Indigenous Law Bulletin
By Ruth Bohill and Greg Douglas.
This article continues the discussion of the critical nature of consultation with indigenous communities begun in Part One. Ensuring that effective and appropriate consultation has been undertaken is an integral process of any new legislative or policy framework.
Part One questioned the values underpinning the consultative processes directed at improving social harmony under the Child (Protection & Parental Responsibility) Act 1997 (NSW) (‘the Act’). Though the impetus for the Act is to prevent and reduce juvenile crime and make families responsible for the actions of their children, the price for that shift towards achieving a safer and more secure ‘community’ may well be borne by young people, and the parents of anti-social young people, in particular communities. Part Two of this article addresses the way ancestral social organisation may assume a vital role in ensuring communities are informed and are active participants in the processes of consultation.
In Part One, a preliminary investigation revealed inadequacies in the consultation processes established under the Act and the corresponding Attorney-General’s (A-G) guidelines for consultation. The A-G provides three guidelines that assist local government councils with consultations. The first concerns the development of a Local Crime Prevention Plan (LCPP), the second deals with the application for a Safer Community Compact (SCC), and the third involves the application to convert a council area into an operational area under the Act.
A recent report by the Aboriginal Justice Advisory Council (AJAC), entitled A Fraction More Power, and an evaluation of the Act, both detail the impact of these initiatives on local communities including those in Moree, Ballina, Orange and Gosford. Both reports seriously question the viability of the Act, with the AJAC report calling for the Act’s repeal. That report indicates that some families in Moree, whose young people would be most affected by the Act, felt they had not been consulted.
The A-G guidelines do go some way towards identifing mechanisms for consultation. For example, they include suggestions about who to consult, such as Aboriginal Land Councils and other Aboriginal community organisations, Aboriginal elders, focus groups and youth councils. The guidelines also indicate how to consult, for example, through articles in local newspapers and community meetings. However, consultation should be extended to include the literal and practical implications for all community members. Notification to communities regarding the creation of a LCPP or SCC may effectively occur only through very small local government advertisements, with a limited time period for response prior to final approvals and the full implementation of yet another form of social control. As discussed in Part One, the provision of information via educational forums about the operation of the Act, largely a passive exercise, is often conflated with active and effective community consultation in the creation of LCPPs, SCCs and the enforcement of operational areas.
Despite the existence of the A-G guidelines on who and how to consult, how does the A-G ensure that effective consultation has been secured when approving a SCC? A vital ingredient for success in the reduction or prevention of anti-social behaviour and minor crime without negative fallout, (such as individual and/or community disempowerment), will be community members’ level of knowledge about, and acceptance of, the structures that are to be implemented and enforced for social control. In many communities it may be difficult to identify with accuracy this knowledge and acceptance and indeed whether appropriate and relevant consultation has actually occurred.
An understanding of appropriate and relevant consultation implies a process of asking and answering. Usually there is a mutual sharing of knowledge phase whereby those asking will learn from those answering. Essential here is listening, collaborating, modifying and then implementing. These should be extensively engaged in if the consultation process is to include the concept of communities (more than one). This is likely to be a time consuming activity but it should provide the catalyst for successful community based initiatives, such as LCPPs or SCCs for the reduction and prevention of anti-social and illegal behaviour by community members.
Yet how does one engage in appropriate and relevant consultative processes? Other than by the length of time taken, how do we know if the consultative phase has been effectively engaged in? What benchmarks are required to satisfy the consultant (or employer or council) that an individual or a community has stated his, her or their preferred views and opinions, and will be capable of negotiation? Does a no-response constitute knowledge or no knowledge, support or no support? Are different approaches for consultation required for the diverse cultural elements of Australian society? Does a process of consultation, whereby all are approached in the same manner, represent the last vestiges of paternalism? On a micro-level, how do you effectively engage in consultation in a politically flexible and dynamic indigenous Australian community? As noted in Part One, the Act requires consultation with local communities if a LCPP is to be approved as a SCC.  Yet consultation should be a focal point for the development and creation of either a LCPP or SCC.
This paper does not intend to provide direct answers to each of these questions. However, discussion could and should be entered into with the intention of providing alternative solutions for each question. Harry Coombes suggests that indigenous communities will reach a decision by consensus and that there are considerations which will be detrimental to any level of support that community based initiatives will receive. Crucial to the integrity of the consensual method of decision-making is the understanding and acceptance that yes is yes, no is no and a nil response is neither. Coombes suggests that a nil response should be interpreted as a reservation to provide a yes or no response on an acceptable alternative occasion.
Diametrically opposing indigenous consensus-based decision-making, is the philosophical premise of the ‘Western’ paradigm for responses to decision making. This is particularly relevant to the nil-response and its implications from and for indigenous communities. Currently in the system’s framework in which we are encouraged to operate and make decisions, a nil-response is indicative of ‘silent support and approval’. This assumption can lead to negative fallout in the form of individual and/or community disempowerment. For underlying this assumption is the inference that a nil-response may be interpreted, and invites interpretation for and on behalf of, another. In a cross-cultural society, this can, in and of itself, create a level of confusion and fear that will undermine all ‘well intended’ social processes and infrastructure.
