Chair’s opening comments – First Nations People consultation workshop – Sydney, 6 August 2019

I would like to welcome you most warmly to this First Nations People Consultation Workshop. This is actually the sixth Workshop the Commission has held. However it is the first devoted to addressing the scourge of abuse of First Nations People with disability.

I have referred in presentations I have made at other Workshops to our hope that this Royal Commission can achieve transformational change for people with disability, including First Nations People. In those presentations I have also recognised the formidable nature of the very large and difficult task we have been given. I shall not repeat those words – they are available on our website.

I do want to make four points of particular significance for this Workshop.

First, the terms of reference for the Commission direct us to take into account that the specific experiences of violence against and abuse, neglect and exploitation of people with disability are influenced by such matters as age, sex, ethnic origin and race. The terms of reference also specifically state that we must take into account "the particular situation of Aboriginal and Torres Strait Islander people". We therefore have a special responsibility to expose the nature and extent of the many forms of abuse directed at First Nations People and to address the root causes of that abuse. This will enable us to formulate proposals that do not merely repeat what has been said before in so many official reports but will make a practical difference to the well-being and autonomy of First Nations People with disability.

Secondly, even if the terms of reference did not include the specific direction to take account of the experiences of First Nations People with disability, we would not be doing our job unless we did exactly that. The evidence is overwhelming that First Nations People have substantially higher levels of disability than non-indigenous people. The available data also demonstrate that the prevalence of abuse experienced by First Nations People with disability is substantially greater than that experienced by non-indigenous people with disability. In other words, First Nations People with disability are especially vulnerable to abuse of one kind or another.

To take just one example, the work of Professor Eileen Baldry and her colleagues shows that people with cognitive disabilities are much more likely to become enmeshed in the criminal justice system than people without cognitive disabilities. More significantly for present purposes, their work shows that indigenous people with cognitive disabilities are substantially more likely to be caught up in the criminal justice system than non-indigenous people with similar cognitive disabilities. This unacceptable state of affairs reflects what seems to be generally known as "intersectionalities", although being a simple lawyer, I prefer the expression cumulative disadvantage. In whatever way the phenomenon is described it emphasises the importance of understanding and addressing the multiple kinds of disadvantage, not excluding racism, experienced by First Nations People with disability.

Thirdly, it is crucial to the success of the Commission that we hear directly from people with disability as to their experiences of abuse. Commissioner Andrea Mason has been extremely quick to recognise this and has meticulously organised today's Workshop to ensure that people with disability have the opportunity to recount their stories and to lead the discussion. This marks a very significant moment in the Commission's work: the day we move from consulting with advocates or frontline workers (as important as this is) to actually hearing from the people who are central to the Commission's task.

Fourthly, the Commission is extremely fortunate to have Andrea Mason as the Commissioner with special responsibility for addressing issues related to the abuse of First Nations People with disability. I am not going to embarrass Andrea by talking about her achievements and her remarkable standing within the indigenous and the non-indigenous communities.

What I will say is that I have had the privilege of reading a draft of a powerful paper Andrea is to present shortly at the National Indigenous Legal and Health Conference in Darwin. There is no need for a spoiler alert as I shall not reveal what Andrea has to say, except to indicate that she does refer to the concept of Tjukurpa and its application to First Nations People with disability.

Andrea is a Pitjantjatjara-Yankunytjatjara woman. I learnt something of the significance of Tjukurpa to the First Nations People of the APY lands some 15 years ago when I sat as a Federal Court Judge at Uluru for six weeks on a native title claim (or, more accurately, a claim for compensation by reason of the extinguishment of native title).

Independently of legal issues, hearing the evidence of elders and others from the local community, together with the reports from historians and anthropologists on the law and customs of the First Nations People, was for me a profound experience. As a legal academic long ago, and then as a practising barrister and a judge, I was aware through cases such as Milirrpum in 1971, Mabo in 1992 and the case law under the Native Title Act 1993 (Cth), of the sophisticated systems of law and custom that characterised First Nations communities. It is those laws and customs that have ensured continuity of law, language, culture and of course the eternal and life affirming bonds of the people with the land.

By hearing from the First Nations People themselves as to what Tjukurpa meant and by visiting some of the most significant sites in their company, I gained a depth of understanding – as shallow as it might have been compared with the understanding of the people themselves – that otherwise would have been well beyond me.

If this Commission is to bring about substantial improvements in the lives of First Nations People with disability, the people themselves including their community leaders, will have to guide the Commission in its work. It is absolutely indispensable to achieving practical outcomes that we work closely together. I do not for one moment think that this is going to be easy (indeed the first four months of the Commission has been anything but easy). But I do believe very strongly that it is worth the effort and that First Nations People themselves will shape the recommendations that can bring about transformational changes