Social Justice and Native Title Report 2013 - Mick Gooda

Aboriginal and torres strait islander

Social justice commissioner

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ISBN 978-1-921449-46-8

Gargett and Jenny Bedford.

The Aboriginal and Torres Strait Islander Social Justice Commissioner also thanks the following staff and interns of the Australian Human

Rights Commission: Allyson Campbell, Maria Katsabanis, Jennifer Jones, Natalie Woodhill, Communications Team and Legal Team.

The Social Justice Commissioner especially thanks all those who assisted with the preparation of this Report. A full list of

acknowledgements is contained at Appendix 1.

Photo by Justin Brierty (Newspix). This image is of Indigenous dancer, Farron Gorey from Santa Teresa, taking a “selfie” with his iPad

before his performance on stage at the Mbantua Festival in Alice Springs, Northern Territory on 12 October 2013.

This publication can be found in electronic format on the website of the Australian Human Rights Commission:

www.humanrights.gov.au/about/publications.

For further information about the Australian Human Rights Commission, please visit www.humanrights.gov.au or email

communications@humanrights.gov.au. You can also write to:

Social Justice Team

Australian Human Rights Commission

GPO Box 5218

Sydney NSW 2001

5 November 2013

Senator the Hon George Brandis QC

Attorney-General

PO Box 6100

Senate

Parliament House

CANBERRA ACT 2600

Dear Attorney

The Report examines the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples from 1 July 2012 to 30 June 2013.

This year marks 20 years since the establishment of the Aboriginal and Torres Strait Islander Social Justice Commissioner role. To highlight this significant anniversary, chapters 1 and 2 of the Report reflect on the contributions of Social Justice Commissioners in key areas of social justice and native title over this period.

Building on the lessons from the past 20 years, I set out my priorities for Aboriginal and Torres Strait Islander affairs in chapter 3, focusing on the directions I believe we need to take to ensure our communities are in control of their future. This chapter shows how the realisation of human rights can produce long term sustainable improvements in the life outcomes for Aboriginal and Torres Strait Islander peoples.

Progress toward the achievement of this priority is addressed in this Report. For instance, chapter 4 outlines how our rights in the Declaration can be practically utilised in the development of alcohol management and related policies. The chapter then profiles case studies in the Northern Territory and Queensland to demonstrate how strategies that are consistent with the Declaration can provide opportunities to improve practice and outcomes in this complex policy area.

In chapter 5, I describe the significant role of business to respect and support the human rights of Aboriginal and Torres Strait Islander peoples articulated in the Declaration. The chapter also presents case studies that illustrate the positive outcomes that occur when business engages with Aboriginal and Torres Strait Islander peoples in a way that is consistent with our human rights in the Declaration.

The Report provides 14 recommendations for your consideration.

I look forward to discussing the Report with you.

Yours sincerely

Mick Gooda

ABN 47 996 232 602

Level 3, 175 Pitt Street, Sydney, NSW 2000

GPO Box 5218, Sydney, NSW 2001

www.humanrights.gov.au

2

The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was established in 1993.

The office of the Social Justice Commissioner is located within the Australian Human Rights Commission.

The Social Justice Commissioner:

• reports annually on the enjoyment and exercise of human rights by Aboriginal and Torres Strait

Islander peoples, and recommends action that should be taken to ensure these rights are observed

enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples

• promotes awareness and discussion of human rights in relation to Aboriginal and Torres Strait Islander peoples

• undertakes research and educational programs for the purpose of promoting respect for, and the enjoyment and exercise of, human rights by Aboriginal and Torres Strait Islander peoples

• examines and reports on enactments and proposed enactments to ascertain whether or not they recognise and protect the human rights of Aboriginal and Torres Strait Islander peoples.

Office holders

• Mick Gooda: 2010-present

• Dr Tom Calma AO: 2004-10

• Dr William Jonas AM: 1999-2000

• Zita Antonios: 1998-99 (Acting)

• Professor Mick Dodson AM: 1993-98

About the Social Justice Commissioner’s logo

The right section of the design is a contemporary view of traditional Dari or

head-dress, a symbol of Torres Strait Islander people and culture. The head-dress

suggests the visionary aspect of the Aboriginal and Torres Strait Islander Social

Justice Commissioner. The dots placed in the Dari represent a brighter outlook

for the future provided by the Commissioner’s visions, black representing people,

green representing islands and blue representing the seas surrounding the

islands. The Goanna is a general symbol of the Aboriginal people.

The combination of these two symbols represents the coming together of two

distinct cultures through the Aboriginal and Torres Strait Islander Social Justice

Commissioner and the support, strength and unity which the Commissioner can

provide through the pursuit of social justice and human rights. It also represents

an outlook for the future of Aboriginal and Torres Strait Islander social justice

expressing the hope and expectation that one day we will be treated with full

respect and understanding.

© Leigh Harris

About the

Aboriginal and Torres Strait Islander

Social Justice Commissioner

Social Justice and Native Title Report 2013 •

33

and is the current Aboriginal and Torres Strait Islander Social Justice

Commissioner. His term in this position commenced in February 2010.

Mick has extensive experience in Aboriginal and Torres Strait Islander affairs,

having worked in remote, rural and urban environments throughout Australia

for over 30 years. He has a strong record of achievement in implementing

program and organisational reform and delivering strategic and sustainable

results across the country.

As Commissioner, Mick builds on this experience to advocate the human

rights of Aboriginal and Torres Strait Islander peoples in Australia and then

promote respect and understanding of these rights among the broader

Australian community.

http://www.humanrights.gov.au/about/publications/

Photo by Julie Buxton,

taken at the Yalukit Wilum

Ngargee Festival, St Kilda,

Victoria.

4

Foreword 9

Executive summary 13

Recommendations 20

Chapter 1: How far have we come? Looking back

on 20 years of the Social Justice Commissioner role 22

1.1 Introduction 24

1.2 Looking back on 20 years of the Social Justice Commissioner 26

(a) Creation of the Social Justice Commissioner role 26

(b) Stolen Generations 28

(c) Shifting government approaches to Aboriginal and Torres Strait

Islander affairs 32

(d) Constitutional recognition 43

(e) Health equality 47

(f) Criminal justice issues 51

(g) Family violence 56

(h) Education 59

(i) Recognition of our human rights in the United Nations Declaration

on the Rights of Indigenous Peoples 64

1.3 Conclusion 69

Chapter 2: Looking back on 20 years of native title and

the Social Justice Commissioner role 70

2.1 Introduction 72

2.2 Looking back on 20 years of native title 73

(a) The Mabo decision 73

(b) Negotiating the Native Title Act 73

(c) The objectives of the Native Title Act 74

(d) Key themes in the Native Title Reports 74

(e) Unfinished business: a Social Justice Package 82

2.3 Conclusion 84

Contents

Chapter 3: How do we keep moving forward?

A road map for our future 86

3.1 Introduction 88

3.2 Staying the course 90

(a) The United Nations Declaration on the Rights of Indigenous Peoples 91

(b) Reforming the Australian Constitution 95

(c) A national body representing Aboriginal and Torres Strait Islanders 99

(d) Closing the Gap 100

(e) Native title reform 103

(f) Confronting racism 105

3.3 Communities in control 108

(a) Our governance is determined by us 109

(b) Our rights are our responsibility too 111

(c) Allocation of resources on the basis of need 112

(d) We must provide culturally secure services – building the Aboriginal

and Torres Strait Islander capacity 114

3.4 Conclusion 117

Chapter 4: Human rights in practice – alcohol policy 120

4.1 Introduction 122

4.2 What works in addressing alcohol misuse in discrete communities 124

(a) Alcohol restrictions 125

4.3 A human rights-based approach 126

(a) Protection from alcohol related harm 126

(b) Non-discrimination and equality 127

(c) Special measures in domestic Australian law 127

(d) Special measures at international law 129

(e) Free, prior and informed consent 130

(f) Government to establish effectiveness 131

6

4.4 Alcohol policy in the Northern Territory and Queensland 132

(a) Queensland 132

(b) Northern Territory 135

4.5 Conclusion 144

Chapter 5: Business and our human rights

in the Declaration 146

5.1 Introduction 148

5.2 Why take a human rights-based approach to business? 149

(a) The benefits to business of adopting a human rights-based approach 149

5.3 An international framework for human rights and business 151

(a) The corporate responsibility to support and respect human rights 151

(b) International human rights – business and Indigenous peoples 157

(c) Applying the Guiding Principles to business’ engagement with

Indigenous peoples 158

(d) Extractive industries and the rights of Indigenous peoples 164

5.4 Business and the Declaration in practice in Australia 169

(a) Supply Nation – promoting self-determination through economic

development 169

(b) KPMG – ‘good business and creating better lives’ 174

(c) Rio Tinto – a case study of the extractive industry engaging with

the human rights of Aboriginal and Torres Strait Islanders 177

(d) Bourke Aboriginal Community Working Party and Lend Lease –

the Bourke Indigenous Housing Project 182

(e) Westpac – supporting Indigenous leadership 185

(f) What can we learn from these case studies? 189

5.5 Conclusion 191

Appendices 192

Appendix 1: Acknowledgments 194

Appendix 2: International mechanisms addressing Indigenous peoples’

human rights 2012–2013 196

Appendix 3: Key developments in native title 2012–2013 202

8

Foreword

by Professor Mick Dodson

Aboriginal and Torres Strait Islander Social Justice Commissioner 1993–98

This year marks 20 years since the establishment of the Aboriginal and Torres Strait Islander Social Justice

disparities faced by Aboriginal and Torres Strait Islander people social justice wouldn’t be recognised and

addressed in the life of my appointment as Commissioner. However, it was my endeavour to establish a

foundation for future Social Justice Commissioners to see this achieved.

The whole process in those early years was like trying to sail a ship at the same time as we were building it.

As the first Social Justice Commissioner, I had to define and design what we considered to be social justice

and set the agenda for the Commissioner’s role. Central to this agenda was the recognition of our rights and

determining the manner in which they will be enjoyed.

I adopted a position on social justice that was grounded in the day-to-day lives of Aboriginal and Torres Strait

Islander people. In a practical sense, social justice is what confronts Aboriginal and Torres Strait Islander

people when they wake up. For too many of our people this is the prospect of things that are detrimental

to them. What house do they wake up in? Is there adequate sanitation? Do they have the opportunity for

meaningful employment and education? Does education respect and honour their cultural background?

An understanding of social justice which is explicitly based on rights to equality, and rights to fairness,

together with the resources to achieve this equality, places social justice for Aboriginal and Torres Strait

Islander people on its correct foundation.

From the very beginning, it was important that the Social Justice Commissioner be viewed as independent

in carrying out the requirements of the office and to pursue those objectives without interference from the

Australian Government and the other Commissioners. I was aware that the appointment of an Indigenous

person to the office of the Social Justice Commissioner may be viewed by Aboriginal and Torres Strait

Islander people as just another arm of Government. To counter this, it was my view that I should ensure the

powers and functions entrusted to me as Commissioner should be pursued in a balanced and independent

fashion.

Under the leadership of Sir Ronald Wilson, President of the Human Rights and Equal Opportunity

Commission, all the Commissioners worked in a very supportive and collegiate fashion.

During my term as the Social Justice Commissioner the range of issues that I reported on cannot be

captured in this foreword. However, one of the issues that recast the landscape of the country was the

recognition of native title.

10

Executive summary

response. The first part was the Native Title Act itself and the second was the Land Acquisition Fund. The

Social Justice Package was to form the third part of the Government’s response. I was heavily involved

in negotiations on the Social Justice Package and I advocated for a shift away from the administration of

Indigenous welfare to the recognition of Indigenous rights. To this day the Social Justice Package has never

been delivered.

and Torres Strait Islander children. It validated what victims of the Stolen Generations were saying and

acknowledged the generations of Aboriginal and Torres Strait Islander people separated from their families

and communities. Reporting on these experiences was emotionally, physically and psychologically draining

for all those involved. Yet I am so proud of the Report because the voices of the victims were heard loud and

clear and their stories were finally heard and accepted.

While the establishment of the Social Justice Commissioner was in part a response to the recommendations

of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), I was concerned with the view that

my role had a specific function of overseeing the process of implementing its recommendations. My work

on the recommendations from the RCIADIC was solely on the two relating to community education and field

officer training.

The Social Justice Commissioner position is the only role in the world dedicated to Indigenous peoples

rights and fundamental freedoms within a National Human Rights Institution. It plays a leadership role

internationally in promoting a model for greater recognition and protection of the rights of Indigenous

peoples.

During my term as Commissioner I said that an understanding of social justice is explicitly based on

our rights and access to the resources to achieve these objectives. This can be realised through the full

domestically. I look forward to watching the development of a National Strategy on the Implementation of the

Declaration, which is currently underway through a partnership between the National Congress of Australia’s

First Peoples (Congress) and the Australian Human Rights Commission’s Social Justice Commissioner.

My vision for the future is that the rights of Aboriginal and Torres Strait Islander people shall be respected,

promoted and fulfilled. I encourage the Government’s long-term commitment to engaging in formal dialogue

with Aboriginal and Torres Strait Islander peoples, the Social Justice Commissioner and Congress. And

I have hope about developing a National Strategy to give full effect to the Declaration which includes

the monitoring, evaluation and annual reporting to monitor the progress of such implementation. The

commitment of the Government to the progression of the Declaration will be a test of substantial respect for

human rights.

Finally, as I said in my first Social Justice Report in 1993, I have an unshakeable belief in Australia’s potential

to transcend its past.

Professor Mick Dodson

12

Executive summary

In this Report, I focus on planning for the future based on the approach of our communities meaningfully participating in decisions that affect them.

I provide a number of cases studies which illustrate why this focus is so important. These case studies demonstrate the constructive outcomes and improved relationships between Aboriginal and Torres Strait Islander peoples and business that stem from business acting in a manner that is consistent with our human rights.

Chapter 1: How far have we come? Looking back on 20 years of the Social

Justice Commissioner role

This year marks 20 years since the establishment of the Aboriginal and Torres Strait Islander Social Justice

humanrights.gov.au/publications/social-justice-reports-index (viewed 24 October 2013).

gov.au/publications/native-title-reports (viewed 24 October 2013).

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Executive summary

(Cth).

This chapter reflects on the journey toward the realisation of our human rights as Aboriginal and Torres Strait

Islander peoples and the significant role that previous Social Justice Commissioners have played in this

journey. There is no doubt that their hard work has cemented the role of the Social Justice Commissioner in

the Aboriginal and Torres Strait Islander human rights and policy landscape whilst their considered approach

has established a high level of credibility for this position.

I think it also appropriate that I acknowledge the staff of the Commission over these 20 years, whose energy

and commitment has supported and underpinned the work of each Commissioner. For instance, Darren Dick

has worked with all Commissioners while Katie Kiss commenced as a policy officer with Dr Calma and rose to

the position of Director of the Social Justice Team at the beginning of my term.

The chapter then goes on to provide a snapshot of the developments and contributions of Social Justice

Commissioners in the key areas outlined in the Social Justice Reports 1993-2012 including:

• Stolen Generations

• shifting government approaches to Aboriginal and Torres Strait Islander affairs

• constitutional recognition

• health equality

• criminal justice issues

• family violence

• education

By looking back over 20 years we can see there has been some progress and in many areas we’re on the right

track. Our progress in areas of constitutional recognition and health equality are examples of this. However,

in other areas such as criminal justice and government approaches to Aboriginal and Torres Strait Islander

affairs, I think it is fair to say that we still have a long way to go.

Chapter 2: Looking back on 20 years of native title and the Social Justice

Commissioner role

Social Justice Commissioners have shown constant leadership and advocacy in reporting on Aboriginal and

Torres Strait Islander peoples’ rights to our lands and waters in the Native Title Reports written between 1994

and 2012.5

In this chapter, I provide a snapshot of developments and contributions of previous Social Justice

Commissioners in the key areas of native title over the last 20 years including:

5 Available at http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).

• the objectives of the Native Title Act

• key themes in the Native Title Reports

• the Social Justice Package.

Looking back on 20 years of native title and the Social Justice Commissioner role, I am extremely concerned

that the opportunities and promise of the early 1990s have not been realised. There is still much to do. A good

place to start is with the outstanding recommendations for reform made by Social Justice Commissioners.

Chapter 3: How do we keep moving forward? A road map for our future

In chapter 3, I explore how those lessons learnt over the past 20 years can take us forward and how the

realisation of our human rights can produce long term sustainable improvements in our life outcomes.

This chapter considers how we can give real meaning to the rhetoric of human rights by using the Declaration

to guide our work towards improving the lives of Aboriginal and Torres Strait Islander peoples.

To this end, I suggest a framework to give full effect to the Declaration based on the principles of:

• self-determination

• participation in decision-making, underpinned by free, prior and informed consent and good faith

• respect for and protection of culture

• equality and non-discrimination.

I also outline the development of a comprehensive National Strategy following a series of Declaration

dialogues with governments, stakeholders and Aboriginal and Torres Strait Islander communities based on

these principles.

Moving forward will be about staying the course and maintaining commitments to the approaches that are

working. It will also require a more fundamental shift encompassing governance, the interplay between rights

and responsibilities, and the allocation of resources. All of this is underpinned by rights, relationships and

responsibilities.

I also provide commentary on the significant developments related to the following:

• Reform of the Australian Constitution and the importance of getting the referendum question right

with sufficient resources to support the campaign.

• The need for continued engagement and support for the National Congress of Australia’s First

Peoples to enable it to establish itself fully while it continues to represent the voices of Aboriginal and

Torres Strait Islander people.

• To continue along the path of the Closing the Gap commitments and ensure long-term policy

continuity.

• Improving efforts to reform the Native Title Act by reintroducing the Native Title Amendment Bill 2012

(Cth) and establishing a presumption of continuous connection.

• Support from our political leaders in the public discourse of racism and engaging with the National

Anti-Racism Strategy.

The chapter also examines the need for our communities to be in control in order to produce the most

16

Executive summary

profound changes over time. One way of addressing this question is to look to the Declaration for guidance.

I discuss the need for our communities to start exercising self-determination based on a new narrative in

which a human rights-based approach is essential in providing sustainable improvements in our communities

and families. This approach involves rights and responsibilities standing side-by-side and we measure its

effectiveness by how the most vulnerable in our communities are engaged and heard.

While our communities need to be in control, our governance needs to be determined by us. Governments,

non-government organisations (NGOs) and businesses that engage with our communities have a role to

support – not to direct – our decisions and decision-making processes.

This chapter also discusses the need for effort and resources to be directed to all parts of the country rather

than through the lens of the urban and remote divide. It should be the duty of policy, program and systems

developers to design and implement services that cater for these differences.

I also highlight the importance of organisations and governments working within our communities to operate

in a culturally secure way. If engagement is to be effective and if programs are to deliver optimum outcomes,

these must be done in a way that fits our way of doing things. To put it simply, this means dealing with

people who are culturally competent and working within systems that are culturally secure. NGOs have the

experience to complement the capacity of the Aboriginal community controlled sector but this should not be

at the expense of our own organisations delivering services. Governments also have an obligation to ensure

cultural security in service delivery and cultural competency of their staff working in our communities.

If we manage to stay the course with the things that are working and make the fundamental shift to putting

our communities in control, I am very optimistic that our children will be given the opportunity to grow up to

be happy and healthy adults, proudly carrying our culture forward for generations to come. That is why it is so

important we act now.

Chapter 4: Human rights in practice – alcohol policy

Chapter 4 considers one of the most contested and intractable issues in our legal and policy sphere – alcohol

management.

Alcohol consumption, misuse and related harm are some of the most challenging issues confronting

communities across the length and breadth of Australia. These challenges are not limited to Aboriginal and

Torres Strait Islander communities, but confront every demographic in Australian cities and towns.

I believe a human rights-based approach is the key to solving complex social policy issues confronting

Aboriginal and Torres Strait Islander peoples and again the Declaration is one of the most valuable tools we

have available to us.

In this chapter, I discuss how human rights treaties and the Declaration can be used to guide the development

of alcohol policy as an example of the practical effect of a human rights approach. This approach to alcohol

misuse advocates neither for the free flow of alcohol into every community nor the blanket application of

alcohol bans. It requires that people are empowered to make decisions about the policies adopted to manage

alcohol and the damage it causes within their communities.

What we know is that policies must address the underlying social determinants of alcohol misuse, including

the effects of social deprivation, poverty, lack of education and intergenerational and contemporary trauma.

The effectiveness of any response is also highly influenced by the level of buy-in from the community.

Responses should include measures focussed on harm reduction, supply reduction and demand reduction.

Policies developed in line with the principles of the Declaration are likely to align with what we know is

effective in addressing alcohol misuse.

After discussing a human rights-based approach to alcohol policy, I then present two case studies on alcohol

management and related policies in Queensland and the Northern Territory.

Both jurisdictions have implemented pathways for communities to develop their own Alcohol Management

Plans. I welcome these developments and their potential to return power to communities and effectively

address alcohol misuse with community developed solutions. However, the way the Plans are implemented

will ultimately determine their compatibility with human rights and their overall effectiveness.

I also raise concerns about the effect of conflicting responses to alcohol misuse by different levels of

government. The implementation of compulsory alcohol rehabilitation and the potential introduction of Alcohol

Protection Orders in the Northern Territory have serious human rights implications and are likely to reduce the

effectiveness of other responses.

Chapter 5: Business and our human rights in the Declaration

In chapter 5 I seek to demonstrate why businesses should adopt a human rights-based approach to their

operations.

I outline the potential benefits for business in embracing a human rights-based approach while arguing the

legal and moral imperative for business to act in a manner that respects and protects the rights of Aboriginal

and Torres Strait Islander peoples.

I believe the benefits for business are clear. Adopting a human rights-based approach can improve

relationships, enhance reputations and boost employee morale. It can also provide a competitive advantage –

building a stronger ‘licence to operate’ and opening access to new markets, consumers and investors.

There is a strong international framework that informs the human rights responsibilities of businesses and

this chapter considers a human rights-based approach to business’ engagement with Indigenous peoples. It

also highlights the role that business can play in protecting and promoting the exercise of our human rights as

articulated in the Declaration.

This chapter presents five case studies of businesses adopting a human rights-based approach which

includes the following:

• Supply Nation and the promotion of self-determination through economic development.

• KPMG and good business practices creating better opportunities for Aboriginal and Torres Strait

Islander people.

• Rio Tinto and how the extractive industry can engage with the human rights of Aboriginal and Torres

Strait Islander people.

• The Bourke Aboriginal Community Working Party and Lend Lease partnership supporting community

led development.

• Westpac supporting the social and financial inclusion of Aboriginal and Torres Strait Islander people.

