AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2006 >> [2006] IndigLawB 6

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Edney, Richard --- "The Importance of Indigenous Stories: The Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody" [2006] IndigLawB 6; (2006) 6(16) Indigenous Law Bulletin 17


The Importance of Indigenous Stories: The Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody

by Richard Edney

Introduction

The recent release of the Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody[1] (hereafter ‘Review’) by the Attorney-General, Rob Hulls, is a stunning document. With around 800 pages and 164 recommendations directed at all aspects of Government that have a significant impact on Victorian Indigenous communities, it provides an assessment of the consequences of dispossession and how they manifest in continuing high rates of Indigenous representation in all stages of the Victorian criminal justice system. It is not comfortable reading. In many ways the Attorney-General is to be congratulated for providing such wide terms of reference for this report. While this may bring criticism, it is through the commissioning of such a report that the legacy of the Royal Commission into Aboriginal Deaths in Custody of 1991 (‘RCIADIC ’) may be maintained.

The Context of the Review

The aim of the Review – which was established pursuant to the Victorian Aboriginal Justice Agreement – was to determine the extent to which the Victorian Government and departmental agencies had responded to the 339 Recommendations of the RCIADIC. In this manner it was in conformity with the multitude of reports that have been produced since the RCIADIC published its findings and Recommendations in 1991 by Commonwealth, State and Territory governments to assess the adequacy of their responses to the RCIADIC. In Victoria, the RCIADIC and its status had been reviewed four times with the last significant review being conducted in 1996-1997.[2] In that sense, this Review is timely and important.

Methodological Dimensions of the Review

A key feature of the current Review was that it reflected critically on previous Victorian reviews and found that they were constrained in their methodology by a significant flaw. That flaw was the absence of the views and perspectives of the Victorian Indigenous communities. Thus the ‘stories’ produced by Indigenous communities as to the impact – or lack thereof – of the RCIADIC were largely ignored. This Review is different.

Under the stewardship of Indigenous Chairpersons Dr Joy Murphy and Dr Mark Rose, the Review notes the omission of Indigenous stories in previous reviews and sets out to correct that omission.[3] Thus the Review adopts a methodology that ensures Indigenous voices and stories are properly captured. This was achieved by ensuring that Indigenous communities were aware that the Review was being conducted. In addition, the Review team travelled extensively throughout Victoria and held meetings with Indigenous communities to ascertain the impact that the RCIADIC had had on the lives of Indigenous persons.[4] In addition, the Review visited prisons and police cells to hear the stories of Indigenous inmates. What was additionally important in this aspect of the methodology was the extensive use made of these stories in the final report of the Review.[5]

Other source material for the Review was derived from more traditional sources. First, the Review collated self-assessment responses from numerous government agencies concerning the extent to which they had complied with the Recommendations of the RCIADIC. What was significant about this approach was that the Review did not simply elicit responses from agencies associated with the criminal justice system – for instance, police, courts and corrections. It also included agencies – such as housing and health – whose acts and omissions impact upon the quality of life of Indigenous peoples in Victoria. Second, the Review utilised an array of statistical data from a variety of sources such as the Australia Bureau of Statistics and Government departments such as the Department of Human Services, Victoria Police and Corrections Victoria to provide background as to the extent of compliance with the RCIADIC Recommendations.

Notwithstanding the depth of research – and the use of methodological tools to engage Indigenous communities in the Review process – the authors of the Review note the inherent limits of the Review:

It is self evident that the Review is not, in many respects, independent. Almost without exception, the bulk of the material on the implementation of particular Recommendations was provided to the Review by government departments and agencies, as were the self-assessments of the stage that implementation had reached. The Review Team had neither the time nor the capacity to check and audit those reports, and consultation with the Indigenous community tended on the whole to produce generalised assessments rather than focussed responses on the implementation status of individual Recommendations. Despite the Review Team’s attempts at objectivity and the often obliquely critical comments made by some members of the Indigenous community, the reported situation with regard to Victoria’s implementation of Royal Commission’s Recommendations remains largely what government departments say it is.[6]

What this comment also emphasises is where power still resides in a post-colonial society and the depth – and embedded nature – of non-Indigenous institutions to control and regulate Indigenous peoples’ lives.

