Chapter 6Commonwealth government leadership
6.1According to Our Watch, to prevent violence against First Nations women, action is needed by multiple stakeholders in both First Nations and ‘mainstream’ or non-Indigenous contexts. However:
Governments have a critical responsibility to prevent violence against First Nations women, and specific obligations under international human rights law to do so. Work at the community or organisational level is important, but should be accompanied by legislative, institutional and policy actions by governments to protect Indigenous people’s human rights, promote racial and gender equality, and ensure accountability for violence and discrimination.
6.2Dr Hannah McGlade, Associate Professor of the Law School at Curtin University and member of the United Nations (UN) Permanent Forum on Indigenous Issues, questioned whether all Australian governments are genuinely committed to ending the violence against First Nations women and children:
I've found from my own lifetime of working in this area that we're not valued and there's not been appropriate value placed on working with Indigenous women and investing in women's leadership, designing appropriate programs, investing in programs and addressing the systemic and structural issues, in particular with child welfare, policing and the justice system…I hope that the federal national action plan…can really engage with and influence state governments to be doing better, because we’re doing very poorly.
6.3Ms Patty Kinnersly, Chief Executive Officer of Our Watch, stated that stronger leadership is required, a view shared by Ms Nerita Waight, Chief Executive Officer of the Victorian Aboriginal Legal Service, who said:
The Commonwealth does have a role, not only to encourage jurisdictions to implement necessary reforms. They also have a very powerful lever when it comes to resources, and that is often the barrier that is put in front of us.
6.4Particularly with respect to state and territory-based police services, Ms Waight argued that the Commonwealth government has a role. In addition to its international human rights obligations (see ‘International human rights framework’ below), Ms Waight said: ‘it is our federal government, and these are issues that affect, us just like health and education’.
6.5Dr Chay Brown, Post Doctoral Fellow at the Australian National University and Managing Director of Her Story Consulting, particularly questioned federal, state and territory governments’ commitment to collaborative partnerships:
I don't think that all levels of government are invested in those national partnership principles, certainly not in partnership nor in meaningful self-determination. Our only pathway out of a lot of these issues and problems is for these solutions to be community led. But something we repeatedly see, particularly in environments like Alice Springs, is externally imposed interventions again and again and again, which simply don't work.
6.6Similarly, Change the Record and Djirra submitted:
Contemporary policy responses to violence against Aboriginal and Torres Strait Islander women and children have been primarily government‑directed and mainstream, failing to centre our needs and expertise. Mainstream, top-down government responses to family violence have made things worse, not better, for Aboriginal and Torres Strait Islander women, children and communities.
6.7This chapter focuses on:
the international human rights framework;
Commonwealth-led frameworks; and
previous inquiries, reviews, studies, reports and recommendations.
International human rights framework
6.8Dr Tania Penovic, Senior Chair of Women and Girls’ Rights at Australian Lawyers for Human Rights (ALHR), stated that violence against women is probably the key human rights concern in Australia, with the shocking rates of violence directed at First Nations women and children being a critical issue:
…violence against First Nations women and children is so much greater; it's experienced disproportionately. So it's a critical human rights issue, and UN organs are beginning to recognise violence against Indigenous women and children globally [see, for example, paragraph 5.73]. Australia has certainly not distinguished itself in being a leader in this regard. We're not doing well; there is significant work to be done in this area and we're failing to meet our human rights obligations.
6.9Several submitters and witnesses contended that international human rights obligations should found Australia’s response to violence against First Nations women and children. In this respect, they noted the various international instruments that provide the right to live free from violence, for example, the:
Convention on the Elimination of All Forms of Discrimination against Women;
Convention on the Rights of the Child
International Convention on the Elimination of All Forms of Racial Discrimination; and
International Covenant on Economic, Social and Cultural Rights.
6.10In 2020, the Wiyi Yani U Thangani(Women’s Voices): Securing Our Rights, Securing Our Future Report set out the international human rights context for upholding the safety of First Nations women and children, and commented:
All people have the right to live and grow in healthy and safe homes and communities, free from the threat of violence, abuse and discrimination. Guaranteeing basic rights, such as secure housing, education, financial security, health and non-discrimination, as well as maintaining connection to culture, is critical in reducing community-wide harms and interactions with the criminal justice and child protection systems. In recognising these rights, and grounded in our right to culture and self-determination, we can advance the equality, safety and wellbeing of our women and children.
