State of the World's Minorities and Indigenous Peoples 2016 - Australia

Events of 2015

Australia was considered by the UN HRC during 2015 for its second Universal Periodic Review.

Many indigenous organizations contributed shadow reports to the process, highlighting the various challenges facing Aboriginal and Torres Strait Islander Australians across a range of issues. During the process, many states noted the positive development of the proposed 2017 referendum on indigenous recognition, providing Australians with the opportunity to vote on an amendment of the Constitution to formally recognize its first peoples. Nevertheless, the comments also highlighted the ongoing marginalization and exclusion of Aborigines and Torres Strait Islanders, as well as the disproportionate rates of indigenous incarceration.

Recent years have witnessed a remarkable indigenous cultural revival and renewed sense of identity. However, Australia's history of brutal colonialism, including the violent killing of Aborigines and Torres Strait Islanders by settlers, the forced displacement of communities from their lands and the impact of assimilationist policies on the so-called stolen generation, forcibly removed from their families, have irreversibly damaged their way of life. Furthermore, official policies still negatively affect Aboriginal and Torres Strait Islander peoples, their communities and cultures. Criminal justice policies are contributing directly to higher rates of indigenous incarceration, compounded by the continued separation of indigenous families, purportedly on the basis of welfare concerns.

In the Northern Territory, since the commencement of the so-called Northern Territory Intervention in 2006, considerable resources have been allocated to the task of extending the reach of mainstream forms of policing and governance. However, this approach has eroded indigenous communities and led to elevated rates of incarceration. Indeed, indigenous peoples make up about 30 per cent of the Territory's residents but more than 80 per cent of its prison population.

Of particular concern in this regard during 2015 was the use of paperless arrest powers in the Northern Territory following the passing in 2014 of Section 133AB of the Police Administration Act (NT), allowing the police to detain a person in custody for up to four hours without a warrant if they suspect that person has committed, or is about to commit, an 'infringement notice offence'. Indigenous peoples and other advocates voiced concerns that these expanded powers were having a disproportionate impact on Aboriginal and Torres Strait Islander peoples in the Northern Territory, perpetuating the disproportionate levels of indigenous people in custody for minor offences, such as drunkenness, swearing or making too much noise. The paperless arrest laws were subsequently challenged on the grounds of discrimination before the High Court and in November, while stopping short of striking down the laws, the court did significantly curb the extent of their powers, insisting they be subject to the normal limits that apply to police arrest and detention to protect against arbitrary detention.

Two well publicized cases in 2015 highlighted the ongoing concern over Aboriginal deaths in custody: the death of Kumanjayi Langdon, a Warlpiri elder, who died in May alone in a Darwin police cell, after being locked up under the paperless arrest laws, and the initiation of a Coronial Inquest into the death of a young Aboriginal woman, Ms Dhu, in August 2014. Dhu died in agony from untreated septicaemia after being incarcerated in South Hedland police station for not paying around AU$3,500 worth of fines. Both cases brought renewed public attention to the epidemic levels of Aboriginal incarceration in Australia. According to the Australian Institute of Criminology, indigenous imprisonment rates increased by 51.5 per cent between 2000 and 2010.

The problem is especially pronounced among the young, with Aboriginal and Torres Strait Islander youth 26 times more likely to be in detention than their non-indigenous peers. This disparity is particularly evident in Western Australia, where the incarceration rate for indigenous children is 52 times higher than the rate for non-indigenous children. This is in part due to the Criminal Code Act 1913 (WA), requiring magistrates to impose mandatory minimum sentences on young offenders in certain circumstances. Despite recommendations of the UN Committee on the Rights of the Child in 2012 to revise this practice, in 2014 the West Australian Legislative Assembly passed a bill extending the range of offences attracting a mandatory minimum sentence to include home burglaries. Nevertheless, indigenous communities have been developing community-led responses to address these challenges. For example, in the town of Bourke in New South Wales, community leaders are working with a local NGO on a trial project of 'justice reinvestment' that aims to identify community-based alternatives to prison to prevent marginalized youth from offending. To succeed, however, it is essential that the government support these initiatives.

Another major factor that could severely impact indigenous culture is the projected closure of specific remote communities, particularly in Western Australia. In September 2014, indigenous affairs minister Nigel Scullion announced that agreements had been reached with a number of states to transfer responsibility from the federal government for service provision in remote indigenous communities. In November 2014, following this announcement, the Premier of Western Australia, Colin Barnett, flagged that up to 150 remote Aboriginal communities in Western Australia might be closed, claiming that the social and health problems in many remote communities meant that the state could not provide them with essential services and the number of these communities should be reduced. In May 2015, the premier released the government's plan for the state's 274 remote communities. While no specific details were provided on how decisions would be made, the premier noted he expected a 'significant' number would close.

Australia continues to attract international criticism for its harsh immigration and asylum policies. During the review of its human rights practices at the UN HRC in Geneva, Australia received sustained criticism from delegates of other countries for a range of practices, including mandatory detention, the turning back of boats with asylum seekers found at sea and the removal of asylum seekers to offshore processing centres in other countries, such as Nauru and Papua New Guinea, where reports of human rights violations have been common. An independent review published in 2015 into detention conditions at the Nauru centre by former integrity minister Philip Moss found evidence of sexual and physical assaults on children and adults. The report concluded that many asylum seekers living in the detention centre were apprehensive about their personal safety and have privacy concerns. Some commentators have suggested that the harsh asylum policies, which enjoy wide popular support, are driven not only by border security but also by the legacy of exclusionary attitudes among white Australians towards non-Caucasian migrants as well as the indigenous population in general.