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Editors --- "Fifth Report 1997 - Digest" [1998] AUIndigLawRpr 25; (1998) 3(3) Australian Indigenous Law Reporter 426


 Aboriginal and Torres Strait Islander Social Justice Commissioner  -- Fifth Report 1997

Human Rights and Equal Opportunity Commission

Canberra: Australian Government Publishing Services, November 1996

Section 46C(1) of the Human Rights and Equal Opportunity Commission Act 1986 requires the  Aboriginal and Torres Strait Islander Social Justice Commissioner  to produce an annual report regarding the enjoyment and exercise of human rights by Australia's Indigenous people. This is the fifth and final report by the Social Justice Commissioner, Mick Dodson. The extracts reproduced here concern co-existence (Chapter 1) and The New Stolen Generation (Chapter 3).

Chapter 1: Co-Existence

Long way back beginning, I think, right back beginning. When him been start, that Captain Cook, still thinking about to get more land. From London and Big England, that's his country. Lotta man in Big England, and they start there and looking for `nother land. And get the sailing boat and get a lotta people and have a look at it: Australia. And when that Captain Cook been come through down to Sydney Harbour, well he's the one been hit the Sydney Harbour. And lotta people, lotta women, lotta children, they're owning that city ...
And he don't askem for land. He don't say "good day". No. He say to him, ask him, "This your country?" "Yeah, this my country." "Ah yeah." He didn't askem really. "Pretty country", Captain Cook reckoned ...
That means Captain Cook getting ready for the country, going to try to take it away. But he's the one been start up shooting them there now. Three weeks' time and pack his gear and put it in the sailing boat and keep going right round follow the sea ...
When him got to Darwin ... Captain Cook come up, see that old fellow sit down makem spear there, hunting fish. And he don't ask him. Same thing. Ask him one bit of a story: "By Christ, that's good land here. Your country, it's big one? Many people around here?", he said. "Big big mob Aboriginal people. This we country. We never look whitefellow come through here. That's first time you coming. We can be ready for you. Got a big mob spear. We don't want whitefellow." He start to hear that story. Captain Cook been hear that story. "Get ready for this, old fellow. We might start here." Start to put the bullet in the magazine, start to shooting people, same like Sydney ...
Captain Cook reckoned, " I been want to clean that people right up. That's good country. I like to put my building there. I like to put my horses there. I like to put my cattle there ...
I know Captain Cook been little bit wrong for these people. "This no more blackfellow country. No more. Belong to me fellow country." he said ... Him been bring lotta book from Big England right here now. They got that book for Captain Cook from England. And that's his law. Book belong to Captain Cook, they bring it Sydney Harbour. And lotta government got it in there from Big England. [1]

These are fragments drawn from a longer story told by a very senior man of the Yarralin people of the Northern Territory. Like a parable it is a story which transcends a simple account to establish an ethical framework: to explain a world assaulted, thrown into confusion and pervaded by a sense of injustice.

Sir William Deane, Governor-General of the Commonwealth of Australia, referred to this story in his lecture Some Signposts from Daguragu. He described it as "an allegory in which the application of European law is shown to have been aberrant in that it lacked the moral basis which characterises true law". [2]

In truth, of course, the Yarralin saga of Captain Cook is as much an accurate summary of historical fact and past legal perceptions as it is a fictional personification of the type which characterises true allegory. The Europeans who came to Australia after Captain Cook and whom he personified in the saga did dispossess, with violence, traditional owners who vainly sought to defend their tribal lands. The contemporary European law, based on a fallacious assertion of terra nullius, was aberrant in that it was a travesty both of truth and of the underlying morality which characterises civilised law. The Europeans did reach and take possession of the lands of the Yarralin and the Gurindji in the Victoria River region of the Northern Territory. From 1888 until well into the 1920s, there was bloodshed, including considerable slaughter of Aborigines.

The story of the Yarralin and Gurindji peoples is just a splinter of the reality experienced by our peoples. The shattering effect of European intrusion, the loss of land and the collapse of a world which had timelessly drawn meaning and sustenance from that lost land, was universally endured by Indigenous Australians.

Dispossession has not come as one blow. It proceeds piece by piece -- coupled with successive waves of coercive and humiliating laws, policies and practices -- stripping us of our languages, our cultures and our children. We struggled to survive, to keep alive our unique presence in this land.

The lives of individuals, families, clans and communities are as varied as the circumstances they face. All are connected by the stories told, generation to generation, the histories of our experience. They live within our peoples and, under the "Great Australian Silence", [3] kept alive the knowledge of another country. And whether a story was simply personal, about the individual callousness or kindness of an all-powerful white administrator, or whether it was a wider emblematic story of Captain Cook, they are all stories about justice, or its absence.

We moved from South Gippsland to East Gippsland. By this time I was about nine years old. My parents pulled me out of school because the Welfare was taking the Koori kids from school never to be seen again. My parents didn't want this to happen to us. That's why we always lived by ourselves.

My parents made a little mia-mia with bushes and sticks around our heads and our feet at the fire which would burn all night. We all shared the two big grey Government of Victoria blankets and was a very close family. Our little jobs were to gather whatever we could while our parents were picking [bean and pea picking for a local grower].

We were never allowed to walk down to our camp the same way because our parents didn't want the welfare to find us. That's why we couldn't make a beaten track. [4]

Collectively these are the stories of The Struggle.

Appeals to "the underlying morality which characterises civilised law" [5] have consistently surfaced throughout Australian history.
In 1846 "the true Aboriginal Inhabitants of Van Dieman's Land" [6] petitioned Queen Victoria, calling on her to honour the agreement which ended the "Black Wars" in Tasmania. In 1938, 150 years after the First Fleet landed, William Ferguson and Jack Patten drafted a statement to mark a "Day of Mourning and Protest". [7] In the same year William Cooper, a predecessor of the present Yorta Yorta native title claimants, wrote to Prime Minister Lyons seeking remedy for the dispossession and abuse of our peoples. The terms of these documents variously refer to the Bible, to the Honour of the Crown, to the fundamental principles of British law and justice, to common standards of humanity and civilized behaviour, to plain decency and fairness.

More recently, Indigenous Australians have called on international law and universal standards of human rights to secure justice and protect our rights. But, in my view, the most powerful words remain those dawn directly from our lives. They are the words of people just trying to make ends meet and build something better for their children: stories of the struggle for justice in the rumpled cloths of everyday life. They are spoken in voices without the benefit of too much, if any, formal education. They speak of experiences that have broken the hearts and finished up many of our relatives.

They are also experiences which have formed and tested our resolve. So that there is one pre-eminent lesson to be learnt from our stories: we will survive. We will continue, as long as it is necessary, to fight.

It does not have to be a fight.

The struggle of Aboriginal and Torres Strait Islander men and women can lie in the heart of a broader Australian story. In fact that is the only possible place. The real question is: How will we tell that story? Will it continue to be perceived as a burden and a source of unending accusation? Or will the experience of our peoples, and the values which have sustained us, be recognised as a source of energy and pride to be shared by all Australians?

The potential conflict in the Indigenous and non-Indigenous stories of this country can be compressed into two words: invasion and settlement. Each word carries a train of implications. They are highly descriptive. They carry entire historical perspectives and a range of moral judgements. Moreover, the judgments implied by the words are frequently taken to be absolutely conclusive about the "rightness" or "wrongness" of subsequent Australian history.

This leads to a cul-de-sac of understanding. For a very long time the decisive legal basis of native title was seen to turn on the question of "conquest" or "settlement". In the event the High Court found it to be irrelevant to the question. [8] Absolute, oppositional views of Australian history are not useful. They only serve to lock past conflicts into the present.

This is not to say that history is neutral territory or that past events do not give rise to strong moral imperatives in the present. But it is fundamental to our ability to understand our history that we approach the past with a mind open to its complexity and its variety of voices.

This throws up a particular challenge for non-Indigenous Australians. The history of this country has overwhelmingly been told from the non-Indigenous perspective. Our perspective, told in our own voices, is just beginning to be heard. Our stories filled with pain and loss are frequently heard as nothing more than accusations or demands. The decisions in the Mabo and Wik cases have been perceived to gratuitously re-write history, with very tangible implications for vested interests. Responses to the stories of the Stolen Generations clearly demonstrate the difficulties in absorbing the deeply traumatic facts of Indigenous lives without pulling down defensive shutters.

History cannot be approached as a rearguard action. The experiences of Aboriginal and Torres Strait Islander men, women and children are inextricably part of the story of Australia and an essential part of the future of this country. The co-existence of Indigenous and non-Indigenous Australians is not a novel concept. We have always co-existed, we are bound in a relationship by our common presence in this land. The fresh prospect is our opportunity to negotiate the nature of that relationship, to place the terms of our co-existence on the basis "both of truth and of the underlying morality which characterises civilised law". [9]

One thematic response to our stories is to hear them as a total denigration of the history, values and achievements of other Australians. The Prime Minister, the Hon John Howard continues to refer to the "black armband view of our past" and describes it as a view reflecting "a belief that most Australian history has been little more than a disgraceful story of imperialism, exploitation, racism, sexism and other forms of discrimination". [10] I have previously considered the politics of such exaggerated statements and reject such an interpretation. [11] What I would like to draw from the Prime Minister's words in the present context is the degree to which they reflect genuine fear.

