Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Inquiries and Reports - Australia
Justice Fitzgerald
Department of the Premier and Cabinet, Queensland
November 2001
In July 2001, the Premier of Queensland Peter Beattie announced the terms of reference for the Cape York Justice Study into the causes, nature and extent of breaches of the law in the Cape York Indigenous communities. The study also aimed to identify the causes, nature and extent of alcohol and substance abuse in these communities, as well as the relationship between alcohol and substance abuse and breaches of the law. The Queensland Government’s stated ideal was to be presented with recommendations on strategies, which would tackle jointly the problems of alcohol and substance abuse as well as violence.
In November 2001, Justice Tony Fitzgerald reported back to the Premier.
His report is unstinting in its criticism of the manner in which the Cape York communities have been administered and the impact their maladministration has had on the people of the communities.
Justice Fitzgerald reported that alcohol abuse and violent misconduct had become socially normalised in the Cape York communities and rather than being regarded as aberrant behaviour they were in fact deemed normal or usual behaviour. The report notes ‘the overwhelming evidence that harmful levels of alcohol consumption by Aboriginal people in the Cape York region are a chief precursor to violence, crime injury and ill health in these populations’.[1] The report notes that violence is widespread in Aboriginal Australia and increasing, Aboriginal men being four times more likely to die a violent death and women 6.5 times more likely to die a violent death than their non Aboriginal counterpart.[2] Aboriginal women, it notes, are 45 times more likely to experience violence than non-Indigenous women and ten times more likely to die as a result.
Justice Fitzgerald was particularly concerned in the final analysis about the effect alcohol and other substance abuse was having on the children of the Cape York communities, believing that they had few adequate role models to impact their psychological growth. The report notes that there is a prevalence of sexual abuse of children and a concurrent link between the sexually abused and high levels of suicide and self-harm.[3]
Noting that ‘no Australian who is not burdened by the impervious ignorance which underpins racism would ever again deny that Aboriginal Australians are entitled to maintain their cultural integrity and to all the rights of other Australians’,[4] Justice Fitzgerald has controversially broken with the culturally imposed norms of the past 10 years to suggest that if the communities themselves are unable to curb the problems they face, then Government must step in to do it for them. The report notes ‘the Cape presently lacks effective cultural mechanisms for self regulation’ and further ‘[A] public health approach to alcohol misuse and its consequences must be developed for the region. In addition to reducing supply, strategies are required to decrease the tolerance of its misuse.’[5] The report however recommends that before State intervention is resorted to, the concept of partnerships between government and the communities is further explored with the aim of establishing the dual action of consultation and shared responsibility as the basis for future action.
The report made many dozens of recommendations amongst them:
...
...
The unacceptable level of crime and dysfunction in Indigenous communities in Cape York demands immediate and concerted action to bring about change. Many positive initiatives are already well developed in Cape York communities and must be supported as a matter of urgency. However many of these effective responses operate in isolation from each other, are not supported or receive variable levels of support from the mainstream system, or fail due to an over-reliance on particular individuals who may leave the community or cease to work in a particular field.
The twin goals of better coordination on the part of government agencies and a greater focus on more intensively supported community based, community driven responses are the cornerstone of sustainable improvement. The vehicle for better coordination and a reorientation of initiatives will be the negotiation of partnerships between the Government and Indigenous communities.
...
...
...
Partnerships are based on trust. Trust is generated in the context of relationships, when people have the shared experience of working towards mutually valued objectives. Outsiders to communities build trust by demonstrating their usefulness to the local community, especially in times of crisis. Proving to be reliable by following up over time on commitments made is critical, as is having the willingness to listen and learn, openly share information and pass on skills. This is the basis for honest negotiation.
Trust between Indigenous people and Government is eroded by a constant stream of new faces in communities resulting from brief fly-in, fly-out visits by departmental officials. The development of relationships over time allows Government workers to understand that the community may judge the worker’s performance by different criteria than those of the employing department. Communities place greater importance on worker’s willingness to give priority to the outcomes sought by communities rather than the procedures endorsed by departments.
...
...
Passive dependence on welfare over generations has contributed to high levels of alcohol abuse and crime, to levels of social dysfunction which, over and above dispossession, dislocation and relocation, has created a ‘culture of defeat’. The culture of defeat, it is argued, produces attitudes and dispositions, which need to be changed as much as the nature of the economy itself.
Changes to behaviour as much as changes to the economy are required for the development of sustainable futures. Submissions to the study argues that reforms to the welfare system should contribute to changing behaviour by, for example, ‘re-establishing the link between effort and reward’. And progressing the development capacity within communities, as well as using existing welfare arrangements to capitalise more effectively on economic opportunities such as community based enterprise focussed on import substitution and even management of the substance economy.
