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ATSIC and beyond

20 Jan

This was published this month on ABC Unleashed

'If we are truly committed to the notion of self-determination, we cannot begin to pursue it without instruments of governance'.

These were the words of Jackie Huggins, who led the Review into the Aboriginal and Torres Strait Islander Commission's (ATSIC) in 2003. Shortly after, ATSIC was disbanded. Although in 1996 Pauline Hanson had called for the abolition of ATSIC in her parliamentary maiden speech, it was the Labor party's opposition to ATSIC that catalysed the Coalition Government's legislation to remove the peak Indigenous body in 2004. The legislation was swiftly passed without consultation with Indigenous peoples.

Since then, the absence of a national Indigenous representative body has meant the bi-partisan approach to Indigenous affairs, including towards the controversial Northern Territory Intervention, has avoided parliamentary scrutiny and rigorous debate. National Indigenous input would enhance the debate and improve policy outcomes, but only if lessons are learnt from the experience of the former ATSIC (1990-2004) and the National Indigenous Council (2004-2007).

Late last year the Australian Government signalled its commitment to forming a national Indigenous representative body. Its success will hinge on its representative nature, its independence, its capacity to guide service provision to Indigenous communities, and most importantly its ability to direct Indigenous policy setting. Essentially, if the national Indigenous body has no effective legislative function then its significance will be greatly diminished.

So, what was the nature of ATSIC and did it provide an effective channel for Indigenous representation? The Australian Government, led by Bob Hawke, formed ATSIC in 1990 after it abolished its predecessor, the National Aboriginal Conference, due to its antagonistic relations with the Government. At the time, the Government viewed ATSIC as an effective mechanism for self-determination as it combined representative and executive roles. Its governance structure was made up of thirty five regional councils (with over 400 councillors), the ATSIC Board (comprising 18 zone commissioners), and the Chair who was elected after 1999. It was backed by an administrative machine of several hundred public servants who were involved in research and service delivery. ATSIC's functions were to advise Governments at all levels; provide peak national and international advocacy for Australian Indigenous affairs, and deliver and monitor Indigenous programs and services.

From the outset, ATSIC and its relationship with the Australian Government was criticised from a range of standpoints. Supporters of Indigenous self-determination criticised ATSIC for its lack of autonomy from government and its failure to shape Indigenous affairs. They claimed that ATSIC's ministerial advice fell on deaf ears; that ATSIC's service delivery programs operated at the margins with the major portfolios of health and education run by mainstream agencies, that ATSIC produced a White bureaucracy because it was unable to employ its own staff, and that it was subject to extensive external reviews and onerous administrative compliance.

Others claimed that ATSIC was not properly representative, pointing to its lack of engagement with Indigenous communities. The final review of ATSIC in 2003 proposed the strengthening of regional councils to reduce the detachment of the national board from communities. Concerns were also raised about the under-representation of women in ATSIC, with fewer than 30 per cent women in ATSIC representative roles. Gary Foley argued that ATSIC was limited because it was modelled on White governance and only allowed the relatively few Indigenous people on the electoral roll to vote. Consequently, the voter turn-out for ATSIC was around 30 per cent. Ultimately, the Coalition dissolved ATSIC because it viewed mainstream service delivery to be more effective, and consistent with its ideological view of integration.

The Coalition Government replaced ATSIC with the National Indigenous Council (NIC) - a group of 12 Indigenous advisers who it hand-picked. The NIC was publicly denounced for its non-representative nature; minimal impact on Indigenous policy, and little engagement with Indigenous communities. Aden Ridgeway suggested the body was 'just another example of Howard Government window dressing to hide its lack of action and achievement in Indigenous Affairs'. Consequently, the Labor Government did not extend the contracts of the NIC advisers when they came to an end in late 2007.