I am heartened by the work undertaken by some businesses in respecting and promoting our human rights.

This chapter illustrates the positive outcomes that occur when engagement with Aboriginal and Torres Strait

Islander peoples is based upon our rights as set in the Declaration.

18

Executive summary

Appendices

I also include two appendices, which report on the international mechanisms addressing Indigenous peoples’

human rights and key developments in native title for the reporting period from 1 July 2012 to 30 June 2013.

Conclusion

As we chart a road map for the future the opportunities are great. Never before have we seen the level of

bipartisanship and commitment around addressing Aboriginal and Torres Strait Islander disadvantage and

constitutional recognition.

However, the challenge is to ensure that we as Aboriginal and Torres Strait Islander people are not just

passengers for this journey but are sitting in the driving seat.

Since the beginning of my term, I have seen the Declaration as that compass to guide me in ‘reviewing the

impact of policies and laws on, and monitoring the enjoyment and exercise of human rights by Aboriginal and

Torres Strait Islander people’.7

It is time to breathe life into the Declaration and make it more practical for our everyday lives. It is my hope

that as we further consider what the Declaration means to us, it will become a more powerful tool for

Aboriginal and Torres Strait Islander peoples to advocate for our rights and improve the lives of our people.

20

I make the following recommendations to Government:

• treating the development of the referendum question and date as a matter of urgency, including by reconstituting the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples as soon as possible to ensure that progress to a referendum can continue with limited interruption

• ensuring the campaign to raise popular awareness and support of this issue is properly resourced.

Social Justice and Native Title Report 2013 •

22

1.2 Looking back on 20 years of the Social Justice

Chapter 1:

24

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

1.1 Introduction

When I first started in this position I was asked if any of the previous Commissioners had left any words or notes of advice. I answered them ‘no, but they all left very big shoes to fill’. So it is with some trepidation and a big dose of humility that I have continued the work of this office, knowing that the bar has been set pretty high.

Aboriginal and Torres Strait Islander Social Justice Commissioners

• Professor Mick Dodson AM: 1993-98

• Ms Zita Antonios: 1998-99 (Acting)

• Dr William Jonas AM: 1999-2004

• Dr Tom Calma AO: 2004-10

In the state of flux that marks Aboriginal and Torres Strait Islander affairs, Social Justice Commissioners

have been unwavering in their consistent commitment to our communities. They have provided fearless

leadership, advocacy and vision, established partnerships and ensured accountability of governments

to our communities. There is no doubt that their hard work has cemented the role of the Social Justice

Commissioner in the Aboriginal and Torres Strait Islander human rights and policy landscape whilst their

considered approach has established a high level of credibility for this position.

This chapter reflects on the journey toward the realisation of our human rights as Aboriginal and Torres Strait

Islander peoples in the last 20 years and I take this opportunity to honour the guiding role that the previous

Social Justice Commissioners have taken in this journey.

This is not an exhaustive review of this period. Rather it is a snapshot of the developments and contributions

of Social Justice Commissioners in the key areas of:

• Stolen Generations

• government approaches to Aboriginal and Torres Strait Islander affairs

• constitutional recognition

• family violence and violence against women

• health equality

• criminal justice issues

• education

All of these issues are still as relevant today as they were 20 years ago. We have seen improvements in some

areas but sadly, little measurable improvement has occurred in others. Often the more things have changed,

the more they have stayed the same.

26

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

1.2 Looking back on 20 years of the Social

Justice Commissioner

(a) Creation of the Social Justice Commissioner role

The Australian Government created the role of the Social Justice Commissioner in 1992 in response to the

Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the National Inquiry into Racist Violence.1

23

Royal Commission into Aboriginal Deaths in Custody and the National Inquiry

into Racist Violence

Investigating the death of 99 Aboriginal and Torres Strait Islander people in custody between 1980-

89, the RCIADIC exposed not only the underlying causes of Aboriginal and Torres Strait Islander

over-representation in the criminal justice system, but also the profound lack of social justice facing

Aboriginal and Torres Strait Islander communities.

The RCIADIC found that while Aboriginal and Torres Strait Islander people did not die in custody at a

higher rate than non-Indigenous Australians, they did enter custody at a much higher rate. Reporting

in 1991, the RCIADIC made 339 recommendations, ranging from very specific measures to reduce

risk of harm in custody, to imprisonment as a last resort, to more general measures to enhance social

justice and reconciliation.

The National Inquiry was established in 1988 following a series of attacks against church and

community leaders, as well as complaints from Aboriginal and Torres Strait Islander peoples and

cultural groups.

The National Inquiry found racist violence against Aboriginal and Torres Strait Islander peoples was

endemic, with racist attitudes and practices ingrained in many institutions.

The National Inquiry released its report in 1991. A key recommendation of the Inquiry’s report was the

amended to make racial vilification against the law.

This was a time when non-Indigenous Australia seemed to be waking up to its Aboriginal and Torres Strait

gov.au/social_justice/index.html (viewed 25 September 2013).

IndigLRes/rciadic/ (viewed 25 September 2013).

address,6 and it was the early and optimistic days of the Aboriginal and Torres Strait Islander Commission

(ATSIC).

Professor Mick Dodson was appointed to the Social Justice Commissioner role on 22 January 1993. From

his involvement as Counsel assisting the RCIADIC and with a solid background as a legal advocate, he

was uniquely qualified to take up the position. However, it was not a position that he took lightly. From the

beginning, he negotiated the complexity of the position:

I am acutely conscious that to be identified as an ‘Aboriginal leader’ and appointed by the Commonwealth to

a position of influence may be viewed by some Aboriginal and Torres Strait Islanders as being co-opted by

government.7

Professor Dodson explained this tension in its historical context:

It is a measure of the experience of indigenous Australians, as the subjects not only of harsh government

policies but also (more insidiously) well-intentioned paternalistic government policies, that there continues a

deep distrust of governmental policies and appointees.8

Professor Dodson was very clear that the way through these challenges was by consulting with Aboriginal and

Torres Strait Islander communities and acknowledging:

to my country men and women…it is not appropriate that my views should be substituted for their own

direct voices or that I can presume to speak for any person’s particular traditional country.9

This commitment from Professor Dodson represents the very consultative, engaging and open leadership style

that Social Justice Commissioners have provided over the years.

explains social justice and human rights for Aboriginal and Torres Strait Islander peoples is just as relevant

today. Professor Dodson argued:

Social justice must always be considered from a perspective which is grounded in the daily lives of

indigenous Australians. Social justice is what faces you when you get up in the morning. It is awakening in

a house with an adequate water supply, cooking facilities and sanitation. It is about the ability to nourish

your children and send them to a school where their education not only equips them for employment

but reinforces their knowledge and appreciation of their cultural inheritance. It is the prospect of genuine

employment and good health: a life of choices and opportunity, free from discrimination.

This is not an ideal. It is the commonplace experience for most Australians. The primary task of my

Commission is to monitor the gap between the life experience of indigenous and non-indigenous

Australians, to ensure that certain absolute minimum standards are achieved and then exceeded, to make

equality an experience and not an ideal.10

As we reflect on some of the key events of the past 20 years, I believe you can see this guiding vision in all the

work undertaken by the Social Justice Commissioners.

antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf (viewed 25 September 2013).

edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).

edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).

edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).

edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).

28

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

(b) Stolen Generations

In 1995, Professor Mick Dodson, together with Sir Ronald Wilson, President of the Human Rights and Equal

Opportunity Commission,11 commenced the National Inquiry into the Separation of Aboriginal and Torres Strait

Islander Children from their Families. Over three years, with a total of 777 people and organisations providing

evidence or a submission,12 the Inquiry traversed testimonies of grief, loss, tenacity and resilience. These

The Report estimated that between one in three and one in ten Aboriginal and Torres Strait Islander children

were removed from their families between 1910 and 1970.14 The severity of the damage is described in the

Report:

Indigenous families and communities have endured gross violations of their human rights. These violations

continue to affect Indigenous people’s daily lives. They were an act of genocide, aimed at wiping out

Indigenous families, communities and cultures, vital to the precious and inalienable heritage of Australia.15

The Report also considered the contemporary forms of forced separation through the child protection and

juvenile justice systems.

The impact of this Inquiry cannot be underestimated in ‘validating the stories of generations of Indigenous

people who until now have carried the burden of one of Australia’s greatest tragedies.’16 It was the first step in

acknowledging the terrible violations of our human rights, and healing for both the Stolen Generations and the

nation as a whole.

Following the release of the Report and its 54 recommendations, momentum to deliver justice to the Stolen

Generations began to build. While it is not within the scope of this chapter to evaluate the implementation of

all of these recommendations, I will focus on Recommendation 3 as it provided a framework for achieving

justice based on international principles:17

11 The Australian Human Rights Commission was formerly known as the Human Rights and Equal Opportunity Commission

(1986–2009).

stolen_summary/2.html (viewed 25 September 2013).

content/pdf/social_justice/bringing_them_home_report.pdf (viewed 25 September 2013).

stolen_summary/2.html (viewed 25 September 2013).

stolen_summary/13.html (viewed 25 September 2013).

stolen_summary/13.htm (viewed 25 September 2013).

to reparation for victims of gross violations of human rights and humanitarian law prepared by Theo van Boven: Human Rights

pdf/social_justice/bringing_them_home_report.pdf (viewed 25 September 2013). The principles have been further developed

RES/60/147 (viewed 25 September 2013).

That, for the purposes of responding to the effects of forcible removals, ‘compensation’ be widely defined to

mean ‘reparation’; … Reparation should consist of;

1. acknowledgment and apology,

2. guarantees against repetition,

3. measures of restitution,

4. measures of rehabilitation, and

5. monetary compensation.18

It is encouraging to see that in the 16 years since the Report was released, some of these principles

have been put into practice. However, there are still glaring omissions, especially in relation to monetary

compensation.

One of the landmark moments in our recent history was the national apology delivered by then Prime Minister

Kevin Rudd as a bipartisan act of Parliament on 13 February 2008. Although all the States and Territories

provided formal apologies in their Parliaments between 1997 and 2001, the significance of a national apology

ran deep.

I believe the apology has become one of those defining moments in a nation’s history where people remember

where they were and who they were with at that time. The emotion was palpable, people had travelled from

all parts of the country to be in Canberra because it was an event in history that non-Indigenous Australians

shared as well. It was a true act of reconciliation.

Dr Tom Calma AO, the Social Justice Commissioner at that time, was present for the apology and had the

honour of addressing Parliament on that day. His remarks sum up the impact on the nation:

By acknowledging and paying respect, Parliament has now laid the foundations for healing to take place and

for a reconciled Australia in which everyone belongs.

For today is not just about the Stolen Generations – it is about every Australian.

story that contains a shared past and future.19

Key actions to prevent another Stolen Generation have included the establishment of the Indigenous Child

Placement Principles, provision of community education about the impacts of the Stolen Generation and

law.21 These measures have all contributed to a greater awareness of the practices that led to the Stolen

files/content/pdf/social_justice/bringing_them_home_report.pdf (viewed 25 September 2013).

Members Hall, Parliament House, Canberra, 13 February 2008). At http://www.humanrights.gov.au/news/speeches/responsegovernment-

national-apology-stolen-generations (viewed 25 September 2013).

2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

30

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Generations. Governments across Australia have all adopted child protection policies that recognise the

importance of connection to family and culture.

child protection system operates for our Aboriginal and Torres Strait Islander children to guarantee against

repetition. Like so many areas of policy endeavor in Aboriginal and Torres Strait Islander affairs, there has been

a lot of effort but the indicators suggest that outcomes have remained the same: see Text Box 1.3.

2223

Aboriginal and Torres Strait Islander child protection statistics – then and now

In 1993, Aboriginal and Torres Strait Islander children nationally were seven times more likely to be in

out of home care than their non-Indigenous counterparts.22

Almost 20 years later we have seen this rate grow.

In 2012, Aboriginal and Torres Strait Islander children nationally were ten times more likely to be in out

of home care than their non-Indigenous counterparts.23

There is no denying the complexity of the issues at play with Aboriginal and Torres Strait Islander children.

It has been argued that the recommendations of the Report have created a culture of inaction where child

protection authorities are reluctant to remove children from family and culture because we have seen the

damage that removing children creates in our communities.24 I think this is very simplistic way of looking at a

complex issue.

The ‘best interests’ of the child should always be a primary consideration.25 However, the well-being of the

child or young person is always going to be strengthened by providing real support to struggling families

at the earliest possible point. It seems to me and a coalition of advocates led by the Secretariat of National

Aboriginal and Islander Child Care (SNAICC)26 that this is something we urgently need to do better.27

Restitution is about returning something to its rightful owner. In this context, we have seen continued funding

html (viewed 25 September 2013).

DownloadAsset.aspx?id=60129542752 (viewed 25 September 2013).

October 2013).

26 Secretariat of National Aboriginal and Islander Child Care (SNAICC) is a peak body that represents Aboriginal and Torres Strait

Islander child care and child protection organisations. SNAICC is a key advocate for improving Aboriginal and Torres Strait

Islander child protection outcomes.

September 2013).

of family tracing and reunion services through the Link Up service,28 and the protection of historical records.

Restitution measures also include the provision of cultural and language centres to keep culture alive,

especially where it was disrupted by removal.

The social and emotional well-being needs of Stolen Generations’ members and their families have been

well documented. Since the Report, we have seen the development and resourcing of a range of therapeutic

programs with varied degrees of support and success.

implement a coordinated national Indigenous Healing Framework.29

The establishment of the Healing Foundation in 2009 was a significant step in the right direction. It is an

independent Aboriginal and Torres Strait Islander organisation that, through community-based healing

initiatives, addresses the legacy of colonisation, forced removals and other past government policies. These

programs range from establishing local healing centres, holding men’s and women’s gatherings, traditional

healing and cultural renewal, to developing resources to heal trauma, loss and grief. The Healing Foundation

also conducts training and education, evaluation and research. Since its establishment the Healing Foundation

has funded 90 projects aimed at helping our communities to heal.30

I am pleased to see that the 2013 Budget included an amount of $26.4 million over four years to continue the

important work of the Healing Foundation. 31

Tasmania is still the only state that has provided a compensation scheme to members of the Stolen

Generations and their families.

Applications were open for six months from the commencement of the Act on 15 January 2007 and a total

of 151 claims were received, of which 106 were eligible for payment. Some 84 members of the Stolen

Generations received $58 333.33 each and 22 descendants either $5 000 or $4 000 each depending on how

many people were within the particular family group.32

Members of the Stolen Generations have been able to make claims in compensation schemes for former

wards of state who suffered institutional abuse in Tasmania (2003), Western Australia (2007), Queensland

(2007) and South Australia (2009).33 While this is a welcome development, generalised redress schemes stop

short of acknowledging the specific harm done to the Stolen Generations.

28 The Link Up program provides a national network of 11 Link Up Services supporting and assisting Indigenous people affected

by past removal policies to trace their genealogy and family history and potentially reunite with their families.

publications/social-justice-report-2008 (viewed 25 September 2013).

31 R Weston, ‘NACCHO health news: Healing Foundation welcomes $26.4 million funding announcement’ (Media Release 23 May

2013). At http://nacchocommunique.com/2013/05/23/naccho-health-newshealing-foundation-welcomes-26-4-million-fundingannouncement/

(viewed 4 November 2013).

Stolen_Generations_Assessor_final_report.pdf (viewed 3 October 2013).

gov.au/publications/chapter-4-beyond-apology-agenda-healing-social-justice-report-2008 (viewed 3 October 2013).

32

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

government documentation stands as a barrier to successful litigation in this area as do access to justice

issues including the cost of litigation. Bruce Trevorrow was removed from his family at 13 months of age when

he went to hospital for treatment of gastroenteritis. Mr Trevorrow was awarded $525 000 in compensation.

Sadly, he died only one year after the payment was awarded, reinforcing how critical it is that governments

act now before members of the Stolen Generation get older and pass away. Despite an appeal by the South

Australian Government, the original decision was upheld.35

court system. However, other cases have proven protracted, expensive and have potentially played a role

suffered by members of the Stolen Generations would provide a ‘swifter, more appropriate and less damaging

alternative to court processes.’37

I believe that the Australian Government should prioritise compensation for the Stolen Generations. The

Commission has previously recommended that the Australian Government, through the Council of Australian

Governments (COAG), should engage with State and Territory governments to develop a nationally consistent

approach with joint funding mechanisms in the provision of financial redress for the Stolen Generations.

The failure to adequately compensate Aboriginal and Torres Strait Islander peoples ‘who were removed from

their families and communities remains a significant human rights issue in Australia’.38

Former Senator Trish Crossin, a longtime advocate of compensation for the Stolen Generations, notes that

there are only around 380 surviving members of the Stolen Generation alive in the Northern Territory today.39 It

is crucial that the Government acts before it is too late.

(c) Shifting government approaches to Aboriginal and Torres Strait Islander

affairs

The past 20 years has seen many changes to the administration of Aboriginal and Torres Strait Islander

affairs. In fact, I think it is fair to say that one of the few constants over this period has been change itself. This

uncertainty and constant churn has, in my view, hindered the progress we could have made in the past 20

years.

However, as a counter balance to this ongoing change, I believe the other constant has been the advocacy

of Social Justice Commissioners to make sense of these changes and their impact on the human rights of

Aboriginal and Torres Strait Islander peoples.

inquiry-stolen-generation-compensation-bill-2008 (viewed 25 September 2013).

inquiry-stolen-generation-compensation-bill-2008 (viewed 25 September 2013).

inquiry-stolen-generation-compensation-bill-2008 (viewed 25 September 2013).

aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fcd49be4a-f16b-4de0-b0f2-

bf0168a14644%2F0293%22 (viewed 25 September 2013).

This section will tell the story of some of the major, primarily federal-level, policy shifts.

ATSIC was established in 199040 and hailed by some as a ‘revolution’41 in Aboriginal and Torres Strait Islander

affairs. As a consequence, it attracted great controversy and took two years to come to fruition. At the time

the legislation to establish ATSIC was passed, it was the second most amended piece of legislation to pass

the Parliament since Federation.42 The Coalition opposed the legislation and there were misconceptions

around how this version of self-determination would work. For instance some thought that ATSIC was a sort of

‘black parliament’43 that would threaten Australia’s sovereignty.

ATSIC was made up of an elected ‘arm’ and an administrative ‘arm’. This enabled ATSIC to function as both a

peak representative body and a program delivery organisation. All Aboriginal and Torres Strait Islander people

on the Australian electoral roll were eligible to vote in ATSIC elections.

The elected arm was based on 35 Regional Councils and the Torres Strait Regional Authority (TSRA), with

Aboriginal and Torres Strait Islander people eligible to vote for councillors on these Regional Councils.44 The

Regional Councils were grouped into 16 zones plus the TSRA, each electing a Commissioner to the ATSIC

Board.45 The Minister for Indigenous Affairs appointed the Chair of the ATSIC Board until 1999 after which time

the Chair was elected by the Board.46

The administrative arm of ATSIC was responsible for service delivery in key areas of economic and social

development through programs such as the Community Development Employment Project (CDEP), and the

Community Housing and Infrastructure Program (CHIP). ATSIC received annual funding of around $1 billion.47

As well as service delivery, ATSIC was an advocate for the advancement of Aboriginal and Torres Strait

Islander rights nationally and internationally.

In 2004, a series of coincidental events began the demise of ATSIC. A Government review of ATSIC was

underway and its Board was dogged by a number of controversies involving the personal conduct of a

minority of Commissioners. There was a range of internal governance failings, a relatively new Leader of

the Opposition who was, in my view, in search of a distraction, and finally a Prime Minister whose antipathy

40 The date of assent of the ATSIC Act was 27 November 1989 and ATSIC opened its doors on 5 March 1990.

www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/

cib0203/03cib29 (viewed 25 September 2013).

www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/

cib0203/03cib29 (viewed 25 September 2013).

44 A map of the ATSIC regions can be found at: http://pandora.nla.gov.au/pan/41033/20060106-0000/ATSIC/about_atsic/

Regional_Councils/map.html.

www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/

cib0203/03cib29 (viewed 25 September 2013).

www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/

cib0203/03cib29 (viewed 25 September 2013).

www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/

cib0203/03cib29 (viewed 25 September 2013).

34

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

toward the organisation was already well known.48

The then Opposition Leader, Mark Latham was the first to announce his intention to abolish ATSIC; a decision

that was quickly supported by then Prime Minister, John Howard. Legislation supporting this decision was

passed through Parliament in 2005.49

Over the years, much has been said and written about the demise of ATSIC and as the last Chief Executive

Officer of ATSIC, I too have my own views. However, what I want to focus on here is the role that the then

Social Justice Commissioner, Dr Bill Jonas assumed by filling some of void left by the abolition of ATSIC.

Despite acknowledging that ATSIC faced some governance and accountability challenges, Dr Jonas was

strident in his criticism of its abolition. He argued that that the Australian Government was ‘scapegoating’

ATSIC for the Government’s own failures. He made important points about funding and service delivery:

The vast majority of ATSIC’s funding has been quarantined for particular programme responsibilities, with

limited ability to address a range of key issues facing Indigenous peoples. ATSIC is now being blamed for

the lack of progress by government in addressing issues for which it has no programme responsibility.50

Dr Jonas was also critical of the Government’s ‘intolerance to advice or analysis that is critical of their own

approach’.51

The regional structures of ATSIC, Regional Councils, facilitated local decision-making. This important way for

communities to organise and make their voices heard was completely lost in the abolition of ATSIC.

Significantly, without ATSIC there was no clear national representative voice of Aboriginal and Torres Strait

Islander peoples. The role of the Social Justice Commissioner became the sole remaining national Aboriginal

and Torres Strait Islander statutory advocacy role in a position to engage with Government.

The changes to Aboriginal and Torres Strait Islander affairs announced by the Government in 2004 became

known as the ‘new arrangements for the administration of Indigenous affairs’. This was a complex set of

reforms, which apart from the abolition of ATSIC included:

• Transferring responsibility for the delivery of all Aboriginal and Torres Strait Islander specific programs

to mainstream government departments.

• The adoption of whole-of-government approaches, with a greater emphasis on regional service

delivery.

• The establishment of new structures; the Office of Indigenous Policy Coordination (OIPC) to

coordinate policy nationally and Indigenous Coordination Centres (ICCs) at the regional level.

• A process of negotiating agreements at the local and regional level through Shared Responsibility

Agreements (SRAs) and Regional Partnership Agreements (RPAs).52

50 W Jonas, ‘Statement on ATSIC: Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner’ (Media

Release 16 April 2004). At http://www.humanrights.gov.au/news/media-releases/statement-atsic (viewed 25 September 2013).