United Nations Declaration on the Rights of Indigenous Peoples
6.11The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) establishes a universal framework of minimum standards for the survival, dignity and well-being of Indigenous people. It also elaborates on existing human rights standards and fundamental freedoms as they apply to Indigenous people.
6.12The Law Council of Australia (Law Council) acknowledged that the UNDRIP is not a treaty and does not create legally binding obligations. However, it argued that the articles rely and elaborate upon many obligations articulated in international treaty and customary law. Therefore, ‘[UNDRIP] provides a useful and focused framework for identifying norms binding on Australia as they apply to the situations of First Nations peoples’.
6.13The Australian Human Rights Commission (AHRC) and the Law Council especially highlighted article 22(2) of the UNDRIP:
States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.
6.14The AHRC submitted that Australia must progress implementation of the relevant international human rights instruments, including the UNDRIP, to end violence against First Nations women and children.
6.15The Australian Lawyers Alliance (ALA) strongly endorsed the UNDRIP and supported its implementation into federal, state and territory legislation. Itargued that the declaration would impose a broad duty on the Commonwealth government to consult First Nations peoples and their representatives, and would act to increase the safety of First Nations women and children:
Enactment of the UNDRIP will ensure that the structures and processes within Australia’s legislative and policy landscape consider the duties and principles enshrined in the UNDRIP when developing or reforming laws and policies. This will extend to laws and policies that contribute to a systemic reduction in the causes of violence against First Nations women and children, and that contribute to an increase in initiatives that protect First Nations women and children’s safety.
6.16Some submitters argued alternatively that Australia should legislate a Bill of Rights or Human Rights Charter, to better protect the human rights of all Australians, including those of First Nations women and children (see‘Parliamentary Joint Committee on Human Rights’ at paragraph 6.30).
Self-determination
6.17Several submitters and witnesses referred to article 3 of the UNDRIP, which sets out the right of First Nations people to self‑determination: ‘Indigenous peoples have the right to self-determination. Byvirtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.
6.18The Law Council explained:
The right to self-determination has been articulated as involving and protecting, at a minimum, an ‘ongoing process of choice’ for Indigenous peoples, who are entitled to have control over their destiny and be treated respectfully.It is paramount that responses to violence against First Nations women and children are driven by a process that is consistent with these principles, as these principles assist to empower communities and create tangible change.
6.19Dr McGlade stated, however, that the right of First Nations women to self‑determination has not been respected in Australia. Adjunct Professor Muriel Bamblett AO, Adviser on the Aboriginal and Torres Strait Islander Advisory Council, called on Australian governments to align all legislative and policy reforms with the right to self-determination, as well as other UNDRIP principles.
6.20It is noted that the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs conducted an extensive inquiry in relation to the application of UNDRIP in Australia, including options to improve adherence to its principles in Australia. The report was handed down in November 2023.
Self-determined responses to violence
6.21As reflected throughout this report, submitters and witnesses called for self‑determined responses to violence against First Nations women and children, including service design and delivery by Aboriginal community‑controlled organisations (ACCOs, seeChapters 3 and 5).
6.22ALHR submitted, for example:
One of the most important ways to ensure effective policies and programs in First Nations communities is to involve First Nations people (especially elders) in the design and implementation processes. Time and time again initiatives have failed because they neglect to take into account the nuances and features of First Nations customs, traditions and culture. This is a fatal blow to any policy or program targeting First Nations communities.
6.23Similarly, the Commission for Children and Young People (Victoria) submitted:
A lack of investment in culturally appropriate and culturally safe support networks, particularly [ACCOs] has further contributed to a lack of suitable supports for First Nations women and children experiencing family violence, homelessness and poverty, contributing to increasing numbers of missing and murdered First Nations women and children.