Since then, lobbyists for Indigenous representation at a national level have been drawing up blue prints for a national Indigenous body. At the fore has been the proposal by the Australian Human Rights Commission for a National Congress of Australia's First Peoples in Our future in our hands. It appears as though the Australian Government will support its formation over the coming year. The Commission's proposal consists of a National Congress, which constitutes 128 delegates from across Australia. Some delegates will be appointed based on merit and other will be elected from Indigenous organisations. The Congress will then elect a National Executive of six part-time members and two full-time Chairs, with a requirement of 50 per cent female representation. In addition, an Ethics Council of senior Indigenous peoples to oversee the work of the National Congress.

On the face of it, the representative reach of this body appears more limited than that of ATSIC. Not only are there fewer 'representatives' and a much smaller Board, but it also does not have the same administrative capacity. Its proposed administrative team do not manage services, but consist of a CEO, finance staff, researchers, media staff and a secretariat. The Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, is nonetheless confident that the new body will work with Government to make sure services are properly tailored for Indigenous Australians. He also points to one relative strength of the Board - its budgetary independence from government. The National Congress will be established as a corporation and, like the hundreds of Indigenous associations across Australia, subject to the Australian Corporations Act. Commissioner Calma stresses that the body will strive for a truly independent character through self-funding based on investment income. Accordingly, the Commission is recommending that the Australian Government provide recurrent funding for the body over the initial five years from 2011 until it can rely on a stream of income from a $200 million Investment Fund for the National Indigenous Representative Body.

Proof of the effectiveness of this body will be in the parliamentary pudding. It will depend on its capacity to influence government decision making on Indigenous matters. When the Commission commented on the role of ATSIC in 2003 it stressed the need for it to create legally binding directions, subject to parliamentary scrutiny. The Commission's current model encapsulates a watered down version of this proposal, with no such binding of the Government. It proposes:

• Systemic contact at Ministerial level and through the Council of Australian Governments
• Defined 'rules of engagement' managed by the National Representative Body and central agencies to ensure engagement across the full suite of policies of mutual interest.

The National Congress is likely to be criticised for being a lesser version of ATSIC. Its limited representation and capacity to deliver Indigenous services and programs will be seen as compromising self-governance. On the other side of politics, the National Congress' role in filling the void on national Indigenous representation will be rebuked for offering special rights to Indigenous peoples.

In the end, its success will be measured by its capacity to develop independent and critical positions and the willingness of Governments to engage with these positions. Without a responsive Government, the body will provide neither rights nor effective governance for Indigenous peoples.

This piece was published today on ABC Unleashed

When the Federal Parliament handed down the Queensland Family Responsibilities Commission report last week, advocates of welfare quarantining took credit for its results.

The report revealed increased school attendance in four Cape York communities between April and June 2009. Indigenous parents in these four communities had been faced over the past year with the threat of having their income controlled if their children did not attend school. One of the leading advocates of welfare control, Noel Pearson said on the 7.30 Report that "welfare reforms are seeing increased school attendance".

The Federal Minister for Indigenous Affairs, Jenny Macklin, embraced the results with the announcement that income control will be extended to Indigenous families in Brisbane and Perth.

However, to equate the increase in school attendance with managing parental income is simplistic. The reforms in the Cape York have been much more than income control.

The Family Responsibilities Commission was assigned the task of overseeing a whole range of well-funded reforms in the Cape York communities of Aurukun, Coen, Hope Vale and Mossman Gorge. The Commission was established one year ago to engage school teachers, parents and case managers to come up with programs for increasing school attendance.

The Family Responsibilities Commission is constituted by local commissioners who are respected Indigenous community leaders. To support the commissioners' work, $48 million has been committed to the Cape York communities. The Cape York trial seeks to empower, rather than control, parents.

The Queensland Family Commission can also refer Indigenous people to drug and alcohol services, mental health services and relationship counseling. There are projects being developed to build adult skills and support economic development and employment in communities. Indigenous families have the choice to declare their homes as dry places, which has been taken up by a number of families.

The Family Responsibilities Commission can also recommend conditional income management. However, this is not compulsorily or routinely imposed. The Families Responsibilities Commission issued 31 orders in the three month period that the report covers. By contrast, it issued 168 referrals to support services.