Growth (and projected growth) in the population of Cape York communities, especially among the young, adds urgency to the question of the economic future of communities, especially in light of the links between welfare dependency, youth unemployment, violence, and alcohol and substance abuse.
...
...
...
Alcohol and substance abuse and violence in Cape York communities produce general social dysfunction which is reflected in a high incidence of low birth weight babies, children born with foetal alcohol syndrome, children who experience violence related trauma, physical and sexual abuse and neglect, children who are malnourished and sleep deprived and whose general health is poor, damaging among other things their ability to learn effectively.
...
The continuation of traditional connections to land is critical to the identity and stability of Aboriginal communities in the Cape. The dispossession of traditional lands represents one of the major causes of Aboriginal disadvantage in Australia.
...
...
Perhaps the worst instance of rigid adherence to theory in the face of proven failure concerns the supply of alcohol. The use of marijuana and other illegal drugs is expanding in at least some of the Cape York Communities but alcohol is their common curse. In practise, the ‘right’ to drink and indeed to drink to excess, dominates all other considerations. A right to drink is effectively treated as paramount to the right of other people to safety, the right of families to food and shelter, the right of children to nutrition, sleep, education and innocence and the right of a community to peace and order.
The terms of reference implicitly confirm that violence, which is contrary to the Criminal Code and other Queensland laws including violence involved in conflict resolution and traditional punishment is illegal and unacceptable in Cape York communities. Further, the terms of reference plainly intend that Queensland laws restricting the use of alcohol and other drugs and requiring the education of children be enforced in the communities. Alcohol will continue to be destructive in the communities unless the law is enforced. Community development and advancement are impossible while the communities are ravaged by excessive alcohol consumption and alcohol related violence. Until a new behaviour pattern becomes stabilised in the Cape York communities the criminal justice system will continue to be a major point of contact between many of the people and the mainstream society.
...
It would be impossible in the brief time available to identify what customary law might apply in each of the Cape York communities, what its sources were and to whom, by whom and in what manner it might be applied, or to discuss the current role of traditional law (for example, in Native Title hearings) or the wider use it might play in Indigenous communities. Although sentences for offences in the communities related to alcohol and drugs must be imposed in accordance with the general law including the material legislation, it does not follow that kinship and other relationships and traditional roles are insignificant. An offender’s personal circumstances are always relevant to sentencing. Balanced opinions from community elders and leaders concerning Indigenous laws and customs which do not favour either the offender of the victim or put forward an acceptable view of the conduct which should be permitted or tolerated in the community are potentially useful in determining an appropriate sentence, especially because sentencing options are more limited for offenders in remote communities where supervision and rehabilitation programs are often unavailable. Sentencing proposed by community elders may also provide creative possibilities for addressing the offender’s behaviour that are more relevant and rehabilitative than those traditionally available to courts.
The mistakes of the past will be further compounded if present economic realities are ignored. The opportunities, which are available to the people in the Cape York communities, are severely restricted. The communities are subject to the same economic forces as the remainder of Australia. No race, culture or community can be cocooned from those imperatives. Unless Cape York communities embrace the social change needed for their children to participate in the new economy, their prospects are barren. Even if social and cultural needs support the continuation of the communities irrespective of economic limitations, the communities are not assisted by false assumptions about their future, which disguise fundamental difficulties and encourage unrealistic hopes. It is impossible to plan on such a basis.
Social change does not mean assimilation, either coercive or elective. People in the communities need not abandon their cultures in favour of mainstream values. There is no legitimate basis for an assumption that Indigenous cultures are static and will either freeze or wither or disappear. Like other cultures, Cape York ways of being and living will continue to evolve provided that they are not destroyed by the current community lifestyles. However, because of the circumstances in which the Cape York communities exist and the external conditions, both in Australia and overseas, the Indigenous people from those communities must learn how to participate in the wider community as well as preserve and continue their traditions. People in the communities must become bi-cultural in the sense that they must develop skills and experiences which enable them to live successfully both in their historical community and in the wider community as they choose. Indigenous cultures will not survive indefinitely unless the children who are to carry on those traditions in the future are provided with opportunities and support which enable them to undertake education outside the communities as the children progress from primary to secondary and tertiary education. At the moment, children from the communities are commonly emotionally, socially and educationally unprepared for living and education away from their familiar environment and the strangeness of urban life, culture shock, homesickness and education disparities lead to a high failure rate.
...
Consideration should also be given to other fundamental economic issues. Asset ownership would increase community pride and social engagement. The poverty cycle and welfare dependency might not be able to be reduced without opportunities for home ownership and employment. People who save and accumulate assets have stronger self esteem and better health conditions. People are most easily encouraged to save for home ownership and the education of children. Financial incentives, which encouraged savings for education, good parenting and good citizenship would benefit individuals who save and their communities and should, in time, reduce the public funds expended because of social problems in the communities. It is folly for these matters to simply be ignored.