6.24Australia’s National Research Organisation for Women’s Safety (ANROWS) highlighted that First Nations women may prefer supports that enable them to stay in communities, to maintain connections to Country, community and family. Inone study:
…participants expressed the universal belief that current government policies on family and domestic violence were designed to “break up” Aboriginal families…Participants emphasised that Aboriginal peoples’ stories are different to those [of] non-First Nations people and therefore require a different response that is underpinned by closely working with Aboriginal peoples.
6.25Across the country, submitters and witnesses advised that effective programs and services are undermined by limited and short-term funding. ALHR submitted that is a need for consistent and adequately funded support services:
Much like the Men’s Shed initiative in the Northern Territory, many well‑designed and effective strategies fail to launch or are terminated early due to lack of funding. For initiatives to be effective and achieve the long‑term goal of reducing and eventually eradicating violence against First Nations women and children, consistent and adequate funding commitments from local, state and federal governments is a must.
6.26The Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women’s Council provides self-determined strategies to women across the NPY region. Itspractice framework—‘Strengthening Community Capacity to End Violence’ — is similar to the Northern Territory’s ‘Men’s Sheds’ program. The NPY Women’s Council supported calls for ‘adequate funding’:
Recognising community expertise and already established ways of working with women experiencing violence is vital if we are to reduce rates of violence against women in remote Aboriginal communities. Community involvement is crucial and adequate resourcing is necessary to ensure these solutions are able to be enacted and sustained. Solutions will not thrive if they are interrupted by short term funding cycles, change in policies and priorities and [Key Performance Indicators] that are not embedded with self‑determination and cultural understanding.
6.27Ms Dixie Link‑Gordon, Program Coordinator for the NSW Aboriginal Women’s Advisory Network, referenced the work conducted by her organisation. Sheagreed that it is not a good idea to time limit such programs:
It's like, 'Okay. Here's two years. Go and sort that out.' I always focus on how our community can have a good yarn, a good truth telling amongst each other. We all have the right to be safe in our homes, in our bedrooms. Our children have the basic human right to wake up with safety and love in their families, not their mother being beaten to death in the lounge room or out the back door or something.
6.28The Northern Territory’s Office of the Children’s Commissioner noted the specific challenges of service delivery and interventions in the Northern Territory (also see Chapter 5):
Stakeholders in the Northern Territory have advocated for sustainably funded, culturally safe and Indigenous-led initiatives to produce successful and sustainable change. More generally, the Northern Territory service landscape is limited and struggles to offer a wide range of suitable and effective services and interventions, especially to Aboriginal women and children.
The impacts of intergenerational trauma, ongoing socio-economic inequality and institutional racism have contributed to diminished trust and uptake of non-Aboriginal focused policies and services from non-Aboriginal organisations. For these reasons, it remains critical to strengthen funding, capacity building and culturally appropriate program and policy design and evaluation with Aboriginal Community Controlled organisations.
6.29Mr Greg Douglas, Chief Executive Officer of Kempsey Local Aboriginal Land Council, gave evidence that First Nations organisations have difficulty obtaining funding from the Commonwealth government:
From 2011 there has been a major federal government initiative around economic development for communities, but when the community organisation worked and formed partnerships to come together and make applications for support through that, the end result was that very few actually received any support and the moneys went to providers from outside or established providers under the procurement spheres of government funding. That stuff is still going on now.
Parliamentary Joint Committee on Human Rights
6.30The Parliamentary Joint Committee on Human Rights (PJC HR) recently inquired into Australia’s Human Rights Framework, including consideration of whether the Australian Parliament should enact a federal Human Rights Act.
6.31The PJC HR tabled its report on 30 May 2024 with 17 detailed recommendations, including that the Commonwealth government legislate for the comprehensive and effective protection of human rights through a Human Rights Act (HRA, Recommendation 1).
6.32With respect to First Nations people, the PJC HR reported:
The committee also received evidence that other rights relating to specific groups, such as Aboriginal and Torres Strait Islander people…should be protected…The committee acknowledges the importance of protecting the rights of specific vulnerable groups, particularly in light of their experience of systemic discrimination. However, the committee considers that the [model legislation proposed by the AHRC] would adequately protect the rights of these specific groups, noting that many of these specific rights are drawn from the core rights contained in the [International Covenant on Civil and Political Rights] and the International Convention on Economic, Social and Cultural Rights (ICESCR).
