Thursday, 28 June 2012
Social Security Legislation Amendment Bill 2011, Stronger Futures in the Northern Territory Bill 2012, Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011; Second Reading
I rise to speak on the Social Security Legislation Amendment Bill 2011 and two related bills, colloquially known as the Stronger Futures in the Northern Territory bills. As I do so, I reflect that I am standing here on Aboriginal land and that everywhere we stand in Australia is Aboriginal land. It is no surprise that, as the Australian Greens' spokesperson for legal affairs, I join with my colleagues in opposing this bill and in calling for a new approach to improving outcomes for Indigenous Australians. I will also declare a particular personal interest in this matter. I have been fortunate enough in my life to have the opportunity to visit my sister, who has worked on Aboriginal communities and has had a lot of experience both in arts administration and governance, particularly in Northern Territory communities. In the 1980s I had the great fortune to visit both Yuendemu and Oenpelli at different times and to get a sense of the rich Aboriginal culture of the people living in those communities and the incredibly intense connection with the land. It was palpable to me at the time.
The new Stronger Futures legislative package is essentially a re-naming of the Northern Territory intervention. The passage of these laws, which the Australian Greens oppose, will mean that the Northern Territory intervention will potentially be in place for another 15 years. Human rights organisations have on numerous occasions, dating back to 2007, loudly and repeatedly criticised the Northern Territory intervention because it is inconsistent with Australia's international human rights obligations. In 2008, the Human Rights Law Centre expressed concern that the Northern Territory intervention is inconsistent with Indigenous peoples' right to self-determination as it destroys 'the control that communities have over their own lives'. The centre pointed out the aspects of the intervention that have affected the right to self-determination, which have included the top-down policy approach and the lack of real and effective consultation, and that is a theme of the speeches that Greens senators are making today. Other concerns include the disallowing of consideration of customary law, an increase in law enforcement and policing and the imposition of income management. All of these measures continue in some form under the Stronger Futures legislation.
Under Stronger Futures, the government has again failed to properly engage and consult with Aboriginal and Torres Strait Islander people. Instead, it has continued its top-down policy approach that addresses the symptoms of disadvantage through punitive measures. It fails to address the underlying problems of alcoholism, violence, poverty and generational trauma. The bills are also racially discriminatory, as they apply blanket measures to diverse Aboriginal and Torres Strait Islander peoples, as if we can talk about them as one group of people. This latest iteration of the NT intervention continues to undermine the right to self-determination for Aboriginal and Torres Strait Islander people. The right to self-determination is a central principle of the United Nations Declaration on the Rights of Indigenous Peoples, which Australia endorsed in 2009.
Les Malezer, co-chair of the National Congress of Australia's First Peoples, recently spoke about the principle of self-determination and what it means under the Declaration on the Rights of Indigenous Peoples. He said:
… self-determination is, in fact, when we all pull together as peoples operating together collectively as peoples. It's not about everybody refusing to listen to anybody else or being told how to operate by anybody else … the exercise of decision-making is in fact the exercise of self-determination … What it promises is empowerment, it promises us the power to make our own decisions, the power to determine our own future. The power to determine continuity of us as peoples, that our culture that we inherit that we pass it on, that it continues on, it's guaranteed into the future.
By further denying Indigenous Australians the right to self-determination, the Stronger Futures legislation will continue the disempowering and oppressive effect of the Northern Territory intervention. The impact of this will be devastating and far reaching for Indigenous communities.
In 2008, the Australian Indigenous Doctors Association found that the Northern Territory intervention had created a feeling of 'collective existential despair' that is 'characterised by a widespread sense of helplessness, hopelessness and worthlessness, and experienced throughout entire communities'. The Australian Indigenous Doctors Association indicated that such powerlessness will have profound implications and is likely to result in ongoing, serious negative impacts on health.
The Northern Territory intervention has perpetuated disadvantage in Aboriginal communities and contributed to long-term damage to the health and wellbeing of Aboriginal Australians in the Northern Territory. The punitive nature of the Stronger Futures measures will further undermine and disempower Aboriginal people and communities, which will continue to have serious and far-reaching repercussions on their overall health and wellbeing.
