NSW Aboriginal Justice Plan
ADB submission, November 2002
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 NSW Aboriginal Justice Plan - ADB submission (Word - 84 Kb)
Contents
1. Introduction
2. Deficiencies in the current systems of redressing discrimination in NSW
3. Options for promoting systemic change
4. Conclusion
1. Introduction
The Anti-Discrimination Act 1977 (NSW) [the Act or ADA] makes it unlawful to discriminate on a range of grounds in a variety of areas of public life.
The Act includes the following grounds: race, sex (including pregnancy), marital status, disability, homosexuality, transgender status and carer responsibilities. With some variations, the Act applies to the following areas of public life: employment, education, goods and services, accommodation, registered clubs and sport.
Unlawful discrimination can be direct or indirect. Direct discrimination involves treating a person less favourably because of a particular characteristic than in the same or similar circumstance you would treat a person who did not have that characteristic.
Indirect discrimination involves the imposition of a condition or requirement, which has a disproportionately negative impact on a group of persons, where the condition is not reasonable having regard to all the circumstances, and where the person aggrieved cannot comply.
The NSW Aboriginal Justice Plan Discussion Paper describes the general levels of disadvantage experienced by Indigenous Australians. The paper notes that on all the major indicators, such as health, housing, education, employment and contact with the justice system, Indigenous Australians are disadvantaged as compared with non-Indigenous Australians.
Levels of disadvantage in areas such as health, housing, education and employment combine to contribute significantly to the disproportionately high level of interaction between Indigenous Australians and the criminal justice system. A disproportionately high number of Indigenous Australians have a low socio-economic status, which increases their chance of involvement in the criminal justice system. The Royal Commission into Aboriginal Deaths in Custody identified that the over-representation of Indigenous Australians in the criminal justice system could not be redressed without reducing the underlying causes of socio-economic disadvantage.
The Board submits that discrimination causes reduced levels of health, poorer housing, and reduced access to education and employment experienced by Indigenous Australians. The high incidence of incarceration and contact with the justice system cannot be redressed without promoting access for Indigenous Australians to employment, education, housing and health, and improved access to these entitlements cannot occur without addressing discrimination. A justice plan which addresses only the criminal justice system misses the root causes of the system’s unfair impact on Indigenous Australians.
Unacceptably high incidences of discrimination are experienced by Indigenous Australians. In its March 2000 report on Australia’s performance in combating discrimination against its Indigenous citizens, the United Nations Committee on the Elimination of Racial Discrimination commented:
“Serious concern remains at the extent of the continuing discrimination faced by Indigenous Australians in the enjoyment of their economic, social and cultural rights. The Committee remains seriously concerned about the extent of the dramatic inequality still experienced by an Indigenous population that represents only 2.1% of the total population of a highly industrialised state.”
In 2000/2001 Anti-Discrimination Board Annual Report 2001/2002 (can be viewed at ADB website) the ADB received complaints from 119 Indigenous people (this constituted 10.6% of the year’s complaints, whereas Indigenous Australians constitute only 1.9% of the total population of NSW). Most of these complaints are related to race discrimination and racial vilification (76.5%, as compared with 19.5% of overall complaints).
31.9% of complaints by Indigenous Australians related to discrimination in employment. 43% of complaints related to discrimination in the area of goods and services and 8.4% of complaints were about accommodation.
These statistics are not the full picture but rather reflect only the tip of the iceberg. A recent report by the Public Interest Advocacy Centre (PIAC) and the Wirringa Baiya Aboriginal Women’s Legal Centre (WBLC) Public Interest Advocacy Centre & Wirringa Baiya Aboriginal Women’s Legal Centre, Discrimination…have you got all day?, December 2001 suggests that many more Indigenous Australians experience discrimination than lodge complaints with any of the available complaints bureaux. This report details the experiences of 67 Indigenous women in NSW. Almost all the Indigenous women reported experiencing discrimination, and in three out of four focus groups the women reported that discrimination was a common occurrence. Women reported experiences of discrimination in accessing goods and services, accommodation and employment, discrimination at the hands of clubs and pubs, by the police and in education. Many women responded to these experiences with withdrawal and avoidance and some responded by directly confronting the perpetrators, however very few actually lodged formal complaints. None of the 67 women had lodged complaints with the Human Rights and Equal Opportunity Commission (HREOC), the Industrial Relations Commission or the Ombudsman. Only five of the women had lodged complaints with the Board.