With reference to indigenous communities, thinking for another can be a difficult and dangerous exercise. There exists an unacceptable level of suspicion and distrust in all Australian communities, and this is particularly notable when indigenous issues surface. This level of suspicion and distrust (and the resultant fear) is also internalised within each community sub-group. It is particularly strong within the framework of all politically dynamic and flexible indigenous communities. In such a climate of suspicion and distrust, indigenous ancestral legacy can offer direction and insights.
Ancestral social organisation within indigenous groupings ensured that each member fulfilled a vital role. Responsibilities for the variety of structures, functions and processes were distributed in an egalitarian manner and guaranteed each group member’s value and position. Spirituality, kinship and rituals associated with passage through life became essential features of family and group life and sustained group cohesion, which was so prevalent within indigenous Australian communities.
The lack of a materialist philosophy, combined with a recognition and acceptance of the value of all life forms, reinforced ancestral legacy and assisted in the maintenance of social structures, functions and processes for all indigenous group members. Such features have sustained lives for millennia and separation from them, without the provision of culturally appropriate alternatives, has contributed significantly to the sense of loss that many indigenous Australians endure. Currently, the emergence of indigenous community organisations that aim to promote the same conservative operations provide a focal point for these communities.
Despite colonisation, ancestral social organisation continues to play a dominant role in most indigenous communities. A politically flexible and dynamic indigenous Australian community will therefore present many issues for the process of consultation. Significantly then, reaching an entire indigenous community appears to be a confusing and difficult enterprise. Just who is it that you need to consult? How do you identify them? Will this ensure that each individual community member is reached? What obstacles are likely to present themselves? How might these obstacles be overcome? Does the existence of indigenous organisations enhance or impede the process of consultation? What is an indigenous community? Who are the community members?
The contemporary approach to the inclusion of indigenous perspectives across all social infrastructures and processes requires, at the very least, nominal consultation with regard to issues that will impact on indigenous community life. The short cut for nominal consultation would be to approach indigenous community organisations and recruit support for the dissemination of information as well as obtain a ‘definitive’ response or answer in relation to any current issue.
However, this approach may not be the most effective nor appropriate method of eliciting indigenous community support for ‘mainstream’ and indigenous community based initiatives. There is no guarantee that any one – let alone all – indigenous community organisation employees will be able to reach each of that community’s members. Nor is there a guarantee that all indigenous community organisations will be in communication with each other. This issue is compounded by mainstream expectations that one indigenous voice speaks for all indigenous community members.
Australian indigenous communities are attempting to address a multitude of political, legal, economic, health and educational issues. Difficulties associated with addressing these issues are compounded by the non-indigenous Australian search for the expert problem-solver. This is often undertaken without reference to the way in which ancestral social organisation operates in each indigenous Australian community.
Yet establishing new ‘interfaces’ (whether an individual or an organisation) between indigenous communities and mainstream political infrastructures and their processes further marginalises indigenous communities’ involvement in the process of consultation. That the new interface can be entrenched as the ‘expert’ and the ‘problem-solver’ convolutes processes associated with consultation and its outcomes. As a result there may in fact emerge a tendency for proponents of social change to rely solely upon this new interface without recourse to ancestral social organisation as a vehicle for effective discussions with indigenous community members. This process imposes a layer of social stress on indigenous communities that contributes to the difficulty of achieving successful consultative outcomes.
The agency that relies on the expert problem-solver can and should be questioned about whose ‘best interests’ they are attempting to serve when implementing social phenomena such as a LCPP. In particular, for whom and why are LCPPs or SCCs implemented? Which young people are targeted? Why? From what areas and to where are young people being removed? Which areas are not being targeted? Why are young people on the streets in the first place? For whom are public places being made safe? Is this an anti-social or criminal issue? What are the real issues facing youth targeted by this Act? And why must parents pay the price?
Answers to these questions are essential to a productive, inclusive and representative consultative process.
In the development of LCPPs or SCCs, insights into how to respond to these questions can be found if you search hard enough and ask the right questions of the right community member(s). According to the position occupied in that community, an individual member will be able to furnish coded responses. This may or may not augur well for any success with the development and implementation of LCPPs or SCCs.
Even though money and time will limit individuals representing Government and the mainstream Australian community in their efforts to produce positive and affective social outcomes, consideration needs to be given to what these two concepts mean to indigenous people. When consulting with indigenous Australians, money and time will often be the least important factors in the process as opposed to the process itself.
Socio-cultural factors that include verbal and body language, individual and group expectations, respect and protocol, carry their own importance for indigenous people and may, through misunderstandings, hamper consultation and negotiation. Inappropriate or erroneous actions in relation to any of these socio-cultural factors may influence indigenous people/community’s withdrawal from the consultative process in which they may be engaged. It will then be difficult to bring them back to the ‘table’, though not impossible.
Silence means many things to indigenous people. Often, indigenous and non-indigenous ideas about silence will be at odds. When silence is encountered, it should be respected – for that is what is being offered at that given moment. Silence should be allowed to run its course.
