Reprinted here, somewhat abridged is a major portion of a paper presented to the United Nations Working Group on Indigenous Populations by Helen Corbett, national chairperson of the Committee to Defend Black Rights. The opening section of the paper was printed last week; its conclusion will appear next week.
Recent amendments to legislation directly contradict the thrust of the recommendations of the royal commission, which state that imprisonment should be used as a last resort.
In New South Wales, the increase in charges laid against Aboriginal people for minor offences has been stimulated by the reintroduction of the Summary Offences Act 1988. This Act gives the police powers to impose imprisonment for offensive language and offensive behaviour and provides wider avenues for the policing of our communities.
The New South Wales Sentencing Act is resulting in longer sentencing, less rehabilitation of offenders and less productive liberty. It attempts to reaffirm the myth that imprisonment is the only 'true' or 'real' penalty and that a range of other sentencing options, for example Community Service Orders, are unimportant.
Since the introduction of this legislation the prison population in New South Wales has exploded from 4750 in 1989 to 6000 in 1991, a 26% increase. Aboriginal people are facing prison sentences for traffic, good order and poverty offences, breaches of orders and fine default. The average length of juvenile detention sentences has increased by a horrific 42%.
The Western Australian Crime (Serious and Repeat Offenders) Sentencing Bill means that juvenile repeat offenders will face a mandatory term in
prison or detention. They will have to serve a minimum of 18 months, after which they will be detained for an indeterminate term until released by order of the Supreme Court.
These laws directly targeting the Aboriginal community and will result in mass Aboriginal juvenile imprisonment. Already, 75% of all juveniles in detention in Western Australia are Aboriginal, the highest rate in the country, and this legislation will send even more of our young brothers and sisters to jail. The combination of mandatory and indeterminate sentences is a fatal mix.
It has been argued that this legislation breaches Australia's commitment to the United Nations Convention on the Rights of the Child.
If the millions of dollars being poured into Aboriginal affairs as a result of the royal commission are to mean anything, it is essential that we are involved in the decision making process.
The colonial government has dealt us oppression, dispossession and disempowerment since invasion. We only received citizenship and the right to vote 25 years ago. We have been pushed into a class of dependency that most people would find difficult to comprehend.
The first recommendation of the Interim Report, released in December 1988, stated that: 'Government ... [should] enforce the principle that imprisonment should be utilised only as a sanction of last resort".
This was repeated in the final National Report of the royal commission. To stop Aboriginal deaths in custody there needs to be a reduction in the massive number of our people being imprisoned.
Aboriginal people are dying because key areas of reform highlighted by the royal commission have not been implemented. Since the royal commission, at least 32 Aboriginal and Torres Strait Islander people have died in police or prison custody, 29 men and three women, plus five Aboriginal juveniles killed in police car chases in Western Australia. The average age of those who died in custody was in the early 30s.
Any government commitment to implementing the Recommendations will be shallow rhetoric if the overall thrust of the criminal justice policy is based upon locking up an ever increasing number of Aboriginal people.
The royal commission highlighted the unsatisfactory welfare service delivery to Aboriginal communities. Yet the Government is in fact restructuring its services towards more indirect forms of intervention and there is a strong trend towards privatisation. Services to Aboriginal people need to be funded to be effective, self-managed and self-determined.
The royal commissioner recommends land rights. There has still been no response on national land rights legislation.
Several recommendations of the final National Report addressed land needs, for example: "That in all jurisdictions legislation should be introduced ... to provide a comprehensive means to address land needs of Aboriginal people".
Recently the federal government allocated just $60 million to us so we can buy back what was stolen from us — a whole continent! It is estimated that Australian governments provide some $2 billion per year to Aboriginal services. At the same time governments take some $6 billion from the use of our lands. Private enterprises reap tens of billions of dollars more wealth from our lands.
This injustice can not continue.
For the first time in the history of colonisation the High Court of Australia has rejected the notion of Terra Nullius, that Australia was an empty land at the time of invasion. The High Court said this doctrine is a convenient legal justification whereby colonial and state governments, since 1788, have wrongfully and shamefully dispossessed Aboriginal people.
The 10-year case is, however, only specific to the Meriam People from Murray Island in the Torres Strait.
The royal commission states that the Commonwealth government should make a declaration under Article 22 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government should also take all steps necessary to become a party to the Optional Protocol to the International Convention on Civil and Political Rights in order to provide a right of individual petition to the Committee Against Torture and the Human Rights Committee.
The First Optional Protocol was ratified in Australia in September 1991. There are several criteria attached to it which undermine its effectiveness:
- It only relates to violations which have occurred since Australia was a party to the convention, which rules out the deaths investigated by the royal commission.
- All domestic remedies have to be exhausted and the matter must not be examined under any other international investigative procedure — it is near impossible for us to exhaust all local remedies when we are poor, have few resources and struggle against racist structures.
- The action has to be brought by
the victim or a person with a connection, ie, family. This will also be difficult because the families or individuals will have to face the repercussions from racists.
- The findings are not binding on a state. However, we recognise that international pressure and embarrassment are an effective way of eventually protecting human rights.
- It is only for individual complaints, ruling out complaints "as a people" or as an indigenous group.
The Commonwealth Attorney-General's Department has funds to set up an Optional Protocol Unit. We demand that the government provide resources for independent professional advice for, and education of, prospective complainants.
Federal and state governments have shown they lack commitment in addressing the issue of Aboriginal deaths in custody. Under the United Nations International Covenant of Civil and Political Rights, Australia is required to promote, protect and restore human rights at national, regional and international levels.
Many Aboriginal people who died in custody would be alive today if the federal government had fully implemented international human rights treaties to which Australia is a party.
Australia signed the International Convention on the Elimination of All Forms of Racial Discrimination in 1975. Since this signing, successive federal governments have failed to take two essential steps. Firstly, the government has failed to fulfil the obligation set out in Section 4(a) of the convention to make racial vilification and violence a legal offence. Secondly, the government has failed to make a declaration allowing the International Committee on the Elimination of Racial Discrimination to receive and
consider communications from individuals and groups within Australia.