It is notable that these particular words were spoken in delivering the 1996 Sir Robert Gordon Menzies Lecture -- The Liberal Tradition: The Beliefs and Values Which Guide the Federal Government. The challenge to absorb a new, deeply etched understanding of contemporary Australia and its origins is not that it is difficult to accept the patently obvious facts of Indigenous experience: it is that a full acceptance of our experience is seen as a challenge to the core values which the Prime Minister believes cohere and unite his party, his government and the nation as a whole. If this were so there may be a legitimate cause for fear. It is a fear without legitimacy.

One of the most pregnant ironies of Australian history was first pointed out by Noel Pearson, Chairman of the Cape York Land Council. He referred to it in an address, An Australian History for All of Us, delivered only two days after the Prime Minister's lecture:

And the challenge for ordinary Australians today is this: that the foundation for compromise ... comes from their own legal and constitutional heritage. The Mabo decision is not a product of Indigenous heritage. Rather, more fundamentally, it is the product of the country's English heritage: it is a product of the genius of the common law of England.

If there is one thing about the colonial heritage of Australia that Indigenous Australians might celebrate along with John Howard with the greatest enthusiasm and pride: it must surely be the fact that upon the shoulders of the English settlers or invaders, call them what you will, came the common law of England and with it the civilized institution of native title. What more redemptive prospect can be painted about the country's colonial past? It just confounds me that this golden example of grace in our national inheritance is not the subject of national celebration. After all, Indigenous people are entitled to say: it is your law! [12]

And so it is: a recognition by the Australian common law of rights to land in accordance with our traditional laws and customs. This is not divisive law which challenges unity. It is the synthetic law of co-existence: one law respecting and acknowledging the equality, scope and integrity of different traditions.

And, if guidance is needed as to the substantial disturbance caused by the belated recognition of our rights, it is deep within the liberal tradition that we find robust support. In the words of John Locke:

The Inhabitants of any Country, who are descended, and derive a title to their Estates from those, who are subdued, and had a Government forced upon them against their free consents, retain a Right to the Possessions of their Ancestors ...

If God has taken away all means of seeking remedy, there is nothing left but patience. But my Son, when able, may seek the Relief of the Law, which I am denied: He or his son may renew his Appeal, till he recover his Right ... If it be objected this would cause endless trouble: I answer, No more than Justice does, where she lies open to all that appeal to her. [13]

This is the essence of the question posed to Australia in 1997. It is not about special pleading. It is not about sympathy, sorrow or guilt. It is not about "preferential treatment" for a "clamorous minority" which distorts and threatens Australian beliefs and values. Stripped down to its essential form it is a question of whether the governments and people of Australia will reaffirm their core values and belief in justice.

If the future co-existence of Indigenous and non-Indigenous Australians is to rest on secure and prosperous foundations it must rest on justice.

To frame this prospect of co-existence in terms of a unifying national belief in justice is not naive rhetoric. It is obvious that individual views of what is balanced, what is fair and what is just are highly diverse. They are influenced by self-interest and individual perspective. The Commonwealth Government's legislative response to the Wik decision will be precise. It will lock down interests in land and define legal rights. But before any detailed evaluation of such legislation can be usefully advanced, the ground rules must be clear: and it is in the framing of these rules, the perspective which shapes and informs these rules, that our understanding of Australian history becomes critically important.

Historical events are not the real issue. It is the way in which we comprehend these events now: how we read their implications for the future.

The Prime Minister speaks of a "balance sheet" of history, as though it were possible to make a static appraisal of where we have come from as a country and where we will go.

In grappling with the past, present and future the Prime Minister uses the image of a "pendulum" which in his view has swung out of balance in favour of the interests of Indigenous Australians and other minority groups, away from the core interests and values of the mainstream. It is a view shaped by the shallow perspective of contemporary politics.

And for too long this country had a government that was pushed and pulled in every direction by the noisiest minority that happened to be in town at the particular time. [14]

Of course, our minority has been in town for a relatively long time, but the most telling aspect of this remark is the notion that there is a centre to the Australian nation that is somehow put upon, badgered and browbeaten by factional groups who would pull the centre apart by appeal to special interests. It is essentially a defensive position which, while acknowledging that Australia's history is blemished, asserts that the overall score card is pretty good and that examples of ill-treatment and discrimination are simply the whistles and banners of a street demonstration designed to re-open the past to gain contemporary political leverage.

Sometimes I imagine that our Prime Minister conceives his role as being purely to defend the community chest of vested interest. The armoury of Indigenous attack is not strong -- unexpectedly supported by an "adventurous" High Court -- but the basic weapon draws on guilt and a sanctimonious reading of history: "premised solely on a consuming sense of national guilt and shame". [15]

This is of course a caricature of the Prime Minister's approach. I have no doubt that his endeavours to deal with the Wik decision and Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families are informed by a much deeper appreciation of their import, the interests and the values at issue.

Yet I think there is something of the Prime Minister's approach which this caricature draws out and makes more clear. It is a perspective which places a fundamental division between the interests of Indigenous people as a minority and the interests of the mainstream of Australian society, as though recognising our rights entails a distortion of the underpinnings of national cohesion.

Governments exist to represent the values and aspirations of the mainstream of the Australian community. Not in a way that is insensitive or indifferent to minority groups in the community but in a way that ultimately gives expression to the aspirations and the hopes of the mainstream of the Australian community. [16]

The flaw in this construction of the ultimate purpose of national government is that it places minority groups outside the values and aspirations of the mainsteam of the Australian community. While asserting sensitivity to minority groups, our values, aspirations and hopes are seen to be essentially divergent.

As one commentator has put it:

He [the Prime Minster] regards the "politically correct" brigade as being committed to an agenda designed to advance the agenda of particular groups over the interests of the community by giving them special privileges and justifying this by vilifying the institutions and values on which Australia was built ...

Howard sees his mission as being to dismantle these structures and return Australia to what he believes it could be again -- a nation intensely proud of its history, committed to hard work, self-sufficiency and decent values and a society in which the family unit is restored as the focal point for all these good things. [17]

The narrowing of national vision caused by the Prime Minister's belief that core Australian institutions and values are under attack from the fringe is graphically demonstrated by his response to Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families.

The Prime Minister's appreciation of the centrality of family life is beyond question. There is evident warmth in his language when he speaks of it.

I believe that Australian families not only provide the greatest source of emotional and spiritual comfort to Australian individuals but beyond that a functioning, united, coherent family is the most effective social welfare system that any nation has ever seen ...

And the widening gap between rich and poor, much of the social disintegration of this country and much of the unemployment of this country can be traced to the disintegration of family life. [18]

These perceptions were expressed to the Annual State Conference of the National Party. They were not brought to bear at the First Reconciliation Convention when the Prime Minister touched on the question of Indigenous children separated from their families.

It is difficult to imagine a more relevant or important context for an Australian Prime Minister to speak of his belief in the centrality of family life and the consequences of its disintegration. Particularly where such disintegration was the result of past government policies based on race.

However, rather than start from the inclusive position that the family is "the greatest source of emotional and spiritual comfort", the Prime Minister's basic reaction at the Reconciliation Convention was to minimise the damage, to avoid the full recognition of the emotional and structural repercussions of the disintegration of Indigenous families over generations. And I suggest the reason flows from his essentially divided construction of Australia as a mainstream community with shared values under siege from minorities such as Aboriginal peoples and Torres Strait Islanders.

If there is one focal point of the National Inquiry and its report Bringing Them Home, it is family life. If there is one cohering theme of the report it is to trace the effects of the purposeful disintegration of Aboriginal families and to recommend measures to deal with the aftermath and to heal the trauma.

I do not question the Prime Minister's personal expression of sorrow. I do not question his right to critically assess the findings and recommendations of the National Inquiry: they are legitimate matters for debate. However, the failure to perceive the deep human commonality of emotions and values which unite both Indigenous and non-Indigenous Australians in their celebration of family life is a national loss. The Prime Minister's audience at the Reconciliation Convention was restive. But the very fact that the pain and anger is still so fresh from the laws, policies and practices which selected children on the basis of race for removal, is the strongest imperative for a national leader to identify a common starting point for our response to this terrible part of the Australian story.

Government practices not only separated Indigenous children from their families: they separated, on terms of gross discrimination, Indigenous people from the rest of the Australian people. If we are, as the Prime Minister clearly desires, to share a common future of equality, it can only be achieved by the unequivocal recognition that Indigenous Australians are no longer peoples to be accommodated or tolerated as a special interest group separated from the rest of the community. It requires an affirmation that we share values that are common to all Australians. It entails a commitment to respect the human rights of all Australians by simple virtue of our humanity.