Indigenous education expert Dr Chris Sarra last week criticised the welfare reforms in Cape York because they were based on flawed assumptions that parents were actively trying to keep their kids away from school and do not want quality education for their kids.

Dr Sarra told the ABC that the increased school attendance in the Cape York reflects an investment in quality education. He stated that increasing school attendance requires the development of school cultures that embrace a positive sense of Indigenous student identity, and this needs to be done in conjunction with communities.

The approach to increasing school attendance in the Cape York is a far cry from the Commonwealth Government's policy in the Northern Territory. The Northern Territory Intervention has been a process of disempowerment and control. The funding injected into Northern Territory Indigenous schools has been negligible.

At the same time, schools have been required to teach English and Indigenous teachers have been pushed out of their teaching roles and into teacher aid roles.

In the Northern Territory, there has been universal quarantining of Indigenous peoples' income. The Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), which was part of the Commonwealth's emergency measures in the Northern Territory, provides that all welfare recipients in 73 prescribed communities have their income quarantined.

The welfare quarantining has been estimated to apply to 20,000 Indigenous people in the Northern Territory. It applies whether the recipient is a parent or not, and whether the recipient is regarded as responsible or not. Welfare control applies to all: to university students from communities who are receiving Abstudy, to veterans receiving a pension, to elderly pensioners, to people receiving the disabilities pension and to the unemployed.

If an Indigenous person leaves their community, income management will follow, "to ensure they cannot easily avoid the income management regime", according to Mal Brough's comments to Federal Parliament in 2007. This blanket approach has not been applied to the four Cape York communities.

In the Northern Territory, 50 per cent of all welfare recipients' income is put on a BasicsCard. The BasicsCard can only be used at Government approved stores and for Government approved items. To enact this legislation that applies distinctly to Indigenous peoples, the Government has suspended the Racial Discrimination Act.

This move was heavily criticised by the United Nations special rapporteur on Indigenous human rights, Professor James Anaya, on his recent visit to the Northern Territory.

In addition, if there are accounting errors, the Indigenous person cannot request an external review by the Social Security Appeals Tribunal and Administrative Appeals Tribunal.

There are aspects of Northern Territory welfare control policies that reflect the Cape York measures. In addition to these baseline measures of quarantining compulsorily 50 per cent, the Government has the capacity to manage 100 per cent of the welfare income of Indigenous people where there is unsatisfactory school attendance or where the child is in need of protection.

Welfare is also automatically deducted to pay for school breakfast and lunch for Indigenous children. Such measures have not promoted increased in school attendance.

The evidence suggests that the engagement with Indigenous communities in the Cape York, the support for quality teaching and the support for parents are the ingredients for increasing school attendance.

Here's a hyperlink to a transcript of the public lecture I gave as part of Macleay Museum's Being Collected Exhibition. It addresses how Palm Island was colonised through processes of criminalising Indigenous people, often for crimes that were exclusively targeted at Indigenous people (such as under the Aboriginal Acts). Palm Island's status as a penal colony has been perpetuated throughout its history and continues to have devastating effects today. But there is a resiliant Indigenous population who, with support and empowerment, have the will and resources to create a viable community:

And here's an interview on National Indigenous Radio on the lecture:

This was published on 24 June 2009 on ABC Unleashed:

The NSW Police Forces' Aboriginal Employment Strategy to increase Aboriginal representation to four per cent will not be enough to improve Indigenous-police relations or reduce Indigenous crime and imprisonment.

Without systemic change, the recent announcement by the Premier and Commissioner will have little effect in changing police practice. Cultural change within the police force and supplementary self-policing programs within Indigenous communities are critical for the realisation of the police force's goals of developing partnerships with Aboriginal communities.

The method of Aboriginal recruitment into the police force as a means of better policing Aboriginal communities has existed since the early colonial period. Aboriginal people were recruited into the mounted police force and served as trackers in the colonisation process. However, it has not always been effective in improving relations with communities and has the capacity to worsen police-Aboriginal relations.