6.33The PJC HR specifically noted the importance of the right to self-determination but expressed a view that expert legal advice must be obtained before any decision on how to include this right in a HRA:
The committee notes that the AHRC has suggested including the right to self-determination within a preamble as an overarching principle of a HRA rather than a stand-alone right due, in part, to the vagueness and complexity of the term. The committee acknowledges the complexity of including this right within a HRA, particularly noting it is a collective right of 'peoples' rather than individuals. However, noting the particular significance of this right to Aboriginal and Torres Strait Islander people, the committee considers further legal advice should be sought as to whether the right to self-determination could be included in a HRA as an enforceable collective right, including advice from relevant Aboriginal and Torres Strait Islander experts.
6.34As at the time of writing, the Commonwealth government has not responded to the recommendations of the PJC HR.
Commonwealth-led frameworks
6.35The National Plan to Reduce Violence against Women and their Children 2010—2022 (the National Reduction Plan) provided a framework for actions by governments to reduce violence against women and their children. It also aimed to improve how governments work together, increase support for women and their children, and create innovative and targeted ways to bring about change.
6.36First Nations leader Professor Marcia Langton AO was quoted in media, saying that the National Reduction Plan did ‘not work for us’ and Indigenous representatives must be involved in designing local initiatives:
‘Nobody listens to us. They talk over the top of us, they tell us what we are going to have in our communities, and no one listens to the women in the communities, the women in the towns, the women in the suburbs who have to deal with all those young women and older women and children fleeing from violence…Lives are being lost because people who think they know better than us will not listen to us and will not act on our advice’.
6.37Change the Record and Djirra agreed that the National Reduction Plan failed First Nations women and children:
Despite the disproportionate violence and trauma experienced by First Nations peoples, the [National Reduction Plan] failed to centre the voices and needs of Aboriginal and Torres Strait Islander women, gender diverse people and children. Itcontinued the Australian tradition of governments making decisions about First Nations peoples without consultation and consent in policy development, implementation and evaluation.
6.38The National Reduction Plan expired in 2022 and was replaced by the National Plan to End Violence Against Women and Children 2022–2032 (theNational Plan):
The National Plan commits to 10 years of sustained action, effort and partnership across sectors and levels of government towards our vision of ending violence against women and children in one generation. It outlines what needs to happen to achieve our vision. This includes building the workforce, growing the evidence base and strengthening data collection systems, while delivering holistic, coordinated and integrated person‑centred responses. To achieve this, we must listen to and be guided by victim-survivors and people with lived experience.
6.39The National Plan explicitly acknowledges the key role and contributions of First Nations people in creating the new framework:
We recognise the leadership role Aboriginal and Torres Strait Islander peoples have played in the development of the National Plan and the role Aboriginal and Torres Strait Islander peoples will play in the implementation and monitoring of the National Plan. This includes thanks to the Aboriginal and Torres Strait Islander Advisory Council on family, domestic and sexual violence which has worked in partnership with government to inform the development of this plan and is leading the development of the underpinning Aboriginal and Torres Strait Islander Action Plan.
6.40The Department of Social Services (DSS) Acting Group Manager of the Women’s Safety Group Ms Greta Doherty explained that the National Plan benefits from the experience of the National Reduction Plan:
[The National Reduction Plan] put a lot of effort into building the evidence base and building our understanding of both the drivers of violence and the impacts of violence through society at an individual level, a social level and a community level. I acknowledge there are still significant gaps…[T]he [National Plan] will acknowledge there is a lot of work to still be done to continue to build on the evidence base, but we are certainly not starting from scratch.
Aboriginal and Torres Strait Islander Action Plan 2023–2025
6.41During the development of the National Plan, the National Summit on Women’s Safety met in Canberra (6–7 September 2021). That summit concluded with the release of a Delegates Statement that explicitly recognised:
Aboriginal and Torres Strait Islander peoples must have their own First Nations specific Action Plan to address family safety under the National Plan and be empowered to lead all actions and responses in their communities.