To affirm a common belief in family values in the context of stolen children results in a significant shift in perspective. It can reconcile views of the past. Instead of hearing our stories from the outside, as accusation, it is possible to enter into our experience: to feel something of the pain, to imagine the loss and to recognise our lives as part of the experience of this country.

For the many non-Indigenous Australians who have now read the stories and cried, grieving with us for the loss of our babies and children, I know it has been difficult to sift through the emotions that arise: but for the first time in this country this intimate experience of our people has come directly within their knowledge.

It has been "estimated that 100,000 children were forcibly removed from their families. Official records have been acknowledged by a number of state governments to underestimate the number of children removed." [19]

This knowledge should not give rise to guilt. It should expand our understanding of the past, and give deeper insight into the problems and responsibilities of the present. It should build our absolute resolve to ensure the future of this country is based on the protection of human rights which flow from our common humanity.

The Convention on the Rights of the Child (CROC ) ratified by Australia in 1989, affirms basic values and states the rights and obligations which follow from these values.

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Article 14

States Parties shall respect the right of the child to freedom of thought, conscience and religion.

Article 30

In those States in which ethnic, religions or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

The recognition of human rights commonly enjoyed by Indigenous and non-Indigenous people must be our starting point. This perspective unites us. It affirms common values which must form the heart of the Australian nation.

However, this affirmation does not obliterate difference. It does not mean that people of differing cultures must surrender the distinctive substance of their cultures in order to merge into some homogenised notion of the "mainstream". Article 30 of CROC explicitly states that Indigenous children are entitled to enjoy their unique heritage and beliefs.

This is not a special privilege forced by special pleading. It is a right essential to the substantial enjoyment of a common entitlement to freedom of conscience and freedom of religion.

In the past Chinese joss-houses and the people within them were attacked with impunity. There were prohibitions against Catholics and Jews holding public office. We have grown beyond overtly sanctioned religious discrimination into a country which holds Greek Orthodox churches, Buddhist temples, mosques and synagogues, as well as Protestant and Catholic churches and cathedrals. Official policies to suppress Indigenous spiritual beliefs have given way to some appreciation of our distinct ceremonies. Yet because our places of ceremony lie unstructured within the landscape of this country and commercial interests find them inconvenient, those places are still not accorded equal respect as consecrated ground.

Because the forms of our religious practices are different, the substantive protection of our common human right to religious practice is regarded as divergent. To protect our sacred sites is regarded as some kind of special concession which can be adjusted and varied at will: deprived of the protection of the Racial Discrimination Act 1975. [20]

To recognise and protect the particular form of Indigenous religious belief, which entails a distinct form of legal protection for sacred sites, does not challenge core Australian values: it affirms our collective respect for freedom
of religion.

Precisely the same principle holds true for property rights: for native title rights.

A distinct form of protection for our title is not a special privilege extended to Aboriginal peoples and Torres Strait Islanders. It is a necessity to achieve the substantive enjoyment of our right to property which is the human right of all Australians. To frame laws which do not protect the exercise and enjoyment of native title according to its distinct character is discriminatory. To propose such laws not only denies equality and justice to Indigenous Australians, it erodes respect for commonly held human rights and corrupts our national values.

And this is the danger I see in the convolutions which have shaken Australia over the last year. The coalition government believes its role is to support and strengthen the central institutions and values of Australia but, ironically, its reaction to the decision in the Wik case and its proposed treatment of native title threaten those very institutions and values.

The Deputy Prime Minister, the Hon Tim Fischer, is the most straightforward and undisguised in his language. His first reaction, when Acting Prime Minister, was not merely to attack the implications of the Wik judgement, it was to attack the majority judges in an endeavour to erode the credibility of their conclusions which are so unpalatable to his constituency. [21] He followed on with remarks which must necessarily affect the standing of the court itself. The Deputy Prime Minister's public statement about the need for the coalition government to appoint a "capital C conservative"22 to the bench undermines the independent standing of the judiciary and damages the constitutional principle of the separation of powers.

The general strategy is one of a concerted public campaign to denigrate the highest appellate or constitutional court, in particular by resurrecting what should have been long discredited complaints about judicial activism. [23]

More extreme echos of these views came from the state Premiers, together with a call for states to be given a right of veto over High Court appointments. In an environment where divisions based on race are already inflamed, these remarks were profoundly unhelpful and blurred the boundary between maintaining respect for the courts, the judiciary and the law, and the exercise of executive power in an attempt to guarantee judgments responsive to political persuasion and vested interests.

There can be no issue taken with the latent power of the Australian Parliament to review and amend the common law as declared by the courts, provided such power is exercised within lawful constraints. But the fact that such lawful, constitutional constraints on the Parliament are interpreted and declared by the High Court makes it imperative that the forms of the separation of powers are scrupulously observed. To do anything less is to diminish respect for democracy under the rule of law.

Beyond the Constitution there are other restraints on the untrammelled exercise of power by the Australian Parliament.

On 30 October 1996, the House of Representatives passed a bipartisan resolution:

That this House Reaffirms its commitment to the right of all Australians to enjoy equal rights and be treated with equal respect regardless of race, colour, creed or origin.

Bucket loads of extinguishment. [24]

In this crude but accurate image the Deputy Prime Minister of Australia compressed the vision of the coalition government in responding to the Wik decision. It diminishes our stature as a nation.

The Prime Minister is more circumspect in his language. He claims his 10-point plan, translated into the Native Title Amendment Bill, resists the sustained call for "blanket extinguishment". At the same time the Prime Minister discounts respect for the Racial Discrimination Act 1975, saying there is nothing "sacrosanct" about its provisions, knowing his amendments will override the operation of that Act.

Against the backdrop of a public debate which has careered down a widening fault line based on race, these statements by Australia's elected leaders are profoundly disturbing.

There is a clear distance between the Prime Minister's assertion that his response to the Wik decision does not involve blanket extinguishment and his Deputy's assertion that it delivers bucket loads of extinguishment. This distance creates confusion in the public mind as to precisely what it is that the Government intends, and what values inform its intentions.

The cold reality is that both statements are true. The disparity between them is filled with several hundred pages of amendments and schedules which, in their volume, totally overshadow their target: the Native Title Act 1993. The crude and blatantly discriminatory device of blanket extinguishment is avoided by a cascading series of amendments which cut away the protection of native title and deliver individual "buckets of extinguishment" through various "validation", "confirmation", "acquisition" and other provisions expanding pastoral rights over land, diminishing and destroying the remnant native title estate and consistently preferring non-Indigenous interests in land over those of Indigenous Australians.

The bill is a plain mockery of justice. My Native Title Report for this year descends into the technical thickets which camouflage the Government's broad assault on Indigenous rights. The amendments are purposefully obscure. It is necessary to break into open ground away from the jargon to see how the coalition government's approach to native title conforms with its general perspective in which the values, interests and rights of the mainstream are seen as being in essential competition with the values, interests and rights of Aboriginal and Torres Strait Island peoples.

The "balance" which the Prime Minister perceives in his proposed amendments is profoundly affected by this perspective. Despite his rhetoric, native title is not accorded equal protection as a property interest in its own right. It is regarded as a divergent and disruptive interest in land which must be accommodated in some form or other, but the terms of its accommodation are basically a matter for his government to determine at will, unconstrained by the provisions of the Racial Discrimination Act 1975.

The rights at issue are not peculiar to Aboriginal people and Torres Strait Islanders. Article 17 of the Universal Declaration of Human Rights states:

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

If the government's amendments were bleached of colour the enormity of the Native Title Amendment Bill would be transparent immediately. The compulsory acquisition of private property by governments is not welcomed by any citizen. But where it is done for a public purpose, it is understood. It is an entirely different proposition for the government to confiscate your land to enhance the title of another person. Such state intrusion on private property in order to blatantly preference the interest of one citizen over another would ordinarily be regarded as an outrage.

Yet this is precisely what is proposed for native title. It is one of the several means to extinguishment. The right to negotiate prior to compulsory acquisition will be removed and the Commonwealth will provide 75 per cent of the compensation payable for the acquisition of native title by the states, for the purpose of pastoralists upgrading their titles.

State governments will have to amend their land acquisition legislation to achieve this. Western Australia has already done so. [25] This power of acquisition for the benefit of a third party will potentially affect all citizens, but the entire proposal is specifically designed to facilitate extinguishment and to clear the ground of native title where it currently co-exists on pastoral leases.

Because the power could be applied to anyone it can be passed off as "neutral" and "non-discriminatory". The strategy is typical of the disingenuous way in which the amendments work. They offer the illusion of "formal equality" while in substance they relentlessly, parcel by parcel, continue the historical dispossession of Indigenous Australians.

The Wik decision confirmed pastoral rights and provided that, where they conflict with continuing native title rights in the same land, the rights of the pastoralist will prevail. The National Indigenous Working Group have accepted this position and made clear its acceptance of the existing rights of pastoralists to operate and develop their leases without the requirement to negotiate about such uses. And still there are implacable demands to extinguish our rights.

