Achieving Social Justice for Aboriginal People



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Achieving Social Justice for Aboriginal People
Professor Larissa Behrendt
Speech at ‘Achieving Social Justice for Indigenous Australians’ Seminar
organised by the Human Rights Law Resource Centre
on 1 August 2006 in Melbourne
Aboriginal people in Australia have the lowest levels of education, the highest levels of unemployment, the poorest health and poorest housing conditions. Due to the legacies of past government policies – especially those of dispossession, regulation of movement and the removal of generations of Aboriginal children from their families – and the current continuance of cyclical poverty in Aboriginal communities, Aboriginal people continue to experience lower socio-economic outcomes than other Australians.

The Productivity Commission Report, Overcoming Indigenous Disadvantage 2005 included some of the following trends. It noted that the difference in life expectancy between Aboriginal and non-Aboriginal Australians is a difference of 17 years, twice as many low birth weights and infant mortality rates 2-3 times higher and in a first world country, this remains a source of embarrassment at both the state and federal levels.

It is important to note that too few resources are being spent on some of these key indicators. In 2004, Access Economics estimated that Aboriginal health was under-funded by $450 million in terms of meeting current health needs (let alone investing in prevention and health education) and in the 2004-2005 financial year, $110 million dollars allocated to Indigenous education by the federal government. It should be remembered too that the areas of heath, education, employment and housing are responsibilities shared between state and federal government and rather than work together strategically for better outcomes, these two levels of government consistently cost-shift and blame each other for continuing policy failures.

Behind these statistics are horrific stories. Jenissa Ryan was described by those who knew her as happy and optimistic, a bright girl, good at reading, writing, mathematics and sport when she did attend school. She was the great granddaughter of the famous Aboriginal painter Albert Namatjira and she dreamed of one day becoming an artist like him. In January this year, those dreams came to an end. The circumstances of Jenissa’s death were so shocking that the story fleetingly made national news.

Jenissa Ryan, a 15 year-old girl from Alice Springs was walking home to the Hidden Valley camp when, police believe, she was attacked by other children her own age (a 16 year-old boy and 15 year-old girl have subsequently been charged with aggravated assault causing grievous bodily harm). She continued to walk home after the assault but became unconscious near the entrance of a college campus. In the early hours of the morning, she was found by three boys who, instead of getting help for her, dragged her out of view and raped her. They left her there, along with their discarded condoms, and Jenissa lay there until around 10.30 am when a college employee rang for an ambulance. She was taken to a hospital in Adelaide but it was too late to save her. Three boys, aged 14, 15 and 16 have been charged with sexual assault and moved to a prison in Darwin for fear of payback.

Not only has Jenissa’s short life been snuffed out, there are five young Aboriginal people facing serious criminal charges and likely to become statistics in the over-representation of Aboriginal juveniles in the criminal justice system.

It is easy to make moral pronouncements about a case as appalling as this one but what people like Jenissa’s mother really want is that her death not be in vain and that the hard, cruel issues that the brutal circumstances of her death raised be discussed and addressed. There are no easy, quick fixes to the issues that compound to create a dysfunctional Aboriginal community and produce the tragedy that Jenissa experienced.

The breaking of that cycle requires a multi-pronged approach. Some of those solutions are interventionist and short-term:



  • Communities need to make a stand and say that the sexual abuse and violence are not acceptable and are certainly not a part of Aboriginal culture and that real change to these cycles of poverty and violence can only begin when we send a strong message that we will not tolerate this kind of behaviour and reinforce to children that when they are victims of violence or abuse that what has happened to them is not acceptable;

  • Victims of sexual abuse need to be treated as survivors rather than treated with shame and perpetrators who have caused havoc amongst generations of children through their abuse must be held to account;

  • Resources need to be invested into dysfunctional communities that provide immediate intervention for violence, substance abuse and sexual abuse; and

  • Longer-term programs are needed to be introduced to assist young people in building self-esteem and providing them with skills development and opportunities. These longer term programs also need to be developed to assist older people in breaking cycles of poverty and abuse. In particular, we should be putting resources behind the Elders in our community that are able to give moral guidance to others to assist them with their very important work.

