Senator Lidia Thorpe has called for financial penalties to be built into the Closing the Gap agreement, arguing states and territories continue to introduce policies that openly undermine its commitments.
On Thursday, the Prime Minister will present the latest Closing the Gap report to Parliament, with previous national data showing key indicators — including adult and youth incarceration, out-of-home care (OOHC) and suicide — either worsening or failing to improve in a meaningful way.
National Indigenous Times understands the government will announce new funding initiatives on Thursday, though it remains unclear which targets will see improvements and which will regress.
Over the past year, states and territories — under both Labor and Liberal governments — have introduced measures that experts say have intensified Indigenous incarceration, particularly on remand.
A report last week found First Nations people are being disproportionately held on remand under increasingly restrictive bail laws, many of which run counter to a central recommendation of the Aboriginal Deaths in Custody Royal Commission: detention as a last resort.
Speaking ahead of the report being tabled, Senator Thorpe urged the federal government to introduce enforceable penalties and incentives under the agreement signed in 2020 by all jurisdictions.
"Closing the Gap is a failure," she said. "Without enforceable accountability, it has become little more than a reporting exercise, documenting state violence while our children are stolen and our people are caged and killed in custody at rising rates."
Some governments — particularly in Queensland and the Northern Territory — have openly rejected aspects of the agreement when they conflict with political priorities, pushing back on Attorney-General Michelle Rowland at the Standing Council of Attorneys-General meeting in Sydney in August.
Queensland's Attorney-General Deb Frecklington reportedly told the meeting the LNP government "won't be changing anything" when it comes to laws that allow children as young as ten to be held in adult watch houses or sentenced to life imprisonment for certain offences. The NT's Attorney-General similarly said that while Closing the Gap was important, it "could not come at the expense of community safety".
Minister for Indigenous Australians Malarndirri McCarthy — who will not address Parliament on the report this week due to Senate Estimates — acknowledged last October that stronger accountability is needed, noting there is currently "no penalty in the agreement".
"I'm trying to look at federal funding arrangements with each state and territory over whatever the agreement might be as to how we can input into that so that there is some kind of penalty as to why you're not achieving targets," Senator McCarthy said at the time.
"Closing the gap funding is not actually a part of the agreement; this is what we've got to manoeuvre now in terms of the federal funding arrangements and that's what I want to see happen going forward, so there can be levers pulled to ensure targets are being met."
Senator Thorpe said those levers must now be used, noting last year saw the highest number of Indigenous deaths in custody since records began in 1979.
Pointing to recent public comments from some governments celebrating incarceration numbers, she argued the Albanese Government "must pull them into line and stop this state violence. Along with funding penalties, the federal government can use its constitutional external affairs power to legislate minimum standards to override states".
"Yet Albanese continues to sit back while our people die."
While the federal government has maintained that youth justice settings — including the minimum age of criminal responsibility — are matters for states and territories, legal advice obtained last year by the Justice and Equity Centre from barristers Kate Eastman AM SC and Emma Dunlop found the Commonwealth could act under section 51(xxix) of the Constitution to meet its international obligations.
"Albanese won't use his powers to stop states and territories killing our people and stealing our children, then he is part of the problem," Senator Thorpe said.
"Racism drives the harm our communities face, from child removals to suicide and the criminalisation of our people."
In recent weeks, Senator McCarthy and the Prime Minister have both acknowledged the scale of racism faced by First Peoples, with the Minister repeatedly raising the issue in Parliament and criticising states and territories that pursue policies at odds with the agreement.
In her statement, Senator Thorpe also renewed calls for the government to adopt the 2024 recommendations of the National Anti-Racism Framework "immediately to address this structural driver of harm," referencing the alleged terror attack in Perth last month.
"Tomorrow is a test for the Albanese government," she said. "Will it be more crumbs on the table that do nothing to reverse the harm being perpetrated against First Peoples, or will the government finally show a real commitment to change?"