51 W Jonas, ‘Statement on ATSIC: Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner’ (Media

Release 16 April 2004). At http://www.humanrights.gov.au/news/media-releases/statement-atsic (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2004 (viewed 17 October 2013).

Change of any description breeds uncertainty, but when significant changes such as the abolition of ATSIC

and the ‘new arrangements’ took place, it was inevitable that it was accompanied by a fair degree of distrust.

The sheer scope and pace of change was also a major challenge for our communities as well as for

government bureaucrats, with Dr Calma remarking:

I received a lot of feedback that reports provide excellent documentation on what the new arrangements

actually are, and this is being used by a number of public servants as a ‘bible’. This is good. But is also

reflects one of the most basic problems of the new arrangements – a lack of information delivered down

to the local level for both bureaucrats who are supposed to be implementing the new approach and most

crucially for communities.53

Both Dr Calma and Dr Jonas applied a human rights-based approach to the ‘new arrangements’, highlighting

particular concerns about the lack of engagement with Aboriginal and Torres Strait Islander peoples.

The ‘new arrangements’ brought into sharp relief the importance of the principle of free, prior and informed

consent to effective policy. For instance, Shared Responsibility Agreements (SRAs) were agreements between

government and Aboriginal and Torres Strait Islander communities or groups to provide a discretionary benefit

in return for community obligations. These discretionary benefits took the form of extra services, capital or

infrastructure over and above essential services or basic entitlements.54

SRAs were a controversial aspect of the new arrangements, with suspicion by some communities about the

underlying concept of mutual obligations where communities were required to do something in exchange

for a benefit, rather than receive it on the basis of a general citizenship right or entitlement.55 Questions were

also raised about whether communities were in a position to exercise their free, prior and informed consent in

relation to the agreements and whether it impacted on the exercise of self-determination.56 These concerns

intensified when some of the SRAs came to light: Text Box 1.4 discusses the Mulan SRA.

57

A SRA was entered into by the Mulan community in the Kimberley, the Australian Government and

the Western Australian Government. Part of the agreement was that the Australian Government would

contribute $175 000 towards a petrol bowser if the community undertook certain hygiene measures

such as the daily face washing of children.

Justice and Native Title Reports 2005, Museum of Sydney, 31 March 2006). At http://www.humanrights.gov.au/news/speeches/

site-navigation-30 (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2005-home (viewed 25 September 2013).

55 K Collard, H D’Antoine, B Henry, G Mooney, D Eggington and C Martin, ‘“Mutual” obligation in Indigenous health: can shared

au/journal/2005/182/10/mutual-obligation-indigenous-health-can-shared-responsibility-agreements-be (viewed 25 September

2013).

Unit (2005). At http://www.jumbunna.uts.edu.au/pdfs/Shared_Responsibility_Agreements_Briefing1.pdf (viewed 3 October

2013).

au/agreement.asp?EntityID=3012 (viewed 25 September 2013).

36

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

While the Mulan SRA raised concerns58 and was more complex than portrayed in the media, it was inevitably

used as a partisan device. All sides of politics used this SRA as an opportunity to push their own agendas for

Aboriginal and Torres Strait Islander affairs. In this environment, the following analysis provided by Dr Calma

was invaluable because it adopted a human rights approach:

My conclusions on these issues may surprise some people. In particular, I find that if properly done, Shared

Responsibility Agreements can provide a useful tool for realising the human rights of Indigenous peoples.

When I say ‘properly done,’ I mean that the process through which agreements are struck is on the basis

of free, prior and informed consent; and is supportive of Indigenous communities and builds their capacity

to engage with government. For agreements to be ‘properly done’ they must not make the delivery of basic

human rights subject to conditions, nor impose conditions on Indigenous peoples that are not applied to

other citizens.59

Dr Calma continued to monitor the ‘new arrangements’ in an attempt to keep the Government accountable.

new arrangements. Dr Calma was forthright in his assessment:

After four years…it is clear that there are significant problems with…Indigenous affairs at the federal

level. Primarily this is due to an ‘implementation gap’ between the rhetoric of government and its actual

activities.61

This ‘implementation gap’ applied strongly to the area of Aboriginal and Torres Strait Islander participation

and representative structures with a disappointing lack of progress on regional representative arrangements.

According to Dr Calma, the ‘absence of a framework for Indigenous representation at all levels of decisionmaking

On 21 June 2007, the policy landscape shifted once again with the announcement of the Northern Territory

Emergency Response (NTER). Then Prime Minister John Howard and Indigenous Affairs Minister Mal Brough

announced the measures63 as a response to the Northern Territory Board of Inquiry Report into the Protection

The legislation was passed rapidly and with no consultation with the effected communities. This was despite

the Report’s first recommendation saying, in part, that ‘governments commit to genuine consultation with

58 For example, I Anderson, ‘Mutual obligation, shared responsibility agreements and indigenous health strategy’ (2006) 3 (10)

Justice and Native Title Reports 2005, Museum of Sydney, 31 March 2006). At http://www.humanrights.gov.au/news/speeches/

site-navigation-30 (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2006-report-contents (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2006-report-contents (viewed 25 September 2013).

Justice and Native Title Reports 2005, Museum of Sydney, 31 March 2006). At http://www.humanrights.gov.au/news/speeches/

site-navigation-30 (viewed 25 September 2013).

63 M Brough, ‘National emergency response to protect children in the NT’ (Media Release, 21 June 2007).

2013).

Aboriginal people in designing initiatives for Aboriginal communities’.65

The legislation underpinning the NTER was enacted on 17 August 2007.66 Initially, the measures applied to 73

communities and the legislation had a five year sunset clause.

These measures included:

• compulsory welfare quarantining

• compulsory alcohol restrictions

• the compulsory acquisition of land

• changes to the permit system to enter Aboriginal land

• the removal of customary law and cultural practice as a mitigating factor in bail or sentencing

• licensing of stores in prescribed areas

• banning of pornography in prescribed areas.67

Initially there was also to be compulsory health checks of all children under 16 years old, but this strategy was

abandoned following strong protests from medical practitioners.

Dr Calma welcomed the announcements to protect the rights of Aboriginal and Torres Strait Islander women

and children, but was critical of the lack of connection between Australia’s human rights obligations and

Discrimination Act):

This was of great concern to me as I have always maintained that human rights are universal and indivisible.

This means that human rights apply to everyone, everywhere, everyday and that different types of rights

have equal importance. Good policy always upholds human rights.68

Dr Calma also voiced concerns about consistency with the ‘new arrangements’ in which the Government had

invested so much, saying:

One of the things that I was immediately struck by the announcement of the government these past weeks

was the similarity between them and the government’s announcements in 2004 to abolish ATSIC and

introduce the new arrangements. The announcement of the abolition of ATSIC was clearly made on the run.

The commitments made at the time were sweeping in their scope. What my reports have shown is that to

date the government still hasn’t been able to bed down a system that can deliver these commitments.69

25 September 2013).

Opportunity Commission (2007), p 199. At http://www.humanrights.gov.au/publications/social-justice-report-2007 (viewed 25

September 2013).

publications/social-justice-report-2009 (viewed 25 September 2013).

69 T Calma, ‘Continuity and change through the new arrangements – Lessons for addressing the crisis of child sexual abuse in the

Northern Territory’ (Speech delivered at the launch of the Social Justice Report and Native Title Report 2006, 3 July 2007,

Sydney). At https://www.humanrights.gov.au/news/speeches/site-navigation-12 (viewed 25 September 2013).

38

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

A fundamental concern was also the lack of consultation and engagement with Aboriginal communities in

the Northern Territory. Dr Calma reported on the deep feelings of disengagement and division in the affected

communities which became linked with an unhealthy discourse that stifled debate, ‘framed in such a way that

you are either with us or against us,’70 or in other words, if you don’t support us you must support the abuse of

children.

As well as a broad coalition of people and organisations across Australia noting similar concerns and the

United Nations also highlighting the human rights shortcomings of the NTER,71 Dr Calma was singled out

for sustained personal attacks in the media about his approach.72 Again, I commend Dr Calma for taking a

principled stand for our human rights and maintaining the integrity of this position, particularly where we are

tasked with monitoring and promoting the enjoyment and exercise of human rights of Aboriginal and Torres

Strait Islander Australians.73

Agreement and are outlined in Text Box 1.5 together with the underpinning ‘building blocks’ that support their

achievement.

The work of the Close the Gap Campaign for Indigenous health equality was very influential in the

development of the Closing the Gap agenda. I discuss this in further detail later in this chapter.

74

The Closing the Gap Framework commits to timeframes for achieving six targets:

• To close the life-expectancy gap within a generation.

• To halve the gap in mortality rates for Indigenous children under five within a decade.

• To ensure access to early childhood education for all Indigenous four years olds in remote communities within five years.

• To halve the gap in reading, writing and numeracy achievements for children within a decade.

• To halve the gap in Indigenous Year 12 achievement by 2020.

• To halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade.

au/content/national_agreements.aspx (viewed 25 September 2013).

Meeting the Closing the Gap targets involves major effort in seven building blocks:

• Early Childhood

• Schooling

• Health

• Economic Participation

• Healthy Homes

• Safe Communities

• Governance and Leadership.

Closing the Gap has now become a central strategy in Aboriginal and Torres Strait Islander affairs. I discuss it

further in relation to health equality in this chapter and consider future directions in chapter 3.

The Closing the Gap Framework offered a shift in how governments would work together but without a

national representative body, it was unclear how governments would work with Aboriginal and Torres Strait

Islander peoples to meet the targets.

In December 2008, Minister Macklin tasked Dr Calma with chairing an Independent Steering Committee

to research models for a new national representative body, consult with communities and make

recommendations. A report was released in November 200975 setting out recommendations for a model of a

representative body that has now evolved into the National Congress of Australia First Peoples (Congress).

Again, I believe the respect for Dr Calma’s leadership was a key factor in bringing people together. Questions

of governance and representation are inevitably political and given the history of ATSIC, it was a great

achievement to come to a clear resolution.

and consider steps to secure our national voice in chapter 3.

Against this background of the reform, the NTER largely continued following the change of Government at the

2007 election. However, the Government initiated a review in 2008.

An independent Review Board, led by Peter Yu, was appointed in June 2008 and completed their report in

October 2008.77 This report noted some positive progress from the NTER; for example an increased police

presence, measures to reduce alcohol-related violence, and an improvement in the quality and availability of

Commission (2009). At http://www.humanrights.gov.au/publications/our-future-our-hands-2009 (viewed 25 September 2013).

gov.au/publications/social-justice-report-2012 (viewed 25 September 2013).

Commonwealth of Australia (2008). At http://www.nterreview.gov.au/report.htm (viewed 25 September 2013).

40

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

housing, health and education. However, it also noted that some measures had not succeeded because the

NTER failed to engage with the very people for which it was intended.78

The suggestions for improvement made by the Review Board echoed the recommendations made by Dr

Board were that:

• The Australian and Northern Territory Governments recognise as a matter of urgent national

significance the continuing need to address the unacceptably high level of disadvantage and social

dislocation being experienced by Aboriginal Australians living in remote communities throughout the

Northern Territory.

• In addressing these needs, both the Australian and Northern Territory Governments acknowledge

the requirement to reset their relationship with Aboriginal people based on genuine consultation,

engagement and partnership.

• Government actions affecting Aboriginal communities must respect Australia’s human rights

obligations and conform to the Racial Discrimination Act.80

The Australian Government provided an initial response in October 2008 that agreed with these main

recommendations and outlined the intention to continue the ‘stabilisation’ phase of the NTER for 12 months

before transitioning to a long term development phase.81 Following consultation with Indigenous communities

in the Northern Territory, the Australian Government released its policy statement on the proposed redesign of

the NTER measures.82

In essence, the core elements of the NTER remained in place83 although there was a focus on redesigning the

NTER measures so they were ‘more clearly special measures or non-discriminatory within the terms’ of the

Racial Discrimination Act.84

Discrimination Act in relation to the NTER.85 The Commission welcomed these amendments but noted some

concerns as the legislation ‘authorised the continuation of some measures that had a discriminatory and

Commonwealth of Australia (2008), pp 9-11. At http://www.nterreview.gov.au/report.htm (viewed 25 September 2013).

gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).

Commonwealth of Australia (2008), p 12. At http://www.nterreview.gov.au/report.htm (viewed 25 September 2013).

81 Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Compulsory income management to continue as

key NTER measure’ (Media Release, 23 October 2008). At http://www.formerministers.dss.gov.au/14874/response-to-the-nterreview/

(viewed 9 October 2013).

and Indigenous Affairs (2009), p 10. At http://www.fahcsia.gov.au/our-responsibilities/indigenous-australians/publicationsarticles/

closing-the-gap-in-the-northern-territory-including-northern-territory-emergency-response/policy-statement-landmarkreform-

to-the-welfare-system-reinstatement-of-the-racial-discrimination (viewed 25 September 2013).

83 Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial

Discrimination Act) Bill 2009 (Cth), outline.

84 Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial

Discrimination Act) Bill 2009 (Cth), outline.

(Cth), sch 1, items 1–3. This also repealed the sections exempting the operation of the Northern Territory’s anti-discrimination

laws.

negative impact upon the rights of Aboriginal and Torres Strait Islander peoples.’86

As the NTER legislation approached its expiry in 2012, the Australian Government conducted a six week

consultation process on the development of the legislation to take its place. This process was extremely

disappointing given there had been consistent calls for meaningful and effective consultation with Aboriginal

and Torres Strait Islander peoples as the proposed legislation would have wide-ranging impacts on

communities. In my view, the six week consultation period did not do justice to the issues in question given

their complexity and their potential impacts on communities.

Nonetheless, based on these consultations the Government introduced three Bills, which passed through

Parliament on 29 June 2012.87 I will refer to these collectively as the Stronger Futures legislation. Text Box 1.6

summarises the features of the Stronger Futures legislation.88899091929394

Stronger Futures legislation

The Stronger Futures legislation:

• Retains existing alcohol bans in prescribed Northern Territory communities but introduces the

mechanism of community ‘alcohol management plans’.89

• Amends laws relating to alcohol abuse, including by adding six months imprisonment as an

available penalty for possession of less than 1350ml of alcohol in an alcohol protected area.90

• Introduces a new power which allows the Australian Government to make regulations to

modify Northern Territory laws relating to leasing on town camp and community living area

land.91

• Repeals the provisions relating to the acquisition of extensive statutory rights under the

acquisition of compulsory five-year leases.93

• Amends the licensing regime for community stores, extending licencing requirements beyond

stores which accept income managed funds, and providing for more rigorous assessment of

store practices and more robust enforcement of regulations.94

para 132. At http://www.humanrights.gov.au/submission-stronger-futures-northern-territory-bill-2011-2012 (viewed 29 August

2013).

87 Stronger Futures in the Northern Territory Bill 2011 (Cth), Stronger Futures in the Northern Territory (Consequential and

Transitional Provisions) Bill 2011 (Cth), Social Security Legislation Amendment Bill 2011 (Cth).

42

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

9596979899

continue existing pornography bans and require communities to be consulted if they are to be

subject to a new ban or if bans are to be removed.95

consideration of customary law or cultural practice in bail and sentencing (as amended by the

NTNER Act) for certain offences involving cultural heritage.96

• Amends sections of the social security legislation which enable a new process for dealing with

unsatisfactory school attendance97 (this change accompanied the policy announcement that

the School Enrolment and Attendance Measures (SEAM) which allow for the suspension of

welfare payments, would be expanded).98

• Amends the operation of the Income Management scheme by allowing recognised state/

territory authorities to refer people to Income Management.99

Stronger Futures has provided ten-year funding commitments and while I welcomed the long term investment

that this provides, I echo the key message that Social Justice Commissioners have been making for the

past 20 years: work must be done in consultation and in partnership with our communities, and it must be in

accordance with our human rights.100

At the time the legislation passed, I harboured concerns about the legitimacy of the characterisation of some

of the Stronger Futures measures as special measures.101 I also had concerns about the potential for other

measures, such as the School Enrolment and Attendance Measure (SEAM), to be indirectly discriminatory in

their application. Then Race Discrimination Commissioner, Dr Helen Szoke and I stressed that the way these

measures were implemented would determine whether or not they were compatible with obligations not to

discriminate on the basis of race.102

The Parliamentary Joint Committee on Human Rights (JCHR) produced an examination of the Stronger

Futures legislation in June 2013. Its report raised concerns about the lack of evidence to support the assertion

that certain measures are not racially discriminatory. In relation to the Government’s assertion that alcohol

measures were a special measure, the JCHR did not ‘consider that the measures are appropriately classified

as special measures within the meaning of ICERD [International Convention on the Elimination of All Forms

humanrights.gov.au/submission-stronger-futures-northern-territory-bill-2011-2012 (viewed 29 August 2013).

100 M Gooda, ‘Long-term funding commitment welcomed but Stronger Futures still must change’, (Media release 28 March 2012).

At http://humanrights.gov.au/about/media/media_releases/2012/23_12.html (viewed 25 September 2013).

Northern Territory Bill 2012, Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011, 1

March 2012, pp 1-4. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/

commsen/00403cc9-35dc-4cfb-86ab-87ca376c7e79/0000%22 (viewed 25 September 2013).

of Racial Discrimination].’103 However, the report suggested that the implementation of alcohol management

plans could create evidence to justify such classification.

The JCHR found SEAM would have an impact predominantly on Aboriginal communities and therefore might

constitute racial discrimination as defined by ICERD.104 It also found that SEAM involved a limitation of a

number of other rights.105 Consequently the JCHR suggested that SEAM ‘must be justified as a proportionate

measure based on objective and reasonable criteria’ adopted to achieve the ‘legitimate goal’ of promoting

is the responsibility of the Government to clearly demonstrate SEAM is justified based on ‘reliable empirical

concerned that the Government is yet to produce the necessary evidence to satisfy these considerations.108

I am of the view that the way to establish legitimacy and ensure the effectiveness of these measures is through

meaningful engagement with Aboriginal and Torres Strait Islander communities respecting the right to free,

prior and informed consent.

The Stronger Futures legislation is in force until 2022.109 The challenge for the next ten years is its

implementation. Again, I have argued that a human rights framework as articulated in the Declaration should

guide this work. I will discuss this in more detail in chapter 4.

(d) Constitutional recognition

The fact that the Constitution of Australia contains sections that anticipate discrimination on the basis of

race and fails to recognise Aboriginal and Torres Strait Islander peoples remains a stain on our nation. As the

most recent uses of these provisions relate to Aboriginal and Torres Strait Islander peoples, Social Justice

Commissioners have consistently campaigned strongly to redress this injustice.

Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October 2013).

gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October

2013).

Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October 2013).

gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October

2013).

gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October

2013).

indigenous-australians/programs-services/stronger-futures-in-the-northern-territory/stronger-futures-in-the-northern-territorysix-

monthly-progress-report (viewed 10 October 2013).

44

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Social Justice Commissioners have continued to build on the proud history of campaigning and community

advocacy for constitutional recognition of Aboriginal and Torres Strait Islander peoples. A groundswell of

public support, generated by grassroots advocacy, was a key factor in the success of the 1967 referendum.

Despite the positive outcomes of this referendum, there remained unfinished business. Text Box 1.7 considers

the importance of the 1967 referendum.110

The 1967 Referendum

The 1967 referendum provided the previous generation with a nation building moment. Receiving

90.77% support at the ballot box, it was the most strongly supported referendum proposition in

history. The great public support for this referendum, created through decades of campaigning by

some of our greatest champions, established a launching pad for reconciliation between Indigenous

and non-Indigenous Australians.

However, it only went part of the way in creating a Constitution that is inclusive of all Australians. Dr

Tom Calma said:

the overwhelming support for the 1967 Referendum gave the Commonwealth government the power

and responsibility to address the catastrophic conditions under which Aboriginal people lived.

However, in my opinion the Referendum only ‘half-worked’ in certain fields but not enough to

achieve the referendum’s implied promise of equality.110

Professor Dodson explained the need for constitutional reform stemming from the original drafting process:

In 1901, the ‘founding fathers’, white, male and bearded, saw no reason to place the rights of Indigenous

peoples on the Constitutional agenda. They totally excluded Indigenous peoples from the process of forming

the Constitution.112

He also identified that ‘recognition will have great benefits over time in changing non-Indigenous social

attitudes towards Aboriginal peoples and Torres Strait Islanders.’113

Ethnic Communities’ Council of Victoria annual general meeting, Melbourne, 27 November 2007). At https://www.humanrights.

gov.au/news/speeches/reflection-1967-referendum-and-commissioner-s-multiculturalism-position-paper (viewed 25

September 2013).

humanrights.gov.au/pdf/social_justice/sj_report95.pdf (viewed 25 September 2013).

humanrights.gov.au/pdf/social_justice/sj_report95.pdf (viewed 25 September 2013).

humanrights.gov.au/pdf/social_justice/sj_report95.pdf (viewed 25 September 2013).

after the 2007 election, and suggested options for the substance and process of reform.114 In this Report, Dr

Calma identified the need for constitutional change as ‘unfinished business.’115 He stated that constitutional

…is about ensuring that our founding document sets out ambitions and expectations for all Australians

that reflect a modern, twenty first century Australia by providing a legal foundation for reconciliation, where

human rights are respected at all levels of government…Without constitutional change, Aboriginal and Torres

Strait Islander peoples will continue to be vulnerable to the enactment of racially discriminatory laws in

Australia. No other reform to our legal system can address this fundamental problem.116

for a successful referendum. I considered the existing inadequacies of provisions in the Constitution and

traced the history of the campaign for reform. I also outlined the benefits that constitutional recognition would

bring to Aboriginal and Torres Strait Islander peoples, and to the nation as a whole.117

Constitutional recognition, to my way of thinking, is for all Australians:

Australians have a rare opportunity to stand together as one people, united in recognition of the contribution

of Aboriginal and Torres Strait Islander peoples to this land and this nation, in the past, the present and into

the future. What is at stake is an inclusive national identity and a path towards a truly reconciled nation.118

This history of campaigning by Social Justice Commissioners also included submissions, lobbying and

involvement in other processes and inquiries.

The most recent example of this work was my involvement as an ex-officio member of the Expert Panel on

Constitutional Recognition of Indigenous Australians (Expert Panel).

