Australian Indigenous Law Reporter
Section 46C(1) of the Human Rights and Equal Opportunity Act 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 fourth report produced by the Social Justice Commissioner, Mick Dodson, since 1993. These extracts were provided by his office.
I attribute a large degree of responsibility for the climatic shift in Indigenous affairs to the Coalition Government and the Leadership of the Prime Minister. What I mean by this should not be misconstrued.
I have no doubt that the Prime Minister, Senator Herron, and other members of the Government care about the devastating, chronic levels of disadvantage suffered by Aboriginal people and Torres Strait Islanders. I do not believe the Prime Minister considers Aboriginal people, Torres Strait Islanders or Asian people to be lesser human beings because of their race.
Despite this there has been a sustained degeneration into political discourse centred on race. It has been suggested that this is an expression of a deeper anxiety about the pace of change in Australia, and the world generally. There is significance in an economic and contextual explanation of why race is a resurgent issue. But one thing should be clearly understood.
Irrespective of its sources, racism is racism. Without dismissing or belittling the anxieties which may underpin the scapegoating of people in uncongenial races, racism in all its forms should be uncompromisingly condemned.
The problem is, of course, there are no racists in Australia. Or at least none that recognize themselves as such. Even the Mayor of Port Lincoln who speaks of "mongrel" children asserts in the same breath "I'm not a racist".
There has been an insidious, sometimes even unconscious, process of appeal to a notion of equality which denies any rights which attach to cultural differences and, particularly, the identity of Aboriginal and Torres Strait Islander peoples as the Indigenous peoples of this country. The claim to human rights which attach such identity are regarded, ironically, as racist and discriminatory. Hence we arrive at a situation where `equality', and `non-discrimination' are converted into instruments to strip peoples of appropriate recognition and protection of our rights. In the process grossly racist attitudes find apparent shelter.
While the Prime Minister acknowledges, the Aboriginal and Torres Strait Islander peoples as "the original Australians and first inhabitants of this continent of ours, however one would wish to describe it",  he is profoundly reluctant to recognize rights flowing from this status.
Our struggle to gain recognition and effective legal protection for our laws and cultures is regarded by the Coalition Government with deep apprehension. It is seen as separatist and divisive, as though 1.6 per cent of the population scattered throughout the country could realistically shatter the collective.
The present thrust of Aboriginal and Torres Strait Islander policy, its fundamental direction, is towards assimilation. The assertion that Government policy is assimilationist is reacted to almost vehemently as any allegation of racism. Given the history of that policy in Australia, and the means employed to put it into effect, that is hardly surprising. It is a policy that will not speak its name.
The agenda of Indigenous affairs in Australia has been radically reduced to issues of the appalling disadvantage of the Aboriginal and Torres Strait Islander peoples of Australia. In effect, Indigenous Affairs has collapsed to the provision of plain citizenship entitlements: health, housing, education and employment.
I find it an incalculable loss to indigenous Australians and to the broader Australian community that we have regressed to considering the condition of our people as being primarily a matter of welfare.
The Prime Minister has characterised the Government's approach to Indigenous Affairs and the achievement of social justice as being cleansed of the "politically correct agenda".  I take this stigmatisation as a reference to any approach to social justice which rests on the recognition of Indigenous rights rather than on a welfare model designed to relieve suffering under privilege.
There is one perfectly true element of Senator Herron's Indigenous Affairs policy statement: "nothing will be achieved without partnership and trust between Indigenous and non-Indigenous Australians".  It is precisely this fragile and immeasurably valuable element which has been substantially eroded in the short period since the Coalition came to power.
There is no other single issue which shows such an insistent insensitivity, lack of imaginative depth or simple heart, as the Prime Minister's reaction to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.
To speak of the "balance sheet" of history and to the question the "practical benefits of the Inquiry"  reduces human experience and understanding to some kind of single entry accounting system where everything of practical benefit can be weighed and measured.
We all have responsibility to keep the damn thing in perspective. 
I agree. The first responsibility is to get a perspective rather than to prejudice and pre-empt the Inquiry's report and recommendations.