The Review’s Findings

In interpreting the findings of the Review, it is first important to note the framework adopted by the Review in evaluating their findings. That framework drew heavily from the RCIADIC. First, there was a need to reform the criminal justice system so that Indigenous persons are not overrepresented in the operation of the criminal justice system. Second, that reforms to the criminal justice system, although crucial, are not sufficient to reduce Indigenous overrepresentation unless they are annexed to efforts to address other ‘underlying issues’ which contributed to Indigenous offending in the first instance.[7] This twin track approach to reduce the incidence of Indigenous deaths in custody remains fundamental to the Review and its findings and recommendations.

In respect of the findings made in respect of the criminal justice system – and which form the majority of the Review’s findings – the Review focused on key agencies and institutions of the Victorian criminal justice system.[8] Those agencies and institutions of the criminal justice system of Victoria considered by the Review were:

The key findings from the Review on the changes to the situation of Indigenous persons in the criminal justice system of Victoria are of concern. In particular, key figures on overrepresentation at various stages of the criminal justice system suggest that there has been little movement post-RCIADIC and that despite attempts at reform, the numbers of Indigenous people involved in the criminal justice system has not fallen as much as would have been hoped. Thus, in Volume 2 of the Review – which contains the relevant statistical information the Review relied upon to make its findings and recommendations – there are details of the nature of Indigenous involvement in the criminal justice system. These statistics reveal that:

Thus – and despite the introduction of a number of reforms that have attempted to reduce the level of Indigenous involvement in the criminal justice system – the operation of the criminal justice system and its intrusive involvement in the lives of Indigenous communities remains at stable high levels.

Such findings have implications that arguably point in divergent directions. First, that reforms directed at the level of the criminal justice system are likely not to have a significant impact because Indigenous involvement in the criminal justice system is more the product of non-legal sources of disadvantage that are more broadly described as the ‘underlying issues’, such as employment and economic status. These issues are critical to the involvement of an Indigenous person in the operation of the criminal justice system.

Second, that the implementation of the RCIADIC by governments is not sufficiently radical or imaginative to counter Indigenous overrepresentation in the criminal justice system. One example from the Review was the response of a government department to one of the most important and fundamental Recommendations of the RCIADIC – that imprisonment should be a sanction of last resort:

Legal Policy... [Department of Justice] ...advised the Review that this Recommendation is implemented relying on section 5(4) of the Sentencing Act:
A Court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.[10]

The section relied on was, in fact, passed prior to the RCIADIC findings; it applies to all offenders and was not remedial legislation. To suggest that Recommendation 92 has been ‘implemented’ – suggesting as it does that some positive act has been undertaken – when there has been no change to sentencing legislation in Victoria is mischievous.[11] It may also help to explain why Indigenous overrepresentation rates in prison have not fallen since 1991 and that there have been a further seven Indigenous deaths in custody in Victoria since the RCIADIC.[12]

The Review itself devotes a substantial space to the ‘underlying issues’ that provide the developmental pathways for Indigenous offending.[13] In particular, the following areas were addressed in the Review to ascertain the conformity of government agencies’ response to these issues, as well as the Indigenous communities’ critique of the performance of those agencies. The following areas were addressed:

It is not possible to detail the full dimensions of these underlying issues here. However, it is sufficient to say that in respect to the key indicators, the Indigenous communities of Victoria do markedly less well than members of the non-Indigenous communities. Importantly, Volume 2 of the Review titled ‘Statistical Information’ provides a wealth of information of the Indigenous experience beyond the criminal justice system.[14] In terms of the progress made by the Indigenous communities in respect of underlying issues since the RCIADIC, the overall view is mixed and gains have been marginal. For instance, in education there are still ‘major differences between Indigenous and non-Indigenous Victorians’,[15] with lower overall retention rates at Years 11 and 12 and difficulties meeting national benchmarks for reading, numeracy and writing.[16] In contrast, the Review notes that ‘[s]ince 1991 there has been an increase in the number and percentage of Indigenous persons reporting having a post-school qualification’.[17] Unemployment also remains a significant problem in Victorian Indigenous communities with unemployment rates as much as three times higher than for non-Indigenous Victorians. On a more positive note, there has been some increase in Indigenous employment in business, service and public service sectors of the Victorian economy since 2002.[18]