In December 2010, then Prime Minister Gillard appointed the Expert Panel with a mandate to explore how the

Constitution could be changed to recognise Aboriginal and Torres Strait Islander peoples. The Panel consisted

of Members of Parliament, legal experts, and Aboriginal and Torres Strait Islander and non-Indigenous

community leaders.119

Between May and October 2011, the Expert Panel conducted 250 public consultations across Australia, heard

from over 4 000 people and received over 3 500 submissions. The Expert Panel visited many Aboriginal and

Torres Strait Islander communities, holding consultations based on a discussion paper that was translated into

15 Indigenous languages.120

The Expert Panel was a significant and genuine attempt to gain a wide range of authoritative views on the

need for constitutional recognition. I hope that we look back at the work of the Expert Panel as one of the

defining moments that garnered support for a successful referendum to provide this recognition.

social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013).

social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013).

social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013).

social_justice/sj_report/sjreport10/index.html (viewed 25 September 2013).

social_justice/sj_report/sjreport10/index.html (viewed 25 September 2013).

about/expert-panel (viewed 25 September 2013).

(viewed 25 September 2013).

46

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

The Expert Panel’s report was presented to the Prime Minister in January 2012 and it lays out sound, well

considered recommendations to present to the Australian people at a referendum. The recommendations

should provide the foundation for any proposal taken to the people.

Significantly, cross-party support for constitutional recognition of Aboriginal and Torres Strait Islander peoples

has been achieved.

Considering this achievement, many people consider that progress to reform the Constitution has been too

slow. However, there are a couple of key advances that demonstrate real progress towards a referendum.

…no gesture speaks more deeply to the healing of our nation’s fabric than amending our nation’s founding

charter, so I commend this bill to the House as a deed of reconciliation in its own right, and as a sign of good

faith for the referendum to come.121

The then Opposition Leader Tony Abbott supported the Prime Minister’s message:

I honour the millions of Indigenous people, living and dead, who have loved this country yet maintained their

identity and who now ask only that their existence be recognised and their contributions be acknowledged.122

Another important mechanism for progressing constitutional recognition has been the establishment of the

Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in

November 2012. The Committee operates with the mandate to ‘work to build a secure strong multi-partisan

Parliamentary consensus around the timing, specific content and wording of referendum proposals for

Indigenous constitutional recognition’.123 It produced its first report on the Inquiry into the Aboriginal and Torres

Strait Islander Peoples Recognition Bill in January 2013.124

The progress report, delivered by the Committee in June 2013, provided clear direction on the steps and

timeframes required to ensure that momentum towards a referendum is maintained and built upon following

the September 2013 election.125 It was pleasing to note that the report again clearly demonstrated cross-party

commitment to constitutional recognition.

The progress report also provided a strong endorsement of the work and recommendations of the Expert

Panel, stating that ‘the work of the Expert Panel provides a solid foundation for the process of constitutional

reform’.126

MP, Prime Minister).

Abbott MP, Leader of the Opposition).

Business/Committees/Joint/Former_Committees/jsatsi/index (viewed 16 October 2013).

w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4943%22 (viewed 16 October 2013).

2013). At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/consultation/index

(viewed 16 October 2013).

2013), p 7. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/consultation/index

(viewed 16 October 2013).

Consistent with the recommendations of the Expert Panel, the Committee also committed to ‘consult further

with Aboriginal and Torres Strait Islander peoples and their representative organisations to ascertain their

views’ if a proposal other than that of the Expert Panel is being considered.127 The continued engagement of

Aboriginal and Torres Strait Islander peoples is crucial to ensure any proposal is meaningful and supported by

us as First Peoples.

In examining the previous attempts to change the Constitution, and their successes and failures, we cannot

underestimate the importance of public education. We need to bring people along with us if constitutional

recognition is to be successful.

An education campaign began in July 2012 to raise public awareness of the need to recognise Aboriginal and

Torres Strait Islander peoples in the Constitution. The campaign builds on the continued advocacy since the

successful referendum in 1967, which itself launched from the platform created by the 1967 Yes Campaign.

Reconciliation Australia with funding from the Australian Government.128

I joined with many high profile Australians including Michael Long, Aden Ridgeway, Lowitja O’Donoghue, Mick

Dodson, Marcia Langton, Jason Glanville and Tim Costello, along with then Minister for Families, Community

Services and Indigenous Affairs Jenny Macklin and now Prime Minister Tony Abbott, to begin the ‘Journey

of Recognition’ in Melbourne on 26 May 2013. The Journey is travelling around the country talking about the

importance of constitutional recognition. This is just one of a number of community advocacy measures that

are building momentum towards a referendum.

By the end of September 2013, almost 152 000 people pledged their support for constitutional recognition of

is a strong display of public support for constitutional reform and engagement with the campaign.

Polling has also shown that 81% of eligible voters support the recognition of Aboriginal and Torres Strait

Islander peoples in the Constitution.130 Recent polling also indicated strong support for a key recommendation

of the Expert Panel which is the inclusion of a clause which would prohibit discrimination on the basis of

race.131

This support is promising and I consider the next steps needed to achieve constitutional recognition in

chapter 3.

(e) Health equality

Addressing the unacceptable gap in health and life expectancy equality between Aboriginal and Torres

Strait Islander people and the broader Australian public has been a priority of successive Social Justice

2013), p 7. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/consultation/index

(viewed 16 October 2013).

128 Reconciliation Australia, ‘Reconciliation Australia Welcomes Support for Constitutional Recognition’ (Media Release, 15

February 2012). At http://www.recognise.org.au/media/press-releases (viewed 25 September 2013).

(November 2011).

48

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Commissioners.132 The life expectancy gap remains a major challenge for the nation:

In 2005–07, life expectancy for Aboriginal and Torres Strait Islander peoples was estimated to be 11.5 years

lower than that of the non-Indigenous population for males (67.2 compared with 78.7 years) and 9.7 years

lower for females (72.9 compared with 82.6 years).133

I am proud of the contribution that Social Justice Commissioners have made to drive action and reform

approach to Aboriginal and Torres Strait Islander health equality. In the Report, Dr Calma called on the

‘governments of Australia to commit to achieving equality of health status and life expectation between

Aboriginal and Torres Strait Islander people within 25 years.’134

The crux of the call was that governments have an obligation to ensure that Aboriginal and Torres Strait

Islander peoples have an equal opportunity to be as healthy as the broader Australian population. This human

rights based-approach also required governments to develop a comprehensive long-term plan of action and

to set timeframes and benchmarks to measure progress in achieving health equality.

I continue to advocate for health equality in my role as Co-Chair of the Close the Gap Campaign.

Aboriginal and Torres Strait Islander health began meeting to:

• achieve a common understanding of a strategy to health equality for Aboriginal and Torres Strait

• commit to working together to achieve Aboriginal and Torres Strait Islander health equality within 25

years.135

These meetings led to the formation of a coalition called the Close the Gap Campaign that united to push for

health equality. Members of this Coalition then formed a Steering Committee to drive the Campaign.

In April 2007, Patrons Catherine Freeman and Ian Thorpe launched the Campaign. Coinciding with the launch,

the Campaign published an open letter to all Australian governments in the media calling for health equality.

At the same time the public was invited to sign the Close the Gap Pledge.136 Over the years this has resulted in

over 188 000 Australians committing their support with this year’s annual National Close the Gap Day involving

more than 140 000 people, and a dedicated Close the Gap National Rugby League Round.

The Campaign has engaged with a broad range of stakeholders. As founding Chair of the Campaign, Dr

Calma played a key role in bringing the various health bodies, Indigenous and non-Indigenous, to the table to

form the Campaign. Since its inception it has also been strongly bipartisan and closely engaged with all sides

http://www.austlii.edu.au/au/other/IndigLRes/1994/2/index.html (viewed 17 October 2013).

p 57. At http://www.health.gov.au/internet/publications/publishing.nsf/Content/oatsih-hpf-2012-toc (viewed 29 October 2013).

www.humanrights.gov.au/publications/social-justice-reports-index#2005 (viewed 25 September 2013).

au/social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013); Close the Gap Campaign Steering Committee,

Close the Gap Campaign Evaluation Report (2011).

25 September 2013).

of politics.

and Aboriginal and Torres Strait Islander health experts on what needs to be done to achieve health equality

by 2030. These targets still have as much relevance now and should inform the development of a national

signed by most States and Territories and committed parties to working together to achieve health equality by

2030. It also set out the blueprint to achieve this goal which includes the development of a long-term plan of

action in partnership with Aboriginal and Torres Strait Islander peoples and their representatives.

Both Dr Calma and myself as Social Justice Commissioners and the Campaign Chairs139 have used the

of the impact of the early years of the Campaign and updates have been provided in subsequent reports.140

In 2007, having indicated support for Close the Gap approach, the Australian Government adopted the

Closing the Gap policy platform.141 This resulted in a number of positive reforms including:

• In December 2007, COAG adopted a target to achieve Aboriginal and Torres Strait Islander life

expectancy equality within a generation. This was supported by a target to halve the mortality rate

of under-five year old Aboriginal and Torres Strait Islander children within ten years. By mid-2009, a

indigenous-health-equality-targets-2008 (viewed 25 September 2013).

138 These targets were revised by the Campaign Steering Committee as part of their submission to the Health Plan: Close the Gap

Appendix 3. At http://www.humanrights.gov.au/sites/default/files/20121220_CTG_Health_Plan_Submission%20Final.pdf

(viewed 25 September 2013).

139 I note that I have been Co-Chair; Dr Calma was the Chair of the Campaign in his own right whilst Social Justice Commissioner.

Human Rights Commission (2009), ch 5. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25

September 2013).

141 ‘Close the Gap’ was adopted as the name of the human rights based campaign for Aboriginal and Torres Strait Islander health

equality led by the Campaign Steering Committee in 2006. The term ‘closing the gap’ entered the policy lexicon as a result of

Campaign’s activities and has since been used to tag COAG and Australian Government Aboriginal and Torres Strait Islander

policy-specific initiatives aimed at reducing disadvantage — from the COAG Closing the Gap Targets to the National

Partnership Agreement to Closing the Gap on Indigenous Health Outcomes. As a general rule, any initiative with ‘closing the

gap’ in the title is an Australian Government or COAG initiative. There is a very important difference in the meaning and intention

between ‘close the gap’ and ‘closing the gap’ and it is important to note that closing the gap does not necessarily reflect the

human rights-based approach of the Close the Gap Campaign, nor does the use of the term reflect an endorsement of them by

the Close the Gap Campaign Steering Committee.

50

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

total of six COAG ‘closing the gap’ targets had been announced.142

with a focus on child and maternal health were signed.143

The Closing the Gap reforms have also increased transparency and public accountability. This is consistent

with the Campaign’s advocacy and a human rights-based approach as it enables progress to be tracked

over time. Of particular importance is the Prime Minister’s annual report and address to Parliament on

progress towards achieving the Closing the Gap targets. The Campaign produces an annual ‘Shadow Report’

coinciding with the Prime Minister’s report. It has become a welcome tradition that the Prime Minister meets

with Campaign representatives and exchanges reports on the day that the Prime Minister’s report is tabled in

Parliament.

In August 2011, the National Health Leadership Forum (NHLF) was established within Congress. The

NHLF is comprised of the Aboriginal and Torres Strait Islander health peak bodies on the Campaign

Steering Committee and was established to partner with the Australian Government in the development,

implementation and monitoring of national health policy including a plan of action. I set out the NHLF as a

Following the formation of the NHLF, then Health Minister Nicola Roxon and the Minister for Indigenous

Health Warren Snowdon announced a process for the development of the Health Plan.145 The NHLF worked in

partnership with the Australian Government in the development of the Health Plan which was finalised in July

this year.146

The Close the Gap Campaign welcomed the Health Plan as a crucial step towards closing the gap in health

equality.147 It is pleasing that the Health Plan:

• has an overarching goal of closing the life expectancy gap by 2030

• adopts a human rights-based approach and addresses racism at both the individual and systemic

levels

• adopts a holistic definition of health including recognition of the impacts of past policies and the

ongoing cycle of trauma on the health of Aboriginal and Torres Strait Islander people and the role of

healing

national-agreement_sept_12.pdf (viewed 25 September 2013).

143 There are four other Indigenous specific National Partnership Agreements attached to the NIRA.

gov.au/publications/social-justice-report-2012 (viewed 16 October 2013).

145 The Hon N Roxon MP, Minister for Health and Ageing and The Hon W Snowdon MP, Minister for Indigenous Health, ‘New

National Aboriginal and Torres Strait Islander Health Plan’ (Media release, 3 November 2011).

147 Close the Gap Campaign Steering Committee, ‘Aboriginal and Torres Strait Islander health plan a crucial step forward’ (Media

release, 23 July 2013). At https://www.humanrights.gov.au/news/stories/aboriginal-and-torres-strait-islander-health-plancrucial-

step-forward (viewed 25 September 2013).

• recognises the central role of culture and social and emotional wellbeing to the physical and mental

health of Aboriginal and Torres Strait Islander people

• is comprehensive and addresses the wide range of social and cultural determinants of health

inequality

• includes a commitment to develop targets and benchmarks to measure progress.148

However, to be effective this plan of action must be implemented in partnership with Aboriginal and Torres

Strait Islander peoples and their representative organisations.149 I consider actions for the future in chapter 3.

(f) Criminal justice issues

Given that the RCIADIC was part of the impetus for the creation of the Social Justice Commissioner role, it is

not surprising that criminal justice issues have been a significant focus over the last 20 years. Unfortunately,

the statistics over time have grown worse: see Text Box 1.8. 150151152153154

Aboriginal and Torres Strait Islander criminal justice statistics – then and now

While it is difficult to directly compare statistics from 1993 to today due to different methodologies

around Indigenous identification, a very rough analysis shows a disturbing trend.

In 1993, Aboriginal and Torres Strait Islander young people nationally were 17 times more likely to be in

detention than their non-Indigenous counterparts.150

This number has significantly increased.

In 2012, Aboriginal and Torres Strait Islander children nationally were 25 times more likely to be in

detention than their non-Indigenous counterparts.151

And in 1993, the crude rate of imprisonment152 for Aboriginal and Torres Strait Islander adults showed

that they were 14 times more likely to be imprisoned than their non-Indigenous counterparts.153 In

2012, this crude rate of imprisonment for adult Aboriginal and Torres Strait Islanders had increased to

18.4 times more likely than non-Indigenous Australians to be imprisoned.154

health.gov.au/natsihp (viewed 25 September 2013).

2013).

aic.gov.au/documents/4/3/9/%7b43950229-E7E1-422B-9645-00293E7A2318%7dti64.pdf (viewed 25 September 2013).

gov.au/WorkArea/DownloadAsset.aspx?id=60129543208 (viewed 25 September 2013).

152 The crude rate does not provide age standardisation which is a more robust measure. We have provided the crude rate as the

age standardised measure was not used in 1993.

nsf/0/24B61FAA213E5470CA257B3C000DCF8A/$File/45170_2012reissue.pdf (viewed 25 September 2013).

52

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Social Justice Commissioners have been actively involved in trying to explain why our people make up the

majority of Australia’s prison populations and how we can remedy this. Some of this has been in response

to particular policies, such as mandatory detention, whilst other work has considered the particular needs of

groups such as women and offenders with cognitive impairments and/or mental health issues. And of course,

there is the issue of general disadvantage facing our people as a result of colonisation and subsequent

trauma.

Over the past 20 years, opposition to mandatory sentencing laws has been a key area of advocacy for Social

Justice Commissioners because the application of these laws has a disproportionate impact on Aboriginal and

Torres Strait Islander peoples.

When we place mandatory sentencing in the social context of Aboriginal and Torres Strait Islander offenders,

we see for example:

Aboriginal juveniles appearing in court are significantly more likely to have a previous offending history and

are more likely to be among those with extensive offending histories than are non-Aboriginal people. Thus

their impact.155

Mandatory sentencing was first introduced in Western Australia in 1996 and the Northern Territory in 1997.156

The Northern Territory laws required a Court to impose a period of at least 14 days imprisonment for an

offender guilty of a property offence.157 In Western Australia, if a person was a repeat offender at the time of

committing a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months

imprisonment or detention.158

These laws were sharply critiqued by then Social Justice Commissioner, Dr Jonas who referred to them as

the ‘antithesis of social justice’.159 Serious concerns were raised by a number of United Nations human rights

treaty bodies about the compatibility of the laws with Australia’s human rights obligations.160 The human

impact of these laws helped turn the tide of public opinion. For instance, as shown in Text Box 1.9 below,

there were numerous examples of disproportionate sentencing of Aboriginal people in the Northern Territory.

(NT)).

gov.au/publications/1999-social-justice-report (viewed 24 September 2013).

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?OpenDocument (viewed 25 September 2013);

Doc CERD/C/304/Add.101. At http://www.un.org/Docs/journal/asp/ws.asp?m=CERD/C/304/Add.101 (viewed 25 September

2013).

161

• A 29 year old homeless man wandered into a backyard when he was drunk and took a $15 towel. It

was his third minor property offence and he was imprisoned for a year.

• An 18 year old man was sentenced to 90 days in prison for stealing 90 cents from a car.

• A 15 year old girl was detained for 28 days for unlawful possession of a vehicle. In fact she was only

a passenger in a stolen vehicle.

• Robert was first referred to the Department of Family, Youth and Children’s Services when he was

12 years old due to a lack of parental support. Since the age of 14, Robert has mostly looked

after himself. He attempted suicide while in police custody, having been arrested for a mandatory

detention offence. The offence was one of property damage. He broke a window after hearing about

the suicide of a close friend.

• Tragically, in 2000 a 15 year old boy committed suicide whilst in custody on a mandatory sentence

of 28 days for stealing textas and paint.

In 2001, the Northern Territory mandatory sentencing laws for property offences were repealed.162

Looking back, researchers have been able to show that appearances before the Northern Territory courts that

led to imprisonment were 50% higher during the period of mandatory sentencing, compared with the period

immediately after the repeal of the legislation.163 In terms of the impact on crime, property crime actually

increased during the mandatory sentencing regime and then decreased once it was repealed.164

Mandatory sentencing regimes are still in place in Western Australia. In fact, the Western Australian

Government has promised to expand mandatory sentencing terms to 15 years for some offences and double

home burglary minimum terms to two years for all offenders over the age of 16 years.165

The Northern Territory introduced new mandatory sentencing laws in 2008166 and has further extended the

mandatory sentencing regime to a range of violent offences in 2013.167

I am extremely disappointed that despite powerful legal, moral, economic and human rights arguments,

some Australian jurisdictions still resort to mandatory sentencing 20 years after the RCIADIC stated that

imprisonment should be a measure of last resort. In my view, mandatory sentencing results in harsh, unfair

publications/mandatory-detention-laws-australia-2001 (viewed 25 September 2013).

Conference, Canberra, 6-7 February 2010), p 1.

September 2013).

NATSILS_Submission_Justice_Reinvestment.pdf (viewed 25 September 2013).

54

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

sentences and does not increase community safety.

The rate of Aboriginal and Torres Strait Islander women in custody has grown more quickly than any other

demographic group during the past 20 years. Between 2000 and 2010 alone there has been a 59% increase

in Aboriginal and Torres Strait Islander female imprisonment, compared to a 35% increase for Aboriginal and

Torres Strait Islander males. Aboriginal and Torres Strait Islander women are 21.5 times more likely to be

imprisoned than their non-Indigenous counterparts.168

It is not just these alarming statistics but the significant needs and disadvantage of Aboriginal and Torres Strait

study finding 67% of Aboriginal women in custody in Western Australia had experienced abuse as an adult or

child.169

This group of women faces a very high level of homelessness, mental health treatment needs and consequent

requirement for holistic post-release support services.170 With 80% of Aboriginal and Torres Strait Islander

women in Western Australia having children,171 the need for support extends across the generations to try and

rebuild strong families which can help break the cycle of offending.

There have been some welcome developments in the past 20 years. As an example, we now have women and

child units in some prisons; however, these initiatives are the exception rather than the rule.

Regardless, this sort of intervention is at the wrong end of the spectrum – we need more support services in

order to prevent offending in the first place.

One of the strengths of the Social Justice Commissioner’s role is the ability to advocate for the most

vulnerable. Aboriginal and Torres Strait Islander people with cognitive impairment,172 psychosocial disability,

hearing impairment or other disability in the criminal justice system are by any measure some of the most

vulnerable people in our community.

Research has shown that Aboriginal and Torres Strait Islander young people with a cognitive impairment have

earlier contact with police and progress more quickly to custody from this contact, compared to the non-

Indigenous group.173

humanrights.gov.au/sites/default/files/content/social_justice/sj_report/sjreport02/Social_Justice_Report02.pdf (viewed 25

September 2013).

humanrights.gov.au/publications/social-justice-report-2004 (viewed 3 October 2013).

humanrights.gov.au/sites/default/files/content/social_justice/sj_report/sjreport02/Social_Justice_Report02.pdf (viewed 25

September 2013).

172 In using the word ‘cognitive impairment’, I am referring to a ‘range of disorders relating to mental processes of knowing,

including awareness, attention, memory, perception, reasoning and judgement’. I include intellectual disabilities, learning

disabilities, acquired brain injury, foetal alcohol spectrum disorders, dementia, neurological disorders and autism disorders.

Family and Community Services, Ageing, Disability and Home Care (2012), p 4. At http://www.adhc.nsw.gov.au/__data/assets/

file/0003/264054/Intellectual_and_cognitive_disability_in_criminal_justice_system.pdf (viewed 25 September 2013)

Dr Calma produced a research report on the needs of this group of Aboriginal and Torres Strait Islander young

people and made a number of recommendations around better practice in 2008,174 which built on earlier work

of the Commission in 2005.175

Together with the Disability Discrimination Commissioner, Graeme Innes, I have continued to advocate on

these issues. In some Australian jurisdictions,176 when people with cognitive impairment are found to be unfit

to plead to criminal charges, they become subject to mental health legislation. The result for some Aboriginal

and Torres Strait Islander people with cognitive impairment has been indefinite detention.

men have been held in indefinite detention, although Marlon Noble, having already served over ten years of

imprisonment, was released with strict conditions in 2011 following a sustained campaign for this freedom.

Sadly these are not the only instances. Recent research has noted that there are 20 Aboriginal and Torres

Strait Islander people being held indefinitely in the Northern Territory and Western Australia.178

This indefinite detention of people with cognitive impairment is on the extreme end of the spectrum of barriers

to access for justice for Aboriginal and Torres Strait Islander people with disabilities. More broadly we are

seeing a criminalisation of care, where the criminal justice system is being used in the absence of adequate

health and disability support services. For instance, National Aboriginal and Torres Strait Islander Legal

Services (NATSILS) have reported:

an increased use of Apprehended Violence Orders being used to control behavioural issues by schools, care

workers and parents, rather than referring people displaying difficult behaviours to more appropriate health

and welfare services because they are unavailable.179

If treatment and services are not available, situations quickly escalate and can lead to criminal justice

interventions.