The constant reference to "guilt" and "black armband" versions of history are wilful exaggerations of Indigenous views, designed to caricature and obscure the proper examination and comprehension of the past and to denigrate our current assertion of rights as a form of emotional blackmail. This is a divisive and dangerous game.
Six years ago the Royal Commission into Aboriginal Deaths in Custody emphasised the dire need for governments and Aboriginal organisations to negotiate together to formulate strategies to divert Indigenous children and youth from the criminal justice system (Recommendation 62).
It further specified that diversion be mandatory for all Australian governments. Aboriginal children and youth must only enter prison if and when all other diversionary options have been exhausted (Recommendation 92).
Statistics from mid 1996 indicate that the national level of over-representation of Indigenous Australian children in juvenile corrective institutions is 21.3 times the rate of non-Indigenous Australian children. Indigenous children comprise 2.3% of the juvenile population of Australia (10-17 years) but represent 36.2% of juveniles sentenced to detention.
Clearly neither recommendation has been heeded. A crisis is truly upon us.
Some jurisdictional variations of Indigenous over-representation:
* 41.1 times more likely to be incarcerated in Queensland
* 31.6 times more likely to be incarcerated in Western Australia
* 20.5 times more likely to be incarcerated in New South Wales
* 19.0 times more likely to be incarcerated in the Australian Capital Territory
* 13.7 times more likely to be incarcerated in South Australia
* 9.8 times more likely to be incarcerated in Victoria
* 8.2 times more likely to be incarcerated in Tasmania
* 3.8 times more likely to be incarcerated in the Northern Territory 
Diversion is failing to have any substantial impact as a result of:
* an absence of monitoring of police discretion re cautioning
* prohibitive criteria which limits the access of most Aboriginal youth offenders to diversionary programmes such as conferencing and cautioning
* an absence of accountability measures, ie. performance indicators for government organisations responsible for implementing the RCIADIC recommendations
* a scarcity of resources for Aboriginal managed, community based diversionary programmes
* the failure of government organisations to negotiate regional strategies with local Indigenous peoples regarding youth justice
* the reluctance of government authorities to devolve power and resources to the community level
* the inability of traditional "players" in the arena of juvenile justice, ie. police and government departments, to relinquish power based programmes
* the impact of law and order policies, such as truth in sentencing
Cautioning empowers the police to formally warn young offenders and then release them. In so doing children and youth are diverted from being charged and going to court. Cautioning is, however having only a marginal impact on diverting Indigenous youth from entry to the juvenile justice system.
In Western Australia, for example, only 12.3% of juveniles cautioned between August 1991-December 1994 were Indigenous. Considering that Aboriginal representation in charges is as high as 69%, it is quite clear whose children are not benefiting from diversion.
In South Australia only 17.4% of cases involving Aboriginal young people result in a formal caution against 35.8% of non-Aboriginal cases 63% of Aboriginal youth were referred to court compared with only 42.5% of non-Indigenous kids.
Police discretion and the subsequent paucity of access that our kids have to diversionary strategies such as cautioning reveals a form of systematic discrimination. There are no mechanisms to accurately monitor police performance to ensure that our kids are afforded the same access to alternative procedures.
If the United Kingdom with its very mixed population can be diverting up to 80% of all juvenile cases via the use of cautioning, why can't we? If New Zealand can be achieving up to a 90% cautioning rate of all offences committed by juveniles, why can't we?
Until there are formal mechanisms which ensure that the police are obligated to caution a child and there is adequate formal monitoring of this, Indigenous kids will continue to enter correctional centres whilst the majority of their non-Aboriginal counterparts are able to return home.
1989 New Zealand introduced major reforms to its youth justice system in a bold
move to reduce the over-
representation of Maori youth in custody through the groundbreaking Children, Young Persons and their Families Act.
Within four years of the introduction of the Act, the judiciary had witnessed an 80% decrease in the number of youth before them. At the heart of this reform is the Family Group Conference (FGC).
The FGC is a meeting at a time and place determined by the offender's family and attended by their extended family, the victim and their supporters, the police, offender's lawyer (if one has been appointed) and anyone else the family invites to attend. The FGC deals with all charges, except for murder and manslaughter, providing commission of the offence is admitted. Close to 90 per cent of all juvenile offences are referred to a FGC either by a Youth Justice Coordinator or, if an arrest and charges have been laid, by the Youth Court. In 1993 95% of the FGCs reached agreement between the victim, young offender, family, police and social welfare. 