Overall, health and well-being of Indigenous Victorians still remains at a level of concern with ‘higher levels of ill health, disability, illness, injury, hospitalizations and mortality than non-Indigenous Victorians’.[19]

Recommendations

The Review makes 164 Recommendations to the Victorian Government. They build upon the 339 Recommendations of the RCIADIC and they reflect the way the Indigenous experience has changed since 1991. Importantly, they now include a dimension of the ‘stories’ from Victorian Indigenous communities that reflect the issues that are most significant. In relation to government action, the Review adopts a ‘whole of government’ approach to address Indigenous overrepresentation. This notion emphasises that amelioration of Indigenous overrepresentation in the Victorian criminal justice system remains a concern of every level of government, not simply of those directly a part of the criminal justice system. This is an excellent framework and an important aspect of the Recommendations of the Review as it displays a sufficient realisation that the problems besetting Indigenous communities in Victoria are not simply an issue of ‘law and order’ but the product of the impact of colonisation and dispossession that have had substantial and enduring effects.

Conclusion

The Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody should serve as a model example of the method by which the Recommendations of the RCIADIC should be assessed. This is especially important given that it is now fifteen years since the RCIADIC tabled its findings and where there is an acute danger that it may be treated as a historical document rather than a living instrument directed towards ensuring that those findings and the philosophy underpinning it are constantly reinvigorated and made relevant to the contemporary experience of Indigenous communities. The findings of the Review – both as to the underlying issues as well as the operation of the criminal justice system – are not heartening but hopefully the 134 Recommendations provide a means towards future progress. Such assessments must always be guarded, however, given the relative lack of substantial progress since the RCIADIC. Indeed, perhaps until the wider non-Indigenous community is able to feel a degree of ‘solidarity’ with Indigenous communities, which would make it intolerable that those communities have to endure such levels of pain and suffering, change will be remote. It is hoped that the stories that are embedded within the Review may elicit such a response.

Richard Edney is a Senior Lecturer in Law at Deakin University Law School and Solicitor.


[1] Department of Justice, Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody, Report No 165, (2005).

[2] Ibid Vol 1, v, 78, 85-6.

[3] Ibid Vol 1, 85, 88-95.

[4] Ibid Vol 1, 94.

[5] Ibid Vol 1, vii-ix,143-149, 173-175, 188-190, 206-211, 234-238, 265-269, 296-305, 323-325, 343-347, 405-435, 616-634 and 666-672. On the ability of ‘stories’ – particularly from disempowered communities – to challenge traditional and mainstream legal thinking and scholarship see K Scheppele, ‘Telling Stories’ (1988-89) 87 Michigan Law Review 2073, 2077-2085.

[6] Ibid Vol 1, 4.

[7] Ibid Vol 1, 78-82.

[8] Ibid Vol 1, 351-675.

[9] Ibid Vol 2, 63-118.

[10] Ibid Vol 1, 472-473.

[11] The introduction of the Koori Court Division of the Magistrates Court and Children’s Court of Victoria does not, in my assessment, change the unimaginative response by successive Justice Departments of Victoria to Recommendation 92 as the Koori Court applies the Sentencing Act 1991 (Vic) in the same manner. Thus the Koori Court is directed towards more practice and procedure rather than substantive aspects of sentencing legislation. A more radical innovation could involve the raising of the custody threshold for Indigenous offenders and for the prescription of this as a fundamental sentencing principle. For a fuller development of this argument see R Edney, ‘A Higher Custody Threshold for Indigenous Offenders in Victoria’ [2004] IndigLawB 26; (2004) 6 Indigenous Law Bulletin 17.

[12] Department of Justice, above n 1, Vol 1, 101-129.

[13] Ibid Vol 1, 131-350.

[14] Ibid Vol 2, 9-62.

[15] Ibid Vol 2, 9.

[16] Ibid.

[17] Ibid.

[18] Ibid Vol 2, 20.

[19] Ibid Vol 2, 46.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2006/6.html