Law and order is only part of the solution

Last week’s summit on Indigenous communities was a positive step, but a more strategic approach is needed, writes Larissa Behrendt MANY Indigenous people were sceptical that the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities would be just another talkfest. After all, the issues that plague some Indigenous communities across the country have been documented in numerous reports and brought to the attention of governments of all levels by Indigenous people over decades with little result. And indeed, governments have held summits and their own inquiries with similar impact. But one of the key structural obstacles in the Indigenous portfolio is the way in which responsibility for key issues such as health, education and housing shared between federal and state governments is not approached in a coordinated or collaborative way. Instead, there is an attempt to try and blame or shift the cost to the other arm of government. This cost shifting generates precisely the kind of slanging matches that emerged in relation to the media attention on the issue of sexual abuse in Indigenous communities. The federal Indigenous affairs minister, Mal Brough, called it a law and order issue and chastised the Northern Territory government for having neglected communities by not providing adequate levels of policing. Clare Martin, the Northern Territory’s chief minister, responded by chastising the federal government for their lack of investment in the infrastructure of communities, particularly in relation to housing. While both the issues of law and order and overcrowding in housing play a role in the complex matrix of factors that creates chronic community dysfunction, the exchange highlights how political posturing and point scoring can be more prevalent than practical and effective collaborative solutions in the dialogue around important Indigenous issues. The level of political hysteria that can be reached in these situations is best illustrated by the claim by Minister Brough that $1 million in drugs money had been found in one Aboriginal community - a claim that he later had to retract because it just wasn’t true. For this reason any attempts by government to move from blame and cost shifting to developing a coordinated approach provides an opportunity - and some hope - that something might be done differently. While the latest summit did provide such a circuit breaker, the results were mixed. While there was the promising rhetoric that better resources, improved methods and a concerted, long-term joint effort were essential, the federal government still highlighted the law and order issues and said that addressing those issues were “preconditions” to ensuring that government expenditures on health, housing and education are “not dissipated but made sustainable.” In no other context is it imaginable that basic levels of funding for health and education in particular would be contingent on law and order issues. The chief executive of Reconciliation Australia, Barbara Livesey, summed it up when she observed: “when ministers raise the alarm on violence, they have a responsibility to finally come up with answers.” Dysfunction in Indigenous communities is the result of decades, even centuries of neglect. There has been underspending on health (estimated by Access Economics, in a report for the Australian Medical Association, to be at around $450 million), housing, education and other essential services; there has been a failure to provide adequate infrastructure in rural and remote communities; and there has been a failure to invest in the development of human capital. This has generated cyclical poverty and despondency in some Aboriginal communities that leads to abuse of alcohol and other drugs. In this environment, where the social fabric has unravelled, violence becomes normalised and anti-social and criminal behaviour become rife, especially if there is no police presence and the usual channels for intervention, such as state welfare authorities, do not respond to complaints by Indigenous people. While the factors that lead to dysfunction and high levels of violence and abuse are structural and entrenched, many attempts to deal with these issues focus on managing the outcomes at the expense of considering appropriate methods of dealing with roots causes. And the outcomes of the summit highlight the way in which attempts to provide intervention are not matched with attempts to break the cycles at their core. The key outcomes focused on a legislative and regulatory framework that protects victims, adequate policing and child protection, a criminal justice system that “recognises and addresses the issues faced by those living in remote localities”, appropriate control of alcohol and other substances, and rehabilitation support for those who are addicted. Complementary measures would include compulsory school attendance, support for local Indigenous leaders and sound community and corporate governance. Much of the strategy focuses on interventionist responses - and this is important and necessary. However, many Indigenous people were struck by the emphasis on “remote” areas, when only a quarter of the Aboriginal and Torres Strait Islander population lives in communities that can be so characterised and these issues crop up in Indigenous communities across the country. There were some initiatives that begin to look at the core causes in this package. The development of a program to develop leadership in Indigenous communities is precisely the kind of investment in human capital that is much needed. The trial of an extension to the Indigenous Health Check initiative in one region is a small step to addressing the high levels of underfunding in health services. But other attempts to address root causes were disappointingly superficial. The attempts to improve corporate governance consist of ensuring that money going into communities is “restricted to organisations managed by fit and proper persons”. This is good in principle but it is well known that one of the real challenges in many Aboriginal and Torres Strait Islander communities is that the statutory responsibilities and skill set required to ensure best practice governance are not easily met within the population. So investment is needed to improve the skills of Indigenous people to ensure that they can run organisations at the high levels expected. This investment is missing from the plan. Similarly, the plan to keep better data about school attendance does little to address the reasons why Aboriginal children do not attend school. In the town of Wadeye, the community’s commitment to ensure that more children turned up to school highlighted that there were not enough teachers and classrooms available to accommodate them. The key focus in the response is on law and order issues. Increasing police presence and protection for victims is important for ensuring that Aboriginal people feel safe and secure in their own communities. But the federal government has become overly obsession with the issue of customary law defences. Many Indigenous people like myself have been critical of the way in which some members of the judiciary have accepted evidence that violence against women is an accepted part of our culture and have taken this erroneous representation into account in sentencing. The appropriate response to this phenomenon was to work with the judiciary to provide a better understanding of the cultural values of the Aboriginal community rather than be fooled by the misrepresentations. (Ironically, Minister Brough contributed to the misrepresentation of Indigenous culture when the issue re-emerged six weeks ago when he blamed the levels of abuse and violence on Aboriginal culture.) To respond to the issue by removing from legislation the ability of sentencing judges to take into account customary factors that may be relevant is a heavy-handed response in the wrong direction. It infringes on the judge’s ability to take all relevant factors into account in the circumstances, and this kind of restriction can create more injustice than it seeks to address. Such interference in the practice of sentencing is also an increasing encroachment on the separation of powers. Western Australia’s attorney-general, Jim McGinty, has called the move “bigoted and boof-headed”. The Law Council of Australia has also been critical. A final concern with the outcome of the summit is that the focus on intervention rather than development in Aboriginal and Torres Strait Islander communities means that the focus will be on the continual attempt to manage the problem rather than on a concerted and comprehensive attempt to also attack the root causes. Without a more strategic approach that mixes short-term intervention with long-term capacity building, these issues will be managed but not solved. • Larissa Behrendt is professor of law and director of research at the Jumbunna Indigenous House of Learning, University of Technology, Sydney. Photo: Andrew Jeffre