6.42In 2023, the DSS and the Aboriginal and Torres Strait Islander Advisory Council on family, domestic and sexual violence delivered the Aboriginal and Torres Strait Islander Action Plan 2023–2025 (First Nations Action Plan):
This is the first dedicated Action Plan created to provide targeted action to address the disproportionate rates of violence experienced by Aboriginal and Torres Strait Islander women and children. The Action Plan is aligned with the National Agreement on Closing the Gap, the 4 Priority Reforms and 17 socio-economic outcomes. Specifically, with a focus on outcome area and Target 13…The Action Plan also corresponds with other existing strategies and targets for realising the rights of Aboriginal and Torres Strait Islander women and children at the Commonwealth and state/territory levels. Its activities will occur alongside a range of initiatives already being implemented by states and territories under their individual plans.
First Nations National Plan
6.43In 2022, the Wiyi Yani U Thangani (Women’s Voices) First Nations Women’s Safety Policy Forum (First Nations Women’s Safety Policy Forum) convened to ‘inform the longer-term formation of the Australian Government’s proposed stand‑alone First Nations National Plan to end violence against women and children’ (12 September).
6.44On conclusion, the forum issued a Delegates Statement, which set out seven overarching themes and priorities for formulation on the National Plan, including:
First Nations self-determination to guarantee that First Nations women lead in the development and delivery of a stand-alone plan, and inform the program, policy and legislative decisions that impact their lives, consistent with human rights, especially UNDRIP.
…
Centring the voices of First Nations children, especially girls who are at increased risk of sexual abuse in the development of the stand-alone plan to ensure specific child-centred actions, and to support community-controlled organisations and other mainstream services to work effectively with children and families impacted by violence.
Grounding the plan in a human-rights based approach that recognises Australia’s obligations to the treaties it has ratified and endorsed.
…
Understanding and addressing the violence caused by individual, systemic and institutional racism, how racism is present within policies and legislation, and the particular effects it has on First Nations women and children in everyday life and when interacting with services, the public and when seeking help.
6.45Several submitters expressly supported the outcomes of the First Nations Women’s Safety Policy Forum. Change the Record and Djirra, for example, outlined their longstanding support for ‘astandalone, self-determined National Safety Plan for First Nations Women to implement community-led responses to violence’. The Boorndawan Willam Aboriginal Healing Service submitted that ‘there must be an investment in a first nations national plan and that its success hinges on First Nations women being positioned to lead this piece of work’.
6.46The Law Council particularly noted Recommendations 1–2, 5–6 and 8–9 of the First Nations Women’s Safety Policy Forum’s Outcomes Report, which was released in November 2022. These recommendations focussed on design considerations and structural reforms, such as, ‘ensure Plans consider the interrelationship between state, territory and Commonwealth governments to promote shared responsibility’.
6.47The AHRC argued that, like the National Plan, the First Nations National Plan should clearly acknowledge children and young people as victim-survivors in their own right:
The rights and needs of children – both boys and girls – must be considered at each point of the strategy, from prevention to early intervention and through to the response and recovery domains.
Commonwealth government response
6.48The National Indigenous Australians Agency (NIAA) and the Attorney‑General’s Department (AGD) recognised the need to centre the voices of First Nations women:
First Nations experiences and culture must be at the centre of our approach to understand and safeguard First Nations women and children from violence. All levels of governments need to understand the five elements that drive cultural strength – Land, Lore, Language, Family and Ceremony. These elements operate collectively and work to keep culture and community strong, which in turn empowers First Nations peoples to feel safe and proud of their identity.
6.49In mid-2022, the Minister for Social Services, the Hon Amanda Rishworth MP (the minister), announced that ‘the Australian Government will work with Aboriginal and Torres Strait Islander women to develop a stand-alone National Plan to set out a long-term strategy’.
6.50On 24 January 2024, the minister announced jointly with the Minister for Indigenous Australians, the Hon Linda Burney MP, the appointment of the new First Nations National Plan Steering Committee to provide advice on the development of the standalone First Nations National Plan to address Target 13 of the National Agreement on Closing the Gap 2020–2030.
6.51In the Federal Budget 2023–24, the Commonwealth government committed $7.8million over five years from 2022–23 (and $4.0 million in 2027–28) to support the development of the First Nations National Plan.