These demands intensify perceptions that Australia has not stepped free of the racism that disfigured its past. No "elite unit" in the Department of Foreign Affairs and Trade creating "Images of Australia" will be able to hide the reality of native title legislation.

The government claims that its amendments are not racially discriminatory. This is given the lie by the government's own refusal to expressly extend the protection of the Racial Discrimination Act 1975 to cover its proposals. The Prime Minister simply asserts that his bill is fair. He refuses to provide a sound legislative guarantee of that assertion.

The Prime Minister says his bill will deliver "certainty". But, while his legislation can override the Racial Discrimination Act 1975, it cannot escape constitutional challenge. The first fruit of this legislation will not be "certainty": it will be protracted litigation. We will all return to the courts. [26]

But strict legal issues are only part of the story.

We stand at a critical point in the continuum of Australian history. A precise entry is about to be made in the Prime Minister's "balance sheet". It will define our national values, not only for the world to assess, but for our children to absorb and carry forward in shaping the future of this country.

If political power, parliamentary numbers and vested interests prove to be the raw determinants of Australia's treatment of native title, then Australian law will once again be cut loose from "the underlying morality which characterises true law".

The prospect of co-existence between the Indigenous and non-Indigenous peoples of this country, founded on justice and respect for human rights, will be lost. The synthesis of law and morality represented by Mabo and Wik, the possibility of assuaging the history of Indigenous dispossession, the potential to find "grace in our national heritage", [27] will be squandered.

This is not an abstract issue of human rights. It has the most far reaching practical implications. It is not purely, or even primarily, a question of land.

The weight of denial in Australian history is a profound burden on this country, which has been carried by each generation in one way or another. There has been a continual awareness of a problem. At times the "Aboriginal problem" has penetrated public consciousness, more frequently it has formed a subliminal awareness of something waiting, beyond the field of vision. Something awaiting resolution. Constantly present. Constantly avoided. As the late Professor Bill Stanner expressed it in his Boyer Lectures:

... inattention on such a scale cannot possibly be explained by absent-mindedness. It is a structural matter, a view from a window which has been carefully placed to exclude a whole quadrant of the landscape. What may well have begun as a simple forgetting of other possible views turned under habit and over time into something like a cult of forgetfulness practiced on a national scale ... the Great Australian Silence; the story of the things we were unconsciously resolved not to discuss with them or treat with them about ... [28]

The angry attempts to deny, suppress and extinguish native title rights continue this tradition: "not to discuss with them or treat with them". Not even to name or recognise "them". The "others" who lie outside "us".

The "Aboriginal problem" has been approached in many ways. The expectancy of our demise called forth the kindness to soothe the dying pillow. Apprehension at the growing number of "half-caste", "quadroons" and "octoroons" stimulated the removal of children for assimilation so that the descent lines of Indigenous culture would be cut and we would be absorbed without trace. Policies of segregation, assimilation, integration are all various manifestations of the same attitude: that our people form a troublesome vestige of the past and a reminder that our "dispossession underwrote the development of the nation". [29] From this perspective the very presence of our people constitutes a black armband on the nation. And there is no freedom for any of us. There is only the mutual burden of separation. Denial on one side and the Struggle on the other side. And a waste of energy.

You mightn't be one of us, but you won't be free until we are free. [30]

There is another thread in the history of this country. In the very process of observing "the simple forgetting of other views", Bill Stanner kept alive another perspective. In the act of describing the Great Australian Silence he broke that silence. From the very first there have always been Australians who recognised that the Struggle of our people embodies and invigorates values that we all celebrate. In this regard I can agree with the Prime Minister. There is an "heroic" aspect of our shared history. In 1831, J E wrote to the Launceston Advertiser:

Much as I am prejudiced against the savages, I cannot on principles of justice and humanity, refrain from coming forward on this occasion as their advocate ... the Aborigines were originally the rightful owners and possessors of the island ... What we call their crime is what in a white man we would call patriotism. Where is the man amongst us who would not avenge the murder of his parents, the ill-usage of his wife and daughters, and the spoilation of all his earthly goods, by a foreign enemy, if the had the opportunity? He who would not do so, would be scouted, execrated, nay executed as a coward and a traitor; while he who did would be immortalized as a patriot. Why then should we deny the same feelings to the Blacks? How can we condemn as a crime in these savages what we would esteem as a virtue in ourselves? [31]

Even in the nineteenth century, at time of open warfare and bloodshed, there was an ability to imaginatively enter into the perspective of our "savage" mind and recognise that our cause was based on the "principles of justice and humanity" which are common to us all.

In 1996 the same principles guided the Cape York Heads of Agreement which stepped beyond abstract ideals about justice to find a practical basis for co-existence between pastoralists and Aboriginal people who share interests in the same land. It is an agreement premised on precisely the same foundation as J E wrote of in 1831: simple "esteem". It respects each others' rights, each others' way of life and draws them together in a vision of common prosperity.

Noel Pearson was one of the architects of the Cape York Agreement and there is honesty in his statement that:

It is a troubling business coming to terms with our history, both for Aboriginal people and non-Aboriginal people. For our Aboriginal people, it is a troubling business because there is the imperative to never allow anyone to forget the truths of the past, but we must also be able as a community to rise above its demoralising legacy and to reach for the future. [32]

Co-existence is not merely a question of who has what rights to land. It holds the potential to recast the relationship between Indigenous and non-Indigenous Australians. It can set down a new framework in which the mutual enjoyment of our land is determined by discussion and agreement: not by the exercise of raw power with the demoralising legacy that the denial of justice inevitably leaves behind.

My first report as  Aboriginal and Torres Strait Islander Social Justice Commissioner  was published in 1993. The High Court's initial recognition of native title was still fresh. The voices of denial were strong. They are even stronger now. There is no necessary course of progress in any nation's history. This is my last report and the issues posed by Wik are precisely the same as those originally posed by Mabo.

The deepest significance of the judgment is its potential to hold a mirror to the face of contemporary Australia. In the background is the history of this country. In the foreground is a nation with a choice. There is no possibility to look away. The recognition of native title is not merely a recognition of rights at law. It is a recognition of basic human rights and realities about the origins of this nation: the values which informed its past and the values which will inform its future. [33]

Chapter 3: The New Stolen Generation

Introduction

The various responses to Bringing Them Home, The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families have largely concentrated on the effects of past policies and practices on the removal of Indigenous children. The critical, contemporary implications of the Inquiry's fourth term of reference have been almost entirely overlooked:

Examine current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Strait Islander children and advise on any changes required taking into account the principle of self-determination by Aboriginal and Torres Strait Islander peoples.

The devastating impact of the operation of the juvenile justice system on the lives of Aboriginal and Torres Strait Islander children has become a thematic element of my last two reports:

In 1995:

We despair watching the impact of incarceration on our young people. Fourteen year olds come home street-wise sullen men. The current system damages our children, while doing nothing to protect our communities and protect the wider community in any lasting way. [34]

In 1996:

These are our kids. Without denying their responsibility for their behaviour, our kids are most frequently offended against before they offend against others. Before society has any moral claim to exact punishment, our responsibilities to them must be met. This is so for all kids. [35]

I have consistently drawn attention, not only to the damage to the lives of Indigenous children and their families, but also to the broader social problems which the operation of the criminal justice system is relentlessly building for the future of this country.

It is clearly necessary to present the realities again: to provide another opportunity to consider the relevant findings of the National Inquiry. Perhaps, in isolation they will receive the attention they deserve. Accordingly, I asked eminent criminologist, Mr. Chris Cunneen, to draw out the salient points. They are necessarily broad brush and to some degree abstract. What cannot be forgotten is that behind the statistics and statements of general principles are the lives of young children whose futures are now being shaped by their experience in police stations, courts and detention centres. What is happening day in, day out, beyond the view of the rest of the community, has direct relevance for the entire Australian community.

There has been profound and understandable reluctance for people to contemplate that past laws, policies and practices could be caught within the term "genocide". It has been said that the past is the past, that the evaluation of the past should not be made in terms of contemporary values. Leave those arguments to one side. The separation of Aboriginal and Torres Strait Islander children from their families continues. It is not done by reference to race, it is not done for the purposes of assimilation, but consider contemporary separation from the most practical perspective possible: what are the effects of the current laws, policies and practices of the Australian juvenile justice system? They result in the massively disproportionate arrest and incarceration of Indigenous youth. If the statistics were presented without explanation the disproportions alone would identify the issue involved.

The dividing line is one of race. Systemic discrimination removes Aboriginal and Torres Strait Islander children from their families and the rates of separation are in many places accelerating. Whatever the rationale of removal, Indigenous children are taken away from their families and deprived of what the Prime Minister most values:

I believe that Australian families not only provide the greatest source of emotional and spiritual comfort to Australian individuals but beyond that a functioning united coherent family is the most effective social welfare system that any nation has ever seen.