But other aspects of the solution will not be interventionist but need to go deeper to attack the root causes of dysfunction, cyclical violence and cyclical poverty. And in order to tackle those root causes it needs to be remembered that dysfunction in some Aboriginal communities is the result of decades of government neglect in the form of failure to deliver adequate services, lack of investment in infrastructure and lack of investment in human capital.

Joe Hockey, the Minister for Community Services, has compared Town camps like Hidden Valley to ghettos. He said that they reminded him of shanty-towns that he had seen on a visit to Alice Springs in the 1990s. Just like the town camps around Alice Springs, they are the result of decades of neglect by authorities who often put the plethora of issues facing those communities in the too-hard basket while giving too little resources to those on the ground trying to provide practical solutions and alternatives to the people within the communities who are looking for change.

While this neglect often goes unnoticed by many Australians and their political leaders, the reactions when such tragedies do hit the national media are revealing and provide insight into why it is that successive governments have been unable to break these cycles.

When a Northern Territory prosecutor’s comments about the endemic levels of sexual abuse in Aboriginal communities sparked a media frenzy and self-righteous outrage by some politicians, what ensued was instructive as to why, with all the best intentions and good will of people working on the ground, governments do not meet their responsibilities to Aboriginal people and in fact exacerbate the situation.

The original response from Minister for Aboriginal Affairs, Mal Brough, was to blame the Northern Territory Government for not putting police into communities where violence was endemic. And, while he was absolutely correct in asserting that any community of 2500 people with no police force would have law and order issues. However, there are many other factors that contribute to the cyclical poverty and despondency within some Aboriginal communities that create, over decades, the environment in which the social fabric unravels and violence, sexual abuse, substance abuse and other anti-social behaviour is rife

Governments of all levels continue to under-fund Aboriginal community on basic needs. Health services, educational facilities and adequate housing services have never been supported in these communities and instead of co-ordinating their efforts, governments engage in the slanging matches that occurred between Mal Brough and Northern Territory Chief Minister Clare Martin about who was at fault. Brough said his government continue to assert that it is a law and order issue; Martin says it was a housing issue and points to other areas of government neglect such as health. And both are right; both levels of government have been negligent. This attempt to shift the blame is referred to as “cost-shifting” and it is a feature of many issues within the Aboriginal Affairs portfolio where financial responsibility is shared between state/territory governments and the federal government. The attempt to avoid responsibility (or share responsibility) means that Aboriginal people are the losers.

As I mentioned earlier, it is estimated that the basic health needs on Indigenous Australians are under-funded by $450 million and in a year of record budget surpluses, this pressing need was not addressed. Data from the COAG trial in Wadeye highlighted that less is spent on the education of an Aboriginal student than a non-Aboriginal student. When a shared responsibility agreement was signed in that area and the children all turned up to school, there was not enough classrooms or teachers.

But one of the first responses of the Federal government in light of the spotlight being turned on issues of Aboriginal violence was to say “we are not going to throw any more money at the problem.”

One sure sign that governments were not going to take any responsibility for fixing the problems that they were so happy to chest beat about was the quick assertion that the issue didn’t need any money thrown at it. This was a clear indication that they were uninterested in addressing their neglect of basic services and infrastructure – the root causes of the problem – and were instead going to grandstand about what everyone else should do.

Underspending on essential matters – and it is hard to think of anything more essential than basic health services – lack of investment in infrastructure and human capital are far from conducive to breaking cycles of desperate poverty. In fact, it is more of a breeding ground for it. And against this back drop, ad hoc measures like shared responsibility agreements are not going to solve institutionalised and systemic failings.

While government’s say the community must make the changes, those within the community strong enough to lead that change must be assisted and they cannot get very far unless there is investment in intervention, education, employment, housing and other infrastructure. And in making that investment, they need to appreciate that changes will come slowly, that undoing the damage in communities in crisis will take generations. Talk of closing the camps should not be seen as a long-term solution as the social problems that fester in town camps will simply be relocated to other areas. What is needed is investment in infrastructure, investment in human capital and the provision of basic services.