Previous inquiries, reviews, studies, reports and recommendations
6.52Many submitters and witnesses commented that, in addition to the Wiyi Yani U Thangani(Women’s Voices) project (see Chapter 3), there is an existing and substantial body of work that can inform responses to family, domestic and sexual violence against First Nations women and children, for example:
the 1987–1991 Royal Commission into Aboriginal Deaths in Custody;
the Australian National University First Nations-led Family and Community Safety for Aboriginal and Torres Strait Islander Peoples Study (FaCtS);
Our Watch’s 2018 Changing the Picture: a national resource to support the prevention of violence against Aboriginal and Torres Strait Islander women and their children; and
the Secretariat of National Aboriginal and Islander Child Care – National Voice for our Children, National Family Violence Prevention Legal Service and National Aboriginal and Torres Strait Islander Legal Service 2017 collaboration, Strong Families, Safe Kids: Family violence response and prevention for Aboriginal and Torres Strait Islander Children and Families.
6.53The Law Council, the AHRC, the Law Reform and Social Justice Research Hub at the Australian National University and the First Nations Women’s Legal Service Queensland also highlighted international reports and experiences (such as Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls and New Zealand’s Waitangi Tribunal’s Mana Wāhine inquiry).
6.54The AHRC submitted that ‘future plans to end violence against First Nations women and children must not begin from scratch but should build on the findings and recommendations that already exist’. It argued, however, that ‘many of the same recommendations are repeated across reports and research over decades but lack a consistent approach for taking action and tracking progress’.
6.55Several submitters agreed that implementation of earlier recommendations has been lacking. The Wirringa Baiya Aboriginal Women's Legal Centre submitted, for example:
…we note many recommendations in these reports have not been implemented, and inconsistency in addressing First Nations disadvantage stubbornly persists. For example, in 2007, when our Commonwealth Government was developing the Closing the Gap initiative (to tackle First Nations disadvantage) - on the international stage Australia was voting against the adoption of the United Nations Declaration on the Rights of Indigenous People.It took another two years before this occurred in 2009. Such inconsistencies result in documented further marginalization of First Nations women and children in particular.
6.56Dr Francesca Dominello, Scientia Associate Professor Kyllie Cripps and MsMaia Brauner stated that various national commissions of inquiry have highlighted past and current forms of violence perpetrated against First Nations peoples, and documented the lasting effects of colonialism. In their view, the failure to implement recommendations to address these matters is tantamount to genocide:
The lack of implementation of many, if not most, of the recommendations in these reports is further evidence of Australia’s continuing violation of its international human rights obligations, among which is Australia’s obligation not to commit genocide. Instead of making meaningful reparations for past and present rights violations, governments have increasingly relied on punitive measures as a response despite knowledge and growing awareness of the destruction these responses cause for First Nations people and how they increase exposure of First Nations women and children to violence and abuse. The lack of commitment and action to progress recommendations for reform supports the argument that the genocide continues.
6.57In another example, Change the Record and Djirra submitted:
…there has been Royal Commission after Royal Commission, reports, inquiries, strategies and partnerships but little to no implementation of recommendations. There continue to be deaths in and out of custody, with little or no consequences. More children than ever are being stolen from their mothers, families and communities. Lip service is paid to acknowledgement of country, reconciliation and cultural awareness training, but there is a complete lack of commitment to developing institutional cultural awareness or building it into accountability structures.
6.58The Victorian Aboriginal Child Care Agency suggested that accountability be improved by the Commonwealth government regularly reporting its progress to Parliament on the implementation of recommendations from the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families and the Royal Commission into Aboriginal Deaths in Custody.
6.59NIAA representative Ms Ursula Carolyn, Branch Manager for Families and Safety, acknowledged that, in 2018, nine per cent of recommendations directed toward the Commonwealth government from the Royal Commission into Aboriginal Deaths in Custody had not been implemented.
6.60Mr Ben Burdon, Group Manager of Social Policy and Programs at the NIAA, advised:
…we haven't achieved the overall outcomes of the royal commission, and it's something that the government takes very, very seriously and has made a range of commitments to keep working on.