In Australia Group Conferencing has been implemented in a vacuum. Indigenous peoples have not been adequately consulted. Unlike New Zealand where Maori and Pakeha (non-Maori) negotiated and debated the workability of the model, here it has been foisted on us.
Other disturbing variations to the FGC model include the augmentation of police involvement in the process in several regions throughout Australia. Although the "Wagga Wagga" model of conferencing was abolished, similar programmes where the police control the proceedings have been initiated throughout the ACT and Queensland. In contrast New Zealand's reforms to the youth justice system led to strict controls being placed upon police powers, for example, compulsory procedures for the police when confronting, arresting and interrogating young people.
International experience does not necessarily provide us with a blue print. It would be facile to suggest that what works for Maori will also work for us. But the New Zealand reforms were not introduced in an ad hoc manner. Instead these reforms resulted from a major shake up with Maori involvement in every step of the process. Maori are engaged in all stages of the New Zealand diversionary model.
In Western Australia another variation of the FGC has recently been developed. Although this mode, the Juvenile Justice Teams, is based on a broader coalition of representatives than the police-centred model, the referral of Aboriginal kids continues to be disappointingly low. A Caseload Census carried out by the Ministry of Justice in October 1995 found that a mere 25% of the Juvenile Justice Teams' current cases related to Aboriginal children.
This is absolutely indicative to the juvenile system in Australia; our children are markedly over-represented in detention centres and markedly under-represented in their access to alternative, diversionary programmes.
Aboriginal community based models for resolving local conflicts have been operating successfully in Palm Island, Kowanyama and Porpuraaw in Queensland. Piloted by the Queensland Corrective Services Commission, these programmes have had a major impact on the diversion of kids from the criminal justice system.
Controlled by elected Elders from each community, these initiatives involve Elders meeting with the children and their family to resolve whatever disturbance or conflict has occurred. Reparation usually involves the child undertaking community service and/or increasing the support available to the child's family. It is recognised that the child's misbehaviour cannot be divorced from the general life of the community, and that preventative and rehabilitative measures must be worked out in a community-wide process of dialogue and decision making.
In Palm Island, 60% of youth counselled by their Elders do not re-offend: 86% of breaches of community service orders that are supervised by the Elders are successfully completed.
In Kowanyama, before the Elder's Community Justice Council was developed in 1994, approximately 40-50 charges were dealt with each month in the Kowanyama Children's Court. Nine months after the first meeting of the Kowanyama Community Justice Council, not one child had been charged by the police. Nearly three years later only one or two cases are dealt with by the Court every few months.
Programmes such as these allow Indigenous families and communities to determine responses to community strife and to control culturally relevant sanctions. Tentative bridges have been established between these community based models and the criminal justice system. Empowering our people and revitalising dispute resolution through community programmes has the potential to restore a greater degree of social control and divert our kids from custody.
Recently a large amount of public money, close to three quarters of a million dollars, was spent by the Commonwealth Department of Health and Family Services on the construction of three brand new brick houses for doctors in communities in the East Arnhem region -- Numbulwar, Galiwin'ku (Elcho Island) and Gapuwiyak (Lake Evella).
But the frames and many other parts of these houses have been constructed from untreated radiata pine. This stuff is like cornflakes to the termites in Arnhem land. You can be sure that within 6 or 12 months the houses will be uninhabitable.
This story illustrates much about Indigenous housing and environmental policy:
* the lack of attention to detail
* the failure to consider the real outcomes of a project
* the lack of consultation with the people on the ground
* the lack of co-ordination between government departments and between levels of government.
It is also a story of bad economics. In the current climate much has been made of the "waste" in Indigenous affairs, of good money being thrown after bad at programmes for blackfellas which have failed to deliver. It is a great example of money being wasted by bureaucrats who are totally out of touch and it is Aboriginal people who will pay the price.
Housing is not just about bricks and mortar. Inadequate housing may be a ticket into the welfare and criminal justice systems.