The Royal Commission into Aboriginal Deaths in Custody pointed to the role of Aboriginal recruitment in dividing Aboriginal people. Aboriginal officers' allegiances become torn between the force and the community, and they expose themselves to a community perception of them as traitors. It was this perception that set in train a series of events that led to one of Australia's most notable deaths in custody of recent times - the death of Mulrunji at Palm Island in 2004. On the fateful night of Mulrunji's death, his initial engagement with the police was, allegedly, due to his criticism of an Indigenous officer as betraying his Indigenous community. Mulrunji was arrested for offensive language and placed in police custody, where he died forty minutes later.

Internationally, scholars have pointed to the limitations of this practice. Professor Paul Havemann has argued that Indigenous policing is a cheap substitute for self-government and autonomy. It can be merely a means for assimilation: increasing control rather than addressing inherent problems of incarceration and breakdown of Indigenous communities. Indigenisation of the state police may provide only a superficial, tokenistic and 'band-aid' solution to what is essentially a systemic problem.

Any recruitment policy needs to be matched with a cultural change in the police force. The Royal Commission into Aboriginal Deaths in Custody highlighted the need for greater cultural awareness on the part of all police officers - Indigenous and non-Indigenous. It called for induction training to include information on Indigenous culture, the history of Indigenous and non-Indigenous contact, and the history of Indigenous and police relations. The Evaluation of the Implementation of the NSW Police Service Aboriginal Strategic Plan by Professors Chris Cunneen and Janet Chan in 2000 note that cultural training requires delivery by local Indigenous people and regular refresher courses. However, even then training is unlikely to achieve meaningful cultural change.

A major impediment of internal change to the police force is that it does not alter community perceptions of the state police. Arising from this concern is a push for Aboriginal liaison officers to communicate between the police force and communities. Such officers should come from within communities and be representative of communities, rather than have a loyalty to the police force or a minority section of the community. Females need to rank among these officers especially to give victims support in domestic violence crimes.

However, it is only local policing by Indigenous communities that will address systemic problems of resistance to the state police force. Such tensions have been addressed in remote communities through policing initiatives such as night patrols. These are not driven by the police force but can work in conjunction with the force. The Royal Commission into Aboriginal Deaths in Custody strongly recommended community policing initiatives on the basis that such programs have 'the potential to improve policing and to improve relations between police and Indigenous people rapidly and to substantially lower crime rates'. Without more, recruitment is at best unlikely to achieve these results and at worst it could deteriorate Aboriginal-police relations.


This statement was released today, as part of the presiding UN Permanent Forum on Indigenous Issues. It is very timely given recent Government policy developments in the Northern Territory with regard to outstations and Tangentyere Council. It stresses the obligation of the Australian Government under international law to negotiate with Indigenous peoples and traces the recent UN decisions that raised grave concern over Australia's record in relation to Indigenous peoples.

Joint Statement by the Indigenous Peoples Organisations of Australia attending the eighth session of the Permanent Forum on Indigenous Issues, New York, 18 to 29 May 2009

On 24 May 2009 the Minister for Indigenous Affairs announced the Australian Government is taking steps towards compulsory acquisition of the Alice Springs town camps ‘to give children in the camps a better chance at a safe, healthy and happy life’. The Minister described the conditions in the camps as appalling, referring to acute overcrowding, sub-standard housing, alcohol abuse, despair, hopelessness and horrific crimes. The Minister announced intentions to implement a comprehensive plan to transform the town camps and provide intensive support services.

We the Indigenous Peoples Organisations of Australia attending the eighth session of the United Nations Permanent Forum on Indigenous Issues decide as follows:

• We strongly oppose the proposal by the Government of Australia to compulsory acquire leases over Aboriginal and Torres Strait Islander lands or territories without their free, prior and informed consent.

• We call upon the Government of Australia to comply with its international obligations to respect the rights of the Indigenous Peoples of Australia by ensuring that the representatives of the Aboriginal people in the region of Alice Springs are able to make an informed decision regarding the provision of adequate housing and services for their populations.