There is another factor that emerges in response to the situation of violence in Aboriginal communities that explains a key barrier in achieving social justice for Aboriginal people and that is the prevalence of racism in Australian society. Studies increasingly show that Australians are resistant to the notion that they are a racist society and resent the use of the term “racism” to describe their attitudes and actions to any sector of the community, including Aboriginal and Torres Strait Islanders. But it explains why it is that the government can loosely and erroneously assert that “they are not going to throw any more money at the situation” many Australians agree. The notion that “too much money” has been spent on Aboriginal people and communities feeds into the prevalent negative stereotype that Aboriginal people are dole-bludgers, shiftless, indolent and lazy. The prevalence of this stereotype means that governments are not scrutinised and questioned to the extent that they should be. When the government says it has increased funding on Indigenous issues and points to almost $3 billion, it does not elaborate that the figure includes the large amount of money that is spent on running the National Native Title Tribunal and the parts of the Attorney-General’s Department that is spent defending and defeating native title claims. It includes spending such as $100 million on the new Shared Responsibility Agreements of which $75 million went on administration and only $25 million made its way into Aboriginal communities. The easy acceptance of Aboriginal people as welfare dependant and as getting too many handouts has crippled the capacity of Australians – including the media – to question blind and misleading assertions made by government that mask their neglect of Indigenous communities.

Racism contributes to the failure of governments to resolve issues and the failure to recognise, acknowledge and confront this racism is one of the reasons that a rights framework is important. In the current conservative climate, there has been, in some quarters, a failure to appreciate the important roles that respect of rights plays in balancing the freedom of the individual from the tyranny of government. Discussion of rights tends to be dismissed as the folly and luxury of the elite who are out of touch with the realities of the day-to-day lives of the masses.

This simplistic rhetoric fails to appreciate the important role rights play in the small details of people’s lives. Rights such as access to education, adequate health care, employment, due process before the law, freedom of movement and equality before the law target the very freedoms that an individual needs to be able to live with dignity. They are precious and they are inherent and should not be given merely at the benevolence of government.

Bills of Rights are not about curtailing the rights of the majority. And they are not about giving more power to judges. Bills of Rights are aimed at ensuring a better balance between the rights of individuals against the state and as such are more often an infringement on the rights of governments than the rights of people.

Thomas Jefferson wrote “the natural progress of things is for liberty to yield and government’s to gain ground.” It is as true today as when he penned those words in 1788, the year in which the colonisation of Aboriginal Australia began. And Aboriginal people have experienced in recent years the infringement of human rights that cannot be rectified. Native title that has been extinguished will never be regained, cultural heritage that has been destroyed will never be recovered and failure to access adequate health services and opportunities for basic standards of education are difficult, sometimes impossible, to rectify. In fact, these losses are a reminder of why it is important to have rights protections in place when society moves away from valuing the importance of the rights of the vulnerable.

And it is these experiences of the infringements of the rights of the vulnerable that need to remain our focus. It is not enough to say that our human rights standards are better than other countries who have more brutal and systemic abuses of rights than those that occur on Australian soil. I firstly question why it is worse for an Aboriginal child to experience third world levels of health care than for the child actually living in the third world. And secondly, it is not enough that we are better than the worst offenders on a human rights report card; we should be the best society that we can be.

As has been attributed to Thomas Paine:

“When it shall be said in any country in the world, “My poor are happy; neither ignorance nor distress is to be found among them; my jails are empty of prisoners, my streets of beggars; the aged are not in want, the taxes are not oppressive; the rational world is my friend, because I am the friend of its happiness”: when these things can be said, then may that country boast of its constitution and its government.”

In this way, a human rights framework can be a benchmark. And while there is more acceptance of a rights framework that protects civil and political rights, there has been less support for economic, social and cultural rights. The latter have often been deemed to difficult to legislate into a rights framework. But is it too difficult? I would estimate that eradicating illiteracy from Australia would be a harder task than erasing it from India. The Indian Constitution was recently altered to include a right to education and during my visit their highest court deemed that this meant that the states, regardless of their economy, were required to put adequate resources into the education system and ensure that all children had an education (there are an estimated 10 million children who do not go to school!). This gives states in India a duty to put more resources into education and so prioritise it over other things.