A recurring theme in the individual case reports that have been published by the Royal Commission (into Aboriginal Deaths in Custody) is childhood separation of the deceased, largely as a result of `care and protection' orders made in response to housing conditions. 
The relationship between poor housing and poor health is also widely recognised. In the case of Aboriginal and Torres Strait Islander peoples inadequate housing may even be the first step along the path to homelessness. The Royal Commission found that a high proportion of the people whose deaths it investigated were homeless . 
Since colonisation, irrespective of changing policy approaches, one thing has remained true -- housing and infrastructure for Aboriginal and Torres Strait Islander peoples has been inadequate. 
* In 1994 an estimated $3.1 billion was required to cover the accumulated backlog of Indigenous housing and infrastructure need in rural, remote and urban areas. 
* It is estimated that this backlog will take 20 years to address at existing levels of funding. 
* Aboriginal and Torres Strait Islander peoples are the most disadvantaged group in the Australian community with respect to housing.
* 17 per cent of all Australian families are in housing need, while 38 per cent of Indigenous families live in housing need. 
* Indigenous families are 20 times more likely to be homeless than non-Indigenous families. 
* 31 per cent of Indigenous people rely on public rental housing in comparison to 6.8 per cent of the non-Indigenous population. 
* 13 per cent of dwellings occupied by Indigenous people are being purchased by them while a further 13 per cent are owned by a usual resident of the household. In comparison, the general Australian population has a home ownership rate of about 70 per cent. 
The government's proposed final stage of reform of the public industry will see rental subsidies, paid directly to public housing tenants, replace funding allocations to State and Territories. Rather than being allocated a home through a public housing authority, tenants, with their subsidy in hand, will be required to access the private rental market for accommodation. State and Territory Housing Authorities, no longer housers of last resort, will become housing providers within the general rental marketplace.
* It fails to address the perennial problem of the massive housing and infrastructure backlog which exists in Indigenous communities. Even if the structural reform process is successful, without a radical increase in the amount of money spent on Indigenous housing and infrastructure the benefit of housing reform to Indigenous peoples will be minimal. Inadequate expenditure is ineffective expenditure.
* To date the public housing reform process has failed to significantly simplify the way housing and infrastructure is delivered to Aboriginal and Torres Strait Islander peoples. The signs are not encouraging that the reform process will result in a streamlining of the structures providing housing to Indigenous people. Furthermore reform must ensure that service delivery is co-ordinated.
* But the reform process must also guarantee that a capital programme for the construction of housing for Indigenous people is maintained and quarantined from the reform process. Such a commitment is crucial given the huge Indigenous housing and infrastructure backlog and the discrimination which Indigenous people experience in the rental market.
* If such programme is not assured all Indigenous tenants will be subject to the private rental market. The area of private rental accommodation is not an area of equal opportunity for Indigenous people.
* The Commonwealth Government's rhetoric of the housing reform process relies on the notion of `better outcomes'. What these outcomes will be remains unknown. How will housing and infrastructure outcomes be measured and evaluated once the housing reforms have been implemented? Will the proposed participation of Indigenous people extend to our involvement in the evaluation of housing reforms and the development of housing policy? In precise and measurable terms what are the Commonwealth Government's commitments to improved Indigenous housing outcomes? What sanctions are proposed for State and Territory governments which fail to achieve these outcomes? They are by far and away the greatest spenders of the taxpayers' dollars in this area.
In Western Australia the public housing provider is Homeswest. The recent push to corporatise the public service has caused a fundamental shift in the approach of Homeswest, which has worked vigorously to reform its operations in line with commercial business practices. This shift has resulted in Homeswest providing and managing public housing with increased emphasis on economic imperatives.
In a commercial real estate agency, breaches of tenancy agreements are dealt with by evicting tenants, writing off bad debt and replacing bad tenants with good tenants. Recent statistics suggest that Homeswest has adopted such an approach with its tenants, although Homeswest claims that eviction proceedings are instigated only when continual default of tenancy occurs. From January to February 1995, Homeswest carried out 8 bailiff assisted evictions. In August 1995 that number had increased to 31. By 31 December 1995 Homeswest had instigated 101 bailiff assisted evictions -- a three fold increase in the last quarter of 1995 . 
