2014 Castan Human Rights Report: Indigenous rights – hastening too slowly

By Melissa Castan and Stephen Gray

In 2013 the then opposition leader, Tony Abbott, announced that if elected he would be the ‘Prime Minister for Indigenous Affairs’, raising hopes that law reform and better human rights protection for Aboriginal and Torres Strait Islander peoples would be central to the government’s agenda. To some extent, they have been, but not necessarily in a way that any of us expected.

Slashing Indigenous Legal Services

Photo: SidKid
Photo: SidKid

The first worrying signs emerged when the then-Opposition announced on the eve of the election that it would cut some $42 million of federal funding from Indigenous (and some other) legal services’ ‘advocacy and policy reform’ programs. Although the government has still not confirmed all of the cuts, we do know that around $13 million will be slashed from Indigenous legal services over four years. This figure includes cuts to the National Aboriginal and Torres Strait Islander Legal Services (NATILS), and all law reform and policy officer positions at peak Aboriginal legal services in each state and territory.  Although it was asserted that no ‘frontline’ advocacy would suffer from these cuts, the Government has not provided figures to support this assertion. Organisations as diverse as the National Congress of Australia’s First Peoples, the Indigenous Law Centre and the National Family Violence Prevention and Legal Service have been severely defunded, putting their viability at risk and forcing staff retrenchments and service closures.

Indigenous incarceration rates are still vastly higher than rates for the rest of the population, with up to 28 per cent of prisoners being Indigenous people (who make up about 3 per cent of the overall population). Given the longstanding and dramatic over-imprisonment of Indigenous Australians, it is hard to explain how the Prime Minister for Indigenous Affairs can preside over these massive cuts to Aboriginal legal aid which will undoubtedly further entrench Aborigines and Torres Strait Islanders as outcasts in their own country. Shane Duffy, chairperson of NATILS said ‘without the advocacy work … more people are going to end up in prison, it’s as simple as that’. He continued, ‘Justice-related costs are spiralling out of control around Australia, and removing the ability of front-line services to provide government agencies with accurate policy advice will only serve to make our system more ineffective, inefficient and increasingly costly’. We believe that the legal aid cuts must be reversed as one part of a broader plan to reduce Indigenous incarceration rates.

Defunding the Indigenous representative body

The government has also reneged on $15 million of funding for the National Congress of Australia’s First Peoples.  At the same time, it has created a new body, the Indigenous Advisory Council, for advice on ‘the policy implementation of the Coalition Government’. While the Council is a hand-picked body of 12 Indigenous and non-indigenous business and public sector experts, the National Congress is a representative body with 120 delegates elected by its membership.  We are concerned that the government is relying on a very small group of people to advise on Indigenous policy, and we call on the government to clarify the new Council’s role.

Hastening Slowly on Constitutional Reform

The Prime Minister used his 2014 New Year’s Message to reiterate his commitment to ‘begin a conversation’ about a national referendum to recognise Indigenous Australians in the Constitution. Hastening slowly, he committed to having a draft bill ready by September while warning that ‘We want it to happen as quickly as possible but a rushed job might be a botched job’.

‘Rushing’ is hardly the issue here; the [former] Prime Minister’s Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples properly spent all of 2011 consulting with the general public, Indigenous community groups and high-level stakeholders, and held a formal public submissions process. Qualitative and quantitative research was undertaken. It delivered a comprehensive and accessible report in January 2012.  A Parliamentary committee outlined the necessary steps for a successful referendum on Indigenous Constitutional recognition. In addition, the Aboriginal and Torres Strait Islander Peoples Recognition Act sets out steps for gauging the readiness of the Australian public to support a referendum and evaluating proposals to amend the Constitution. It formally recognised that Australia was first occupied by Aboriginal and Torres Strait Islander peoples, acknowledged their continuing relationship with their traditional lands and waters, and acknowledged the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples. Although this Act was an important and sincere recognition of Indigenous rights, it is of no legal or constitutional consequence. The time has come for tangible constitutional reforms that address the very real issues of systemic racism and discrimination experienced by many Indigenous peoples in the legal (and particularly the criminal justice) system.


Last year was notable for the being the 21st Anniversary of the landmark Mabo case, the 20th Anniversary of Paul Keating’s Redfern Speech, and the 5th Anniversary of the Commonwealth’s Apology to the Stolen Generations. Meanwhile the annual Closing the Gap report showed some improvements in key indicators such as child mortality, school completion and life expectancy. Five years after Australia belatedly acceded to the UN Declaration on the Rights of Indigenous Peoples, we are making disappointingly slow progress in the recognition, protection and realization of Indigenous Australian’s human rights. Indigenous Australians deserve more.

This piece is featured in the 2014 Castan Human Rights Report. You can read the full report and download a pdf here.

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Further reading

National Aboriginal and Torres Strait Islander Legal Service “Government to defund Aboriginal Legal Services Peak Body and all Law Reform and Policy Positions” 17 December 2013http://www.natsils.org.au/portals/natsils/Media%20Releases/17-12-13%20NATSILS%20MR%20Govt%20to%20defund%20NATSILS%20and%20all%20ATSILS%20Law%20Reform%20and%20Policy%20Positions.pdf

Department of Prime Minister and Cabinet media release ‘Establishment of the Prime Minister’s Indigenous Advisory Council, 25 September 2013 https://www.pm.gov.au/media/2013-09-25/establishment-prime-ministers-indigenous-advisory-council%20https:/www.pm.gov.au/media/2013-09-25/establishment-prime-ministers-indigenous-advisory-council

Kim Arlington ‘Tony Abbott promises to recognise Aborigines as nation’s first people’ The Age, 27 January 2014 http://www.smh.com.au/federal-politics/political-news/tony-abbott-promises-to-recognise-aborigines-as-nations-first-people-20140126-31h13.html#ixzz2viZyms31

Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, January 2012http://www.recognise.org.au/uploads/assets/3446%20FaHCSIA%20ICR%20report_text_Bookmarked%20PDF%2012%20Jan%20v4.pdf

Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: Progress Report, June 2013http://www.aph.gov.au/~/media/Committees/Senate/committee/jscatsi_ctte/completed_inquiries/2010-13/progress_report/report.pdf

Aboriginal and Torres Strait Islander Peoples Recognition Act 2013(Cth)http://www.comlaw.gov.au/Details/C2013A00018

Chief Justice WA Wayne Martin 2012, National Indigenous Legal Conference Speech athttp://www.supremecourt.wa.gov.au/_files/National%20Indigenous%20Legal%20Conference%20Martin%20CJ%205%20Oct%202012.pdf


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