This year, I have been involved in assisting with Commissioner Innes’ work on access to justice for people

with disability who need communication supports or who have complex and multiple support needs.180 I

have attended public meetings in Sydney, Perth, Port Hedland and Roebourne. A report on this work will be

released in 2014.

rights-indigenous-young-people-cognitive-disabilities (viewed 25 September 2013).

Opportunity Commission (2005). At http://www.humanrights.gov.au/publications/indigenous-young-people-cognitivedisabilities-

and-australian-juvenile-justice-systems (viewed 25 September 2013).

publications/social-justice-report-2012 (viewed 25 September 2013).

September 2013).

(2013). At http://www.humanrights.gov.au/publications/access-justice-criminal-justice-system-people-disability-issues-paperapril-

2013 (viewed 25 September 2013).

56

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Justice reinvestment is a criminal justice policy approach that diverts a portion of the funds from imprisonment

to local communities where there is a high concentration of offenders. The money that would have been spent

on imprisonment is reinvested into services that address the underlying causes of crime in these communities.

Dr Calma was one of the first proponents of justice reinvestment in Australia, introducing the concept in the

number of reports.182

Most recently, the Senate Legal and Constitutional Affairs References Committee Inquiry into the value of

a justice reinvestment approach to criminal justice in Australia made recommendations that the Australian

Government should support justice reinvestment trials.183

Justice reinvestment has been the subject of strong community advocacy. Along with high profile community

Western Australia, Queensland and the ACT.185 NATSILS and Congress are leading the work at the national

level.

At the community level, we are seeing some really exciting work about what justice reinvestment could look

like in Australia. The Bourke community in far western NSW has invited me to work with them around justice

reinvestment. I’ve visited twice this year and had some fantastic discussions about some of the challenges

they are facing in terms of crime and imprisonment. I anticipate this work will be fully explored in next year’s

(g) Family violence

Perhaps more than any other issue, family violence in Aboriginal and Torres Strait Islander communities has

sparked controversy and outrage. And with good reason – the levels of family violence in our communities are

unacceptable.

sj_report/sjreport09/index.html (viewed 25 September 2013).

(2013). At http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=legcon_ctte/completed_

inquiries/2010-13/justice_reinvestment/report/index.htm (viewed 25 September 2013); House of Representatives Standing

au/db/publications/285011.html (viewed 25 September 2013);

Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2008-10/access_to_justice/

report/index.htm (viewed 25 September 2013).

Constitutional_Affairs/Completed_inquiries/2010-13/justicereinvestment/report/index (viewed 25 September 2013).

2013).

185 See the Smart Justice Project in Victoria. At http://www.smartjustice.org.au/ (viewed 14 February 2013); Justice Reinvestment

Implementation Committee in Western Australia. At http://www.deathsincustody.org.au/prisonovercrowding (viewed 25

September 2013); Project 10% in Queensland. At http://www.project10percent.org.au/ (viewed 25 September 2013) and

Justice Reinvestment Forum in the ACT. At http://ncis.anu.edu.au/events/past/jr_forum.php (viewed 25 September 2013).

Over the past 20 years, volumes have been written on the subject, with shocking findings in major inquiries

in every jurisdiction in the country.186 Social Justice Commissioners have added their voices to the chorus of

condemnation but more importantly, they have contributed thoughtful research on the complexities of this

issue.

violence.187 This report was written at a time when ATSIC still existed and was working to address family

violence at a national as well as regional level.

Dr Calma brought together research and consultation to develop a human rights-based approach to

addressing family violence and abuse: see Text Box 1.10.188

A human rights-based approach to addressing family violence and abuse in

• turn government commitments into action

• ensure Indigenous participation

• support Indigenous community initiatives and networks

• provide human rights education in Indigenous communities

• don’t forget our men and don’t stereotype them as abusers

• look for positives and celebrate the victories

• re-assert our cultural norms and regain respect in our communities

• ensure robust accountability and monitoring mechanisms

• change the mindset of government from an approach which manages dysfunction to one that

supports functional communities

• target need.

These challenges articulate the holistic, human rights based-approach that is still needed to guide work in this

area.

humanrights.gov.au/publications/social-justice-report-2007-appendix-2 (viewed 25 September 2013).

gov.au/publications/social-justice-report-2003-chapter-5-addressing-family-violence-indigenous-communities (viewed 25

September 2013).

and Equal Opportunity Commission (2006), pp 5-6. At http://www.humanrights.gov.au/publications/ending-family-violence-andabuse-

aboriginal-and-torres-strait-islander-communities-key (viewed 25 September 2013).

58

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

In 2003, then Prime Minister John Howard hosted a national roundtable on family violence. Consequently,

framework in 2006 and announced additional funding for a range of measures.189

introduction of the NTER, which has been discussed in section 1.2(c) above.

Aboriginal and Torres Strait Islander peoples. Early reporting on the implementation of these plans has been

promising, although I note that we are yet to see any formal evaluation of their impact.

The specific legal needs of Aboriginal and Torres Strait Islander victims of family violence and abuse have

been well documented over the past 20 years, but sadly, they are still poorly met.

Family Violence Prevention Legal Services (FVPLS) have been the main provider in this area. Despite the

critical work that these services do in supporting victims, there are only 14 FVPLS in Australia covering

31 regional and remote areas.192 The funding guidelines restrict services in urban areas. As noted by the

Congress, this is:

a major concern…given that 33% of Aboriginal and Torres Strait Islander people now live in capital cities.

The policy of limiting the program to rural and remote locations fails to recognise many of the barriers

that Aboriginal women face with trying to access mainstream services providers and FVLPS experience

numerous cases where women who live in rural and remote locations relocate to urban areas for safety.193

Additionally, I am told many women and children feel they are unable to access Aboriginal and Torres Strait

Islander Legal Services (ATSILS) due to conflicts arising from these services taking on the representation

of alleged offenders. In most cases, it will be the offender rather than the victim who is eligible for legal aid

through ATSILS. This is because when a criminal charge is laid, most often it is the offender who will come

to the attention of the ATSILS first and become a client of the service. The ATSILS are then unable to offer

assistance to the victim.194

cfm (viewed 25 September 2013).

women/programs-services/reducing-violence/the-national-plan-to-reduce-violence-against-women-and-theirchildren

(viewed 25 September 2013).

files/documents/child_protection_framework.pdf (viewed 25 September 2013).

wp-content/uploads/2013/02/CongressJusticePolicy.pdf (viewed 3 September 2013).

wp-content/uploads/2013/02/CongressJusticePolicy.pdf (viewed 3 September 2013).

(20 October 2009), para 23. At http://www.humanrights.gov.au/inquiry-access-justice-2009 (viewed 25 September 2013).

One of the things missing in the rush to implement the NTER was a consideration of the positive actions of

Aboriginal and Torres Strait Islander communities to address family violence and abuse themselves. In the

• Community education and community development

• Healing

• Alcohol management

• Men’s groups

• Family support and child protection

• Safe Houses

• Offender Programs.195

This shows a depth of capacity, commitment and tenacity in our communities and challenges the stereotype

of our people as passive victims unable to deal with problems.

Given the negative stereotypes around Aboriginal and Torres Strait Islander men as violent perpetrators, it has

also been important to recognise the strong stand many men have taken against violence. In particular, in July

2008 a summit on Indigenous men’s health in Alice Springs issued the Inteyerrkwe Statement:

We the Aboriginal males from Central Australia and our visitor brothers from around Australia gathered at

Inteyerrkwe in July 2008 to develop strategies to ensure our future roles as husbands, grandfathers, fathers,

uncles, nephews, brothers, grandsons, and sons in caring for our children in a safe family environment

that will lead to a happier, longer life that reflects opportunities experienced by the wider community. We

acknowledge and say sorry for the hurt, pain and suffering caused by Aboriginal males to our wives, to our

children, to our mothers, to our grandmothers, to our granddaughters, to our aunties, to our nieces and to

our sisters.196

This statement is just one example of the positive contributions that men are making in this area.

I’ve carried this vision of telling positive stories into my term as well. After taking on the role of Social Justice

Commissioner, one of my first visits was to Fitzroy Crossing. I saw the courageous steps that the communities

of Fitzroy Valley had taken to address issues of alcohol abuse and its related harms including violence. I saw

transformative change as a result of community-initiated alcohol restrictions. This was led by strong women

such as June Oscar and Maureen and Emily Carter, and was supported by the cultural leadership of the

communities through Kimberley Aboriginal Law and Culture Centre and some of the men of the Fitzroy Valley.

(h) Education

Education is a complex topic that could easily fill this entire report. Like previous Social Justice

Commissioners, I am concerned about school attendance and access to quality education services. It has

gov.au/publications/social-justice-report-2007 (25 September 2013).

196 Aboriginal Male Health Summit 2008, ‘Inteyerrkwe Statement’ (Media release 3 July 2008). At http://www.nirs.org.au/images/

stories/Feature_material/malehealthsummit2008sorry.pdf (viewed 25 September 2013).

60

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

been pleasing to see education elevated through its inclusion into the Closing the Gap targets197 and given the

attention it deserves as a mechanism for breaking the cycle of disadvantage in our communities.

education and the impact of the NTER on education. Concerns have been raised about the right to education

for Aboriginal and Torres Strait Islander peoples – particularly through access to bilingual education – and the

role that education should play in the preservation of our languages and culture.

Bilingual education programs involve the teaching of Aboriginal and Torres Strait Islander children in traditional

Aboriginal and Torres Strait Islander languages.198 Given that English might be the second, third or even fourth

language for some children, primarily from remote communities, it makes sense to me that we start teaching

these children in a way to which they can relate. Further, there is clear evidence that bilingual education is vital

to children’s psychomotor, affective and cognitive development.199

Bilingual education is an important means of maintaining and revitalising language and cultural traditions

through the formal education system. It has been shown to be an appropriate model for the delivery of

educational services and outcomes to Indigenous children.200

Bilingual education had its beginning back in the Whitlam era. It began in the Northern Territory as a Federal

Labor initiative in December 1972. By March 1973, the first Northern Territory bilingual education programs

were being implemented.201

The Northern Territory is the only place in Australia where there has been a formal Australian Government

policy to implement bilingual education. In most of Australia’s other states and territories, implementation of

language programs is left to the discretion of local school administrations and school principals.202

In 1998, the Northern Territory Government announced that bilingual education programs in Aboriginal

appropriate recognition of cultural difference, and self-determination.203 The right to education means there

must be proper recognition and attempts to incorporate cultural and linguistic traditions.204

In an analysis of bilingual education programs, Dr Jonas considered the obligation of governments to realise

197 See chapter 3 for discussion of Closing the Gap framework.

humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).

Bilingual Education in the Northern Territory: Principles, policy and practice, Canberra, 26 June 2009), p 4. At http://www.abc.

net.au/4corners/special_eds/20090914/language/docs/Devlin_paper.pdf (viewed 25 September 2013).

publications/social-justice-report-2009 (viewed 25 September 2013).

humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).

the full enjoyment of the right to education.205 He also examined how realising this right is intrinsically linked

to promoting a form of education that is accessible.206 Dr Jonas concluded that the removal of bilingual

education programs does not meet the human rights obligation to ensure that education is accessible.207

Bilingual education was further dismantled in 2008, with the Northern Territory Government implementing a

policy that would mandate that the first four hours of school be conducted in English.208 Dr Calma reported in

The policy means language and culture activity is relegated to the last hour and a half of the school day… a

time when quality learning is challenging. The four hours of English policy does not claim to abolish bilingual

education, though there is no doubt that it will have that effect.209

teaching in English. This policy has a focus on learning in English, while home/local languages can be used

where appropriate.210 I welcome this more flexible approach but am concerned that any language programs

need to be adequately resourced.

In 2007, the announcement of the NTER included income management measures to ensure that children

attended school. However, the income management scheme presupposed that children in the Northern

Territory had access to ordinary educational opportunities.

At the time the number of school-aged children without access to primary and secondary education was

‘significant’.211 The combined Aboriginal Peak Organisations of the Northern Territory (APO NT) reported a

severe shortage of educational services such as class rooms, teachers and preschool options.212

Dr Calma emphasised the importance of providing children with incentives to learn and he argued that

methods of teaching that resonate with Aboriginal and Torres Strait Islander students are preferable to

measures that penalise parents.213

Aboriginal and Torres Strait Islander students in remote schools often experience significant educational

that States undertake to guarantee that the rights in the Covenant, such as education, can be exercised without discrimination

as to race, colour or other status.

the ‘development of respect for the child’s parents, his or her own cultural identity, language and values...’

humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).

publications/social-justice-report-2009 (viewed 25 September 2013).

publications/social-justice-report-2009 (viewed 25 September 2013).

Government (2011), p 1. At http://www.education.nt.gov.au/about-us/policies/documents/schools/framework-for-learningenglish-

as-an-additional-language (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).

62

In 2008, Dr Calma highlighted large gaps in the provision of education services in remote Australia and

encouraged governments to assess the availability of quality education services in remote Australia.215

Remoteness limits access to educational services as well as other resources such as libraries and information

technology. Road access may be limited during particular times of the year and during wet season periods,

there may be no access for months on end.216

Each school and each community is unique with its own strengths and challenges.217 In remote communities

many of the resources and options we take for granted in urban communities simply don’t exist. Pre and postschool

options are often limited or non-existent and there is likely to be limited employment in the region.218

While I welcome the significant investment in preschool education through Closing the Gap, the gap in

education outcomes between Aboriginal and Torres Strait Islander and non-Indigenous students is still

confounding. For example, the National Indigenous Reform Agreement reported that there were no significant improvements in Indigenous numeracy in any year or jurisdiction between 2008 and 2012. The gap between

Indigenous and non-Indigenous students widened further in Years 3, 5 and 7 between 2008 and 2012.219  However, the gap in literacy between Indigenous and non-Indigenous student showed a decline between 2008 and 2012 for Years 3, 5 and 7 but increased in Year 9.220

Dr Calma advocated for a partnership between Aboriginal and Torres Strait Islander people and governments

to improve education in remote Australia. Decisions about educational approaches and resources must

be made at the community level and bureaucracies must be in a position to respond to requirements on a

community-by-community basis.221

The recruitment and retention of Aboriginal and Torres Strait Islander teaching staff is a significant challenge

for education. While Aboriginal and Torres Strait Islander culture can be supported through appropriate

curricula, Aboriginal and Torres Strait Islander staff are essential to our children engaging and participating in

the education system.222

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 25 September).

publications/social-justice-report-2008 (viewed 25 September 2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 25 September 2013).

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 25 September 2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

While Aboriginal and Torres Strait Islander teachers represent the gold standard of education delivery, overall

teacher shortages have meant that getting consistent teaching staff has been a challenge. This has impacted

on regional and remote schools for decades and has had a disproportionately negative impact on Aboriginal

and Torres Strait Islander students because shortages are more likely to be in remote locations.223

There is an imperative for government and non-government education providers to act on recruitment and

retention strategies for Aboriginal and Torres Strait Islander and non-Indigenous teachers in remote areas.

Education providers should ensure they attract the best, brightest and most appropriate teachers to remote

schools where the education challenges are greatest.224

Learning about our culture, languages and histories is not just for Aboriginal and Torres Strait Islander children

and young people. Education can also be the first step towards greater understanding and reconciliation. The

national Australian Curriculum provides significant opportunities for all children and young people to learn

about Aboriginal Torres Strait Islander histories and cultures, and develop knowledge and understanding

about the human rights of Aboriginal and Torres Strait Islander peoples.

The Commission has been engaged in the curriculum development process and has advocated for the

inclusion of curriculum content that promotes and protects the rights of Aboriginal and Torres Strait Islander

peoples. The Commission is also developing human rights education resources for teachers and students that

are linked to the Australian Curriculum.

(Framework).225 The Framework provides a basis for all schools in Australia to support the teaching and

learning of Aboriginal and Torres Strait Islander languages.

The Commission welcomes the Framework and its specific reference to the Declaration.226 However, I am

concerned that it does not address issues such as the availability of financial resources to compensate

relevant communities for developing, implementing or teaching local languages and the need for State and

Territory governments to develop and implement supportive policies. These are consistent with issues raised

While there are still significant challenges in implementing the Framework, I am optimistic about the

opportunities that it presents for all Australian students. Learning about our shared history, our cultures and

our languages is one of the first steps in building strong relationships. I am a firm believer that the future starts

with our children.

publications/social-justice-report-2008 (viewed 25 September 2013).

au/publications/social-justice-report-2008 (viewed 25 September 2013).

unpfii/en/drip.html (viewed 25 September 2013).

publications/social-justice-report-2009 (viewed 25 September 2013).

64

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

The connection between international human rights standards and the everyday challenges facing our people

has been one of the unique contributions of Social Justice Commissioners. Having the office of Social

Justice Commissioner sit within Australia’s National Human Rights Institution (NHRI) ensures that the position

is ‘uniquely placed to operate as a bridge between the international human rights system and the on-theground

reality experienced by indigenous peoples.’228 It also ensures that the Commission maintains a specific

agenda on Indigenous rights at all times and has been described as ‘an exceptional model for advancing the

recognition and protection of the rights of Indigenous peoples’.229

Social Justice Commissioners have been heavily involved in the development of the Declaration over the last

20 years. More than two decades in the making, it is perhaps the most significant milestone for Indigenous

rights at the international level.

The Declaration had its genesis as far back as the 1960s but gained traction in the United Nations Economic

and Social Council Working Group on Indigenous Populations (Working Group). The Working Group had a

mandate to develop international standards concerning the rights of Indigenous peoples and in 1985, it began

drafting the Declaration on the Rights of Indigenous Peoples.

During his term as Social Justice Commissioner, Professor Dodson attended the Working Group and reported

on the progress of the draft Declaration. He outlined the challenges in the drafting of the Declaration in the

From its inception the United Nations reflected the Western European values and perspectives of its

founding Member States, which were predominantly colonial powers or States descended from them.

Member States articulated respect for individual rights of citizens within their countries without regard for

the distinctive position and cultures of the original inhabitants who were caught inside these imposed nation

States.230

While the challenges were great, the Working Group’s draft Declaration, as passed to the Sub-Commission

on the Promotion and Protection of Human Rights, provided that Indigenous peoples have the right to selfdetermination,

The draft Declaration also had a heavy emphasis on the recognition of the collective rights as opposed to

individual rights.

Text Box 1.11 outlines the major developments in the drafting the Declaration.

228 Asia Pacific Forum of National Human Rights Institutions and the Office of the United Nations High Commissioner for Human

(2013), p 40. At http://www.ohchr.org/Documents/Issues/IPeoples/UNDRIPManualForNHRIs.pdf (viewed 21 October 2013).

http://unsr.jamesanaya.org/PDFs/Australia3.pdf (viewed 25 September 2013).

edu.au/au/other/IndigLRes/1993/3/index.html (viewed 21 October 2013).

humanrights.gov.au/publications/1995-social-justice-report (viewed 21 October 2013).

232233

1971 The Sub-Commission on the Prevention of Discrimination and the

Protection of Minorities appointed Martinez Cobo as Special Rapporteur

to conduct a comprehensive study on discrimination against indigenous

populations.

1982 The United Nations Economic and Social Council Working Group on

Indigenous Populations was established.

1993 The Working Group completed the Draft Declaration and it began its

passage to the Commission on Human Rights.

2004 At the tenth session of the inter-sessional working group of the

Commission on Human Rights, a group of countries led by New Zealand

and Norway introduced an amended text of the Draft Declaration for

negotiation.

2005- 2006 The ‘Chairman’s Text’ formed the basis of negotiations at the eleventh

session of the inter-sessional working group of the Commission on Human

Rights in 2005 and 2006.

2006 The Draft Declaration was adopted by the Human Rights Council.

2007 The Declaration was adopted by the United Nations General Assembly.

2009 The Australian Government formally supported the Declaration.233

232 Unless otherwise specified, information in this table is drawn from Asia Pacific Forum of National Human Rights Institutions and

internationalfunders.org/documents/MakingtheDeclarationWork.pdf (viewed 25 September 2013).

233 Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Statement on the United Nations Declaration on

the Rights of Indigenous Peoples’ (Speech delivered at Parliament House, Canberra, 3 April 2009).

66

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Indigenous participation was critical to the drafting of the Declaration so it was concerning when procedural

issues potentially became a barrier for that participation. At the time, United Nations’ procedures dictated that

the draft Declaration would pass through the Sub-Commission on the Promotion and Protection of Human

Rights, then to the Commission on Human Rights and to the Economic and Social Council before it would

be put to the General Assembly for adoption.234 Unlike the Working Group on Indigenous Populations, the

Commission on Human Rights was a body comprised of States, which meant a greater role for States in the

drafting of the Declaration. For many Indigenous peoples, this was seen as a major risk and there were strong

views that Indigenous people needed to be present to represent our views and advocate our rights. Professor

For many Indigenous peoples, asking them to trust their governments to take over the drafting is

asking them to trust the very people who murdered their people, sold-off their land and destroyed their

environment.235

To allay some of these concerns, the Commission on Human Rights adopted a resolution to set up the openended

inter-sessional Working Group allowing for Indigenous organisations without Economic and Social

Council status to participate in the Commission on Human Rights Working Group.236 The final resolution also

authorised the Commission on Human Rights to elaborate a new draft Declaration taking into consideration

the existing draft. Indigenous peoples feared that the existing draft, a product of 12 years of intensive

negotiation with and among Indigenous peoples, would be cast to the side, and then States would proceed to

develop a new declaration.237

In 1995, Professor Dodson wrote about the strength of the Australian Government’s position both on

supporting Indigenous peoples’ participation in the process and its overall support of the Draft Declaration

and willingness to lobby other governments.238 He emphasised the need for the Australian Government to

maintain its current position and not undermine the process and ‘sell-out’ when it came to the crunch.239

The draft Declaration was sent to the General Assembly for adoption in 2006. It was at this point in the

negotiations that the Australian Government presented its objections to the draft Declaration in a joint

statement with the governments of New Zealand and the United States of America. The objections related

specifically to ‘concerns over provisions on self-determination, land and resources rights and the language

giving indigenous peoples a right of veto over national legislation and State management of resources.’240

humanrights.gov.au/publications/1995-social-justice-report (viewed 21 October 2013).

humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).

humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).

240 United Nations Department of Public Information, ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples;

Major Step Forward Towards Human Rights For All, Says President’, sixty first General Assembly Meeting, UN Doc GA/10612,

(Media Release 13 September 2007). At http://www.un.org/News/Press/docs/2007/ga10612.doc.htm (viewed 21 October

2013).