It was recently stated that "Aboriginal families are treated in the same way as all other Homeswest customers".  By creating all clients generically, as if they are the same, Homeswest fails to take into account the specific issues facing certain groups and fails to deliver outcomes in practical terms.
More than any other group in Australia, for example, Indigenous people suffer from life threatening and debilitating illness. Homeswest's eviction policy fails to recognise the difference in health status of its Indigenous clients.
An approach to addressing potential evictions which addresses the context of eviction -- health, family obligations and acute socio-economic disadvantage -- and which provides reasonable options for tenants threatened with eviction must be more widely adopted by Homeswest.
The criticisms which have been levelled at Homeswest with respect to its eviction policy and its increasingly economic rationalist approach to public housing provision have much relevance to the brave new world of housing provision throughout Australia.
The Royal Commission into Aboriginal Deaths in Custody recommendation 212 states:
That the Human Rights and Equal Opportunity Commission and State and Territory Equal Opportunity Commissions should be encouraged to consult with appropriate Aboriginal organizations and Aboriginal Legal Services with a view to developing strategies to encourage and enable Aboriginal people to utilize anti-discrimination mechanisms more effectively, particularly in the area of indirect discrimination and representative actions.
The responsibility for the administration of the funds and the implementation of recommendation 212 was given to the Human Rights and Equal Opportunity Commission in late 1993. A Curriculum Development Advisory Committee was established to discuss and identify the most pressing issues affecting Indigenous human rights issues and education.
I am pleased to announce that the Project Team together with consultants have developed a suite of nationally accredited courses in Indigenous legal studies taking into account Recommendation 212, as well as other recommendations mentioned in the Royal Commission's final report.
The courses represent the first national set of skills and competencies standards for legal training ever developed in this country. Each programme incorporates skills based training as well as specific legal courses. This Office is strongly committed to ensuring national standards are maintained by the project.
These courses are being negotiated to be run primarily through Indigenous controlled adult community education providers, as well as TAFE Colleges with significant Aboriginal centres. A Bachelor, Post Graduate and Masters levels in Indigenous Legal Studies are still being developed.
At the Working Group on Indigenous Populations Session 13, the Australian Government put forward a statement asserting a limitation on the right of self-determination as it applies to Indigenous peoples. It would confine the exercise of the right within the bounds of the Australian state.
This position of `internal' self-determination is an infringement of the right of all peoples as enshrined in United Nations Charter and in Article 1 of the International Covenant on Civil and Political Rights. Indigenous peoples' right of self determination goes to the very heart of our fundamental rights as First Peoples and, as such, it is not for governments to bestow self-determination upon us, not to seek to delegate or dictate the terms on which that right may be exercised.
Suggestions by Nation States that Indigenous peoples must be `defined' is inextricable from the self-determination debate. The integrity of the principle of self-determination rests on our right to self-definition. Again, it is not the domain of governments to define peoples. As Indigenous peoples we know who we are.
The Draft Declaration on the Rights of Indigenous Peoples expresses the aspirations of Indigenous peoples in all aspects of our lives. The current passage of the draft through the United Nations system and its ultimate adoption by the General Assembly is the primary aspiration of the World's Indigenous peoples. Aboriginal and Torres Strait Islander peoples strongly encourage the unreserved adoption of the Draft Declaration by the Australian Government within the International Decade of the World's Indigenous Peoples.
The Human Genome Diversity Project (HDGP or Vampire Project) is a programme of mass sampling of Indigenous peoples and other isolated populations, presently being conducted by teams of molecular biologists around the world and is due for completion early next century. It operates within Australia. The Vampire Project not only jeopardises the rights and safety of the peoples targeted, but could also lead to the cultural, political and social complexity of Indigenous identity being reduced to some kind of arbitrary genetic test.
Recently, the world has witnessed attempts by a United States institution to patent genetic materials taken from a Papuan man and a Solomon Islander woman, without their informed consent. Such practices underline the lack of specific national and international law relating to human genetic material. The issues raised by this project have implications for humanity as a whole.
Earlier this year an Amnesty International delegation made an extensive tour of Australia to inquire into the operation of the criminal justice system, focusing on Aboriginal deaths in custody and juvenile justice. 