The PIAC/WBLC report also went further to conduct qualitative interviews with seven Indigenous women who had lodged complaints with the Board. This submission deals in a later section with the limitations of the individual complaints system, however it is useful to note at this point that the report observed all the women were concerned with the delays inherent in the ADB system.
The Board also facilitates an Indigenous consultation forum, which provides input from Indigenous Australians to the operations of the Board. The forum also operates as an important means of obtaining information about Indigenous Australians’ experiences of discrimination and their views on the effectiveness of current anti-discrimination remedies. The forum confirms the PIAC/WBLA report’s conclusion that discrimination is under-reported to the Board and other complaints institutions.
The Board’s own statistics See 2001/2002 Annual Report also show that the complaints least likely to be settled by the Board are those relating to race discrimination (25% settlement rate) and racial vilification (25% settlement rate). 40% of complaints lodged with the Board and which fall within the Board’s jurisdiction are not proceeded with. While there may be many reasons why a complainant may not proceed with his/her complaint, a significant delay on the part of the Board will be a factor for many.
Strategies to reduce the involvement of Indigenous Australians in the criminal justice system must combine steps to make anti-discrimination remedies more accessible and more effective as well as proactive measures to eliminate discrimination and make employment, education, housing, health, and other services more accessible. The strategies must not only respond to the individual incidents of discrimination, but also promote systemic change.
For its own part, the Board is taking steps to improve its services to Indigenous Australians with its Indigenous team being expanded through the addition of a new management position to oversee the Board’s Indigenous program. It is anticipated that the outcomes of this expansion will be faster resolution of complaints and an enhanced education program. Expanded education programs will increase awareness of legal remedies and, presumably, result in increased numbers of complaints to the Board from Indigenous Australians. The Board will monitor the situation closely to determine whether this raised awareness results in such an increase in the volume of complaints that significant delays in complaint handling still occur. The Board continues to seek government support for enhanced funds for our overburdened complaints systems.
In 2001/2002 the Board met all of its Business Plan targets relating to finalisation rates for allocated complaints. In reality however, there are still unacceptably lengthy delays between receipt and allocation of complaints: presently this delay is around 12 months for the Sydney office (slightly less for Wollongong and slightly more for Newcastle). Ideally, all complaints could be allocated upon receipt.
2. Deficiencies in the current systems of redressing discrimination in NSW
2.1 Inadequacy of individual complaints-based systems: Access to redress under the ADA is complainant driven, and this is inappropriate for Indigenous people and other marginalised groups
Anti-discrimination laws, both Commonwealth and State, place a strong emphasis on individual complaints systems, which places significant emotional and financial burdens on individuals to enforce their rights. Individual complaints are made all the more difficult given that those who experience discrimination are often members of marginalised groups in our community such as Indigenous people, transgender people, gay men and lesbians, people living with HIV/AIDS, people who inject drugs and sex workers. These groups often have little awareness of the existence of anti-discrimination laws, let alone how to utilise theses laws for their benefit.
Individuals who have been categorically discriminated against over their lifetimes will sometimes have difficulty in naming the treatment as discrimination because, given the regularity of the experience, it is somehow normalised. The Indigenous experience is founded upon a history of colonisation and discriminatory government policies, and this has had an effect of normalising discrimination against Indigenous people today.
The individual experience of discrimination rarely fits neatly within the defined parameters of anti-discrimination laws and processes. For people to be able to use the complaints mechanisms available, they must be able to name their experience as one of discrimination, understand their rights under anti-discrimination laws and have sufficient information and resources to utilise anti-discrimination laws as a means of addressing discrimination they experience. Those most likely to need the mechanisms for redress are often least likely to have the information, support and resources to do so.