There were also concerns that the provisions on lands, territories and resources were particularly unworkable

by requiring the ‘recognition of Indigenous rights to lands now lawfully owned by other citizens.’241

Dr Calma rejected these concerns on the basis that they were not interpreting the Declaration according

to the principles of good faith, respect for human rights and equality and non-discrimination.242 The Global

Indigenous Peoples Caucus had played a persistent role in lobbying the States during the drafting process;

they maintained that:

One of the most important outcomes has been that throughout all of our expressions, sometimes in our own

languages, we have succeeded in educating the international community about the status, rights and lives of

indigenous peoples in every corner of the world.243

The Declaration was adopted in 2007. At the time of its passage, Australia was one of only four countries to

vote against the Declaration in the General Assembly.244 This was despite the Australian Government stating

prior to the 2007 federal election, that its official position would be to maintain its long-term policy of support

for the Declaration.245

Following its adoption by the United Nations General Assembly, Dr Calma advocated continuously on the

need for the Australian Government to publicise their support for the Declaration and that further actions of

support should include:

• a range of social and cultural steps to support the use of the Declaration as a standard within

Australia

• using the Declaration as a tool to guide legal reform for Australian human rights protection

mechanisms.246

The Australian Government reversed its decision and formally gave its support for the Declaration in 2009.

I have said time and time again, the Declaration should be used as the overarching framework to guide the

realisation of the rights of Aboriginal and Torres Strait Islander peoples and as the benchmark against which

the actions of the Australian Government are assessed.247 Despite years of advocacy by former Social Justice

Commissioners, it is time to breathe life into the Declaration and give full effect to the rights contained within it.

241 A Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the

www.internationalfunders.org/documents/MakingtheDeclarationWork.pdf (viewed 25 September 2013).

humanrights.gov.au/publications/social-justice-report-2006-report-contents (viewed 25 September 2013).

gov.au/publications/declaration-rights-indigenous-peoples-indigenous-peoples-caucus-closing-statement (viewed 25

September 2013).

244 Australia along with Canada, New Zealand and the United States of America voted against the adoption of the United Nations

Declaration on the Rights of Indigenous Peoples in the General Assembly in New York on 13 September 2007. United Nations

Department of Public Information, ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples; Major Step Forward

Towards Human Rights For All, Says President’, sixty first General Assembly Meeting, UN Doc GA/10612 (Media Release 13

September 2007). At http://www.un.org/News/Press/docs/2007/ga10612.doc.htm (viewed 21 October 2013).

publications/social-justice-report-2008 (viewed 25 September 2013).

au/publications/social-justice-report-2008 (viewed 25 September 2013).

publications/social-justice-report-2010 (viewed 25 September 2013).

68

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

Australia has an opportunity to demonstrate international leadership by committing to a comprehensive plan

for implementing the Declaration. Since my appointment in 2010, I have continually made recommendations to

the Australian Government to work in partnership with Aboriginal and Torres Strait Islander peoples to develop

a national strategy to ensure the full implementation of the Declaration.

I will further discuss the practical aspects of the implementing the Declaration including the development of a

national implementation strategy in chapter 3.248

248 I report on the international mechanisms for the Report Period of 1 July 2012 to 30 June 2013 in Appendix 2.

1.3 Conclusion

In April 2013, I attended a Governance Summit convened by the APO NT in Tennant Creek at which men,

women and young people from across the Territory came together to talk about the importance of governance

within their communities and organisations.249 The key theme that I took away from the Summit was the need

to learn from our past in order to create a strong future. I have set out to do something similar in this chapter,

albeit in a modest way, by looking back over the past 20 years of the Social Justice Commissioners’ role.

I am pleased that there has been some progress. However, it is not across the board. We simply cannot be

satisfied because our life chances do not equal those of the rest of the Australian population; we are not

recognised in the Australian Constitution; and our human rights are not realised to the same extent as those of

other Australians.

There is great deal we can learn by studying the progress reported in this chapter. I am struck by the constant

churn of change and the consequences of not giving good programs the time and freedom from interference

to make measurable impacts.

I also see three consistent themes: rights, relationships and responsibilities.

Many of the issues in this chapter have been about our rights not being met – whether this is through the

examples of health inequality, discrimination in terms of our over-representation in the criminal justice system,

or the failure of governments to recognise our right to self-determination.

Relationships underpin much of the positive change we have seen in this period. For instance, the apology

helped heal the relationship between Aboriginal and Torres Strait Islander peoples and the broader Australian

public. And I believe constitutional recognition will be the next step in strengthening this relationship.

Finally, responsibilities are what the Government must do to meet their obligations to ensure we achieve equity

with the rest of the Australian population. But it is also about Aboriginal and Torres Strait Islander peoples

taking responsibility. For example, looking at the NTER, the Government further disempowered Aboriginal

people through its policies, rather than putting us in control and supporting us to take responsibility for the

issues facing our communities.

These three themes – rights, relationships and responsibilities – will help us to define the way forward as I

outline a roadmap for the future in chapter 3.

php/governance-summit.html (viewed 14 October 2013).

70

Chapter 2:

Looking back on

20 years of native title

and the Social Justice

Commissioner role

72

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

2.1 Introduction1

Successive Aboriginal and Torres Strait Islander Social Justice Commissioners (Social Justice Commissioners)

have always shown constant leadership and advocacy in reporting on Aboriginal and Torres Strait Islander

Reports consistently show that social justice is entwined with our relationship to our lands and waters, and

our right to protect and respect culture.

the effect of the Act ‘on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait

Islanders’.3

also report on native title, the role of the Social Justice Commissioner is:

uniquely charged with monitoring the legislation in terms of its impact on the human rights of Aboriginal

and Torres Strait Islander peoples. I undertake this responsibility as an Aboriginal person and as the Social

Justice Commissioner from the perspective of Indigenous Australians.4

with legislation. As Aboriginal and Torres Strait Islander peoples who have lived continuously in this country

for more than 70 000 years, our relationships to our lands, territories and resources are the foundation of our

cultural, social and economic lives. And so for Social Justice Commissioners, reporting on native title is a

crucial part of reporting on the exercise and enjoyment of our human rights.

Looking back at 20 years of Reports provides a remarkable view of native title. It illustrates our celebrations,

but also our frustrations, to access our rights to traditional lands and waters.

1 A report on the key developments in native title for the period 1 July 2012 to 30 June 2013 is set out in Appendix 3.

2 Available at http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).

http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

2.2 Looking back on 20 years of native title

interests in our traditional lands and waters were – and continue to be – considered by governments, courts,

industry and the wider Australian community.

our lands. Importantly, it acknowledged our human rights as Indigenous peoples to the lands and waters that

we have traditionally owned and occupied.

explained the significance of the High Court judgement for Aboriginal and Torres Strait Islander peoples:

[We] have been here for a long, long time. The British came along, took our country without our consent,

decimated the population, and ignored any rights we may have had. They asserted in fact that we had no

rights. That was wrong of course. And that remained unaddressed for two centuries or more. That’s what

title to our lands and waters in accordance with our laws and customs. And we have done this despite

enduring more than 200 years of colonisation and government policies that removed many Aboriginal and

Torres Strait Islander peoples from their traditional lands.

recognised in legislation the continuing connection of Aboriginal and Torres Strait Islander peoples to our

lands and waters.

(b) Negotiating the Native Title Act

claims.7

As I recalled in chapter 1, the early 1990s were days of hope and optimism for Aboriginal and Torres Strait

the Prime Minister’s subsequent proposal to support native title in legislation was welcomed by many

Australians, it also triggered scare-mongering amongst others – particularly state governments, and mining

and pastoralist groups – who feared that native title would harm their interests in land.8

It was within this context of high emotions and conflicting interests that the Prime Minister commenced

negotiations for the proposed Native Title Act.

6 M Dodson, ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.

htm (viewed 20 September 2013).

7 P Keating, ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.

htm (viewed 20 September 2013).

8 See ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.htm

(viewed 20 September 2013).

74

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

These negotiations brought together Aboriginal leaders who were invited to directly reach a deal with the

Prime Minister. The Social Justice Commissioner at the time, Professor Dodson, played a leadership role in

these negotiations. He has observed that the negotiation process was ‘something different for the [Aboriginal]

leadership, probably the first time when we had such a huge issue being directly negotiated with the Prime

Minister.’9

Following a protracted negotiation process that involved both public protests by Aboriginal and Torres Strait

Islander peoples and private negotiations between the Prime Minister and Aboriginal leaders, the Native Title

(c) The objectives of the Native Title Act

The Native Title Act, as it was written in 1993, ‘endeavoured to accommodate the realities of the past and

provide a fair way to deal with land in the future, based on contemporary notions of justice’.10 This is reflected

in the Preamble to the Native Title Act which states that in enacting the law, the people of Australian intend:

a. to rectify the consequences of past injustices…for securing the adequate advancement and

protection of Aboriginal peoples and Torres Strait Islanders; and

b. to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status

within the Australian nation to which history, their prior rights and interests, and their rich and diverse

culture, fully entitle them to aspire.11

As observed by Professor Dodson, the provisions of the Native Title Act ‘constitute an attempt to balance

many competing interests.’12 Again this is shown in the Preamble to the Act, which acknowledges that it is

‘particularly important to ensure that native title holders are now able to enjoy fully their rights and interests’;

but also states that ‘native title is extinguished by valid government acts that are inconsistent with the

continued existence of native title rights and interests, such as the grant of freehold or leasehold estates’.13

Sadly, the Native Title Act as it was drafted in 1993 reflects the high water mark in terms of our native title. I

will discuss later how the interaction of case law and the political context led to subsequent amendments to

the Act.

(d) Key themes in the Native Title Reports

resources by not only reporting on the native title system but also by discussing a wide range of matters that

affect these lands, territories and resources. For example, Social Justice Commissioners have addressed the

following topics in the Reports:

• Provisions in the Native Title Act and legislative amendments to the Act. This has included

explaining provisions in the legislation, highlighting deficiencies in the legislation that affect the

9 M Dodson, ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.

htm (viewed 20 September 2013).

humanrights.gov.au/publications/native-title-reports#1998 (viewed 14 October 2013).

www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

rights of Aboriginal and Torres Strait Islander peoples, and recommending changes to rectify these

deficiencies.

• Native title processes such as the registration test, future acts, the right to negotiate and Indigenous

was highlighted as an essential mechanism to balance Indigenous and non-Indigenous interests

through the Native Title Act.14

• The organisations that operate in the native title system. These include Native Title Representative

Bodies (NTRBs) and Native Title Service Providers (NTSPs), Prescribed Bodies Corporate (PBCs),15

the National Native Title Tribunal, the Federal Court of Australia, and federal and state government

agencies.16

and legislation, particularly focusing on the impact of climate change on Aboriginal and Torres Strait

Islander peoples, and opportunities from climate change policies for native title holders.17 This Report

also discussed access to cultural water rights to fulfil cultural responsibilities (such as environmental

conservation) and the lack of protection of these rights to water under the legislative framework that

governs water resources.18

considered how to balance competing economic interests within the native title system.19 This has

included issues such as the desire for certainty over land tenure by mining and pastoralist interests,

and opportunities for using native title to achieve economic development for Aboriginal and Torres

Strait Islander peoples.

• Protecting Indigenous knowledge and developing protocols around the use, access and ownership

of Indigenous knowledge that includes a protection regime similar to copyright and patenting.20

Reviewing these topics, the Social Justice Commissioners reflect on the following key themes throughout the

Reports.

and Equal Opportunity Commission (2001), ch 1. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14

October 2013).

s 253.

gov.au/publications/native-title-reports (viewed 14 October 2013).

http://www.humanrights.gov.au/publications/native-title-report-2008 (viewed 13 September 2013).

publications/native-title-reports (viewed 14 October 2013).

au/publications/native-title-reports (viewed 14 October 2013).

www.humanrights.gov.au/publications/native-title-report-2008 (viewed 13 September 2013).

76

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land

of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no

longer be accepted.21

This was also observed by Professor Dodson, who stated that the ‘recognition of native title [i]s more than a

recognition of Indigenous property interests, it is also about the recognition of our human rights’.22 He further

remarked that the international instruments of human rights ratified by Australia are ‘relevant to native title

in that they protect property against arbitrary and discriminatory interference and…provide rights to the free

exercise of culture’.23

Commissioners to assess the status of the native title system.

considered how consultation and our right to free, prior and informed consent apply in the native title

of the Declaration.25

Notably, international human rights mechanisms have criticised the Australian Government in relation to the

Native Title Act. In 2010, the Committee for the Elimination of Racial Discrimination (CERD) reiterated:

…in full its concern about the Native Title Act 1993 and its amendments, the Committee regrets the

persisting high standards of proof required for recognition of the relationship between indigenous peoples

and their traditional lands, and the fact that despite a large investment of time and resources by indigenous

peoples, many are unable to obtain recognition of their relationship to land (art. 5).26

Subsequent decisions made in the Federal and High Courts, and successive amendments made to the Native

Title Act by governments have played a key role in the failure of the native title system to meet expectations.

www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

au/publications/native-title-report-2010 (viewed 13 September 2013).

au/publications/native-title-report-2012 (viewed 13 September 2013).

bodies/cerd/ (viewed 14 October 2013).

Explaining the effect of common law decisions on the Native Title Act, Professor Dodson remarked that:

A notable feature of the NTA [Native Title Act] is its dependence on the common law to give substance to its

provisions. For example, the crucial definition of native title in the Act is open-ended, it picks up the common

definition in future judicial decisions. Another important example of the NTA’s deference to common law is

that it does not make any provision about the effect on native title of valid past grants of interests.27

co-existence of shared interests in land, the Government’s responding amendments to the Native Title Act

in 1998 created ‘“bucketloads” of extinguishment’.29 It also ensured the ‘exercise of powers unambiguously

authorised by the NTA [Native Title Act] is freed from the constraints of the RDA [Racial Discrimination Act]’.30

Reviewing the effect of the 1998 amendments to the Native Title Act after a period of ten years, Dr Calma

Many of these [1998] amendments were justified on the basis of pursuing formal equality. Yet it is now widely

accepted that the amendments seriously undermined the protection and recognition of the native title rights

of Aboriginal and Torres Strait Islander people.31

As I mentioned earlier, these amendments to the Native Title Act in 1998 were – and continue to be – widely

criticised internationally by the CERD and the United Nations Human Rights Committee.32

requirements to demonstrate native title, which involves the native title claim group proving they have

maintained a continuous connection to their traditional lands in accordance with their traditional (presovereignty)

extinguishment of native title rights and interests.36

Emerging from the High Court is a concept of recognition as not simply the law providing a vehicle for

Indigenous people to enjoy their cultural and property rights, but rather one where the law becomes a barrier

to their enjoyment and protection. It is appropriate, now that the law has been crystallised by the High Court,

to consider whether the way in which Australia has chosen to given recognition to Indigenous relationships

www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

humanrights.gov.au/publications/native-title-reports#1997 (viewed 14 October 2013).

humanrights.gov.au/publications/native-title-reports#1998 (viewed 14 October 2013).

publications/native-title-report-2009-0 (viewed 12 September 2013).

CCPR/Pages/CCPRIndex.aspx (viewed 14 October 2013).

78

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

to land is consistent with the human rights standards Australia has undertaken to uphold.37

Despite further amendments to the Native Title Act in 2007, 2009 and 2010 (see Text Box 2.1), none of these

decision or have acknowledged the negative impact on our communities of extinguishing native title post-

Instead, decisions made by the courts and amendments to the Native Title Act by the Government have been

viewed as ‘clarifying’ the native title process. But, as demonstrated by the 1998 amendments to the Act and

rights and interests in our lands, territories and resources. More recent amendments to the Native Title Act

have been relatively minor and have provided no substantive benefits to native title claim groups: see Text Box

2.1.38394041

• Significant extinguishment of native title.

• Changes to the right to negotiate provisions, which authorised States and Territories to

introduce legislation that diminished the right to negotiate by introducing schemes which

provide for exceptions to the right. The amendments also changed the right to negotiate in the

Native Title Act itself, generally replacing it with the lesser rights to comment or be notified.

• Changes to the registration test that established a higher threshold for the test – this required

that the Registrar of the National Native Title Tribunal be satisfied that certain procedures had

been undertaken and merits fulfilled by the claimants.

• Provisions for Indigenous Land Use Agreements (ILUAs) which provided an opportunity for

parties to negotiate voluntary and binding agreements about native title matters.

• Changes to the functions of Native Title Representative Bodies (NTRBs).39

functions of the National Native Title Tribunal in relation to mediation of native title matters. In addition,

technical amendments were made to the Act to address some procedural issues.41

gov.au/publications/native-title-report-2002 (viewed 12 September 2013).

38 This text box is intended to provide a snapshot of amendments to the Native Title Act. I note that there have been a number of

minor administrative amendments to the Native Title Act. For example, the Native Title Act was amended in 2013 to implement

institutional reforms between the National Native Title Tribunal and the Federal Court of Australia – see Appendix 3.

http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).

humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).

Tribunal to mediate and allow the Court to refer an application to another ‘appropriate person or body’

to mediate.42

public housing and facilities on native title land.43

Native title has produced many opportunities for Aboriginal and Torres Strait Islander peoples. At its most

basic, it has acknowledged our rights as Aboriginal and Torres Strait Islander peoples, and has enabled us to

gain social and economic opportunities by providing a ‘seat at the negotiation table’ with stakeholders who

want to access native title lands.

Diagrams 2.1 and 2.2 show the determinations that have recognised our native title and the ILUAs that have

been negotiated with native title groups across the country.

Jun-1992

Dec-1992

Jun-1993

Dec-1993

Jun-1994

Dec-1994

Jun-1995

Dec-1995

Jun-1996

Dec-1996

Jun-1997

Dec-1997

Jun-1998

Dec-1998

Jun-1999

Dec-1999

Jun-2000

Dec-2000

Jun-2001

Dec-2001

Jun-2002

Dec-2002

Jun-2003

Dec-2003

Jun-2004

Dec-2004

Jun-2005

Dec-2005

Jun-2006

Dec-2006

Jun-2007

Dec-2007

Jun-2008

Dec-2008

Jun-2009

Dec-2009

Jun-2010

Dec-2010

Jun-2011

Dec-2011

Jun-2012

Dec-2012

Jun-2013

200

150

100

50

0

Determinations Native Title Exists

pp 17–18. At http://www.humanrights.gov.au/publications/native-title-report-2009-0 (viewed 12 September 2013).

(2011), pp 36–37. At http://www.humanrights.gov.au/publications/native-title-report-2010 (viewed 12 September 2013).

44 Diagram provided by the National Native Title Tribunal.

80

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

Diagram 2.1 shows the cumulative number of determinations of native title between 1992 and June 2013.

The long-term trend shows a reasonably consistent increase in native title determinations after June 2000,

with a significantly higher number of determinations post-2010.

However, there are two notable periods of uncertainty where there is no or minimal increase in the number of

native title determinations: from June 1998 to June 2000, following the 1998 amendments to the Native Title

Diagram 2.2: Registered Indigenous Land Use Agreements per financial year

160

140

120

100

80

60

40

20

0

1998-99

1999-2000

2000-01

2001-02

2002-03

2003-04

2004-05

2005-06

2006-07

2007-08

2008-09

2009-10

20010-11

2011-12

2012-13

1

5

16

28

35

46

52

68

31

57

52

47

71

150

122

Diagram 2.2 illustrates an increasing trend towards agreement-making as a component of resolving native title

matters.46 This positive shift towards agreements was instigated by the 1998 amendments to the Native Title

Act which introduced ILUAs as a mechanism for parties to negotiate about native title matters.

45 Diagram provided by the National Native Title Tribunal.

46 I discuss recent trends in native title determinations, ILUAs and future acts in Appendix 3.

Agreement-making has provided a welcome opportunity to build relationships between native title groups

and external stakeholders. This has been critical given the early years of native title were filled with litigation

that took time and consumed financial resources.

Litigation created an adversarial environment for negotiating native title rights and interests – with these

whether common law decisions would protect and strengthen native title.

Native title outcomes for Aboriginal and Torres Strait Islander peoples have varied widely across the country.

Some native title groups have successfully negotiated benefits with mining companies, other stakeholders

and government bodies; while for other groups, the recognition of their native title has been largely

symbolic.47 And although there can be immense benefits from symbolic outcomes, this needs to be balanced

with tangible outcomes for native title groups.

Native title has also created long processes and difficult systems that have contributed to stresses within and

between our peoples and communities. Some of us have seen our old people die before their native title was

recognised. And many of us have observed people in communities fight with each other during the process

to have native title determined.

This observation was reported by Professor Dodson in 1994:

Native title has been the source of cohesion and dispute as the opportunity of gaining title has both opened

up expectations of the return of country and tensions and wounds around connections to country, family

histories and community relationships…48

The period following the enactment of the NTA [Native Title Act] has given rise to a strong sense of

frustration for native title claimants as the prospect of completing successful claims emerged as a distant

reality. Instead of gaining recognition of native title, Indigenous claimants found themselves enmeshed in the

intricacies of having their claims accepted.49

about the concept of lateral violence and my concern that the native title process can affect the level of

conflict and abuse within Aboriginal and Torres Strait Islander communities. In particular, I stated:

It is my view that the…Native Title Act, which codifies a process that can lead to the recognition of our

lands, has the potential to generate positive outcomes for our communities. But too often this potential is

not realised and lateral violence fragments our communities as we navigate the native title system.50

All Social Justice Commissioners have argued that we need to ensure the native title system creates more

positive outcomes and fewer stresses for our people. We acknowledge that native title provides tremendous

opportunities for Aboriginal and Torres Strait Islander peoples. But the process of determining native title can

be detrimental to our communities.

www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).

publications/native-title-report-2011 (viewed 13 September 2013).

82

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

the native title system.

The focus of many of these recommendations has been the need to create a just and fair native title system

that is consistent with international human rights standards. Such a process is articulated in Article 27 of the

Declaration:

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent,

impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions,

customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to

their lands, territories and resources, including those which were traditionally owned or otherwise occupied

or used. Indigenous peoples shall have the right to participate in this process.

All Social Justice Commissioners have questioned whether the Native Title Act provides a fair, independent,

impartial, open and transparent process for Aboriginal and Torres Strait Islander peoples.

and strongly argued:

…the need to reform the native title system. Stakeholders from all sectors engaged in the native title system

have also stressed the need for the Government to take significant steps to ensure that the system meets

the original objectives set out in the preamble to the Native Title Act.52

It is critical that we think long term about how we want to reform the native title system, especially because

native title will be held by our future generations.