• Specifically, we urge the Australian Government to re-open negotiations with Tangentyere Council, in concert with other relevant representative Aboriginal organizations, and facilitated by the Australian Human Rights Commission, with a view to concluding as soon as possible an agreement for urgent funding for suitable housing to meet the needs of the Aboriginal people of the region.

• We ask the Australian Government to withdraw their decision to compulsory acquire the lands held by the Tangentyere Council.

In regards to the international obligations of the Australian Government we note the following paragraphs regarding the rights of Indigenous Peoples and relevant recommendations by the human rights mechanisms of the United Nations and international human rights treaty bodies.

• The Declaration on the Rights of Indigenous Peoples was adopted two years ago by an overwhelming vote of the UN General Assembly. Australia was one of only four governments to vote against the adoption of this universal Declaration but on 3 April 2009 the Government announced its support for the Declaration.

• Article 23, UN Declaration on the Rights of Indigenous Peoples states, ‘Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.’

• In May 2007, following a visit to Australia during 31 July to 15 August 2006, the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, recommended to the United Nations in Paras 98 and 135 of his report that Aboriginal people should be given control to the greatest extent possible of our affairs and expressed his particular concern that removal of Aboriginal people as decision makers over the use and access of the land in the Northern Territory would undermine the right of self-determination. He advised that such action ‘may call into question Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights, including its provisions on self-determination’.

• Para 133, Report on Mission to Australia, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, UN Document A/HRC/4/18/Add.2, 11 May 2007: ‘Australian governments must urgently address the humanitarian tragedy of the lack of housing and basic services for the indigenous peoples of Australia, living on indigenous lands and elsewhere. To this end, the Special Rapporteur encourages relevant government staff to visit and reside in indigenous communities, including town camps, and rural and remote communities, in order to better comprehend the reality and the challenges faced by the populations and communities in these locations.’

• On 13 March 2009, the Committee on the Elimination of Racial Discrimination (CERD) wrote to the Australian Government expressing its concern that the Racial Discrimination Act was suspended in the Northern Territory and calling for a report to the Committee by 31 July 2009 on the progress made in redesigning its (the Government’s) approach in the Northern Territory in consultation with the Aboriginal communities. ‘… In order to continue a constructive dialogue with your Government, the Committee requests the State party to submit further details and information on the following issues no later than 31 July 2009 progress on the drafting of the redesigned measures, in direct consultation with the communities and individuals affected by the NTER, bearing in mind their proposed introduction to the Parliament in September 2009 [and] progress on the lifting of the suspension of the Racial Discrimination Act. The Committee welcomes the government's commitment to building a new relationship with Indigenous Australians based on mutual respect, mutual resolve and responsibility.’

• On 2 April 2009, the Committee on Human Rights released its findings on Australia’s obligations under the International Covenant on Civil and Political Rights. The Committee expressed its concern with the Northern Territory Emergency Response measures and particular concern about the negative impact of the measures on the enjoyment of the rights of indigenous peoples and at the fact that they suspend the operation of the Racial Discrimination Act 1975 and were adopted without adequate consultation with the indigenous peoples. ‘The State party should increase its efforts for an effective consultation with indigenous peoples in decision-making in all areas having an impact on their rights … The State party should redesign NTER measures in direct consultation with the indigenous peoples concerned, in order to ensure that they are consistent with the Racial Discrimination Act 1995 and the Covenant.’ (Concluding observations on Australia, Human Rights Committee, UN Document CCPR/C/AUS/CO/5, 2 April 2009)