And the widening gap between rich and poor, much of the social disintegration of this country and much of the unemployment of this country can be traced to the disintegration of family life. A government that believes very strongly in the robust independence of individualism in Australia and government that recognises and respects and seeks to enhance the cohering and stabilising role of the family unit within Australian society. They are our principles, that is our credo and faithful adherence to those principles and that credo will, I believe, deliver excellent government for future Australians. [36]

I share this belief in the importance, the centrality of family life and its high potential to shape the lives of future Australians. Yet Aboriginal and Torres Strait Islander children continue to be arrested, incarcerated and removed from their families at culpably distorted rates when compared with other Australian children.

These are not welfare removals. They do not reflect inherent "criminality". The regional variations show how rates of Indigenous arrest and detention are reflective and responsive to the laws and practices applied by the criminal justice system. Poverty, lack of education, health and housing are objective factors which drive systemic discrimination, overt racism can catalyse its operation. Overall there is the human reality of our people, our families and our communities, whose knowledge of past treatment is reinforced by current experience. The notion of a country which gives everybody a "fair go" becomes a bitter mockery. Its bitterness will be shared by all Australians unless we act, sharing responsibility, to place the life prospects of Indigenous and non-Indigenous children within the same field of equality.

We don't want our kids taken away. Out here in Broken Hill if our kids go to juvenile justice they can't be kept here because it's not adequate enough for them. They [DOCS] say: "Oh well, we only get a few kids here now and again", but that's a few kids' lives that have been destroyed.

My own grandson has been taken down to Wagga to the Riverina juvenile justice. We was only able to visit him once because of the distance, the miles, and the money we just haven't got to go down there. And they're locked away from us, we got no access to them. If you haven't got the money -- which most people haven't got out this way because we're very isolated -- it doesn't give us a chance to get down and see our kids. So you lay down every night wondering what's happening to them, if they're all right ... If they wasn't being treated properly, they'd be too frightened to say, because they'd know that they'd be locked away there again with them people and they'd get it worse.

Our Aboriginal kids -- we should be looking after them ourselves. We should be properly resourced to do it, because those kids are torn between worlds and they're very disadvantaged out here. They don't get the same work as every other young person gets -- you know, you've got big shopping centres here and lots of businesses, but you don't see any of our people employed in them. The only jobs you get out this way are government-funded jobs, and soon as the funds run out there's no more work. And our kids are disadvantaged in a lot of ways because they've got nothing to do and they get into trouble. And then straight away they're taken away from us again.
There's going to be a lot more problems over the years because we're not funded enough. What are they going to do? Just keep on taking our kids and locking them away, and taking our people and locking them away? There's got to be a better solution than what they're doing now.
The children -- they're so scared when they've got to go to court. Even when they've got to go to court for a little thing, they think they're going to get sent away and they're not coming back. The court is some place where they think they're going to be taken away from their people. [37]

The continuum in forced removals

The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (the Inquiry) found that the high levels of criminalisation and subsequent incarceration of Indigenous young people in Australia effectively amounts to a new practice of forced separation of Aboriginal and Torres Strait Islander children and young people from their families. The failure to reform juvenile justice law and practice, the failure to remedy the social justice issues facing Indigenous youth, and the failure to respect the right of self-determination of Indigenous people means that in practice the human rights of Indigenous young people and their families are being abused.

Aboriginal child care agencies and Aboriginal legal services throughout Australia consistently drew attention during the 1980s to the problems associated with the high levels of criminalisation of Indigenous youth. [38] Some academic commentators argued that the over-representation of Indigenous young people in juvenile corrections represented a continuation of earlier assimilationist removal policies by way of a process of criminalisation rather than by way of welfare. [39] Aboriginal organisations in their submissions to the Inquiry also argued strongly that there was a continuum between earlier forced removals and current levels of criminalisation and detention. The Inquiry supports this interpretation.

Empirical evidence supporting this argument can be found in a raft of research covering most Australian jurisdictions which indicate that, not only are Indigenous young people over-represented in the juvenile justice system, they are most over-represented at the most punitive end of the system, in detention centres. [40]

We know the problem

The Inquiry found that the issues facing Indigenous young people have been identified and demonstrated time and time again. It is not surprising that Indigenous organisations and commentators draw attention to the historical continuity in the removal of Indigenous children and young people when the key issues in relation to juvenile justice have already been identified for some time. Yet the problem of over-representation appears to be deepening.

We know that 40 per cent of all young people held in police custody are Indigenous. [41] This figure demonstrates a staggering use of police custody for Indigenous children and young people given that they comprise only 2.6% of the national youth population. In fact, the rate of custody per 100,000 of Indigenous young people is 1333 compared to a rate of 52 for non-Indigenous youth.

We know that nationally some 36 per cent of youth in juvenile correctional institutions are Indigenous. The rate of incarceration is 540 per 100,000 for Indigenous young people compared to a non-Indigenous rate of 25 per 100,000. We know that the situation is getting worse. The most recent figures show that there were 26 per cent more Indigenous young people in detention at the end of June 1996 than there were at the end of September 1993. The rate per 100,000 of the Indigenous youth population incarcerated had also increased by 24 per cent from 408 to 540. During the same period, the number of non-Indigenous young people in detention centres increased by
5 per cent.

We know that Indigenous children and young people are separated by long distances from their families and communities. Most detention centres in Australia are potentially hundreds, if not thousands of kilometres away from many Aboriginal communities they service. The distance makes it extraordinarily difficult for parents and relatives to visit incarcerated young people and therefore exacerbates the extent of removal. It is an issue that particularly affects Indigenous children and young people because they are more likely to come from a non-urban, rural or remote, background. [42] They are far from home often without any regular contact with their families.

Policing issues

The Stolen Generations report dealt extensively with issues relating to policing Indigenous young people. These related to both general matters such as Aboriginal/police relations, as well as specific concerns about police powers, the utilisation of police discretion and the regulation of police behaviour. Poor Aboriginal/police relations, racism and over-policing were seen to be an issue in many parts of Australia.

The Inquiry found that arrests for public order offences still constitute a significant reason for the involvement of Indigenous young people in the juvenile justice system and that arrests of Indigenous young people were increasing.

Various types of legislation, including welfare, local government and parental responsibility developed to regulate the behaviour of Indigenous young people in public places contribute to over-policing.

All the available research evidence shows overwhelmingly that Indigenous young people do not receive the benefits of police cautioning schemes to the same extent as non-Indigenous young people.

The use of Indigenous elders (rather than police officers) to issue cautions to kids is not widely used. Cautioning by Aboriginal and Torres Strait Islander elders instead of police, can only be done on the request of an authorised police officer.

The decision as to who cautions an Indigenous young person should reside with Indigenous communities and organisations. Current measures show no change in decision-making power and are tokenistic.

Indigenous young people are more likely than are non-Indigenous young people to be proceeded against by way of arrest rather than by summons.

There is widespread and disproportionate use of police custody for Indigenous juveniles.

Issues of diversion

The Inquiry found that one of the most critical issues in relation to the development of diversionary schemes has been the lack of Indigenous consultation, negotiation and control over those schemes. In particular the Inquiry considered the use of family group conferencing, and found that the available theoretical, observational and empirical evidence strongly suggests that family group conferencing, far from being a panacea for offending by Indigenous young people, is likely to lead to harsher outcomes for Indigenous children and young people.

Family Group Conferencing is a model that, by and large, has been imposed on Indigenous communities without consideration of Indigenous cultural values, and without consideration of how communities might wish to develop their own Indigenous approaches to the issue.

Police control over the referral process in many jurisdictions is not likely to benefit Indigenous access to conferencing.

There is no provision for Indigenous organisations and communities to make decisions about whether their children would be best served by attending a conference.

The best that is included in conferencing models is that when conferences are held which involve Indigenous youth, then an elder or other representative of the young person's community must be invited. Such an approach is tokenistic.

Sentencing and legislative issues

The Inquiry found that throughout Australia Aboriginal and Torres Strait Islander young people generally receive harsher outcomes in the Children's Court than non-Aboriginal young people, particularly at the point of being sentenced to detention. [43]

Greater likelihood of incarceration was caused by a number of factors including:

* greater likelihood that an Indigenous young person comes from a rural background and appears before a non-specialist Children's Court (or Justice of the Peace). Geographic isolation also raises issues of inadequate legal representation, fewer non-custodial sentencing options and harsher sentencing attitudes by non-specialist magistrates;

* greater likelihood that an Indigenous young person has been institutionalised previously, was less likely to have received a diversionary alternative to court, and was more likely to have a greater number of prior convictions. Each of these factors increases the likelihood of a custodial order;

* formal intervention occurs at a younger age with Indigenous children, they accumulate a criminal record at a much earlier age than non-Indigenous children;

* earlier discrimination in the system results in Indigenous young people being less likely to receive diversionary options and being more likely to receive the most punitive of discretionary options. These factors compound as the young person moves through the system. Apparently equitable treatment at the point of sentencing may simply mask earlier systemic biases;

* mandatory and repeat offender sentencing legislation will have the greatest negative impact on Indigenous young people. They are precisely the group who, because of the reasons discussed above, are more likely to have longer criminal histories;

* there is inadequate legislative recognition of the importance of the cultural background of the young person just as there are no legislative obligations to negotiate with Aboriginal and Torres Strait Islander communities;

Recommendation 62 of the Royal Commission into Aboriginal Deaths in Custody called for negotiation in developing diversionary alternatives to custody, and links self-determination with an assumption of responsibility, where it says:

There is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems, and in particular to reduce the rate at which Aboriginal juveniles are separated from their families and communities. [44]

The underlying issues

The Inquiry considered the poor socio-economic conditions which make Indigenous young people more susceptible to criminalisation and removal, as well as the ongoing effects on later generations of earlier removals under assimilationist policies.