For Indigenous communities there is often a lack of awareness of their legal rights. Even if they know about their rights this is often meaningless without emotional and financial support to assist them through the legal process. There are cultural barriers also: it is uncommon for Indigenous people to complain to authorities or speak out against actions or behaviour. They have been kept powerless, marginalised, and disenfranchised for generations and so simply affording them rights does not empower them to access those rights. Furthermore, literacy and education levels are lower within Indigenous communities as compared with non-Indigenous communities, and this impedes the ability of many Indigenous Australians to participate in the legal system. The fact that complaints are to be made in writing represents yet another hurdle in relation to an already difficult avenue of redress.
Generally, the more vulnerable a community is to discrimination the more difficult it can be for members of that community to take legal action to redress that discrimination. This is often because of fears of victimisation or because the very disadvantage suffered makes people less likely to be able to access complainant driven remedies. In some instances these factors also lead to people withdrawing their complaints. The Combined Community Legal Centres Group (NSW) has argued that the emphasis on individual complaint mechanisms is problematic for the following reasons:
- those who are most marginalised, and most in need of protection from the law, are the least likely to trust or have contact with complaint bodies;
- individuals who lodge complaints are among the least likely in the community to be able to comply with the procedures necessary to establish their case;
- the nature of the discriminatory conduct may mean that individuals affected are less likely to complain, due to concerns that publicity regarding the incident will expose them to further discrimination or harassment;
- individuals are more likely to be affected by significant delays in complaints handling;
- there is often a significant imbalance of power between complainants and respondents, particularly in relation to the capacity of the parties to bear the costs involved, often leads to unsatisfactory settlements at conciliation. Complainants are less likely to have the financial resources to proceed to hearing;
- conciliated settlements do not produce binding precedents;
- “burn out” by complainants because of the demands of the process; and the inability of a system based on individual complaints to deal with systemic discriminatory practices. [Combined Community Legal Centre’s Group (NSW) Human Rights and Discrimination Sub-Committee, Submission on the Human Rights Legislation Amendment Bill 1996 to the Senate Legal and Constitutional Committee Inquiry into the Bill, March 1997 at page 8, as cited in Australian National Council on AIDS, Hepatitis C and Related Diseases, Barriers to access and effective use of anti-discrimination remedies for people living with HIV and HCV, Occasional Paper No 1, July 2001, prepared for ANCAHRD by J Cabassi, member of the ANCAHRD Legal Working Party at 6.]
A limitation of the ADA is the inability of the President to initiate a complaint into possible discrimination on his or her own motion. If vested with this power, the President would be empowered to make complaints and thereby launch Board investigations into matters involving those vulnerable groups (like young people, women from Non-English Speaking Backgrounds, and Indigenous people in rural areas) who are less likely to be able or willing to complain, either through lack of knowledge or for fear of victimisation.
The President is also restricted in his or her ability to contribute to the outcomes of matters being heard by the ADT. The President has no power to intervene in those proceedings and may only be present if the Tribunal requests that an officer of the ADB assist the Tribunal. Section 101A of the ADA. This is in contrast to other anti-discrimination jurisdictions in Australia where either powers of intervention exist and/or where powers are conferred enabling the President to represent complainants in the relevant Tribunal. Federal: Under section 11 (1) (0) of the Human Rights and Equal Opportunity Commission Act 1986 the Commission may intervene in proceedings that involve human rights issues. Victoria: Equal Opportunity Act 1995 section 134A: effect of provision is that the Commission, if joined by the Tribunal, is a party to a complaint referred. Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 gives the Tribunal general power to join a person to proceedings where desirable to do so. Queensland: Anti-Discrimination Act 1991section 235(j) provides that the Commission may intervene in proceedings that involve human rights issues. South Australia: Section 95(8a) of the Equal Opportunity Act 1984 provides that where a complaint is referred by the Commissioner to the Tribunal for hearing, the Commissioner lodges the complaint with the Tribunal. Section 95(9) provides that the Commissioner must assist the complainant on request in the presentation of the complainant’s case to the Tribunal. Section 24 also provides the Tribunal with a broad power to join persons and allow interventions. Western Australia: Section 93(2) of the Equal Opportunity Act 1984 provides that the Commissioner shall upon request assist the complainant in the presentation of their case in the Tribunal. Section 93A provides that the Commissioner may assist complainant where a matter is on appeal to the Supreme Court. Section 111 gives the Tribunal a broad joinder power. Tasmania: Section 7 of the Anti-Discrimination Act 1998 provides that the Commissioner may intervene in proceedings before the court or tribunal that involve issues relating to acts of discrimination or prohibited conduct. Northern Territory: Section 13(a) of the Anti-Discrimination Act 1992 empowers the Commissioner to carry out investigations and hearings into complaints. Section 13(q) provides the ability to intervene in proceedings that involve issues of equality of opportunity or discrimination. 2.3 Limitations of the ADA to challenge other legislation: Examples of pieces of legislation which have a discriminatory impact on Indigenous people
2.3.1 Some examples of Acts which have discriminatory impacts
There are a number of Acts in force in NSW which have a discriminatory impact on Indigenous Australians, or where the potential for such impact has been clearly established.
