Monday, June 2, 2014

National Reconciliation Week

Galit Aflalo, the TU's Aboriginal Legal Officer, reflects on National Reconciliation Week, times past and times ahead.


Unfair. Unequal. Inhumane.

The history of Australia tells a shameful tale of the pain and suffering of Aboriginal and Torres Strait Islander people. From the time of invasion of Australia, the murders, the imposition of an unfair legal system based on the notion that Australia was a land belonging to no one and the government policies intended to hurt and destroy the Aboriginal and Torres Strait Islander people.

Some things have changed today and we must acknowledge and commend the courage and leadership of all indigenous and non-indigenous Australians who have fought for fairness, justice and equality. 

However, we still today have a long path to travel before we can talk seriously about fairness and equality.

  • Australia holds a public holiday on 26 January to ‘celebrate’ the anniversary of the invasion of Australia; an invasion that led to killings, illness, oppression, loss of culture, loss of family and loss of land for the Aboriginal and Torres Strait Islander People.
  • Australia celebrates a multitude of public holidays (such as Queen’s Birthday, Labour Day, and even a holiday for horse racing, being Melbourne Cup Day in Victoria). However, Australia does not have a single public holiday recognising the courage and contributions of the Aboriginal and Torres Strait Islander people or commemorating the losses and deaths for which Australia is responsible.  
  • Australia does not recognise the First Peoples of Australia in the Constitution.

  • Australia has not taken sufficient steps to return the land appropriated from the Aboriginal and Torres Strait Islander people or made any acceptable form of reparation. Not only have the First Peoples of Australia been deprived of their country and culture, but our legal system endorses a notion that indigenous land rights are inferior to those of non-indigenous people who acquired land by force, by duress and by oppression. 
    • Aboriginal and Torres Strait Islander people have a life expectancy of 15-20 years less than non-indigenous Australians and have significantly higher rates of preventable diseases such as heart disease, kidney disease and diabetes.
    • Aboriginal and Torres Strait Islander people are over-represented in the criminal justice system. Whilst Aboriginal people make up only 3 per cent of Australia’s population, over 28 per cent of Australia’s prisoners are Aboriginal. Half of prisoners aged between 10-17 are Aboriginal.
    • A significant number of Aboriginal and Torres Strait Islander people lack adequate or appropriate housing. Indigenous households are half as likely to own their own homes compared to non-Indigenous Australians and are more likely to live in overcrowded conditions.
    • In contrast to other developed countries such as the USA, Canada and New Zealand, the gap between measures of human development between indigenous and non-indigenous Australians has widened.

Today, the Australian Government continues to implement policies that will almost certainly widen the gap even further between indigenous and non-indigenous Australians. These include dramatic cuts to indigenous programs and activities and cuts to welfare, health and education, which will disproportionately impact upon highly vulnerable Aboriginal and Torres Strait Islander people.

As the Aboriginal Legal Officer at the Tenants’ Union of NSW, I am overwhelmed by the significant disadvantage faced by the First Peoples of Australia. Too many Aboriginal and Torres Strait Islander people live in overcrowded, inadequate housing that is maintained in an unacceptable state of repair by landlords. In my work, tenancy issues are invariably deeply intertwined with the significant socio-economic issues affecting Aboriginal and Torres Strait Islander people. The gaps between indigenous and non-indigenous Australians in relation to education, health, housing, imprisonment, financial means and social status impact directly upon the tenancy issues that are brought to our attention. When tribunals and courts attempt to assess tenancy issues in a microcosm without giving due weight to the broader circumstances, they often lose sight of the underlying causes of the tenancy issues and substantial mitigating circumstances.

Any person or family who lacks affordable or appropriate housing who suffers significant financial hardship, who is detrimentally affected by the lack of cultural awareness and cultural safety by government authorities, who lives in remote locations and experiences substantial barriers in accessing key services and fresh food is likely to suffer significant stress in many aspects of their lives. Unfortunately, the Residential Tenancies Act and the Civil and Administrative Tribunal Act do not allow for appropriate consideration of the specific needs of and disadvantage faced by Aboriginal and Torres Strait Islander people. 

Terminations without grounds 

For example, section 85 of the Residential Tenancies Act allows a landlord (including a social housing provider) to give a tenant a termination notice to end a tenancy for no reason at all (provided that the tenancy is not in a fixed term and the tenant has not been in continuous occupation for at least 20 years). As a result of this section, vulnerable indigenous tenants including young families, single mothers and elderly people are being required to leave their homes and are being left with little choice but to live away from their land, their country and their communities. Due to the lack of affordable housing and the systemic barriers in accessing the private rental market, Aboriginal and Torres Strait families who receive termination notices without grounds are at significant risk of homelessness. Such housing instability threatens to have deleterious impacts on every aspect of a family’s affairs.

In deciding whether to make a termination order regarding a termination notice without grounds, the Residential Tenancies Act does not afford the Tribunal any discretion, so it cannot consider the specific needs of Aboriginal and Torres Strait Islander tenants, including indigenous families’ connection to their country and communities or prospects of securing alternative housing.

Landlords have specific rights to issue termination notices if a tenant is failing to carry out their duties as tenants such as failing to pay rent, causing nuisance or breaching the tenancy agreement. Provisions in legislation for terminations without grounds are unnecessary and unacceptable, especially in the context of the social housing tenancies of Aboriginal and Torres Strait Islander people.

In light of the systemic market issues of housing affordability and appropriateness which impact disproportionately on indigenous tenants, law reform is necessary to remove the power of landlords to issue termination notice without grounds.  Until that reform is implemented, social housing landlords should, as a matter of policy, always ensure that a tenant knows why the landlord is considering termination, and give the tenant an opportunity to respond, and never use termination notices without grounds where an alternative notice with grounds is available.

Law reform is also necessary to give the Tribunal discretion to consider tenants’ specific cultural needs and prospects of securing affordable and appropriate long-term housing before making termination orders, whatever the grounds.

I would like to highlight to efforts of the Aboriginal Tenancy Advice and Advocacy Services (TAAS) in providing critical and holistic assistance to Aboriginal and Torres Strait Islander tenants across New South Wales. 

Greater Sydney Aboriginal TAAS, Western Aboriginal TAAS, Murra Mia (Southern) Aboriginal TAAS and Northern Aboriginal TAAS work provide vital targeted assistance to Aboriginal tenants facing substantial disadvantage and experiencing complex legal issues. The Aboriginal TAAS understand and address the systemic barriers that Aboriginal and Torres Strait Islander tenants face in dealing with the legal system. They travel extensively throughout New South Wales to offer accessible and effective advice and advocacy assistance and provide intensive case management support to vulnerable tenants with complex needs. The Aboriginal TAAS work to address the underlying causes of tenancy issues by working collaboratively with key stakeholders and communities to achieve pragmatic, innovative and holistic solutions and liaising closely with community services such as health, housing and financial counselling services to identify and address clients’ unmet broader needs.

The Tenants' Union commends and respects each and every person that has fought and continues to fight for reconciliation, for an Australia that pays true respect to the Aboriginal and Torres Strait Islander people and for an Australia that is fair, just and equal. Enough with the rhetoric, scapegoating and funding cuts to critical services. Now is the time to look beyond an apology in words and commit to reconciliation through action.

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