• On 22 May 2009, the Committee on Economic, Social and Cultural Rights, in examining Australia’s periodic report under the International Covenant on Economic, Social and Cultural Rights, expressed its concern that some of the Northern Territory Intervention measures are inconsistent with the Covenant rights, in particular with the principle of non-discrimination, and have a negative impact on the realisation of the rights of indigenous peoples and noted ‘with regret’ that measures were adopted without sufficient and adequate consultation with the indigenous peoples concerned. ‘The Committee recommends that the State party take effective measures, in line with the Committee's general comment No.4 (1991) on the right to adequate housing (art. 11, para. 1, of the Covenant), to address homelessness in its territory. The State party should implement the recommendations of the Special Rapporteur on the Right to Adequate Housing contained in the report of his mission to Australia… The Committee calls on the State party to take immediate steps to improve the health situation of indigenous people, in particular women and children, including by implementing a human rights framework that ensures access to the social determinants of health such as housing, safe drinking water, electricity and effective sanitation systems.’ (Concluding observations on Australia, Committee on Economic, Social and Cultural Rights, UN Document E/C.12/AUS/CO/4, 22 May 2009)

We also appreciate that the Australian Government has presented to this session of the Permanent Forum on Indigenous Issues a joint statement with our delegations expressing a desire that Australia meet its human rights obligations, and we recognise that a critical factor in achieving this goal is the degree to which Aboriginal and Torres Strait Islander peoples can set the agenda, and affect policy and service delivery.

Our delegations are encouraged by the Australian Government’s decision to support the UN Declaration on the Rights of Indigenous Peoples.

Therefore, in conclusion to this statement, we support the view that the Government of Australia should establish and implement in conjunction with the Aboriginal and Torres Strait Islander peoples a fair, independent, impartial, open and transparent process to adjudicate the rights of the Aboriginal people in relation to our lands. This provision is stipulated in Article 27 of the Declaration on the Rights of Indigenous Peoples.

We strongly recommend that the Australian Government provide, as a matter of priority and urgency, extensive human rights training on how human rights apply to Aboriginal and Torres Strait Islander peoples in the areas of non-discrimination and civil, political, economic, social and cultural rights. The training should target all sectors of society, but particularly it should target State officials having a direct role in engagement of the Aboriginal and Torres Strait Islander peoples and the judiciary.


This was published on 21 May 2009 in The Age. Please note that the by-line should not indicate that I am an Indigenous person but that my research is in Indigenous legal issues.

Evidence shows that indigenous wellbeing declines in townships.

On the eve of the Northern Territory Government announcing plans to, in effect, close down indigenous outstations, a report was released that showed indigenous people in Arnhem Land outstations and homelands had the most sustainable lives and communities.

The Healthy Country, Healthy People report shows the physical, emotional, social and cultural health benefits experienced by these people. It is therefore incongruous that while the Federal Government espouses a "closing the gap" agenda, the Northern Territory Government is undermining these health outcomes.

The Arnhem Land study finds that Aboriginal people participating in customary and contemporary land and sea management practices, particularly those living in traditional homelands, are much healthier than those in townships. The report's authors note that "pressure to centralise remote indigenous populations and services into townships has increased, despite evidence suggesting this would lead to worse health outcomes". Townships promote inactivity, malnutrition, social dysfunction and other social disadvantages.

The researchers from Charles Darwin University reveal that health outcomes associated with living on and managing traditional country include major reductions in risk of cardiovascular disease, diabetes and other chronic diseases. These diseases not only severely disrupt indigenous society, they also require large public expenditure for treatment.

Participants in natural and cultural resource management practices report a more nutritious diet and a greater degree of physical activity. Cultural management also provides potential markets for environmental investment.

Rather than foster and support these homeland communities and outstations, both the federal and Northern Territory governments have sought to undermine their existence. Under federal policy, there is a ban on expenditure for housing on Aboriginal outstations and homelands, apart from some repairs and maintenance. This policy was entrenched in the memorandum of understanding between the Australian and Northern Territory governments on indigenous housing, accommodation and related services, which was signed in the dying days of the Howard government in September 2007.

The Northern Territory Government's announcement this week furthers this understanding. The plan to consolidate services into 20 large communities will threaten up to 580 remote outstations. This will force indigenous people into townships, which will undermine their traditional, healthier lives and provoke social dysfunction in the townships.

The attempts to oust outstations also run against the Australian Government's recent endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, which supports self-determination.