Concerns about the human rights impact of the Northern Territory intervention have also been raised at an international level—another blot on Australia's record. In August 2010, the United Nations Committee on the Elimination of Racial Discrimination released its concluding observations following a review of Australia's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination. The committee made over 20 recommendations for concrete action to address racial discrimination, disadvantage and inequality in Australia. One of those recommendations was to reform and remedy the discriminatory impact that the Northern Territory intervention has had on affected Indigenous communities. Last year, the UN High Commissioner on Human Rights, Navi Pillay, criticised the Northern Territory intervention because it failed to recognise—indeed it undermined—the right to self-determination and has resulted in anger, pain and humiliation among Indigenous Australians. Despite the numerous criticisms and concerns regarding the Northern Territory intervention being raised at both a domestic and international level, the government is inexplicably intent on going ahead with Stronger Futures. It is a fundamentally flawed and indeed, I think, an unconscionable approach.
Instead of the many top-down punitive measures included in the Strong Futures package, we need holistic, well-designed, targeted and incentive based programs that are—and these are important concepts—community led and community owned. We need programs that are developed in partnership with the very people that they affect—the Aboriginal people—not imposed upon them. Our history is littered with failed programs, endeavours, projects and pilots that have foundered on a basic flawed assumption that decision makers know best, and they have been foisted on those affected, divorced from their knowledge and lived experience. We now know the only way to bring about sustainable and effective development is to ensure that those people who are affected have 'ownership' and are committed to the change. Even the original catalyst for the intervention in 2007, the Little children are sacred report, clearly expressed the need to consult genuinely and in good faith, citing the need for genuine consultation because of the 'sufficient evidence to show that well-resourced programs that are owned and run by the community are more successful than generic, short-term and sometimes inflexible programs imposed on them'.
An example of the kinds of punitive, top-down measures which are almost destined to fail is the imposition of excessive alcohol bans and penalties embodied in the legislation. This an aspect of the legislation which is likely to widen the yawning justice gap between Aboriginal and non-Aboriginal Australians. At this point I would like to refer to an editorial by Jon Altman and Melinda Hinkson in the June edition of Arena Magazine, No. 118, which illustrates the reason this may occur. It states:
On an unsealed road in central Australia one Saturday afternoon in late 2011, a police car flashes its lights and directs the driver of a non-descript sedan to pull over. The driver and his female passenger, a married couple in their mid-twenties, are directed to get out of the car. The police have been called to attend an incident in a nearby town where protracted fighting has been reported over several weeks and have stopped this car out of concern that its occupants might be en route to join the fray. They search the car for weapons, but uncover nothing of interest. The boot of the car is full of firewood which the couple have spent the past hour collecting. On completion of identity checks the police arrest the man for driving with a suspended licence. He is placed in the back of the police van. His wife is warned that if she attempts to drive the car—she does not have a licence—she too will be arrested. The police officers climb into their van and drive off, leaving the woman on her own, at sunset, on a lonely desert road with no supplies and no option but to walk the several kilometres back home as darkness descends.
This tale captures well one of the many paradoxes of the Northern Territory Intervention. Increased police numbers on the ground are often quoted as a key marker of the Intervention's success. Women and children feel much safer now we are told. It is only when we go to the ground and recall that any relations between Aboriginal people and police in the present are built upon a deeply fraught history that the prospect of increased policing takes on a different inflection. The township this couple calls home has witnessed astonishing levels of arrests, even by local standards, over the past eighteen months. Many are for vehicle related offences. Many others result from another of the Intervention's measures—the outlawing of customary law, especially the use of payback to settle disputes. When Aboriginal people attempt to use their own customary measures to resolve significant transgressions, police who once turned a blind eye are now legally obliged not to do so.
In submissions made to the Senate Community Affairs Legislation Committee, a number of organisations expressed concern that, if passed, the Stronger Futures legislation will significantly increase the number of Aboriginal people in Northern Territory jails. If so, this will be catastrophic, because Aboriginal people are already grossly overrepresented in the Australian prison system. Eighty per cent of prisoners in the Northern Territory are Aboriginal people. In fact, it has been said that Aboriginal people in Australia are the most highly incarcerated people in the world. Just pause to absorb that piece of information, that the most highly incarcerated people in the world are here in Australia, the nation of which we are proud, a First World liberal democracy. How can that be? The statistics are stark and they are shameful. Although Indigenous Australians account for less than three per cent of the total population they compose 26 per cent of the national prison population. Indigenous adults are 18 times more likely to be imprisoned than non-Indigenous adults. And, most shockingly in my view, detention rates for Indigenous young people aged 10 to 17 are 25 times higher than for non-Indigenous youth.
