By Stephen Gray and Melissa Castan

This piece is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May. 

In the past twelve months, Australian Indigenous affairs have witnessed three so-called ‘developments’: more weighty and bewildering government reports; more unsuccessful test cases brought by Indigenous Australians seeking recognition of their rights; and more disturbing statistics, particularly relating to incarceration and early death.

The reports

In February 2015, Prime Minister Tony Abbott released the 7^th annual Closing the Gap report.  Spin aside, the report largely confirmed information buried in a lengthy government paper, Overcoming Indigenous Disadvantage: Key Indicators 2014.  At a cool 3,252 pages, the OID report was a door-stopping addition to what Jon Altman called the “evaluation fetishism” in Indigenous affairs – a white man’s dreaming that yielded a stack of reports half a metre high in just one month.

But what did the OID report reveal?  Some good news, its authors claim.  Indigenous child mortality is lower, and life expectancy has increased.  Indeed, the ‘gap’ between Aboriginal and non-Aboriginal life expectancy has actually narrowed in the five years to 2010/12, from 11.4 years to 10.6 years for males, and from 9.6 years to 9.5 years for females.  This gets the OID Report’s green tick of approval even though it is really a failure, on these figures, it would take women 495 years and men 66.5 years to ‘close the gap’, but the COAG target is to close it by 2031.

The green tick reflects the report’s focus on ‘change over time in outcomes’ for Indigenous Australians (or ‘improving wellbeing’), rather than on ‘closing the gap’. Watch this space carefully, lest the ‘closing the gap’ targets be quietly shelved in the benign language of bureaucratese.

But there are more disturbing issues. A recent report of the Parliamentary Joint Committee on Human Rights found that the Stronger Futures legislation (which replaced the Howard Government’s Northern Territory Emergency Response package of legislation) is not entirely compatible with human rights, and particularly the Racial Discrimination Act (RDA).

Measures in the new legislation relating to alcohol, land reform, income management, school attendance and more were specified by the former Labor government in the Explanatory Memorandum as ‘special measures’, which are permitted by the RDA and international law. However, the Committee found no evidence that they fit this definition. For example, as the Committee pointed out, how can a measure criminalising conduct by some members of a group be a ‘special measure’ for the supposed benefit of the rest?

While international law has limited sway in Australian domestic politics these days, one might expect it to have more influence in the rarefied atmosphere of the High Court.  In the Maloney case, the Court held that the Queensland government’s alcohol laws on Palm Island were ‘special measures’, even though the government had not consulted with the local population, and no international body had previously characterised such laws as a ‘special measure’. This argument could have absurd conclusions, such as harsh sentences for Aboriginal offenders being characterised as ‘special measures’ because they allow other law-abiding Aboriginal people to enjoy their human rights more fully.

The test cases

Two test “stolen” cases were recently rejected by the courts.  In Collard, an Aboriginal couple whose children were removed by Native Welfare in WA in the 1950s failed to satisfy a court that the State owed them a fiduciary duty, or that such a duty, if owed, had been breached.  And in a case in the Queensland District Court, Yeatman, an Aboriginal elder, failed to establish a claim for ‘stolen wages’ which he alleged had been kept in trust for him and never returned.  Both these cases raise familiar difficulties for Aboriginal plaintiffs – problems of proof, or establishing wrongs done many years ago to the exacting standards of a court.

In future, governments of all persuasions may have less bother with test cases.  As last year’s report pointed out, Aboriginal legal services have been largely defunded, with over $42 million cut from the Indigenous Policy Reform Program, and funding cuts aimed ‘at de-funding law reform and policy activities’.

The statistics

There will, however, be more work for prisons and hospitals.  As the OID Report revealed, the suicide death rate for Indigenous people is over twice the rate for non-Indigenous people, and hospitalisation for intentional self-harm rose by 48 percent over the past seven years.  Moreover, the adult imprisonment rate increased 57 percent between 2000 and 2013.  Juvenile detention rates are even higher, at around 24 times the rate for non-Indigenous people.  Homicide rates are very high among Indigenous people – although, amazingly, there were no homicides where the victim and offender were strangers.

Is it any wonder, amidst all this, that Indigenous people continue to push for an apparently stalled constitutional referendum, perhaps even one that recognises their human rights?

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