(e) Unfinished business: a Social Justice Package

In 1993, it was intended that the Native Title Act would be one of three complementary components to

address the historical dispossession of Aboriginal and Torres Strait Islander peoples from their lands and

waters.

The other two components were the establishment of a land fund and the creation of a social justice package

to compensate Aboriginal and Torres Strait Islander peoples who would not be able to access native title.

The impact of dispossession and the absence of redress by the Australian Government was acknowledged in

the Preamble to the Act:

[Aboriginal and Torres Strait Islander peoples] have been progressively dispossessed of their lands. This

dispossession occurred largely without compensation, and successive governments have failed to reach a

lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of

their lands. …

It is…important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have

been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that

a special fund needs to be established to assist them to acquire land.53

publications/native-title-report-2009-0 (viewed 13 September 2013).

publications/native-title-report-2009-0 (viewed 13 September 2013).

The commitment to a land fund has been realised through the Indigenous Land Corporation (ILC), which

operates to ‘acquire and manage land to achieve economic, environmental, social and cultural benefits’.54

effective and accessible alternative form of land justice when native title is not available’.55

The final component, a social justice package, has never been achieved. In 1995, Professor Dodson provided

a report to Government that set out social justice measures that would support ‘recognition, rights and reform’

for Aboriginal and Torres Strait Islander peoples. The key themes of this report were:

• the rights of Aboriginal and Torres Strait Islander peoples as citizens

• recognition of their special status and rights as Indigenous Australians and the achievement of

greater self-determination for Aboriginal and Torres Strait Islander peoples

• ensuring that Indigenous Australians are able to exercise their rights and share equitably in the

provision of Government programs and services

• the protection of the cultural integrity and heritage of Indigenous Australians

• measures to increase Aboriginal and Torres Strait Islander participation in Australia’s economic life.56

under today.’57

publications/native-title-report-2008 (viewed 13 September 2013).

56 Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and Reform: A report to government on native title social

AILR/1996/27.html (viewed 24 September 2013).

publications/native-title-report-2008 (viewed 13 September 2013).

84

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

2.3 Conclusion

and promise of the early 1990s have not been realised. We need to view and understand native title in a

holistic way that recognises native title is intrinsically linked to social justice and the enjoyment and exercise of

our human rights as Aboriginal and Torres Strait Islander peoples.

Looking back on 20 years of native title and the Social Justice Commissioner role, there are still many

outstanding recommendations for reform – I urge Government not to delay native title reforms and to act on the

recommendations of Social Justice Commissioners. I talk about the way forward for native title in chapter 3.

86

Chapter 3:

How do we keep

moving forward?

A road map for

our future

88

Chapter 3: How do we keep moving forward? A road map for our future

3.1 Introduction

In chapters 1 and 2, I look back over the past 20 years that the Social Justice Commissioner position has

been in place and think about the journey and our learning over this time. In this chapter, I want to explore how

those lessons can take us forward to chart a confident course into the future and how the realisation of our

rights can produce long term sustainable improvements in our life outcomes. Three themes are constants in

every Commissioner’s work over this 20 year period: rights, relationships and responsibilities. I want to see us

build on these themes into the future.

This is an ideal time to think about the direction we want to take for the future, with the election of a new

Federal Government on 7 September 2013. Like any new government, there will be opportunities and

challenges. My hope is that this chapter can help inform the agenda for Aboriginal and Torres Strait Islander

affairs.

In many ways we are already on the right track. Our progress in areas of health equality, Aboriginal and Torres

Strait Islander representation through the National Congress of Australia’s First Peoples (Congress) and the

path to constitutional recognition set by the Federal Parliament are all examples of this. But we need to stay

the course. This will require determination, patience and commitment to see these things through.

However, in other areas I think it is fair to say that we still have a long way to go. The results speak for

themselves, with our people still lagging behind on many social indicators. Over the past 20 years,

governments have taken various paths to try to address Aboriginal and Torres Strait Islander issues. Invariably,

many have gone around in circles and ended up back where they started. This hasn’t been for lack of goodwill

or good intentions. It has been because they have failed, in the main, to adequately ask communities where

they want to go and involve them in the decision-making.

Despite this mixed progress, I am cautious about proposing a radical new way. I think amongst some

Aboriginal and Torres Strait Islander communities there is fatigue and real cynicism about all these ‘new ways’.

Every time the political landscape changes we get bombarded with another innovation that seldom results in

measurable improvements because they fail to fundamentally engage with communities and coordinate their

efforts.

communities must decide the directions we take into the future. The only way we move forward is with

communities meaningfully participating in the decisions that affect them and this means there needs to be

fundamental changes to the way governments engage with us.

The way to achieve this is by improving relationships and realising rights.

Each Social Justice Commissioner has consistently advocated for a relationship between governments and

Aboriginal and Torres Strait Islander communities built on mutual trust and respect, where our voices are

This relationship supports an understanding that sustainable improvements for Aboriginal and Torres Strait

Islander peoples will only be attained with our participation in the design and delivery of policy, legislation and

programs.

Professor Dodson advocated for this relationship 20 years ago and we still advocate for that relationship

today.

Opportunity Commission (1993). At http://www.austlii.edu.au/au/other/IndigLRes/1993/3/index.html (viewed 14 October 2013).

Another aspect of relationships is the one between Aboriginal and Torres Strait Islander peoples and the rest

of the Australian population. Again Social Justice Commissioners have consistently argued that reform of our

constitution has the potential to reset this relationship. Once this reform occurs, this relationship will change

forever for the better and will signal to the world that this nation has come to terms with its past.

Improving each of these relationships could be seen as practical manifestations of a human rights-based

approach.

However, it worries me that in certain parts of the Australian body politic and community, rights are almost

used as a pejorative. Advocates are often derided as somehow disconnected from the real lives of real people.

Looking back at and knowing the people who have occupied this position, who have always advocated

rights-based approaches, it is hard to sustain the view of them as somehow disconnected from their own

communities.

In Australia, we generally have a proud history of advocating human rights. In 1948 we were represented

countries to franchise women in our elections and we have committed to seven of the most important

international human rights conventions and treaties.2

But somehow, a ‘rights-based approach’ is seen by some as an anathema in Aboriginal and Torres Strait

Islander affairs; somehow for us, our situation is so dire that governments and others can justify the nonrecognition

and removal of our rights for the ‘greater good’ without discussion, without engagement and

certainly without our agreement.

I believe we need a new narrative in which a rights-based approach is essential in providing sustainable

improvements in our communities and families, an approach where rights and responsibilities stand side-byside.

I want to reframe self-determination not only as a right but also as a call to our people to rise to this challenge

and take responsibility and control over our internal and local affairs, and we measure its effectiveness by how

the most vulnerable in the community are engaged and heard.

Rather than think of rights that we demand, I want to think of responsibilities and opportunities that we grasp.

If engagement is to be effective and if programs are going to deliver the optimum outcomes, these must be

done in a way that fits our way of doing things. We must be able to engage with people who understand that.

Put simply, this means dealing with people who are culturally competent and working within systems that are

culturally secure. Cultural competence and cultural security emerges from the respect for and protection of our

In this chapter, I will further outline some of the directions we need to follow for our communities to be in

control. Some will be about staying the course but others will require a more fundamental shift encompassing

governance, the interplay between rights and responsibilities, and the allocation of resources. All of this is

underpinned by rights, relationships and responsibilities.

Consultations/Documents/NationalHumanRightsActionPlan/TheBaselineStudy.doc (viewed 8 October 2013); M Sawer, ‘Women

gov.au/ausstats/abs@.nsf/Previousproducts/1301.0Feature%20Article52001?opendocument&tabname=Summary&prodno=13

01.0&issue=2001&num=&view (viewed 8 October 2013).

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Chapter 3: How do we keep moving forward? A road map for our future

3.2 Staying the course

The last thing we need to do in Aboriginal and Torres Strait Islander affairs is start from scratch; there have

been too many ‘first days’ of new strategies, programs and approaches. Too many people have worked too

hard for us to throw away everything we have done over the last five years. I am hopeful the new Government

builds on the work done over this period and I am encouraged to see that Prime Minister Abbott also shares a

considered approach, stating:

I am reluctant to decree further upheaval in an area that’s been subject to one and a half generations of

largely ineffectual ‘reform’.3

There are things we are doing which are working well. For instance, despite the hostility of the last Parliament,

we have seen an unprecedented level of multi-party support for some aspects of Aboriginal and Torres Strait

Islander policy. This tells me that politicians and indeed, Australia as a nation, is beginning to realise that the

importance of these issues transcends politics.

I am also pleased to see that the status of Aboriginal and Torres Strait Islander affairs is being elevated in

Cabinet. I have long held a view that it is too much to ask a ‘line agency’, such as the Department of Family,

Housing, Community Services and Indigenous Affairs,4 to coordinate the Government’s effort with other line

agencies, such as Health and Ageing and Education. I believe this is the proper role of a ‘central agency’ like

the Department of Prime Minister and Cabinet. The inclusion of Aboriginal and Torres Strait Islander affairs in

that Department with a dedicated Minister for Indigenous Affairs, whose sole responsibility is for that portfolio,

shows a genuine commitment to achieving change.

The next challenge is to maintain this commitment into the future for the things that are working. I have often

said that achieving real change is a nation building effort and will take at least a generation. After all, we are

dealing with entrenched problems with long histories. Just as we are starting to see Aboriginal and Torres

Strait Islander issues in a bipartisan way, we also need to recognise that they will not be resolved within a

single funding or election cycle, and may not even be resolved within the careers of many working within the

bureaucracy.

Dr Peter Shergold, a former head of the Department of Prime Minister and Cabinet with over 20 years’

experience as a senior public servant overseeing Aboriginal and Torres Strait Islander affairs, recently noted:

Most of the public servants I worked alongside did their best. Yet, after two decades, the scale of relative

disadvantage suffered by indigenous Australians remained as intractable as ever. I can think of no failure in

public policy that has had such profound consequences.5

This sort of honesty about the low baseline of previous government achievements and the significant

commitment needed is welcome. I don’t raise this to be pessimistic, just realistic about the challenges ahead.

http://www.liberal.org.au/latest-news/2013/03/15/tony-abbott-address-sydney-institute-sydney (viewed 12 September 2013).

4 The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) is now the Department of Social

Services. In accordance with the Commonwealth of Australia Administrative Arrangements Order signed on 18 September 2013

and amended on 3 October 2013, Commonwealth Aboriginal and Torres Strait Islander policy, programmes and service

delivery, and the promotion of reconciliation are now matters dealt with by the Department of Prime Minister and Cabinet. At

http://www.dpmc.gov.au/parliamentary/ (viewed 15 October 2013).

theaustralian.com.au/national-affairs/election-2013/shergold-brings-pm-and-astic-nous-to-indigenous-body/storyfn9qr68y-

1226716427267 (viewed 16 September 2013).

(a) The United Nations Declaration on the Rights of Indigenous Peoples6

If this chapter is about creating a road map for the future of our communities, the Declaration is our compass.

It is no coincidence that as we looked at the past 20 years of the office of the Aboriginal and Torres Strait

Islander Social Justice Commissioner, the development of and advocacy for the Declaration was a common

thread with each Commissioner. Professor Dodson’s term was in the early days of the discussions around the

development of the Declaration; Dr Jonas continued the advocacy; and Dr Calma’s term saw the adoption

of the Declaration by the United Nations General Assembly in 2007 and his advocacy saw its support by the

Australian Government in 2009.

Since the beginning of my term I have seen the Declaration as that compass to guide me as I do what is asked

of this office in ‘reviewing the impact of policies and laws on, and monitoring the enjoyment and exercise of

human rights by, Aboriginal and Torres Strait Islander peoples’.7

I have called for and worked at giving full effect to the Declaration by Government, Aboriginal and Torres Strait

Islander communities, the business sector and non-government organisations (NGOs).

It is time to breathe life into the Declaration and make it more practical for our everyday lives. As I have said

previously, this is important:

Because rights are not abstract concepts that exist in documents such as treaties, conventions and

declarations alone. Rights are only rights when they are exercised. Therefore, the practical actions and

outcomes needed to address disadvantage in real terms are the realisation of human rights.8

Similarly, Professor Dodson writing about the Declaration said: ‘The value of human rights is not in their

existence; it is in their implementation.’9

It is my hope that as we further consider what the Declaration means to us, it will become a more powerful tool

for Aboriginal and Torres Strait Islander peoples to advocate for our rights and to guide Government policy.

The United Nations Permanent Forum on Indigenous Issues (UNPFII) in May 2013 marked a watershed

moment when the Australian Government and the Commission, supported by the Congress, delivered a Joint

Statement:

The Australian Government…committed to assisting Aboriginal and Torres Strait Islander peoples to

achieve improved outcomes…[and] working with the Australian Human Rights Commission and the

National Congress of Australia’s First Peoples to increase awareness of, and encourage dialogue about, the

Declaration in policy development, program implementation and service delivery as a way to embed the

Declaration in how business is done. …

forms part of a series of ‘Dialogue Papers’ which will inform dialogue as part of the National Declaration Strategy process. The

Dialogue Papers will be disseminated as part of this process.

2010). At http://www.humanrights.gov.au/news/speeches/practical-power-human-rights (viewed 1 October 2013).

(2001), p 3.

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Chapter 3: How do we keep moving forward? A road map for our future

We will work together to raise awareness of the Declaration with Aboriginal and Torres Strait Islander peoples

and all stakeholders, and facilitate discussion regarding the principles underpinning the Declaration and

what they mean in a practical context.10

For me it was the moment when Government finally accepted it had at least a moral obligation, if not a legal

one, to take action to give effect to the Declaration here in Australia. The challenge for us all now is to work

out what that would look like.

There is no ‘one’ right way to give effect to the rights in the Declaration. The implementation of the Declaration

will look different in different nations, depending on the needs, aspirations and situations of their Indigenous

peoples.

The International Law Association has described the diversity of actions that nations may take to put the

Declaration into practice:

States ought to restructure their domestic law in view of adopting all necessary measures – including

constitutional amendments, institutional and legislative reforms, judicial action, administrative rules, special

policies, reparations procedures and awareness-raising activities – in order to make the full realization of

indigenous peoples’ human rights possible within their territories, consistent with the rules and standards

established by the UNDRIP.11

Some countries have adopted particular articles in the Declaration as national law. Others have developed

participatory mechanisms or have prioritised education and promotion of the rights in the Declaration.

For example:

• The Pluri-national State of Bolivia passed a law which supports programmes relevant to the

implementation of the Declaration in 2007.12

• In Norway, the legislation for the ‘Procedures for Consultations between State Authorities and the

Sami Parliament’13 ensures that new measures, legal provisions and consultation procedures are

conducted in accordance with the Sami peoples’ right to participate and have a tangible influence in

the decision-making procedures that directly affect their interests.14

• In Peru, in designing a national plan for the implementation of bilingual education, Indigenous

peoples will participate collaboratively with the Minister of Education in the formulation of these

educational programs.15

twelfth session of the United Nations Permanent Forum on Indigenous Issues, New York, 20-31 May 2013.)

http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session5.aspx (viewed 7 September 2012).

PROCEDURES-FOR-CONSULTATIONS-BETWEEN-STA.html?id=450743 (viewed 7 September 2012).

At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session5.aspx (viewed 7 September 2012).

http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session5.aspx (viewed 7 September 2012).

Similarly, different approaches will also be suited to specific contexts. Text Box 3.1 contains some of the

approaches that are most relevant to the implementation of the Declaration.16

This involves identifying the key principles underpinning the rights in the Declaration and then

agreeing on ways in which these principles can give practical guidance on how each article can be

operationalised.

Ensuring the Australian Government take the action required of them set out in the Declaration. There

are at least 19 articles which impose duties on nation states or governments to undertake particular

actions. These range from Article 12(2) which says that:

States shall seek to enable the access and/or repatriation of ceremonial objects and human remains

in their possession through fair, transparent and effective mechanisms developed in conjunction with

indigenous peoples concerned

to Article 38 which says:

States, in consultation and cooperation with indigenous peoples, shall take the appropriate

measures, including legislative measures, to achieve the ends of this Declaration.

Promoting the referencing of the Declaration at every available opportunity. This could include using

the Declaration as a point of reference in Australia’s Human Rights Framework and the Parliamentary

Joint Committee on Human Rights.

It could also include Indigenous governance structures referencing the Declaration in their

constitutions, their values and behaviours, in their advocacy and in their relationships.

This could mean auditing existing legislation, policies and programs to ensure compliance with

the identified underpinning ‘principles’ of the Declaration, particularly the principle relating to nondiscrimination

and equality.

All of these approaches are reasonable and will have a place in certain circumstances. However, I believe the

‘principled’ approach presents the most opportunities in the Australian context. It is a broader framework that

is not inconsistent to the other approaches but is more user-friendly and flexible.

I believe approaching the challenge of implementation through the principles rather than addressing each

article individually will provide an analysis that is better understood by a broader cross section of Government

and the community.

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Chapter 3: How do we keep moving forward? A road map for our future

Over and over I have said that the Declaration is not a program of work, it is a way of doing things or a

process based on principles. I believe the principled approach is the best way of translating this to action for

Government.

The Declaration covers all areas of human rights as they relate to Indigenous peoples. These can be

categorised into four key principles:

• self-determination

• participation in decision-making, underpinned by free, prior and informed consent and good faith

• respect for and protection of culture

• equality and non-discrimination.17

These four principles provide guidance on how Aboriginal and Torres Strait Islander communities,

governments, civil society and the private sector can apply the Declaration to fully realise the human rights of

Aboriginal and Torres Strait Islander peoples. These principles will also provide benchmarks against which the

effectiveness of the implementation can be measured.

A National Declaration Strategy (National Strategy) is necessary because the adoption of the Declaration will

not, in and of itself, guarantee the realisation of the rights it sets out. A National Strategy must be developed

in partnership between the government and Aboriginal and Torres Strait Islander peoples. It should clearly

articulate what needs to be done and ensure a coordinated effort to realise the rights in the Declaration.

In line with the commitment from the Australian Government given at the UNPFII, the Commission and

Congress are working together on a National Strategy to give effect to the Declaration. Over the next 12

months, we will be conducting Declaration Dialogues with our communities and organisations, all levels of

government, businesses and NGOs, to discuss what this means for us in the Australian context.

Through these Dialogues, we hope to reach a common understanding of the principles, how they might look in

action and what we need to do to make them work. I encourage everyone to engage with these conversations,

which will culminate in a National Declaration Summit focusing on the implementation of the Declaration in late

2014.

I will provide a detailed report on the Declaration Dialogues and the work undertaken on the National

I welcome the scrutiny of the Parliamentary Joint Committee on Human Rights (JCHR) that oversees the

requirement for new legislation to be accompanied by a statement setting out how the law complies with

http://www.humanrights.gov.au/publications/aboriginal-and-torres-strait-islander-social-justice?source=our-work (viewed 9

October 2013).

Australia’s international human rights obligations. And I am pleased that Australian Government Departments

are increasingly referencing the Declaration as a part of this process.

However, while this progress is pleasing, the requirement to reference the Declaration is not embedded in

legislation and is dependent on the discretion of Committee members. The Declaration was not included in

and I believe this is a missed opportunity to consider the unique context of the rights of Indigenous peoples.

Government’s commitment to reconciliation and its recognition that giving practical effect to the Declaration

provides opportunities for positive engagement, this seems to me to be an inconsistent approach.

In chapters 4 and 5, I discuss ways that the principles in the Declaration can operate in practice; these include

case studies on how we consult about and draft legislation, ways that we implement policies, and how

business can engage with our communities.

(b) Reforming the Australian Constitution

Constitutional reform has been a key component of my agenda to reset and build relationships between

Aboriginal and Torres Strait Islander peoples and all other Australians. A referendum to include Aboriginal and

Torres Strait Islander peoples in the Constitution has the potential to do that; it is an opportunity to redefine

our national identity based on recognition, respect and inclusion of Australia’s First Peoples.

The campaign to reform the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples

is being embraced by our communities and organisations, as well as the wider public and business groups.

Importantly, this is one of few issues that brought parties together in what was considered the most volatile

Parliament since Federation. There was no better example of this support from all parties for a referendum

(Cth) (Act of Recognition) was passed unanimously in both Houses of Parliament in March this year.

Speaking in support of the Act of Recognition, then Prime Minister Julia Gillard said:

…the government has advanced this bill for an act of recognition, to assure Indigenous people that our

purpose of [constitutional] amendment remains unbroken...This bill is thus an act of preparation and

anticipation. In this legislation, we – the nation’s 226 legislators – will serve as proxies for Australia’s 14

million voters, bridging the time between now and referendum day.20

Following Julia Gillard to also support the bill, then Opposition Leader Tony Abbott said:

…our challenge is to do now in these times what should have been done 200 or 100 years ago to

acknowledge Aboriginal people in our country’s foundation document. In short, we need to atone for the

omissions and for the hardness of heart of our forebears to enable us all to embrace the future as a united

people.

submissions/2010/20100707_human_rights.html (viewed 11 October 2012).

MP, Prime Minister).

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Chapter 3: How do we keep moving forward? A road map for our future

I believe that we are equal to this task of completing our Constitution rather than changing it. The next

parliament will, I trust, finish the work that this one has begun.21

It is crucial that this bipartisanship is maintained in the new Parliament.

I therefore welcome Prime Minister Abbott’s commitment to constitutional reform, promising that ‘within 12

months we will publish a proposal for constitutional recognition and we will establish a bipartisan process to

try and bring that about as soon as possible.’22

In late 2010, then Prime Minister Gillard appointed an Expert Panel on Constitutional Recognition of

Indigenous Australians (Expert Panel). This Panel was given the responsibility of reporting to the Government

on options for constitutional change surrounding Indigenous constitutional recognition and was to include

advice as to the level of support from Indigenous people and the broader community for each option by

December 2011.

The Expert Panel did their work over 14 months and held more than 250 consultations with experts and

members of the Australian community. They undertook an incredibly robust and considered process, using

four principles to guide the development of recommendations. Any proposal to be put forward had to:

• contribute to a more unified and reconciled nation

• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples

• be capable of being supported by an overwhelming majority of Australians from across the political

and social spectrums

• be technically and legally sound.23

Text Box 3.2 contains the Expert Panel’s recommendations for constitutional reform.

Abbott MP, Leader of the Opposition).

tonyabbott.com.au/LatestNews/Speeches/tabid/88/articleType/ArticleView/articleId/9370/Address-to-the-Garma-Festival-

Northern-Territory.aspx (viewed 12 September 2013).

