Australian Government has expressed an interest in some aspects of the Redfern Statement, a policy drafted by Aboriginal and Torres Strait Islander leaders and organisations. The Redfern Statement emphasises the fact that government policies which affect Aboriginal and Torres Strait Islander people must be developed in consultation with us, and that we must be given the ability to lead development programs and determine for ourselves the way in which funds are spent towards the improvement of housing, employment, health, education, and other outcomes. To date, five workshops have

80 Julie Power, “Deaths in custody: Indigenous children 24 times more likely to be locked up,” Sydney Morning Herald (14 April 2016), available at http://www.smh.com.au/nsw/deaths-in-custody-indigenous-children-24-times-more-likely-to-be-locked-up-20160411-go40f9.html.81 Ibid.82 See Victorian Ombudsman, Whistleblowers Protection Act 2001 Investigation into conditions at the Melbourne Youth Justice Precinct (2010). 83 Ibid.84 Chris Cunneen, “Abuse in youth detention is not restricted to the Northern Territory,” The Conversation (28 July 2016), available at http://theconversation.com/abuse-in-youth-detention-is-not-restricted-to-the-northern-territory-63101.

been organised to determine how and whether to implement the approaches detailed in the Statement, and which development outcomes should be prioritised.

The Redfern Statement calls for a restoration of funding to crucial Aboriginal and Torres Strait Islander services, and a reform of the Indigenous Advancement Strategy such that it operates in consultation with communities and in a way that supports local organisations operating within the regions which they serve. Furthermore, it calls for greater self-determination for our people, including the funding of Congress as a representative body, the reform of the Australian justice system such that it does not continue to unfairly punish us, and for the development of Aboriginal and Torres Strait Islander organisations which oversee the administration of government programs.

Congress has played a major role in both the policy research which serves as a background to the Redfern Statement and the development of the Statement itself. However, it requires additional resources and funding to guarantee that it will be able to consolidate and strengthen the future policy framework of the Redfern Statement. Congress remains committed to ensuring that self-determination remains central to policies involving the development of Aboriginal and Torres Strait Islander communities.