Example One: [Supplemented by Workshop materials “Young People and Public Space” by Youth Justice Coalition (YJC) and Youth Action and Policy Association, at NCOSS “Scales of Justice” Conference, 24 July 2002.: ]
The Children (Protection and Parental Responsibility) Act 1997 replaced the Children (Parental Responsibility) Act 1994 which was enacted to confront a rising juvenile crime problem caused by lack of parental supervision. However, it focuses on under 16 year olds who are not over-represented in crime statistics. The NSW Bureau of Crimes Statistics and Research show that the group of people most likely to offend are aged between 20 and 29 years.
There are two main aspects to the Act. One part gives the Children’s Court the power to compel parents to attend court with their children, to make them sign undertakings about their children’s behaviour, and to punish parents whose wilful neglect has caused their children’s offending. These powers are very rarely used.
The other main part of the Act allows police to “safely escort” a young person from a public place, if police reasonably believe the young person is under 16, not supervised by a responsible adult, and is “at risk” (by either being in danger of being abused or injured, or about to break the law). Police can then take the young person home or to the home of a parent, carer, relative or an “approved person” or to DOCS. This can happen at any time of the day or night. This part of the Act only applies in areas that have been declared “operational” by the Attorney-General. Currently, it only applies in Orange, Ballina, Coonamble and Moree, all areas with a large Aboriginal population. For example, in Moree between 30-40% of people under 14 are of Aboriginal descent.
Of most significant concern to the Board is that this Act affords police with a high degree of discretion in implementing the legislation. By allowing police to operate on the basis of their “reasonable belief” lends scope to them targeting certain groups for other reasons. Prejudice and discrimination can be manifested in this way. Example Two: [Ibid.: ]
The Crimes Amendment (Police and Public Safety) Act 1998 amended the Summary Offences Act 1988 by creating various knife-related offences and search powers. It also gave police new “move-on” powers. Section 28F gives police the power to issue directions to people in public places. It was promoted as an “anti-gang” measure, designed to allow police to “disperse people acting in a disruptive manner before the situation gets out of hand”. On July 2001, the Police Powers (Drug Premises) Act 2001 amended the section to allow police to give directions to people who are thought to be in public places to buy or sell drugs.
The legislation is extremely broad and has a significant impact on the civil liberties of Indigenous people and other marginalised groups such as drug users and young people in public places. It is used by police quite broadly and often arbitrarily. In some areas police use the power systematically to get rid of particular types of people like young Koori people in country towns. The Board is concerned about the discriminatory impact of such broad discretion if it is used in the manner described. We note that for reasons outlined at 2.3.2 and 2.5 below that police actions that may be discriminatory are not likely to be covered by the ADA. Example Three: [Ibid.:]
The Police Powers (Drug Detection Dogs) Act 2001 came into force on 22 February 2002. This Act gives police the powers to conduct random drug searches in public places with the help of sniffer dogs. The dogs may be used in designated public places including pubs, nightclubs, dance parties, railway stations and streets in popular “entertainment” areas. The Police Minister, Michael Costa, claimed that the powers were aimed at “smashing the back of drug lords”, however the reality is that sniffer dog searches do not address serious drug crime. Rather, they target drug dependant people who are often living on the streets, as well as recreational drug users who are carrying small quantities of drugs. This group who are drug-dependant and living on the street consist of a disproportionately high number of Indigenous people.