The delegation noted the continuing disproportionately high rate of Aboriginal deaths in custody and expressed great concern over the detention and ill-treatment of Indigenous peoples in Australia. They found that many deaths which have occurred since the recommendations of the Royal Commission were handed down, were a result of failure of Australian governments to adequately implement the recommendations.
The knowledge of Indigenous peoples of the life forms of our traditional lands, even our very bodies, are now been seen to have more than decorative value: they are seen as fresh resources to be exploited. Indigenous peoples in Australia risk having our knowledge appropriated and exploited by industrial interests without any negotiation or adequate, equitable return to us.
It is essential that the domestic implementation of the Convention on Biological Diversity protects Indigenous intellectual property. Existing laws, that is copyright, trademark, patent and design legislation, do not protect the unique forms of Australian Indigenous intellectual property and our collective rights to knowledge. There is significant resistance by the government to consider Indigenous knowledge other than through the established forms of `intellectual property'.
A vital strategy for the protection of Indigenous rights is the inclusion of human rights clauses in international trade agreements. Australia has expressed reservations concerning standard human rights clauses contained in the Draft Framework Agreement for Trade and Co-operation between the European Community and Australia. Negotiations over these provisions are continuing
The reluctance of the Australian Government to enter these agreements, and their contention that these human rights provisions are more appropriate to `other' countries, will only promote the view of Australia as condescending and hypocritical. Perhaps it is only the anticipation that an adverse judgement may be made by the European Union that animates the Australian Government's endeavour to have these standard terms excised.
The power of the Australian Government to ratify treaties will be, in effect, devolved to State and Territory Governments. The lowest common denominator of domestic respect for human rights will become the arbiter of standards for the country as a whole. The Commonwealth Government has an obligation to lead, to set standards, to articulate the aspirations of this nation.
The procedure proposed to be undertaken prior to the ratification of human rights treaties have the potential to so inhibit the discretion of the Executive of the Australian Government that Australia may never again sign a human rights treaty. l
 Prime Minister, the Hon. J Howard, MP, House of Representatives, Hansard 30 October 1996.
 The Hon. J Howard, MP, Launch of the Liberal-National Country Party Election Campaign, February 1996.
 Senator, the Hon. J Herron, Minister for Aboriginal and Torres Strait Islander Affairs, 9th Annual Joe and Enid Lyons Memorial Lecture.
 The Prime Minister, the Hon. J Howard, House of Representatives, Hansard 8 October 1996.
 The Prime Minister, the Hon. J Howard, MP, The John Laws Show, Radio 2UE, 24 October 1996, transcript.
 Australian Institute of Criminology, Persons in Juvenile Corrective Institutions, No. 75, June 1996, Table 7.
 Chief District Court Judge R L Young, `Youth Justice in New Zealand -- A New Approach To Crime Prevention', op. cit., p. 8.
 Royal Commission into Aboriginal Deaths In Custody, National Report, AGPS, 1991, Vol 2, p. 425.
 Ibid, pp. 442, 447.
 Aboriginal and Torres Strait Islander Commission, ATSIC Annual Report 1994-95, AGPS, Canberra, 1995, p. 148.
 ACOSS, Federal Budget Priorities Statement 1996-97: ACOSS Paper No. 79, June 1996, p. 85.
 Jones, R, The Housing Need of Indigenous Australians, 1991, Centre for Aboriginal Policy Research, ANU, 1994, p. 158.
 Jones, ibid, p. 149 and Department of Housing and Regional Development, Annual Report 1994-95, AGP, 1995, p. 18.
 ABS, National Aboriginal and Torres Strait Islander Survey 1994, 1994, Canberra 1995, p. 25; ATSIC, Discussion Papers of the Indigenous Australian Shelter Conference, November 1993, p. 67.
 Deaths in Custody Watch Committee (WA), Submission to National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Perth, 13 May 1996, p. 3.
Mr Gramma Keirath, Minister for Housing in correspondence to Mr Ted Wilkes,
Director Perth Aboriginal Medical Service Inc.,
2 July 1996.
 See Appendix 4 Amnesty International Report 1996, extract.