Outstations resonate with aspirations of indigenous self-determination. According to Gregory Marks, who has been an adviser on Northern Territory policy for the past four decades, the outstations emerged in the 1970s in response to the assimilation policy and changes in pastoralism that pushed indigenous people into settlements and onto urban fringes.

Many of the outstations are a reaction to the confinement that settlement life imposed on indigenous people. Outstations allow indigenous people to nurture their economies and culture.

The only basis for the outstation policy is ideological: to push indigenous people into the mainstream and engender assimilation. It operates hand in hand with the Northern Territory intervention that focuses funding priorities on a limited number of prescribed communities.

The Northern Territory and federal governments are reimposing colonial forms of containment that prevent indigenous survival beyond government-regulated boundaries.

The policy of undermining outstations is a threat to indigenous wellbeing and is against evidence-based research that recommends the preservation of outstations.

Marks notes that the ideological campaign against outstations has provided an unproductive distraction from constructive policy development. Government investment needs to be measured in terms of health, cultural and natural resource management outcomes. The outstation policy exposes the "closing the gap" policy as mere rhetoric, with dangerous political prejudices.


This was published on the 12 May 2009 in the Sydney Morning Herald:

New laws giving police the power to move on people who are slurring their words will cement a long tradition of criminalising Aboriginal people for public order offences. The recently announced powers will allow NSW police to direct those who are noticeably drunk away from a public place. Failure to comply can lead to arrest for a criminal offence.

History shows indigenous people are most likely to be caught by this type of legislation and incarcerated for the mere appearance of intoxication.

The move-on laws have the peculiar flavour of targeting people who are not committing a crime or even suspected of committing a crime. They are activated where people are deemed drunk.

The new law, which amends the Law Enforcement (Powers and Responsibilities) Act, lowers the threshold from "seriously" drunk to "noticeably" drunk. This significantly broadens the police move-on power and is likely to apply to a wide section of society.

If a person directed to move on returns to the area, he or she will be charged with a criminal offence. A study by the Aboriginal Legal Service of Western Australia found more than 75 per cent of people who were arrested for breaching their move-on notices did so simply by walking, standing or sleeping in the area prescribed by the move-on notice.
In one case, a direction that operated for 24 hours forbade young boys from going to school the next day. They were later arrested for going to a shopping mall accompanied by their mother to get their hair cut.

Move-on powers disproportionately affect indigenous people and communities. According to an ombudsman's review of the move-on powers, there was a very high incidence of police issuing such directions in parts of NSW with large Aboriginal populations.

Almost a quarter of all move-on directions were issued to indigenous people, particularly the young, far in excess of their proportion of the population. This trend goes hand in hand with the wide criminalisation of indigenous people for public order offences.

Western Australia has the most draconian move-on laws, with penalties of up to $12,000 or 12 months' imprisonment for failure to comply.

The state's Aboriginal Legal Service found police used the WA laws as a mechanism for the social control of Aboriginal people, limiting their access to welfare, health and legal services. The directions are difficult to understand and their targets are unsure of how far and for how long the directions apply.

In NSW the new laws will take another step towards recriminalising intoxication. In 1991 the royal commission into Aboriginal deaths in custody recommended that public intoxication be decriminalised because of the huge impact it had on the detention of Aboriginal people and consequent deaths in custody. This ushered in reforms to decriminalise intoxication in the 1990s and a shift in the approach to one of protective or therapeutic incarceration for drunks, including sobering-up shelters (often police cells).

The discriminatory policing of drunk Aboriginal people is blatant. Indigenous people are 42 times more likely than other Australians to be in custody for public drunkenness. In 2005 the Australian Institute of Criminology identified public drunkenness as a key issue relating to police custody. In October 2002 it found that of those detained by police there were 17 times more Aborigines than all other groups.

Through its move-on slurring powers, the NSW Government has provided another back-door means for incarcerating drunk Aboriginal people. The police will have wide discretion and will set the bar for public drunkenness as low as they deem appropriate. It is another sad attempt to criminalise indigenous behaviour rather than criminal activity.