The effects of this piece of legislation has been contrary to the recommendations made at the NSW Drug Summit in 1999, which endorsed the policy of harm minimisation and promoted the diversion of drug users away from the criminal justice system.
Furthermore, the Act confers on police broad discretionary powers in determining who to search. The Board is concerned that the Act can be used in a discriminatory way to target certain groups in order to intimidate and harass them. Example Four: [Supplemented by Youth Justice News (August 2002) published by Youth Justice Coalition (YJC) and Youth Action and Policy Association.] :
The Bail Amendment (Repeat Offenders) Act 2002 commenced on 1 July 2002. It amends the Bail Act 1978 to make it harder for “repeat offenders” to get bail. The amendments applies to juveniles and adults charged on or after 1 July 2002 (even if the alleged offence was committed before that date). Prior to the amendments, there was a presumption in favour of bail for most people accused of most offences, meaning that unless there were very good reasons for refusing bail it would be granted.
Now, there is no presumption in favour of bail if the defendant:
- was, at the time of the alleged offence, on bail, parole, a bond, or was serving a sentence but was not in custody;
- has previously been convicted of “fail to appear”; or
- is charged with an indictable offence and has previously been convicted of an indictable offence.
These amendments do not make it impossible to get bail, just more difficult. Many Indigenous people, particularly those who are younger, socially disadvantaged, or have disabilities, will be affected.
Given the disproportionate level of contact that Indigenous Australians have with the criminal justice system it follows that the Bail Act amendments will have a more significant impact on Indigenous people then non-Indigenous people. The Board notes that for reasons outlined directly below the decisions made under the Bail Act would not be subject to the ADA as they are orders of a court.2.3.2 Why the ADA does not address all discrimination in legislation
Section 54 of the ADA provides an exception that applies to all grounds under the ADA. Currently, Section 54 of the Anti-Discrimination Act 1977 (NSW) provides that:
54. Acts done under statutory authority
(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
(a) any other Act, whether passed before or after this Act,
(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,
(c) an order of the Tribunal,
(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment
The NSW Law Reform Commission (LRC) undertook an extensive review of the ADA and reported to the Attorney General in 1999. The LRC considered the scope of s.54. Although the LRC found that the scope of s.54 could no longer be read as widely as it could have been in its original form, it is still unnecessarily far-reaching. It concluded that in relation to Acts, delegated legislation and statutory instruments, there appeared to be no justification for a universal overriding exception.
The LRC has recommended that section 54 be repealed with effect from 12 months after the commencement of the new Act and that all new legislation should be scrutinised to ensure compliance with the ADA. [Review of the Anti Discrimination Act 1977 (NSW), New South Wales Law Reform Commission, Report 92, Sydney 1999.]
The ADB made submissions to the LRC arguing for its repeal of s.54. In our view the ADA should set a standard with which other legislation should comply and all State legislation should be consistent with the ADA unless an exemption can be justified on policy grounds.
The LRC also considered the history of s.54, which clearly indicates that s.54 was only ever intended to be a temporary measure. As the LRC points out, while a broad exception in a similar form was included in the ADA from the first stages of drafting, it is clear from parliamentary debates on the Anti-Discrimination Bill 1976 (NSW) that it was only meant to be a temporary measure pending a review of other legislation to identify discriminatory provisions. [Ibid at page 326, and see Nadjovska v Australian Iron and Steel [1985] EOC 92-140, Clinch v Commissioner of Police [1984] EOC 92-115, Gavaghan v Chairman, Public Service Board of NSW [1985] EOC 92-143.]
The then Premier, the Hon Neville Wran QC, in his Second Reading Speech, said:
Many statutes in their present form are discriminatory - the discriminatory statutes are not limited to the four outlined above.