...
At this comparatively early stage in their development, the expectations made of these small, remote communities with very serious problems must be realistic. The breakdown of social cohesion, the tacit acceptance of alcohol abuse and violence as normal and the reinforcement of lowered self esteem in the communities compounded by their inability to interact successfully with the complex structures and processes which accompany governmental activities have produced a self perpetuating cycle of poverty, tragedy and despair. The people in the communities themselves, with the guidance of their elders and other leaders can best bring about the attitudinal and behavioural change which is essential to their communities survival and their children’s future. However, it is impossible for community leaders to participate fully in those tasks while so much time and energy is directed to other, less suitable activities. Their major roles for the moment are the essential task of social empowerment and development, including fostering the identity, spirituality and culture of the people, and the conduct of standard local government activities directed to physical conditions in the communities.
...
In order to minimise interference with existing public sector arrangements, I propose to relate these recommendations to the recently established co-ordination unit, Community Engagement Division, Department of Premier and Cabinet. The proposals require the expansion of the co-ordination unit. If it succeeds, it will become smaller as the communities’ needs for its assistance diminish.
...
Programs and activities need to be focused, co-ordinated, related to available resources and feasible in the communities. Appropriate services and advice must be available in the communities, and steps must be taken so that personnel and other resources to be used are clearly identified. The roles and responsibilities plainly stated and the time frame and benchmarks are established and provision is made for evaluation and review.
...
The position is so serious that, despite constitutional obstacles, unless significant improvement is reported within three years consideration should be given to a prohibition of the supply and consumption of alcohol. However, for the moment, it is preferable for the government to work with the communities to achieve local solutions. Nonetheless, if any community is unco-operative or is obviously failing to curb alcohol abuse and violence at any time during the three-year period indicated, the co-ordination unit should immediately report that to the deputy director general for the government to adopt a more drastic approach.
...
...
...
If the communities are to survive, offences related to the illegal supply of alcohol and illegal drugs and subsequent violence by people under their influence must be vigorously investigated and prosecuted and severely punished.
...
...
Children in Cape York need educational services that aspire to international standards of excellence and provide access to curricula and teaching practices that support life long learning to have any chance of success in the world of the future. Educational success relies upon a strong partnership between children, their families and schoolteachers.
...
This Study has confirmed how history and recent events have combined to cause a break down of social structures in communities evidenced particularly in the erosion of the support base provided by family units. Strategies to deal with this problem are partly reflected in the other recommendations. However there must be a holistic approach to rebuilding family support mechanisms within communities, including early intervention strategies to assist parents and preschool children, and a range of family development and support strategies which will form the foundations for enhanced community strength and capacity.
The Co-ordination Unit should assist each community to develop an action plan for strengthening families in communities which integrates with other community action plans and has the involvement of relevant agencies including the Department of Families; and determine the nature and type of additional resources to be located within communities to ensure strategy implementation with approaches that include for example:
...
...
...
...
...
...
The commitment to address violence, alcohol and substance abuse, youth crime, school truancy and a broad range of other behaviour problems in the communities expressed in action plans will fail, unless there is effective law enforcement and appropriate justice responses. Effective law enforcement requires independent, skilled and committed police working in strong partnerships with their communities and other relevant agencies to develop, implement, monitor and enforce community based crime prevention and intervention strategies. There needs to be an impartial and just judicial system which supports, as a first preference the diversion of offenders to community based alternatives to imprisonment and a more accessible, efficient and humane legal system with sentencing options that are appropriate to the circumstances. Law enforcement and justice approaches must endeavour where possible to keep children and adolescents away from the mainstream criminal justice system but ensure that where serious offences are committed, the full weight of the law is enforced so that trust and respect in the law and in the justice system is progressively established.
...
...
...
Strategies to address economic development need to go hand in hand with community development initiatives. Expert advice will be needed to assist the communities with stages that involve the development of basic financial management and entrepreneurial skills perhaps starting at the level of the family unit, through to planning for and establishing business and enterprise. Private organizations and groups should be encouraged to assist the community in conjunction with state government through the Department of State Development, with its enterprise and business support programs that could be modified to assist.
The Co-ordination unit should work with communities and relevant private and Government sector organizations, including the Department of State Development, to develop an action plan which will embrace a range of strategies.
...
Explore opportunities to substitute imported services and labour with local enterprise in partnership with government and/or private sector venture capital providers. Examples include market gardens, bakeries, butchers and regional abattoir and other essential services as well as community infrastructure projects.
...
Progress should be reported through an annul accountability process as follows:
...
[1] Page 13.
[2] Page 19.
[3] Page 20.
[4] Page 7.
[5] Page 17.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/56.html