The Coalition of Peaks meeting in Boorloo, Perth this month appears intended as a sharp reminder of state government's commitment to Closing the Gap targets and the partnership of Commonwealth and states to work together to do this.
Minister Malarndirri McCarthy with Pat Turner and organisational heads from around the country began with a 'welcome' to the new governments of Queensland and Northern Territory, governments who show blatant disregard for Aboriginal people and children's rights.
As we all know, these states have been active in campaigning for and passing new laws that will increase Aboriginal youth incarceration, with the Northern Territory in the process of lowering the age of criminal responsibility to 10 years, and the Queensland government now promising to treat children as adult offenders. These are clear violations of the UN Convention on the Rights of the Child, although children affected have no right to recourse under UN law because the Federal government has refused to ratify the Optional Protocol allowing for this process to be used in Australia.
At the same time, in fact that very day in Western Australia, we learnt that the Aboriginal incarceration had risen by 17 per cent just over the past year alone.
Western Australia has the shameful reputation of incarcerating more Aboriginal people than any other state, with the Northern Territory close behind. Consequently, we also have more deaths in custody, with two Aboriginal men dying in WA prisons in the last month.
Underlining factors include poverty and rising costs, strict bail conditions and lack of measures such as bail hostels, mandatory detention laws known as 'three strikes' which extend to property related offences such as burglary, lack of culturally safe rehabilitation services, and the ongoing travesty of systemic racism in the criminal justice system so evident from the harsh criminalisation of First Nations children.
The Justice Policy Partnership (JPP) adopted by the Commonwealth and the Coalition of Peaks is intended to reduce Aboriginal incarceration, but the WA statistics tell us clearly the extent of the policy failure.
The JPP has no apparent influence on States prepared to increase Aboriginal incarceration through discriminatory laws, including in WA the High Risk Serious Offenders Act of 2020 which imposes indefinite detention, allowing for prisons to apply to keep people incarcerated past their release date, on the basis of perceived 'risk factors', largely impacting Aboriginal people, and was challenged unsuccessfully in the High Court in Garlett v WA (2022). There's also been no serious efforts in our State about repeal of the mandatory detention laws, underlining incarceration rates, or increasing the age of criminal responsibility from the mere age of ten years which is criminogenic, and likely to increase children's risk of incarceration.
The Australian Law Reform Commission inquiry 'Pathways to Justice. Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander peoples' (Report 133), was tabled in Federal Parliament in 2018 and recommended the establishment of a national justice reinvestment body to address Indigenous situation. This never happened. Senator Pat Dodson and I also called for a National Aboriginal Justice Commission to oversee and advocate for reforms nationally, this never happened.
The JPP, a committee of Indigenous peoples with government and secretariat jointly of the Attorney Generals' Department and the National Aboriginal & Torres Strait Islander Legal Services (NATSILS) cannot address this dire situation of Indigenous incarceration.
And while Close the Gap included a commitment to addressing systemic racism, there's little evidence of this happening in the justice sectors. To the contrary, systemic racism and discrimination remains the norm, largely rendered invisible and normalised, with Aboriginal efforts to advocate reforms typically met with silence or indifference.
As the Productivity Commission recently made clear, the Close the Gap targets on reducing Indigenous incarceration will continue to fail while State governments engage in retrograde punitive laws that particularly impact Indigenous children
Senator McCathy's rebuke to States and her reminder of their commitments under CTG is unlikely to engender any improvements in terms of Aboriginal justice. You don't have to be a cynic to see that the NT and Queensland ran racist 'law and order' agendas to win government this year. This approach has been long been used in WA and especially by former ALP Premier Mark McGowan who frequently engaged in demonisation of Aboriginal children.
The current Corrections and Justice Minister Paul Papalia has also demonstrated his willingness to continue this conduct which puts the lives of Aboriginal children at risk. We can only hope the State Coroner examining the death of 16-year-old Cleveland Dodd has the integrity needed to identify the states participation in human rights violations contributing to Cleveland's shocking death.
As the evidence points to the failure of the JPP, surely, it's time we do better than superficial cooperation with racist governments whose promises 'are like writing in the sand' in the words of Yothu Yindi in their powerful call for Treaty. Indigenous people's advocacy for Indigenous rights, including in international human rights forums, and under the UN Declaration on the Rights of Indigenous Peoples is paramount and urgent.
Dr Hannah McGlade is a Kurin Minang human rights expert, law academic and member of the United Nations Permanent Forum on Indigenous Issues.