A Comparison with other federal anti-discrimination laws shows that generally there is no equivalent to s.54 - there is no broad exception which does not specify legislation which is to fall within the exception. There is no provision analogous to s.54 in the Racial Discrimination Act 1975. The Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 only provide exceptions for specified legislation. This means that consideration has been given to excepting specific legislation on public policy grounds. The DDA allowed a three year sunset period that has now lapsed. All legislation is now subject to the DDA without exception unless it is prescribed under s.47(2). 2.4 Irrelevant criminal record
Given the disproportionately high interaction of the Indigenous community with the criminal justice system, it is not surprising that a disproportionately high number of Indigenous Australians have criminal records.
A person’s criminal record can have long-lasting effects on their ability to obtain employment, housing or the provision of goods and services. The Board considers that there are compelling reasons for an extension of anti-discrimination legislation to discriminatory treatment based on irrelevant criminal records. [For further information see Butler, J; Mending the Broken Bond : The Post-Release Experiences of Imprisoned Mothers, Criminology Research Council, Canberra, 1994; Enderby, K; Foreword Serious Offenders Review Council, Annual Report for Year Ended 31 December 1998.] Relatives or associates of an ex-offender may also experience discrimination. In other jurisdictions such as Tasmania and the Northern Territory irrelevant criminal record is recognised as a characteristic significant enough for protection under anti-discrimination legislation.
The Board is also of the view that reliance on a previous criminal record may be irrational and unjustifiable when that record has no relevance to, for example, a person’s capacity to undertake the inherent requirements of a job or to pay rent. In many cases that reliance is grounded in fear, stereotypes and discriminatory attitudes about people with prior criminal convictions.
The Board considers that the prohibition should operate in all areas of public life covered by the proposed Bill. The Board also recognises that there should be an exception allowing an employer to discriminate if a person’s criminal record is relevant to the work they do or are applying to do, and the discrimination is reasonable in all the circumstances. 2.5 ADA does not apply to the full range of police service activities: Police not found to be providing services within the meaning of the ADA
Another deficiency with the current ADA is evidenced by a recent decision of the NSW Supreme Court of Appeal in the matter Commissioner of Police, NSW Police Service v Estate of Edward John Russell & Ors [2001] NSWSC 745.
In this decision the Supreme Court answered the question of whether the conduct of police in the course of their pursuance and arrest of a person amounted to the provision of a “service” to that person within the meaning of section 19 of the ADA. [Section 19 of the ADA makes it unlawful for a provider of goods and services to discriminate against a person on the ground of race by refusing to provide those goods or services, or in the terms on which those goods or services are provided.] The Court concluded that it is at the point of formal arrest and the passing into police custody that the police are providing a service to that person. Prior to the moment of formal arrest the police officers who participate in the pursuit of the person are providing services to the community at large.
The facts of this case were that Mr Russell, an Indigenous man, brought a complaint under the ADA alleging that he was discriminated against on the grounds of his race, and racially vilified by police in the course of being apprehended and detained. He alleged that police assaulted him among other allegations. He later died for reasons that do not require consideration here. Mr Russell’s complaint to the ADB was pursued by his parents. The Supreme Court decision has meant that part of the claim which relates to treatment of Mr Russell by police up to the point of his formal arrest and his passing into custody cannot be subject to the ADA as the police were not providing a “service” to Mr Russell until this point but rather, were providing a service to the community at large.
As a result of this decision it appears that the ADA does not apply to police activity in, for example, the investigation of a crime, or up until the point of taking a person into custody. Consequently powers, such as police “move on” powers, are unlikely to be covered by the ADA. The Board identifies this lack of coverage by the ADA as a serious short-coming in its ability to afford protection from discrimination to certain individuals and groups.
It is the Board’s view that in order to effectively address the issue of reducing interaction between Indigenous Australians and the criminal justice system, the police service must be subject to the ADA in all the service’s dealings with community. Over-Policing
Problems arise both in relation to over-policing and under-policing. It is a common complaint that areas with high concentrations of Indigenous Australians are subject to inappropriately heavy policing. It is alleged that this intensity of policing is based on race rather than criminality. Given the important role that police play and the great deal of power and responsibility they exercise, the ADB recommends that there is an explicit requirement that police exercise their functions in a way that promotes, respects, and protects human rights. Accordingly, the ADA should apply.Under-Policing
Some Indigenous communities allege that they are discriminated against though under-policing in that they receive poorer services from police as compared to police services to non-Indigenous communities. Given the high incidence of violence within Indigenous communities, particularly the experience of Indigenous women, this allegation is a serious one. In a context where Indigenous women are often victims of domestic violence, alcoholism, poor health and diet are prevalent, and where four in ten persons are likely to be victims of sexual assault, such limited access to police assistance would constitute a terrible outcome for Indigenous communities.