There are numerous social, economic and cultural factors which contribute to the likelihood of increased intervention by juvenile justice agencies in the lives of Indigenous children and young people. Some of the factors arise from cultural difference. Others are the outcome of dispossession and marginalisation which today manifest themselves in high levels of poverty, ill-health and homelessness. [45] All of which, independent of specific racial and cultural factors, are predicative of high level of contact with the criminal justice system.

The Inquiry noted that cultural difference, particularly different familial structures and child-rearing practice can lead to adverse decisions by juvenile justice, welfare and other agencies, particularly where cultural difference is not understood or does not inform policy development and implementation. Other issues related to issues considered by the Inquiry included the incidence of domestic violence, alcohol and other substance abuse, poor health and mental illness. Drawing on other research the Inquiry noted that substance abuse is a major problem for Indigenous young people in some communities and can spark intervention by welfare or juvenile justice authorities. Other health factors which were considered included problems with mental health, environmental health, hearing loss and poor nutrition -- all of which can be associated with juvenile justice intervention.

The Inquiry found that Indigenous young people were severely disadvantaged in areas of education, housing, employment and income. For example the unemployment rate of Indigenous young people was more than twice that of all Australian youth (50 per cent compared to 22 per cent for 15 to 19 year olds; 46 per cent compared to 13 per cent for 20 to 24 year olds). ABS data showed that one in five Indigenous young people report no income at all is a disturbing feature and one likely to increase the probability of criminalisation.

The Inquiry also considered the effect which the removal of Indigenous children under the previous assimilationist policies has had on later generations -- the inter-generational transmission of problems. The Inquiry found that removal and institutionalisation had a number of effects including the severing of cultural knowledge, the severing of knowledge about being a parent and a sense of unresolved psychological trauma.

All of these factors negatively effect children and increase their likelihood of institutionalisation. There is little doubt that there is a direct association between removal and the likelihood of criminalisation and further instances of removal. It is yet another example of the continuum of forced separations.

Both the solutions and the issues have been identified. The issues raised above have been stated time and time again.

Problems in relation to policing and the courts have been well documented since Eggleston's (1976) pioneering work. Problems with Aboriginal/police relations across most of Australia were well documented in the early 1980s [46] and repeated in national inquiries and regional studies in the late 1980s and early 1990s. [47] The failure of Indigenous young people to receive fair treatment in diversionary options such as police cautioning or less intrusive methods such as summons and court attendance notices was demonstrated from the mid-1980s onwards, [48] and the failure of other diversionary schemes such as panels to meet the needs of Indigenous youth from the end of the 1980s. [49] Failure to comply with police instructions regarding the presence of a parent or adult, failure to notify Aboriginal Legal Services and the inadequacy of police guidelines in regulating police behaviour have been commented upon periodically for a decade and a half. [50]
All of the above issues were addressed comprehensively in the findings and the recommendations of the Royal Commission into Aboriginal Deaths in Custody. They have also been addressed in various international conventions to which Australia is a party. A key recommendation of the Royal Commission into Aboriginal Deaths in Custody in relation to Indigenous children and young people in police custody said that, only in exceptional circumstances, should juveniles be detained in police lock-ups. [51]
The Convention on the Rights of the Child also requires that arrest and detention following arrest should be measures of last resort. [52] Alternatives should be utilised unless the circumstances are exceptional. An evaluation of state and territory responses to Recommendation 242 found that it has not been adequately implemented. [53]

Addressing the issue of over-policing and the establishment of protocols were also major recommendations of the Royal Commission into Aboriginal Deaths in Custody. [54] Other research has shown that these recommendations have been poorly implemented. [55] The need for protocols to regulate the interaction between police and Aboriginal communities was reiterated by the Inquiry.

The Royal Commission into Aboriginal Deaths in Custody recommended that legislation and instructions be reviewed to ensure that young people are not proceeded against by way of arrest unless such an action is necessary. The test should be more stringent than with respect to the arrest of adults. [56] The recommendation is consistent with the Convention on the Rights of the Child (CROC) which demands that arrest should be used only as a last resort. The Inquiry found that this recommendation has not been properly implemented.

Article 37(c) of CROC requires the separation of juveniles from adults when young people are deprived of their liberty. [57] Article 37(c) also requires that every child is to be treated in a manner which takes into account the needs of persons of his or her age. The Commonwealth government submitted a reservation on the relevant sections of both Conventions, arguing that geography makes total segregation difficult to achieve and that responsible authorities should have the discretion to determine whether it is beneficial for a child or juvenile to be imprisoned with adults. [58] The available empirical evidence strongly suggests that the discretion unfavourably affects Indigenous young people. As noted above, art. 37(b) of CROC requires that arrest and detention following arrest should be measures of last resort.

The routine use of police custody shows that exceptional circumstances and last resort are very broadly interpreted when it comes to Indigenous youth. Indeed, they are interpreted so broadly that Indigenous youth are 26 times more likely to be held in police custody than other young people in Australia.

Article 37(b) of CROC states that no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. Other international instruments which ensure that imprisonment is a sanction of last resort for juveniles include Rule 1 of the UN Rules for the Protection of Juveniles Deprived of Their Liberty and Rules 17.1(b) and 19.1 of the UN Standard Minimum Rules for the Administration of Juvenile Justice. The Inquiry considered various changes to sentencing law in relation to mandatory imprisonment for certain offences and repeat offenders. [59] Such legislation was found to breach CROC, the Beijing Rules, the International Covenant on Civil and Political Rights (ICCPR) and the recommendations of the Royal Commission into Aboriginal Deaths in Custody. The best interests of the child are made secondary to the protection of the community when sentencing; rehabilitation is no longer seen as an important or dominant consideration in sentencing; and imprisonment is no longer a last resort or used for the minimum necessary period.

Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination requires States to prohibit and eliminate racial discrimination. Article 2 of the Convention requires state parties to implement policies to eliminate racial discrimination. These policies include reviewing government legislation and practices which have the effect of creating or perpetuating racial discrimination. The Inquiry found that state and territory policy and practice does not comply with the prohibition on racial discrimination. In particular, policies and practices continue to be affected by indirect discrimination. The evidence presented to the Inquiry indicated that Indigenous children and young people do not receive equal treatment before the law.

The Convention on the Rights of the Child requires that a variety of dispositions ... shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. [60] Several recommendations (111-114, 236) from the Royal Commission into Aboriginal Deaths in Custody were designed to increase the availability and use of non-custodial sentencing options as well as Indigenous input and control over the nature of community-based orders. Recommendation 236 in particular noted that governments should recognise that local community based and devised strategies have the greatest prospect of success and this recognition should be reflected in funding. Recommendation 235 states that:

Policies of government and the practices of agencies which have involvement with Aboriginal juveniles in the welfare and criminal justice systems should recognise and be committed to ensuring, through legislative enactment, that the primary sources of advice about the interests and welfare of Aboriginal juveniles should be the families and community groups of the juveniles and specialist Aboriginal organisations, including Aboriginal Child Care Agencies.

The Inquiry found that nowhere in Australia is this recommendation adequately implemented.

Current approaches are failing

New legislation has done little to face the issues which affect Indigenous young people or reduce the levels of police and detention centre custody. Some of the legislative changes such as the repeat offender sentencing regimes are unashamedly punitive in their intent. Others, such as the introduction of new diversionary schemes, have been perceived as more enlightened. Whole legal systems regulating juvenile justice have changed in some states like South Australia, Western Australia and Queensland in the last few years. Yet a recent review and evaluation of the new South Australian system could be applied to most of Australia:

These figures clearly suggest that, in overall terms, the position of Aboriginal youths within the new juvenile justice system does not seem to be any better than under the old system. They are still being apprehended at disproportionate rates and once in the system, are still receiving the harsher options available. [61]

Why have new regimes failed? The evidence before the Inquiry suggests several reasons. Many of the more progressive changes have been restricted in form, content and applicability. They are designed and implemented as non-Indigenous systems with the expectation of finding solutions to the problems facing Indigenous people. In addition, tokenism pervades some of the changes, particularly in relation to police cautioning and family conferencing schemes. Finally, there has been the failure to address the underlying issues which contribute so substantially to Indigenous offending levels.62 Recommendation 42 of the Inquiry calls on Australian governments to develop and implement a social justice package and to also implement the recommendations from the Royal Commission into Aboriginal Deaths in Custody which addressed underlying issues.