Instead of adopting policies which seek to enhance community safety by addressing the underlying causes of crime, the government is instead proposing to introduce new laws which could see a person handed a six-month prison sentence for carrying less than 1.35 litres of alcohol into a prescribed area. Such penalties are excessive, unnecessary and have not been proven to deter alcohol abuse within Aboriginal communities. This will also likely lead to increased imprisonment of Aboriginal people in the Northern Territory. Yes, alcohol dependence and abuse is a serious problem for some members of Indigenous communities, as it is in non-Indigenous communities, and the Australian Greens support alcohol controls where they have community support. But, rather than increasing penalties, the focus should be on supporting communities to develop alcohol management plans and, importantly, on providing additional resources dedicated to culturally appropriate alcohol counselling and rehabilitation services. It is a health issue, not a justice issue.
At a broader level, the Australian Greens are encouraging governments to reconceptualise the way they think about criminal justice issues. Prisons are not the answer. In April, the Prison Officers Association described conditions in Northern Territory jails as Third World, saying that overcrowding has reached crisis point. In Darwin and Alice Springs, it is said that up to 14 prisoners at a time are being held in 10-metre by five-metre dormitories, with one toilet and one hand basin. Prisons like these are counterproductive. Offenders leave prison, unsurprisingly, less functional than when they went in, more likely to commit future crimes and more likely to commit more serious crimes. Instead, we need to be implementing a long-term strategic approach which will reduce the number of people held in Australian prisons. The savings—because prisons are incredibly expensive—can then be used to reinvest in evidence based services and programs which are proven to effectively address the underlying causes of crime and improve community safety.
We should be reinvesting, spending the money—the hundreds of millions of dollars; $3 billion a year in Australia—on those communities which need it most, those high-stakes communities to which most people, when released from prison, return. This approach, called justice reinvestment, has worked in the United States to reduce crime and strengthen communities, and it can work in Australia too. Justice reinvestment has been championed by the current and former Aboriginal and Torres Strait Islander Social Justice Commissioners, Mick Gooda and Tom Calma, as a part of the solution to Australia's growing Aboriginal incarceration rate. The Greens support that call—something needs to be done. Importantly, justice reinvestment seeks community level solutions to community level problems. If properly implemented, it provides a real opportunity for community members to have a say about what is causing offending in their communities and what needs to be done to fix it.
Why is this relevant? Because throughout the life of the Northern Territory intervention we have seen significant waste on ineffective measures when far better outcomes could have been delivered through direct investment in communities and organisations on the ground. In recent years the Australian government has indicated a commitment to improving the promotion and protection of the human rights of Aboriginal Australians through the national apology and its support of the United Nations Declaration on the Rights of Indigenous Peoples.
This rhetoric has clearly not been matched by action. The government's commitment to rights has not been implemented in many of the laws, policies or programs affecting Aboriginal people in the Northern Territory and throughout Australia. Instead, the Northern Territory intervention has had a deep and profoundly detrimental impact on the rights of Aboriginal Australians in the Northern Territory and has been strongly condemned by domestic and international human rights organisations and advocates. There is no substantive evidence demonstrating that the intervention has had a positive effect on the lives of Aboriginal people in the Northern Territory, and now the current government is proposing to continue these ineffective and damaging policies for a further 10 to 15 years.
If the government is truly committed to addressing Aboriginal disadvantage, creating safe and healthy communities and fulfilling its obligations under international human rights law, Stronger Futures should be abandoned. Improved health and wellbeing, community safety and education and employment opportunities for Indigenous Australians are best delivered through involvement and empowerment of communities, not the imposition of expensive and unproven policies.
In Justice Kirby's final High Court judgment, which considered the impact of the Northern Territory intervention, he left us with these wise words:
History, and not only ancient history, teaches that there are many dangers in enacting special laws that target people of a particular race and disadvantage their rights to liberty, property and other entitlements by reference to that criterion. The history of Australian law, including earlier decisions of this Court, stands as a warning about how such matters should be decided.
It is time we started to heed these warnings. The consequences of not doing this are too great to ignore. We need a different approach that tackles the underlying causes, not just the symptoms, of Aboriginal disadvantage, poverty, crime and social dislocation. Indigenous individuals and communities must be at the centre of any such approach if it is going to work. They must be integrally involved in decision making and policy and program design. The Northern Territory intervention has not worked. We must not repeat the mistakes of the past. The Stronger Futures bills should be abandoned—our first peoples deserve much, much better.