While the rights agenda is out of favour with our federal government, it is interesting to see how other countries, with far deeper socio-economic issues to tackle than us, are using a simple right like the right to education to make a difference. It is a strategy that puts the emphasis on government to make the issue a priority.

One final aspect of a rights agenda that needs to be addressed is the constant claim within political rhetoric that “self-determination” has failed so we need to move on to other ideas. The “self-determination that failed was a government agenda that weakly promoted Indigenous participation but fell far short of Indigenous aspirations for self-determination. It was the era of ATSIC and most of the rhetoric implies that ATSIC failed. Indigenous disadvantage might not have ended in the ATSIC era. Of course, ATSIC did not have fiscal responsibility for health and education. They were still the responsibility of federal and state and territory governments. ATSIC was a convenient scapegoat. But it was also a strong advocate on where the governments of all levels failed to meet basic human rights standards. And many think that success goes further to explain why they were dismantled.

“Self-determination” as a policy failed because, while it changed the dominant philosophy of paternalism to notion of self-management, it co-opted Indigenous people into decision making processes but did not seek to alter structures or institutions. It did not seek to give Aboriginal people, at the grassroots level, capacity to make decisions over the policies that affect them and the programs that were delivered into their community. In short, the policy of “self-determination” did not go far enough in devolving power from government to Aboriginal people.

This means that, while it is true to say that “self-determination” as the Labor Party implemented the policy was a failure, it is not true to say that self-determination as a fundamental human rights principle failed. In the sense that both Indigenous people aspire to self-determination and the right is understood under international law, no government has ever attempted to use it as a basis for policy. Despite that, too many commentators are using the catch-phase that “self-determination has failed” and making the additional, erroneous, step that there is proof that the rights agenda has failed. There is no such proof. There has never been a time when self-determination in its true sense was the key basis for the approach to Indigenous policy.

And self-determination is not just a principle or ideology. If governments are concerned to implement research-based policy, they would do well to look at similar jurisdictions like Canada where models of self-government based on a stronger adoption of the principle of self-determination are leading to better socio-economic outcomes for Aboriginal communities. It is proven that the more involved Indigenous people are with decision-making over policy and programs and their implementation, the more effective they are likely to be. It is this principle that should provide a cornerstone for a research-based approach to policy.

In fact, in many Aboriginal communities there is a strong, vibrant community that has remained cohesive despite decades of neglect in the form of failure to provide adequate funding of basic services, failure to provide basic funding of infrastructure and failure to invest in human capital.

As Aboriginal communities, we need to acknowledge that if children grow up seeing and experiencing violence and sexual abuse, they begin to think that it is normal and can move from being victims to being perpetrators. They will use alcohol and petrol sniffing as a way to cope with their pain, sadness and low self-esteem. This drags them into the cycles of poverty and violence.

In this environment, is it little wonder that children as young as fourteen have developed with no moral compass to guide them and see a girl unconscious by the roadside as prey rather than someone who needs help? They knew that they should use a condom and practice safe sex but saw Jenissa’s being unconscious as an opportunity rather than a crime. The end result is that Jenissa’s death has also meant that the lives of five other teenagers are also doomed and we need to ask why and what we are going to do to make sure that the lives of children are not thrown away so cheaply. We need to make sure that when a young person’s life ends as tragically and cruelly as Jenissa’s did that we do not let it be forgotten and do not hide the underlying issues under the carpet.



And popularist politics has no role to play in finding the solution to those problems. Whatever the ideological objections some Australians and political leaders might have to the aspects of the reconciliation agenda that are important to Aboriginal people – the saying of “sorry”, land justice, forms of self-government – there can be no moral objection to sustain and justify the neglect of the adequate funding of basic health needs of Aboriginal people. This neglect contributes to the 17-year disparity in the life expectancy between Aboriginal and non-Aboriginal Australians; it contributes to the high rates of infant mortality in Aboriginal babies.






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