Looking back to move forward

Today is a public holiday in the Australian Capital Territory. Often on public holidays, we get so caught up in the ‘day off’ and the extra time with our families that we omit to pause and reflect upon the meaning behind those days.

I have made a conscious decision today to reflect not only on Reconciliation Day, but a number of significant events for the Indigenous and wider communities which celebrate their anniversaries between 26 May and 3 June and which have impacted on the legal and political fabrics of our country.

This reflection comes somewhat, I am embarrassed to say, from a formerly naïve place. I am ashamed to say that some years ago I was one of those people who could not comprehend how events from ‘long ago’ could impact the younger Indigenous generation. I was shallow in my thoughts: “Why can’t they just make better choices?” and “Why is this is still an issue?”.

I am pleased and proud that I am no longer so naïve. I am educated to at least a sufficient standard to begin to understand and empathise with the broader impact many of our nation’s shameful actions have had and continue to have on our Indigenous people. I am educated enough to know that while many of these regrettable actions and events took place ‘long ago’ in the earliest days of our inhabiting this country, many have occurred in recent years and others continue to occur and impact to the present day.

Not so many years ago, I sat in a lecture led by Wayne Applebee, a Kamilaroi man, panel member of the Galambany Circle Court and managing director of the Narragunnawali Aboriginal Corporation supporting the rehabilitation of Indigenous prisoners in the corrective services system.

The contents of that lecture have stayed with me. The sick-to-the stomach feeling as my basic primary school learning of Indigenous culture culminated with a more mature and informed understanding of Aboriginal reality has stayed with me. The statistics of the over-representation of Indigenous incarceration, particularly in the northern states but even in our own ACT backyard have stayed with me. I have provided a small sample of these statistics at the end of this blog and I hope you will take the opportunity not to just read them, but to let them sink in as I think those statistics go to the heart of the important work still to be done in our country.

What stayed with me most from Wayne Applebee’s lecture was the story of Rosie Fulton. Rosie, at that time, was a 24 year old Indigenous woman raised across the tri-state region covered by the Northern Territory, Western Australia and South Australia. She had the mental capacity of an eight (8) year old or similarly young child and suffered Foetal Alcohol Syndrome. Rosie had crashed a stolen car, but was found unfit to stand trial due to her mental incapacity. Notwithstanding that she was not convicted, she was jailed on a prison supervision order due to there being no alternative available accommodation. She spent 21 months in prison without a conviction. The absence of appropriate accommodation for the mentally impaired and for drug and alcohol rehabilitation combined with mandatory sentencing in the Northern Territory and Western Australia for various violence and property offences have arguably contributed to the over-representation of Indigenous people in the WA and NT incarceration rates. I remember thinking ‘surely we can do better’.

Sorry Day – 26 May 1998

On 26 May 1998, the first National Sorry Day was held to mark the anniversary of the ‘Bringing them Home’ report (‘the BtH report’) in Federal Parliament. The BtH Report was the final report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (‘the Inquiry’) conducted by the then Human Rights and Equal Opportunity Commission.

It is important to acknowledge that children were forcibly removed from their families from 1910 right through the recent history of the 1970s. They were placed into institutions or in non-indigenous homes through fostering or adoption. The abhorrent treatment of many of these children included violence, sexual abuse and assimilation. When one thinks about these forcible removals occurring into recent history, it is unsurprising that the impacts and the ramifications of psychological and physical damage are still felt throughout the Indigenous community both by those directly and indirectly affected.

The Inquiry focused on tracing past laws, practices and policies of forcible separation; examining the need for changes to current laws, policies and practices relating to services and procedures currently available to those affected under compulsion, duress or undue influence; identifying responses and recommendations and examining the justification of compensation for those affected.

The BtH report made 54 recommendations to ‘support healing and reconciliation for the Stolen Generations, their families and the Australian public more broadly’. The Bringing them Home: Scorecard Report 2015 broadly indicated that high-level working principles had been delivered to guide future policy and program delivery, but that there is much work to be done.

Sorry Day does not only commemorate the anniversary of the tabling of the BtH Report, but serves as a reminder of the great injustice and suffering of the stolen generation and their families and the importance of continuing to implement the recommendations and unfinished business of the BtH report.

Reconciliation Day – 27 May 2017

The ACT public holiday marking Reconciliation Day was first held in 2017. It is held on the anniversary of the 1967 Referendum in which over 90 per cent of Australians voted for the Australian Government to be given power to make laws for Aboriginal and Torres Strait Islander peoples and to recognise them in the census. This made it possible for the introduction of affirmative action, the establishment of the Council for Aboriginal Affairs and the enactment of a number of key statutes relating to preventing discrimination in laws and in response to land rights cases.