Equally important is not expecting immediate decisions on socially confronting issues. Many families within indigenous communities may be required to give their consent to any decision that will affect the whole group or community. It is here that time, money and consultation are prioritised differently by indigenous and non-indigenous Australians, according to different philosophies.
The need to hurriedly minimise social deviance should not override requirements for effective and all-inclusive consultation. The mechanisms established under the Act for the creation of LCPPs and SCCs have put in place questionable consultative processes. Reliance upon indigenous community organisations and ‘expert’ problem-solvers potentially undermines the importance of the place and role of ancestral social organisation within indigenous communities. In fact, this is the point at which consultation (when defined as compliance with the requirements set out under the Act) actually disempowers community members by promoting dubious processes that may exclude the very people for whom the mechanisms were established.
Greg Douglas is a descendant of the Gumbannggirr and Thunghutti Nations and is currently employed as an Associate Lecturer by the Gummurrii Centre at Griffith University. A graduate of Newcastle University with a Bachelor of Education, he is currently exploring a Master of Philosophy.
Ruth Bohill is a Western womyn who is currently employed as an Associate Lecturer with the Faculty of Law at Griffith University. A graduate of ANU with a Bachelor of Laws, she is exploring the option of PhD candidature of which part of her research work will include overseas travel to engage in activist work.
 Ruth Bohill and Greg Douglas, ‘Community Consultation in an Anti-Social Environment: Part One’ (2000) 5(2) ILB 7.
 New South Wales, Evaluation of the Children (Parental Responsibility) Act 1994, Report from the Evaluation Committee (February 1997) 8.
 The term ‘communities’ pays respect to the diversity and dynamic nature of indigenous communities across Australia.
 Attorney-General’s Department of New South Wales, How to Develop Local Crime Prevention Plans (Guide 1).
 Attorney-General’s Department of New South Wales, Applying for Safer Community Compacts Under the Children (Parental Responsibility) Act 1997 (NSW) (Guide 2).
 Attorney-General’s Department of New South Wales, Applying for Operational Areas Under the Children (Parental Responsibility) Act 1997 (NSW) (Guide 3).
Aboriginal Justice Advisory Council, A Fraction More Power: Evaluation of the Impact of the Children (Protection & Parental Responsibility) Act 1997 (NSW) on Aboriginal People in Moree & Ballina, Research & Evaluation Series Number 1 (1999) at <http://www.lawlink .nsw.gov.au/ajac.nsf/pages/parentalresponsibility> .
 New South Wales, above n 2.
 Aboriginal Justice Advisory Council, above n 7, Recommendation 1.
 Ibid, 7.
 Guide 1, 16.
 Guide 2, 15.
 Guide 3, 11.
 See s 34(2) and (3) of the Act.
 This is despite the high level of ‘communication’ required by Parts 2 & 3 of the Act prior to the adoption of a LCPP under Part 4.
 See Juanita Sherwood, ‘Community: What is it?’ (1999) 4ILB 4.
 See Loretta Kelly & Elvina Oxley, ‘A Dingo in Sheep’s Clothing?’ (1999) 4 ILB 4, for a discussion of community consultation in relation to diversionary conferencing under the Young Offenders Act 1997 (NSW).
 In particular, s 39(c) of the Act requires consultation with the local community, (‘including young people and the Aboriginal community’), if a local crime prevention plan is to become a safer community compact.
 See Harry C Coombes, ‘Aboriginal Political Leadership and the Role of the National Aboriginal Conference’ in Diane Smith (Ed), Aboriginal Autonomy: Issues and Strategies (1994). .
 See Diana Eades, ‘A Case of Communication Clash: Aboriginal English and the Legal System’ in John Gibbons (ed), Language and the Law (1994).
 A generic term that refers to a collection of systems such as social, economic, health, political, educational and legal systems.
 See Department of Families, Youth and Community Care, Protocols for Consultation and Negotiation with Aboriginal People (1997); Department of Families, Youth and Community Care, Mina Mir lo Ailan Mun: Proper Communication with Torres Strait Islander People (1997) at <http://www.infodeft/infonet/documents/DATSIPD>; and Diana Eades (ed), Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia, (1995), and Diana Eades, above n 20.
 See Judy Atkinson, A Pebble in the Pond and a Hole in the Blanket, (paper presented at the Queensland Guidance & Counselling Association Conference, Brisbane, September 1996).
 See generally the collected works in W H Edwards (ed), Traditional Aboriginal Society (2nd ed, 1998), and W H Edwards, An Introduction to Aboriginal Societies (1988).
 The typical question ‘Where are you from?’ with the linkage to particular family names, indicates the continuing, pervasive nature of ancestral social organisation anywhere in Australia.
 ‘Aboriginal community’ as used in the Act, seems to denote a homogenous community that is devoid of divergence and diversity.
 See, for example, Jennifer Nielsen, Promoting Integrity and Knowledge: Dealing with the Dilemmas, (paper presented at the Australasian Law Teachers Association Conference, Wellington, 4-17 July, 1999), 3-6.
 Above, n22.