The experience of Indigenous people as victims of crime is even more extensive: the Indigenous prison population are often both victims and offenders, and many Indigenous individuals do not complain to police about crimes committed against them because they envisage they might be arrested as well. Assault and homicide by spouses is disproportionately high amongst Indigenous communities. The under reporting of violence hides incidents of sex discrimination, sexual harassment, race discrimination, racial vilification and serious racial vilification which are unlawful under the ADA. Whilst the Russell decision has limited the scope of the meaning of “service” as defined in the ADA, it has not dealt with situations involving the reporting of a crime and police failure to act. On this basis it is arguable that incidences of under-policing, for example, the failure to investigate reports by a victim of crime on the grounds of race, could be covered by the ADA.3. Options for promoting systemic change
On the issue of promoting systemic change, the Board suggests consideration of government-wide initiatives to make government services more accessible. The risk, of course, is that these programs can result in more bureaucracy than outcome, hence proper evaluation is key. A number of different options are canvassed below.3.1 Enhanced flexibility in service delivery: adaptation of the current Flexible Service Delivery for People With Disabilities Model
The Board acknowledges the requirement for services to be delivered in a culturally appropriate way to Indigenous communities in order to most effectively meet their specific needs. In some instances specialised Indigenous services are required. However there are many instances where Indigenous people access “mainstream” services, for example, courts and police.
One option may be to consider, as a starting point, a model similar to that used by the Attorney General’s Department in trying to make services more accessible to people with disabilities. This Flexible Services Delivery project seeks to make departmental services more accessible by analysing existing processes and methods of service delivery, consulting with communities, and making reasonable adjustments to these practices where appropriate. The project is based on responding to feedback from current and potential service users with disabilities.
The model combines:
- extensive involvement of the target community and experts in the field,
- intensive awareness training,
- hands on training which focuses on practical skills, and
- creating teams of staff at service centres to drive reform, and providing these teams with training in conducting community consultation and local action planning.
This model could be used to assess the current effectiveness of service delivery to Indigenous Australians, and areas for reform could be easily identified.
As mentioned, the development of performance indicators and proper and independent evaluation of any program will be critical. While each initiative will need its own performance indicators, appropriate to the scale of the activity, it is hoped that the overall project could be assessed by reference to actual improvements in the rates of Aboriginal and Torres Strait Islander employment (relative to non-Indigenous employment), improved access to housing and better Indigenous performance against health indicators.3.2 Positive Duty: Statutory responsibility to be proactive in eliminating discrimination in service provision
An alternative to the current remedial approach (of using the ADA or other complaints mechanisms to fix problems once they occur), is to instigate a new system of positive responsibility/positive duty to redress issues of inequality.
Obviously, this system is a much more proactive approach to discrimination and would overcome many of the limitations associated with individual complaints-based mechanisms. Public authorities, including the police service and courts administration, would be required to consider issues of equality, rather than just relying on an expectation that complainants will be too timid or under-resourced to lodge complaints. Policy makers are encouraged to be proactive in the identification of possible problems and, presumably, the outcomes will include increased confidence in public services, particularly amongst ethnic minorities, and the avoidance of claims of unlawful discrimination.
An example of this exists in the United Kingdom where the Race Relations Act I976 (as amended by the Race Relations (Amendment) Act 2000) places a general duty on a wide range of public authorities to promote race equality. This duty means that authorities must have due regard to the need to:
- eliminate unlawful race discrimination,
- promote equality of opportunity, and
- promote good relations between people of different racial groups.
The Act applies to most public authorities, for example, police, and also to the public functions of some professional representative organisations (such as the broadcasting authorities).
