Summer May Finlay writes:
My mum has always said, there is a difference between hearing and listening.
Hearing is the physical act of being able to hear, and listening is the part where you pay attention to what is being said.
The Commonwealth Government has clearly not been “listening” to the Aboriginal and Torres Strait Islander sector and their allies on justice and over-incarceration.
Funding and the recent cuts, unmet need, prevention, justice targets, support for people with Foetal Alcohol Spectrum Disorder (FASD) and Aboriginal and Torres Strait Islander led solutions were the focus of recommendations in a recent Senate inquiry into Aboriginal and Torres Strait Islander experience of law and enforcement and justice services. None of these recommendations is anything that hasn’t been said before.
At least one of the recommendations in the report has been part of almost every Aboriginal and Torres Strait Islander incarceration media release from the non-Government sector. The themes have also been a part of multiple Senate Inquiry submissions and most of these themes were also included in the recent Redfern Statement.
Cheryl Axleby, co-chair of the National Aboriginal and Torres Strait Islander Legal Services, agrees: “In the last generation we’ve had numerous seminal reports which have emphasised repeatedly that the legal assistance sector is not resourced adequately and therefore cannot provide equitable access to justice for our peoples. Despite this, many of those report recommendations remain unimplemented and, as a result, our people are stripped of natural justice.”
In the Social Justice Report 2001, the Social Justice Commissioner Dr William Jonas AM raised the issue of Aboriginal and Torres Strait Islander justice issues including mandatory sentencing, the need for diversionary programs and education of Aboriginal and Torres Strait Islander juveniles of their legal rights. In 2014, the United Nations Committee against Torture Concluding observations on the fourth and fifth periodic reports of Australia also raised concerns that mandatory sentencing disproportionately affects Aboriginal and Torres Strait Islander people.
Justice reinvestment , a diversionary program, was also the focus of recommendations from the latest Senate inquiry. Justice Reinvestment is not new. Currently two trials in Bourke and Cowra in NSW are being undertaken and supported by Just Reinvest.
In 2013, a Senate Inquiry supported the approach. A Family Violence Prevention Legal Services (FVPLS) submission to the Senate Standing Committee on Legal and Constitutional Affairs was based on the significant value of Justice Reinvestment in reducing Aboriginal and Torres Strait Islander incarceration. A Parliamentary inquiry into the harmful use of alcohol in Aboriginal and Torres Strait Islander communities released in 2015 also recommended investing in Justice reinvestment.
Justice Targets for Aboriginal and Torres Strait Islander incarceration are also not a new concept. National Congress of Australia’s First Peoples 2013 Justice Policy called for justice targets to be included in Closing the Gap on Indigenous Disadvantage Framework. The 2014 Social Justice and Native Title Report called for Aboriginal and Torres Strait Islander justice targets. Change the Record, a collaboration of Aboriginal and Torres Strait Islander and mainstream organisations, also supports Justice targets.
Many organisations have highlighted the funding cuts affecting the sector since the Coalition Government took office in 2013. In that year, the National Association of Community Legal Services raised the issue of proposed funding cuts to Aboriginal and Torres Strait Islander Legal Services, FVPLSs and Legal Aid Commissions – despite the unmet need and the impact this would have on Aboriginal and Torres Strait Islander people.
In March 2015, a coalition of 26 organisations, including National Aboriginal and Torres Strait Islander Legal Services, FVPLSs and National Congress of Australia’s First Peoples, wrote an open letter to the then Prime Minister Tony Abbott, saying the “cuts to legal services will have disastrous impact on Aboriginal and Torres Strait Islander communities”.
FASD is also an issue that has been raised before. The 2014 Inquiry into the harmful use of alcohol in Aboriginal and Torres Strait Islander communities raised the need for greater investment in prevention and also support for people with FASD coming in contact with the legal system.
In 2015, Amnesty International in the “A brighter tomorrow: Keeping Indigenous kids in the community and out of detention in Australia” highlighted the issue of young people with FASD coming in contact with the justice system and the additional preventative resources need to support people with FASD.
Change the Record has been calling for Aboriginal and Torres Strait Islander solutions since its inception in 2015. The Redfern Statement called for Aboriginal-led solutions and also called for all funding cuts to Aboriginal and Torres Strait Islander legal services to be reversed. Self-determination is a key principle of the United Nation Declaration on the Rights of Indigenous Peoples of which Australia is a signatory.
Not listening to the sector and implementing the recommendations has an impact on Aboriginal and Torres Strait Islander people.
Cheryl Axleby said: “The downstream costs of failing to invest in the legal assistance sector are many. But perhaps the biggest cost is life. In the past three months alone, close to ten Aboriginal and Torres Strait Islander women, men and children have lost their lives in custody. Reports in of themselves can’t save lives but implementing the recommendations can.”
National Aboriginal and Torres Strait Islander Legal Services, FVPLS and Change the Record and the National Association of Community Legal Centres all welcome the recommendations from the Senate inquiry into Aboriginal and Torres Strait Islander experience of law and enforcement and justice services recommendations.
But of course they do – it’s what they have been saying for years.
It’s time now for the Government to listen and act.
Malcolm Turnbull, do you have your listening ears on?
List of Recommendations
The committee recommends that the Commonwealth Government adequately support legal assistance services, and that specifically funding should focus on:
- community legal education for Aboriginal and Torres Strait Islander people;
- outreach workers to assist Aboriginal and Torres Strait Islander people; and
- interpreters for Aboriginal and Torres Strait Islander people in both civil and criminal matters to ensure that they receive effective legal assistance.
The committee recommends that the Commonwealth Government take all necessary steps in the development and implementation of a plan for the collection of consistent national data on all aspects of Indigenous incarceration placed on the agenda for the next meeting of the Council of Australian Governments Law, Crime and Community Safety Council.
The committee recommends that the Commonwealth Government, prior to the next Council of Australian Governments meeting, explicitly state the measures it is putting in place to assist states and territories to develop, implement and meet Indigenous justice targets.
The committee recommends that the Department of Health prepare a communication plan for those working in areas such as the criminal justice field, to accompany the release of the National Fetal Alcohol Spectrum Disorders (FASD) Diagnostic Tool.
The committee recommends that the Commonwealth Government, through the Council of Australian Governments, work with states and territories, to develop and implement guidelines for the appropriate management of offenders diagnosed with Fetal Alcohol Spectrum Disorders.
The committee recommends that the Commonwealth Government continue to fund initiatives which promote the National Health and Medical Research Council’s guidelines that for women who are pregnant, planning a pregnancy or breastfeeding, not drinking alcohol is the safest option.
The committee recommends that the Commonwealth Government contribute to the development of justice reinvestment trials at sites in each state and territory.
The committee recommends that much greater attention is given to Aboriginal led, managed and implemented justice reinvestment programs such as the Bourke Project and Yirriman, and that the Commonwealth Government support Aboriginal led justice reinvestment projects.
The committee recommends that the Commonwealth Government work with the states and territories in supporting programs which strengthen families and communities through a focus on early intervention and support.
The committee recommends that administrative responsibility for Family Violence Prevention Legal Services be returned to the Attorney-General’s Department.
The committee recommends that the Council of Australian Governments task the Council of Australian Governments Law, Crime and Community Safety Council to review state laws such as mandatory sentencing which have a disproportionate effect on Indigenous Australians in order to quantify the effects and report to the Council of Australian Governments.
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