The outcome of the recent national Ministerial Summit on Indigenous Deaths in Custody gives absolutely no reason to believe that the Royal Commission recommendations will be any more effectively implemented in the future than they have been in the five years following the presentation of the Royal Commission's five volume report.

The need for a new framework

The Inquiry found that existing systems have failed miserably to solve the issues relating to juvenile justice and welfare matters and no where is this failure more profoundly reflected than in the inability of states to reduce the number of Indigenous children placed in care, held in police cells and sentenced to detention centres. This failure is apparent even in states that have recently altered their legislation with a view to reducing Aboriginal juvenile over-representation. The Inquiry argues for a new framework which respects the right to self-determination for Indigenous peoples and complies with other international obligations for the treatment of children and young people.

The objective of the Inquiry is to eliminate unjustified and unnecessary separations of Aboriginal and Torres Strait Islander children from their families and communities. Such a goal is consistent with art. 6 of the draft Declaration on the Rights of Indigenous Peoples which states that Indigenous people have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of Indigenous children from their families and communities under any pretext. The Convention on the Rights of the Child envisages that the best interests of the child will normally be served by being brought up with his or her birth family and by both parents, and to inherit and participate in the culture(s) into which he or she was born. Similarly Australia agreed, under art. 27 of the International Covenant on Civil and Political Rights, to protect the rights of minorities to enjoy their own culture, to profess and practice their own religion and to use their own language.

The Inquiry considered in detail the draft Declaration on the Rights of Indigenous Peoples as containing emerging human rights norms which reflect the aspirations of Indigenous peoples. Further the draft Declaration identifies the cultural rights of Indigenous peoples as necessary to ensure the survival of Indigenous peoples as distinct "peoples". However existing Australian law and policy for the protection and promotion of Indigenous cultural rights are poorly conceived and developed. What is needed is recognition of such rights as the basis of policy development in all areas, be that health, education, housing or resource development. [63]

The draft Declaration contains a number of basic principles, including self-determination, which directly impact on the exercise of control over matters affecting Indigenous children and young people, particularly in regard to child welfare, custody and juvenile justice issues. These principles are mirrored in articles of the ICCPR and ICESCR. In the context of juvenile justice issues, the United Nations Guidelines for the Prevention of Juvenile Delinquency, states:

Community-based services should be developed for the prevention of juvenile delinquency, particularly where no agencies have yet been established. Formal agencies of social control should be utilised only as a last resort. [64]

Further the draft Declaration affirms the right of Indigenous people to control matters affecting them including the right of self-determination. [65] For example, community-driven "Community Justice Groups" at Palm Island and Kowanyama, successfully divert young Indigenous people from the formal agencies of control. The need for "greater community involvement in the management of criminal justice" necessarily involves a devolution of power by formal agencies as part of the move towards "depenalisation, decriminalisation, [and] the principle of minimum intervention." [66]

Article 3 of the draft Declaration describes the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development (it is established in the same terms as art. 1 of the ICCPR). Article 4 provides that:

Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social and cultural life of the State.

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy, or self-government, in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions, as set out in art. 31.

Part II of the draft Declaration is concerned with the rights to life and existence. Of particular relevance is the right to existence as a collective right of Indigenous peoples to maintain and develop their distinct identities and characteristics. It has been recognised that a major theme of the draft Declaration is the protection of the unique character and attributes of Indigenous peoples, including culture, religion and social institutions. [67] Articles 6 and 7 of the draft Declaration deal with genocide, ethnocide and cultural genocide. They are significant because they deal with specific problems affecting many Indigenous peoples. [68] Article 6 of the draft Declaration protects Indigenous peoples from genocide through the separation of children from their families under any pretext. This Article is of clear relevance to the removal of children and young people through both child welfare and juvenile justice mechanisms.

The draft Declaration expands international human rights through the development of provisions on ethnocide and cultural genocide art. 7. According to Burger and Hunt (1994) these provisions represent a logical extension of existing legal provisions. Article 7(d) prohibits any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures. Such a provision also has implications for child welfare and juvenile justice laws which may seek either directly or indirectly to impose the standards and cultural and social mores of the dominant group on Indigenous children, young people and families.

The Inquiry noted the widespread desire of Indigenous peoples in Australia to exercise far greater control over matters affecting their young people. The Inquiry also noted that self-determination could take many forms from self-government to regional authorities, regional agreements or community constitutions. Some communities or regions may see the transfer of jurisdiction over juvenile justice matters as essential to the exercise of self-determination. Other communities may wish to work with an existing modified structure which provides greater control in decision-making for Indigenous organisations. The level of responsibility to be exercised by Indigenous communities must be negotiated with the communities themselves. [69]

The example of self-determination experienced by Indigenous peoples can be demonstrated with the establishment of Community Justice Groups in Queensland, and the Koori Justice Worker Programme in Victoria. Each has a place on the spectrum of possibilities which self-determination provides.

Community Justice Groups were an initiative of Indigenous communities at Palm Island and Kowanyama after communities were confronting overwhelming difficulties with maintaining local law and order. The Justice Groups were made up of Aboriginal people elected by community members, community-based development officers who provide on-going support to the group, members of the community and other relevant organisations. Each community recognises that success cannot however be achieved by working in a vacuum so they strive to improve communication with the judiciary, local police, Shire and Aboriginal councils and schools.

Another illustration of self-determination is the Koori Justice Worker Programme, owned by communities who actively participate in developing and facilitating programme activities established for Indigenous young people "at risk" in six regions of Victoria, for example, surf board making, site restoration, family camps.

The recommendations from the Inquiry stress the importance of self-determination, as well as greater controls over decision-making in the juvenile justice system, and matters relating to welfare. Recommendation 43 is the key recommendation pertaining to self-determination. It requires that national legislation be negotiated and adopted between Australian governments and key Indigenous organisations to establish a framework of negotiations for the implementation of self-determination. The national framework legislation should adopt principles which bind Australian governments to the Act; that allow Indigenous communities to formulate and negotiate an agreement on measures best suited to their needs in respect of their children and young people; that adequate funding and resources be available to support the measures adopted by the community; and that the human rights of Indigenous children are ensured. Part (c) of recommendation 43 authorises negotiations to include either the complete transfer of juvenile justice and/or welfare jurisdictions, the transfer of policing, judicial and/or departmental functions or the development of shared jurisdiction where this is the desire of the community. [70]
Recommendation 44 is concerned with the development of national legislation which establishes minimum standards for the treatment of all Indigenous children and young people, irrespective of whether those children are dealt with by government or Indigenous organisations. [71] Recommendation 45 requires a framework for the accreditation of Indigenous organisations who perform functions prescribed by the standards. [72]

The Inquiry sets out a number of minimum standards which provide the benchmark for future developments.
Standards 1-3 consider principles relating to the best interest of the child. Standard 4 sets out the requirement for consultation with accredited Indigenous organisations thoroughly and in good faith when decisions are being made about an Indigenous young person. In juvenile justice matters this includes decisions about pre-trial diversion, bail and other matters. Standard 5 requires that in any judicial matter the child be separately represented by a representative of the child's choosing or appropriate accredited Indigenous organisation where the child is incapable of choosing.

Standard 8 of the recommendations deals specifically with matters relating to juvenile justice. There are 15 rules established within the standard. Rules 1 and 2 seek to minimise the use of arrest and maximise the use of summons and attendance notices. Rule 3 requires notification of an accredited Indigenous organisation whenever an Indigenous young person has been arrested or detained. Rule 4 requires consultation with the accredited organisation before any further decisions are made. Rules 5 to 8 provide protection during the interrogation process. Rules 9-12 ensure that Indigenous young people are not denied bail and that detention in police cells is eliminated except in truly exceptional circumstances. Rule 13 prioritises the use of Indigenous-run community-based sanctions. Rule 14 establishes the sentencing factors which need to be considered. Rule 15 requires that custodial sentences be for the shortest possible period, and that reasons must be stated in writing.

Many submissions to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families drew attention to the fact that the contemporary juvenile justice system was replicating the old policies of removal. The previous assimilationist policies have been characterised as genocide and Australian governments must now bear the responsibility of these previous policies. However, the evidence also shows that the hugely disproportionate rate at which Aboriginal and Torres Strait Islander children and young people are being incarcerated today is reflective of a systemic denial of Indigenous rights. These abuses include the failure to remedy the appalling levels of social and economic disadvantage which prevent the enjoyment of citizenship; they include the failure to ensure that the lives of Indigenous children and young people are free from direct and indirect racial discrimination; and they include the failure to provide the conditions where Indigenous people might enjoy the right of self-determination particularly in relation to decisions which affect their children and young people. Bringing Them Home, the report of the Inquiry provides a framework for progressive change which respects the rights of Indigenous Australians.