To quote Minister for Aboriginal and Torres Strait Islander Affairs Rachel Stephen-Smith in an ABC article released earlier today [27 May 2019]:

“Reconciliation Day is more than Symbolic … Reconciliation Day is a good opportunity for all Canberrans to reflect on the impact of past policies and practices, and the ongoing effect of intergenerational trauma on our community”.

The Anniversary of Mabo v Queensland – 3 June 1992.

3 June 2019 marks the 27th anniversary of the judgment of the High Court of Australia in Mabo and Others v Queensland (No. 2). This landmark decision upheld the claims of the Meriam people for native title of the Murray Islands in Queensland, commented that similar principles should be applied throughout mainland Australia and reversed the historical doctrine of terra nullius. This case provided a vehicle for the High Court to introduce the doctrine of native title and recognise that Aboriginal and Torres Strait Islanders held this land right prior to colonisation by the British in 1788.

The Native Title Act was introduced by Federal Parliament in an attempt to clarify the High Court’s decision and provide legislative interpretation for Indigenous Australians' use to acquire recognition for land which fell within their native title rights.

Statistics

While the events of this week represent progress and education, there is still much work to be done.

In terms of the legal sphere, Aboriginal and Torres Strait Islander people continue to be grossly over-represented in Australian prisons. Aboriginal people make up only 3 per cent of the overall population, yet almost 28% of Australia’s prisoners are Aboriginal. Sadly, 48% of juveniles in custody are Aboriginal and 34.3% of incarcerated women are Aboriginal. Incarceration rates for Aboriginal people across all categories (men, women and juveniles) increased between 2000 and 2010 and continue to increase.

In the ACT, about 23% of all prisoners identify as Aboriginal or Torres Strait Islander compared to just 1.5% of the general population.

So why is this the case and what is being done to reduce these rates?

The events which have resulted in National Sorry Day and Reconciliation Day and events extending much more broadly than those confined to recognition on anniversaries have significantly impacted every facet of Aboriginal communities. Dispossession of land, assimilation policies; brutality and deaths in custody; the stolen generations; mandatory sentencing; exclusion from the census and rejection from automatic citizenship (in, for example WA until 1983) have no doubt left scars of disempowerment, erosion of sense of self and standing, distress and psychological trauma. When one considers the relationship between: “poverty, trauma and neurocognitive impairment” and offending, it is of little wonder that the rates of Aboriginal incarceration are so high. When released with a lack of support or no place to go, high rates of re-offending are also unsurprising.

It is not all doom and gloom. There are some promising initiatives that have taken shape in recent years and continue to offer hope. Looking in our own backyard, the establishment of the Bimberi Youth Justice Centre in the ACT was the first of its kind in Australia to comply with Human Rights requirements. According to its website, it aims to: “provide a safe, secure, supportive, rehabilitative environment for young people in custody”. There was a reduction of Indigenous youth in detention in the ACT by 46% between June 2011 and June 2013, an achievement some (in my view sensibly) attribute to culturally appropriate sentencing methods.

The Galambany Circle Sentencing Court, first trialled for a six month period in 2004, is now a permanent fixture in the ACT. The purpose behind this Court is to provide “culturally relevant sentencing option[s] in the ACT Magistrates Court Jurisdiction for eligible Aboriginal and Torres Strait Islander people who have offended”. The Circle Court, modelled on the Circle Sentencing Court first established by His Honour Magistrate Doug Dick in Nowra, NSW in 2002 and advocated for in the ACT by former ACT Magistrate Shane Madden, is structured with a Magistrate, up to 4 panel members and Elders invited by the Magistrate to contribute to the sentencing process in a culturally appropriate way. Some legal professionals argue that there should be only one law or one Court for all. Ashamedly, prior to entering the profession, I somewhat shared this thinking. I hope my colleagues who maintain similar views will understand or take steps to more fully inform themselves of the unique circumstances behind Indigenous offending that make these Courts and dedicated access to justice services including the Aboriginal Legal Service of NSW and the ACT essential … for the time being.

Of course, good role models are essential to human change. As ACT’s first Aboriginal magistrate Louise Taylor said upon her appointment in 2018: ‘You can’t be what you can’t see’. She is right. To spark change, good, strong leaders to whom other Indigenous Australians can relate are essential. So this National Reconciliation Week, my hope is that more young Indigenous Australians look to their elders, their leaders and their good examples to commence change from within and I hope that change is supported by broader change, education and understanding within every facet of the legal and political framework of this country and that the recommendations of the BtH report continue to be rolled out so they will one day no longer be unfinished business.