The purpose of the duty is to make promotion of race equality central to the way public authorities work.
The Act empowers the Commission for Racial Equality to publish codes of practice, with the approval of parliament, to assist implementation their positive duties. A code has been issued relating to statutory authorities. Failure to adhere to the conditions detailed within the code will not of itself prove a breach of the law, but the codes may be considered by courts and tribunals in determining whether of not an authority has met its obligations to promote racial equality.
Public authorities are encouraged to undertake the following steps towards compliance:
- identify which of their functions and policies are relevant to the duty to promote racial equality
- prioritise these functions in order of their relevance to race equality
- assess whether these functions currently operate to promote racial equality
- determine how to change such functions to ensure better outcomes.
The Commission for Racial Equality has specific powers to enforce compliance with the Race Relations Act. If the Commission is satisfied that a public authority has failed to meet its specific duties, it may serve a compliance order on the authority.
If, after three months have passed following the issuing of the compliance orders the Commission still has not met its responsibilities, the Commission can apply to any county or sheriff court for an order to obey the notice. If the authority does not comply with the order of the court, it will be in contempt of court and penalties may apply.3.3 Indigenous Australians impact statements
The Aboriginal Justice Agreement currently provides that all legislative and cabinet proposals developed by the Attorney General will include an assessment of the likely impact of the proposal on Indigenous Australians. The statements assess the impact on such matters as Aboriginal arrest, social disadvantage, Aboriginal victims’ needs and community well-being.
The Board supports use of Aboriginal Impact Statements but notes that by the time these statements are prepared, there is usually significant investment on the part of the government and department in the enactment and implementation of the legislative or cabinet proposals. There will be some incentive by this point to proceed with proposals regardless of their impact on Indigenous communities.
A better system would require this assessment to occur much earlier in the process, offering Indigenous Australians the opportunity to comment on concepts rather than specific proposals. This might secure Indigenous input into the development of proposals, rather than limit such input to commentary on drafts which are too far advanced to be appropriately modified. Aboriginal Impact Statements cannot, by themselves, ensure that new legislative proposals prevent further disadvantage to Indigenous communities.4. Conclusion
It is extremely important that the government undertake such steps as may be necessary to reduce the disproportionately high and negative impact of the criminal justice system on Indigenous communities. But no endeavours to reduce this impact, or make it more equitable, can be effective unless they also address root causes of this impact such as the social marginalisation of Indigenous Australians.
One of the causes of this ongoing marginalisation, including reduced levels of employment, lower levels of education, and reduced access to health, housing and other services, is discrimination. To reduce the impact of the criminal justice system on Indigenous Australians, governments must undertake initiatives to reduce the lived experience of discrimination which is so common for Indigenous Australians.
While the ADA has existed for over twenty years, in its current form and on its own, it cannot achieve adequate reductions in the incidence of discrimination against Indigenous Australians. The current Act is flawed, and even if it were to be redrafted to overcome many of these present deficiencies, there will always be serious limitations with any system which relies for its success on complaints being made by the most marginalised within society.
The current Act is limited in its effectiveness as a result of the lack of power afforded the President to initiate complaints or intervene in complaints, the absence of ‘irrelevant criminal record’ as an unlawful ground of discrimination, by the fact that so many police activities are not governed by the Act, and by the appalling reality that the ADA cannot be used to make other statutes non-discriminatory.
A better Act, plus greater resources to handle complaints efficiently, would help alleviate many of the discrimination-related problems experienced by Aboriginal and Torres Strait Islander people living in NSW. However, the Board also encourages the investigation of ways of promoting systemic change. Complaints-based systems, even good ones, cannot be the whole solution. The Board encourages proactive strategies such as the adaptation of the current Flexible Service Delivery Model for People With Disabilities to assess the degree to which services are accessible for Indigenous people. Furthermore, the Board supports the enacting of a statutory positive duty upon public authorities to eliminate race-based discrimination, as well as the continued use of Aboriginal Impact Statements. The Board cautions, however, that while Aboriginal Impact Statements are able to play a role, they are limited in their effectiveness and need to be supplemented by other strategies.
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