[1] Rose, DB, "The saga of Captain Cook: Morality in Aboriginal and European law", Australian Aboriginal Studies, 1984/number 2.
[2] Deane, Sir W, "Some Signposts from Daguragu", The Inaugural Lingiari Lecture, in (1997) 8(1) Public Law Review, 15.
[3] "The Great Australian Silence is how anthropologist W E H Stanner in his 1968 Boyer Lectures, described the almost total exclusion of the Aboriginal point of view from accounts of national history and culture." O'Donoghue, L , "Ending the Despair", (1992) 51(2) Australian Journal of Public Administration.
[4] Human Rights and Equal Opportunity Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997 AGPS, p. 208.
[5] Deane, Sir W, op cit.
[6] Reynolds, H, Fate of a Free People, 1997 Penguin, pp. 7-14.
[7] Rowley, CD, Recovery: The Politics of Aboriginal Reform, 1986 Penguin p. 116.
[8] "... the preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land", Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, 66 ALJR 408; 107 ALR 1, per Brennan CJ at 41; see also Deane and Gaudron JJ, at 61 and Toohey, at 143.
[9] Deane, Sir W, op cit.
[10] The Prime Minister, the Hon J Howard, MP, The Liberal Tradition: The Beliefs and Values Which Guide the Federal Government 1996 Sir Robert Gordon Menzies Lecture, 18 November 1996.
[11] See  Aboriginal and Torres Strait Islander Social Justice Commissioner , Fourth Report 1996, 1996, AGPS, pp. 14-17: see (1997)
2(1) AILR 116.
[12] Pearson, N, An Australian History for all of us, Address to the Chancellor's Club Dinner, University of Western Sydney, 20 November 1996.
[13] Locke, J, Two Treaties of Government, 1998, Cambridge, pp. 386, 394.
[14] The Prime Minister, the Hon J Howard, MP, Address to the 61st Annual State Conference of the National Party, Queensland,
20 July 1996.
[15] Ibid.
[16] The Prime Minister, the Hon J Howard, MP, Speech to Australian Liberal Students Federation, Sydney University, 8 July 1996.
[17] Kitney, G, "PM's New Face for Australia", The Sydney Morning Herald, 20 June 1997, p. 19.
[18] The Prime Minister, the Hon J Howard, MP, op cit, 20 July 1996.
[19] The Hon D Williams, Attorney-General, House of Representatives, Hansard 406, 10 February 1997.
[20] The Hindmarsh Island Bridge Act 1997, which amends the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 was passed by the Australian Parliament. The coalition government refused to accept an amendment that the Racial Discrimination Act 1975 would prevail over the provisions of the Act.
[21] Fischer's Wik attack dilutes republican plan, The Australian, 13 January 1997, p. 4.
[22] The Deputy Prime Minister, the Hon T Fisher, reported in "Conservative to Fill High Court Vacancy", The Australian, 13 August 1997.
[23] McGregor, C, "Courting Trouble", The Sydney Morning Herald, 22 March 1997.
[24] The Deputy Prime Minister, the Hon T Fisher, MP, reported in Brough, J, "Wik Draft Threat to Native Title", The Sydney Morning Herald, 18 June 1997, p. 3.
[25] Public Works Act 1902 was amended and re-named the Land Acquisition and Public Works Act 1902.
[26] I examine the various bases of constitutional challenge and the non-discrimination principle in the first chapter of my current Native Title Report, July 1996 - June 1997.
[27] Pearson, N, op cit.
[28] Stanner, W, The Boyer Lectures, 1968.
[29] Mabo v Queensland (No. 2) [1992] HCA 23; (1992), 175 CLR 1; 66 ALJR 408 107 ALRI, at Brennan J, p. 92.
[30] Australian Reconciliation Convention, personal observation by Pearl Gibbs recalling the 1967 Referendum campaign.
[31] Launceston Advertiser, 26 September 1831.
32. Pearson, N, op cit.
[33]  Aboriginal and Torres Strait Islander Social Justice Commissioner , First Report 1993, 1993 AGPS, p. 16.
[34]  Aboriginal and Torres Strait Islander Social Justice Commissioner , Third Report 1995, 1996 AGPS, p. 23.
[35]  Aboriginal and Torres Strait Islander Social Justice Commissioner , Fourth Report 1996, AGPS, p. 21: see (1997)2(1) AILR 116.
[36] The Prime Minister, the Hon. J Howard, MP, "Address to the 61st Annual State Conference of the National Party", Queensland, 20 July 1996.
[37] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Confidential Evidence 771, New South Wales.
[38] D'Souza, N, "Aboriginal Children and the Juvenile Justice Systems", (1990) 2(44) Aboriginal Law Bulletin.
[39] See, Cunneen, C, A Study of Aboriginal Juveniles and Police Violence, Human Rights and Equal Opportunity Commission, 1990; Cunneen, C, "Enforcing Genocide? Aboriginal Young People and the Police", in White, R and C, Alder (eds), Police and Young People in Australia, 1994, Cambridge University Press; O'Connor, I, "The New Removals: Aboriginal Youth in the Queensland Juvenile Justice System",(1994) 37 International Social Work 197.
[40] Gale, F, Bailey-Harris, R. and Wundersitz, J, Aboriginal Youth and the Criminal Justice System 1990, Cambridge University Press, 1990; Luke, G and Cunneen, C, Aboriginal Over-Representation and Discretionary Decisions in the New South Wales Juvenile Justice System 1995, Juvenile Justice Advisory Council of New South Wales; Criminal Justice Commission, "Children, Crime and Justice in Queensland",1995 2(2) Research Paper Series; Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995 and 1996, op cit.
[41] National Police Custody Survey, August 1995, Human Rights and Equal Opportunity Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997 AGPS, p. 492.
[42] Luke and Cunneen, 1995, op cit.
[43] Gale, et al, op cit; Crime Research Centre, op cit; Luke and Cunneen, 1995, op cit; Criminal Justice Commission, op cit.
[44] Royal Commission into Aboriginal Deaths in Custody, National Report, Overview and Recommendations, 1991, AGPS, p. 45.
[45]  Aboriginal and Torres Strait Islander Social Justice Commissioner , 1995, op cit, p. 26.
[46] Anti-Discrimination Board, A Study of Street Offences by Aborigines 1982, NSW Anti-Discrimination Board; Roberts, L, Chadbourne, R and Murray, R, Aboriginal/Police Relations in the Pilbara, 1986, Special Cabinet Committee on Aboriginal/Police and Community Relations.
[47] International Commission of Jurists, Report of the Aboriginals and the Law Mission 1990, Australian Section; Royal Commission into Aboriginal Deaths in Custody, op cit; Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence 1991, AGPS.
[48] Cunneen C, and Robb T, Criminal Justice in North West New South Wales 1987, New South Wales Bureau of Crime Statistics and Research; Broadhurst, R, Ferrante, A and Susilo, N, Crime and Justice Statistics for Western Australia: 1990, 1991, Crime Research Centre, University of Western Australia; and Wilkie, M, Aboriginal Justice Programs in Western Australia 1991, Research Report No. 5, Crime Research Centre.
[49] Gale, et al, op cit; Broadhurst et al, op cit; Wilkie, op cit.
[50] For example, Rees, N, "Police Interrogation of Aborigines", in Basten, J, et al (eds), The Criminal Injustice System, 1992,Australian Legal Workers Group and Legal Service Bulletin; Cunneen, 1990, op cit; Warner, K, "The Legal Framework of Juvenile Justice", in White, R, and Alder, C, (eds), The Police and Young People in Australia 1994, Cambridge University Press.
[51] Recommendation 242.
[52] Article 37(b).
[53] Cunneen, C and McDonald, D, Keeping Aboriginal and Torres Strait Islander People Out of Custody, An Evaluation of the Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody 1997, ATSIC, pp. 182.
[54] Recommendations 88, 214, 215 and 223.
[55] Cunneen and McDonald, op cit, pp. 94-7 and 100-102.
[56] Recommendation 239.
[57] See also ICCPR art. 10(2)(b).
[58]  Aboriginal and Torres Strait Islander Social Justice Commissioner , 1996, op cit, p. 205.
[59] Bringing Them Home, op cit, p. 527.
[60] Article 40(4).
[61] Wundersitz, J, The South Australian Juvenile Justice System; A Review of its Operation, 1996, Office of Crime Statistics, p. 205.
[62] Bringing Them Home, op cit, pp. 539-40.
[63]  Aboriginal and Torres Strait Islander Social Justice Commissioner , 1995, op cit, p. 59.
[64] United Nations, "Guidelines for the Prevention of Juvenile Delinquency" in Crime Prevention: Seeking Security and Justice for All, 1996, p. 91.
[65] Coulter, R, "The Draft UN Declaration on the Rights of Indigenous Peoples: What is it? What does it mean?",(1995) 13(2) Netherlands Quarterly of Human Rights.
[66] United Nations, "Standard Minimum Rules for Non-custodial Measures" in Crime Prevention: Seeking Security and Justice for All, 1996, p. 90.
[67] Coulter, op cit, p. 127.
[68] Ibid, p. 133.
[69] Bringing Them Home, op cit, pp. 575-6.
[70] Ibid, p. 580.
[71] Ibid, p. 582.
[72] Ibid, p. 583.


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