24

Expert Panel – recommendations for changes to the Constitution

The Panel recommends:

1. That section 25 be repealed.

2. That section 51(xxvi) be repealed.

3. That a new ‘section 51A’ be inserted, along the following lines:

Aboriginal and Torres Strait Islander peoples;

traditional lands and waters;

peoples;

peoples;

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order

and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander

peoples.

The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section

51A’ be proposed together.

4. That a new ‘section 116A’ be inserted, along the following lines:

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or

ethnic or national origin.

(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming

disadvantage, ameliorating the effects of past discrimination, or protecting the cultures,

languages or heritage of any group.

5. That a new ‘section 127A’ be inserted, along the following lines:

(1) The national language of the Commonwealth of Australia is English.

(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of

our national heritage.24

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Chapter 3: How do we keep moving forward? A road map for our future

A Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was

established in late 2012 with a mandate to ‘work to build a secure strong multi-partisan Parliamentary

consensus around the timing, specific content and wording of referendum proposals for Indigenous

constitutional recognition.’25 It was also asked to consider ‘the recommendations of the Expert Panel on

Constitutional Recognition of Indigenous Australians on the process for the referendum.’26

In developing the question that will be put to the people, I urge the Government to reconstitute the Joint Select

Committee as a matter of urgency and require that it builds on the work of the Expert Panel to ensure that the

progress for a referendum does not lose momentum.

As stated earlier, in March this year we witnessed a historic step toward a referendum when the Act of

Recognition was passed unanimously through Federal Parliament. This Act provides acknowledgement of

Aboriginal and Torres Strait Islander peoples’ unique place as Australia’s First Peoples.27 It also prescribes that

a review will be commenced considering proposals for constitutional change and their likely levels of support

in the community.28 A report on this review must be completed by 28 September 2014 and the Minister must

table the report in Parliament within 15 sitting days of its receipt.29

The Act of Recognition is a welcome development but it should be seen for what it is, an important early step

on the pathway to the referendum where each and every Australian voter will get a say on this recognition

question.

Getting the referendum question right is of the utmost importance to its ultimate success and as can be seen

above, there have been several processes undertaken already that will guide this work.

However, this work should sit alongside a campaign to raise awareness of the need for recognition. As

factors that are essential for a successful referendum. They include:

• bipartisan support

• popular ownership

• popular education.30

Having achieved strong multi-party support for this recognition, we cannot ignore the other factors critical to a

successful referendum – popular ownership and support.

The previous Government allocated funding to this task and engaged Reconciliation Australia, who in turn

campaign all around Australia on a ‘Journey to Recognition’ to raise awareness of the need for constitutional

reform.

It is essential that the new Government commit to adequately resourcing this campaign.

If constitutional change is about inclusiveness and is to be supported, the participation of Aboriginal and

Torres Strait Islander peoples throughout the process, from the development of the question and throughout

search/display/display.w3p;query=Id%3A%22chamber/journals/20121128_SJ128/0000%22 (viewed 15 October 2013).

search/display/display.w3p;query=Id%3A%22chamber/journals/20121128_SJ128/0000%22 (viewed 15 October 2013).

the campaign is non-negotiable. A key recommendation of the Expert Panel’s report was that if changes other

than those recommended in their report are to be put to a referendum, the Government ‘should consult further

with Aboriginal and Torres Strait Islander peoples and their representative organisations to ascertain their

views in relation to any such alternative proposal.’31

Promising progress has been made in this nation building journey to make the Constitution a document inclusive

of all Australians. It’s a journey that will mark our maturity as a nation and one that has the potential to reset

relationships between Aboriginal and Torres Strait Islander peoples, the Government and the broader population.

(c) A national body representing Aboriginal and Torres Strait Islanders

In 2010, the Congress was established as the national representative body for Aboriginal and Torres Strait

Islander peoples.

While Congress is still a relatively new organisation, it is steadily growing its membership of Aboriginal and

Torres Strait Islander peak bodies, organisations and individuals, and providing leadership on decisions

that affect our peoples and communities. The work of Congress is underpinned by the Declaration and its

constitution requires that it pursues the rights of Aboriginal and Torres Strait Islander peoples.32

governance:

Its organisational governance is designed specifically to support community needs and aspirations…

Underpinning its design and operation in all respects is community governance and ultimately selfdetermination.

33

I also said that the establishment of Congress provides an opportunity for Aboriginal and Torres Strait Islander

peoples to develop a new relationship with government – a relationship based on partnership and genuine

engagement with our peoples. This is an opportunity to put the Declaration into practice.

For this to happen, it is critical that all levels of governments support and engage with Congress in accordance

Islander individuals and organisations also need to support and join Congress.

To truly represent the voices of Aboriginal and Torres Strait Islanders and participate in decision-making

with governments on an equal footing, Congress must have access to a high level of engagement with

governments through the Council of Australian Governments (COAG).

To put this into an historical context, the Aboriginal and Torres Strait Islander Commission (ATSIC) was

an observer at COAG. It is therefore appropriate that Congress also be acknowledged as the national

representative body of Aboriginal and Torres Strait Islander peoples to participate at this level of decisionmaking.

September 2013).

publications/social-justice-report-2012 (viewed 15 October 2013).

nationalcongress.com.au/engagement-framework/ (viewed 16 October 2013).

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Finally, I believe that Congress must be given time to fully establish itself. Reflecting back on the experience of

ATSIC, I believe it was never given this opportunity. Organisations evolve over time and I believe that Congress

has the fundamentals for robust representation and good governance.

(d) Closing the Gap

Closing the Gap35 is a commitment by all the Commonwealth and State/Territory governments, through COAG,

to improve the lives of Aboriginal and Torres Strait Islander peoples. I welcome the progress made through

the partnership by all Australian governments with Aboriginal and Torres Strait Islander communities and our

representative organisations. It was particularly encouraging that COAG agreed to set specific timeframes for

achieving six Closing the Gap targets relating to health, education and employment outcomes.36 These targets

are important because they enable us to measure progress over time and foster outcomes-focused policy.

The Close the Gap Campaign, discussed in chapter 1, was influential in getting governments to make these

commitments. Indeed, the call for governments to commit to closing the life expectancy gap by 2030 lies

at the heart of the Closing the Gap agenda. I believe that the Closing the Gap framework has been another

watershed moment in Aboriginal and Torres Strait Islander affairs. It provides a firm non-partisan foundation

upon which we can build.

I urge all Australian governments to continue along the path set in the Closing the Gap commitments. There

is no need to radically change direction; long-term commitments require long-term policy continuity. We must

remain aware that the magnitude of the problems facing our communities requires sustained effort. This point

is also made in the Strategic Review of Indigenous Expenditure:

The deep-seated and complex nature of Indigenous disadvantage calls for policies and programs which

are patient and supportive of enduring change (including in the attitudes, expectations and behaviours of

Indigenous people themselves). A long-term investment approach is needed, accompanied by a sustained

process of continuous engagement.37

None of this is to say we cannot improve what we are doing and be more targeted in our efforts to close the

gap, but I believe we are heading in the right direction.

Year 12 attainment:

Australia is on track to halve the gap in child death rates by 2018. From 1998 to 2011 the gap between the

Indigenous and non-Indigenous child (0-4 years) death rates reduced from 139.0 to 109.9 deaths per 100 000…

In 2011, 91% of Indigenous children in remote communities were enrolled in a preschool program in the year

before formal schooling. This result is close to COAG’s target – only 4% improvement is needed to achieve

95% enrolment by 2013.

35 As explained in chapter 1, Closing the Gap is not to be confused with Close the Gap.

federalfinancialrelations.gov.au/content/npa/health_indigenous/indigenous-reform/national-agreement_sept_12.pdf (viewed 25

September 2013).

(2010), p 15. At http://www.finance.gov.au/foi/disclosure-log/2011/docs/foi_10-27_strategic_review_indigenous_expenditure.

pdf (viewed 8 October 2013).

From 2006 to 2011, the rate of Indigenous Year 12 or equivalent attainment rose from 47.4% to 53.9%.38

However, at the same time we are seeing some worrying trends, particularly in education indicators, death

rates and employment outcomes. Again, the COAG Reform Council found:

Between 2008 and 2012, for Years 3, 5 and 7, the national gap narrowed in reading but widened in numeracy. For Year 9 the gap widened in reading and narrowed in numeracy…

Only the Northern Territory is on track to close the gap in Indigenous death rates within a generation (by 2031)…

From 2006 to 2011, the employment gap widened on three measures – employment, unemployment and labour force participation.39

In health, we are seeing reductions in child mortality rates and we are on track to meet that particular target by

2018.40 Efforts to address child mortality rates are critical building blocks in efforts to close the life expectancy

gap and in time will help drive improvements for Aboriginal and Torres Strait Islander people. Nevertheless,

progress towards closing the life expectancy gap is proving to be more difficult.41

It is not enough to simply report on trends. More analysis needs to take place to find out why we are struggling

to meet targets. This work needs to be done as early as possible in order to make sure resources are directed

effectively.

Again, we must not lose sight of the fact that this is a long term, generational approach to address disadvantage. I am encouraged when I hear both sides of politics frankly recognising the enormity of the task.

It shows that they are taking the challenges seriously but also acknowledging the nation-building potential

of this program of work. Addressing disadvantage is not just an ‘Aboriginal and Torres Strait Islander issue’;

raising our life chances contributes to the overall well-being of our nation.

I am very supportive of the practice of the Prime Minister providing an annual report on Closing the Gap

in Parliament. Not only does it keep the issues on the national agenda but it promotes transparency and

accountability. Prime Minister Abbott has also laid out his commitment to this approach:

So often the statistics are a record of what government is doing, rather than a record of how people are

living. It is excellent…that we are moving towards halving the gap in so many of these areas, but a gap

which is halved is not a gap which has been closed and, in the end, it is not good enough to merely halve

the gap – we need to close the gap.42

As we make progress towards the targets, I would also like to see us aim higher as we achieve milestones.

For example, given the strong progress in achieving enrolment in preschool, we should now set our sights

higher and adjust the target to reflect actual attendance and achievement, not just enrolment. After all, what is

important is for children to be actually participating in quality early childhood education programs, which will

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 12 September 2013).

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 12 September 2013).

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 12 September 2013).

coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia

(viewed 12 September 2013).

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equip them for the early years of school – not just increasing the names recorded on an enrolment list.

Of course targets must be matched by action. There are two current developments that are critical for

enduring change in achieving health equality:

(Health Plan).

If supported by necessary funding and effectively implemented, the Health Plan can drive real improvements

to Aboriginal and Torres Strait Islander health and life expectancy. The Close the Gap Campaign Steering

Committee, of which I am a Co-Chair, has called on the new Australian Government to take action in relation

to the Indigenous Health NPA and the Health Plan in the first 100 days of Government.43

I am pleased that there is bipartisan support for the inclusion of justice targets in the Closing the Gap

agenda.44

Social Justice Commissioners have been calling for justice targets since 200945 to reduce the imprisonment

rate of Aboriginal and Torres Strait Islander people and enhance community safety. While we have neglected

targets for justice issues, there has been a danger that this has undermined our efforts to meet the other

targets set in the Closing the Gap agenda. This is because we know that imprisonment has such a profoundly

destructive impact, not only on individuals, but on the entire community. It affects areas such as health,

housing, education and employment – all the building blocks of creating stable and productive lives.

I welcome the announcement of an advisory group, led by Priscilla Collins, CEO of the North Australian

Aboriginal Justice Agency (NAAJA) and hope to see this work continue without delay under the new

government.46

Justice targets need to include obvious indicators such as rates of imprisonment, recidivism and victimisation

but to be really successful we need to look more holistically. We know a lot about the pathways that lead our

people to involvement with the criminal justice system. I would like to see indicators such as involvement with

the child protection system, use of diversionary programs, successful transition to school and employment

also considered.

As we have learnt from the Closing the Gap experience so far, targets are just the start. Justice targets should

be set as part of a fully funded Safe Communities National Partnership Agreement as part of the Closing the

Gap strategy. Similarly, it would be disappointing to see justice targets set without adequately resourced

services, particularly legal and advocacy services. Aboriginal and Torres Strait Islander Legal Services and

Family Violence Prevention Services have provided strong leadership on these issues and will do much of the

2013).

theaustralian.com.au/national-affairs/policy/close-gap-targets-to-include-jail-rate/story-fn9hm1pm-1226626219538# (viewed

18 October 2013).

publications/social-justice-report-2009 (viewed 15 October 2013).

php/82-news/156-macklin-sheds-new-light-on-justice-plan.html (viewed 3 October 2013).

heavy lifting in actually achieving targets.

(e) Native title reform

Australians that native title acknowledges the fundamental human rights of Aboriginal and Torres Strait

Islander peoples to our lands, territories and resources. But while the recognition of native title has the

potential to generate social, cultural and economic benefits for current and future generations, we need to

reform the native title system if we are to fully realise these benefits.47

Recent efforts to reform the Native Title Act have been disappointing. I am extremely concerned that the

Native Title Amendment Bill 2012 (Cth) has not been passed by Parliament. This is despite recommendations

to pass the Bill by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander

Affairs (HSCATSIA) and – with minor changes – the Senate Legal and Constitutional Affairs Legislation

Committee.48 These amendments to the Native Title Act are on the right track and I strongly encourage the

Government to reintroduce this Bill and support its passage through Parliament.

The Native Title Amendment Bill 2012:

• enables parties to agree to disregard the historical extinguishment of native title over an area that has

been set aside or vested to preserve the natural environment such as parks and reserves

• clarifies the meaning of good faith under the right to negotiate regime, and the conduct and effort

required of parties in seeking to reach agreement

• streamlines processes for Indigenous Land Use Agreements (ILUAs).49

Importantly, these amendments are compatible with our human rights to enjoy and benefit from culture

In June, I welcomed the announcement by the Attorney-General for an inquiry by the Australian Law Reform

Commission (ALRC) into two specific areas of the native title system.50 This inquiry provides us with an

opportunity to comprehensively examine what is working in native title and what needs to change.

As I said at the HSCATSIA Roundtable on the Native Title Amendment Bill 2012 in February this year, a

constructive analysis of the native title system needs to start with the issues we can agree on. For example,

we can agree that native title is not going away – it has been a consistent feature in our landscape over the

past 20 years and it will continue forever.

We also agree that we want to see our native title determined in shorter timeframes and with less expense for

all parties.

our-work/legal/submissions-sort-date-subject-committee-submitted/submissions-made-aboriginal-and (viewed 9 October

2013).

49 I discuss the details of the amendments in the Native Title Amendment Bill 2012 in Appendix 3.

Documents/AustralianLawReformCommissionnativetitleinquiry/ReviewoftheNativeTitleAct1993-finaltermsofreference-

3August2013.PDF (viewed 9 October 2013). I discuss the Australian Law Reform Commission inquiry in Appendix 3.

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Chapter 3: How do we keep moving forward? A road map for our future

And we can agree that we need to change the status quo of the Native Title Act as it is currently drafted.51

It is my view that the key priorities for native title reform are to:

• Establish a presumption of continuous connection in relation to a native title claim once native title

claimants have met the requirements of the registration test.52

• Enable native title holders to govern their lands, territories and resources through their Prescribed

Bodies Corporate (PBCs).

We also need to ensure that outcomes from on-going reviews of the native title system address native title

reform in a coordinated manner.

The process to prove our native title has been extensively criticised by international human rights mechanisms,

prominent leaders within Australia and Social Justice Commissioners.53 This criticism focuses on the high level

of information that native title claim groups need to provide to demonstrate continuing connection to their

lands and waters, in accordance with their traditional laws and customs, from the time of British colonisation.54

This process is particularly unjust considering the history of government policies that removed many

Aboriginal and Torres Strait Islanders from their country, thereby undermining their capacity to prove

continuous connection to their lands and waters. Ironically, the burden to provide information proving

continuous connection is then placed on Aboriginal and Torres Strait Islander peoples – despite governments

often holding written information and records.

Establishing a presumption of continuous connection for native title would ease the burden of this onerous

process on Aboriginal and Torres Strait Islander peoples by altering the balance of power in native title

negotiations.

There have been a number of proposals over the past few years that seek to establish a presumption of

continuity for native title.55 These proposals, with minor variations, set out establishing a presumption of

continuous connection to the land in relation to a native title claim once the claim meets the requirements of

the registration test and is placed on the Register of Native Title Claims.

2013, p 2 (Mr Mick Gooda Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights

Commission).

Native%20title%20claimant%20applications%20April%202008.pdf (viewed 5 July 2013).

http://www.humanrights.gov.au/publications/native-title-reports (viewed 15 October 2013).

Native Title Amendment Bill 2011 (Cth); Amendments to the Native Title Amendment Bill 2012 (Cth); House of Representative

The onus would then shift onto the respondent, usually State/Territory governments, to demonstrate that

there is evidence of ‘substantial interruption’ in the acknowledgment of traditional laws or the observation of

traditional customs that sets aside the presumption. This will clarify that the onus rests upon the respondent to

prove a substantial interruption rather than upon the claimants to prove continuity.56

native title holders following a determination of native title.57 A recurring concern from around the country is

that many PBCs do not have the support and resources they require to meet their administrative, legal and

financial functions, but I note that this issue is currently being examined as part of the Government’s review of

the roles and functions of native title organisations.58

If we are to realise the benefits of our native title, then we need to invest in the governance of native title

right now. This means that we need to build the capacity of PBCs to support native title holders to maximise

opportunities from their native title.

A number of aspects of the native title system are being reviewed by the Government. This includes:

• the tax treatment of native title payments and how these payments can better benefit Indigenous

communities59

• a review of the roles and functions of native title organisations conducted by Deloitte Access

Economics60

• an inquiry into the native title system undertaken by the Australian Law Reform Commission.61

It is essential that these various working groups, reviews and inquiries work together. This will provide a

consistent approach to ensuring that the native title system provides Aboriginal and Torres Strait Islander

peoples with the opportunities to achieve our economic, social and cultural aspirations.

(f) Confronting racism

Racism has frequently been in the headlines over the past year; often it has affected Aboriginal and Torres

publications/native-title-report-2012 (viewed 10 July 2013).

14–20. At http://www.deloitteaccesseconomics.com.au/our+services/economic+analysis+and+policy/native+title/

about+the+review (viewed 16 September 2013).

Commonwealth of Australia (2013). At http://www.treasury.gov.au/PublicationsAndMedia/Publications/2013/Taxation-of-

Native-Title (viewed 9 September 2013).

60 Deloitte Access Economics has been contracted by the Australian Government to undertake this review – see Appendix 3.

61 I report on these reviews in Appendix 3.

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Chapter 3: How do we keep moving forward? A road map for our future

Strait Islander people. We’ve seen online ‘memes’ featuring derogatory images of Aboriginal people,62 a group

of prominent Aboriginal actors refused service by numerous taxis in the Melbourne CBD,63 and a Western

Australian university student union publication containing offensive stereotypes of Aboriginal people.64 In the

abused during a football match and again during the media commentary that followed.65

Far from being isolated, I would argue that such incidents are a regular occurrence for many Aboriginal and

Torres Strait Islander people in this country. In the words of the Victorian Aboriginal Child Care Agency, ‘racism

is a constant “background noise” in the lives of Aboriginal and Torres Strait Islander people.’66

It is good that these incidents have been brought to light – they have served as a useful prompt for public

reflection about what racism looks like and why it is not okay, particularly the ‘casual racism’ inflicted on many

of us on a daily basis. But these discussions do not seem to have moved us much further towards a real

understanding of the harm that racism causes and a genuine commitment, as a community, to do something

about it.

And the focus on these high profile incidents does not reflect the silent, pervasive and systemic discrimination

of the complaints received by the Commission were made by Aboriginal and Torres Strait Islander people.67

These are the experiences which lock us out of economic opportunities, damage our physical and mental

health and undermine our trust in, and connection to, the broader community.

Ample evidence of these impacts is outlined in the submission to the National Anti-Racism Strategy made by

Congress:

From the initial engagement between First Peoples and Europeans, through more than two centuries of

government legislation and policies, Aboriginal and Torres Strait Islander peoples have been discriminated

against, denied their human rights and deprived of the opportunity to participate in Australian society as

equal citizens.

Dispossessed of their lands under the erroneous concept of Terra Nullius, denied recognition in the nation’s

founding document, subjected to decades of controlling and/or exclusionary legislation and polices and the

forcible removal of children from their families and communities, Aboriginal and Torres Strait Islander peoples

have a long and painful history of racism in this country.68

So what do we do about it? I believe the National Anti-Racism Strategy is a good start. In its second year

strong support from many sectors of the Australian community and are serving as an important focal point for

www.smh.com.au/technology/technology-news/contents-removed-from-racist-facebook--page-20120808-23tr1.html (viewed 8

October 2013).

au/entertainment/theatre/taxi-drivers-bar-aboriginal-actors-20130502-2iu42.html (viewed 8 October 2013).

thewest/a/-/newshome/16795632/uwa-paper-sparks-racial-row/ (viewed 8 October 2013).

2013. At http://www.couriermail.com.au/news/opinion/racism-such-as-that-shown-towards-sydney-swans-player-adamgoodes-

is-not-a-game/story-fnihsr9v-1226655389955 (viewed 8 October 2013).

humanrights.gov.au/it-stops-with-me/consultations (viewed 16 September 2013).

nationalcongress.com.au/racism-it-stops-with-me/ (viewed 16 September 2013).

individual and collective action to counter racism. At the very least I would recommend ongoing support for

the Strategy by the Government.

But we also know that political leadership on these issues is vital. I would like to see a commitment from our

leaders to set the bar higher in public discourse – to say, and to mean, that racism begins to stop with them.

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Chapter 3: How do we keep moving forward? A road map for our future

3.3 Communities in control

While staying the course in areas that are already on the right track requires commitment and patience to

see through some important issues, helping communities to be in control is where real vision and dedication

comes in. If we can get this right, it is where I believe we will see the most profound changes over time.

What do I mean by our communities being in control?

One way of addressing this question is to look to the Declaration for guidance and to use the principles we

have developed to give it effect across Australia. As I discussed earlier in this chapter, these principles are:

• self-determination

• participation in decision-making, underpinned by the concepts of free, prior and informed consent

and good faith

• respect for and protection of culture

• equality and non-discrimination.

Governments must be prepared to ‘let go’ of many of the decisions that affect our lives and national policies

and programs must be designed in a way that allows the greatest flexibility for implementation at the

community level. Professor Megan Davis argues that we must ‘work in partnership with the state (the state as

a junior partner)’69 to facilitate this.

In other words, governments must be prepared for our communities to participate in decisions that affect

them. Again, Professor Davis notes that:

governments cannot truly tackle disadvantage or close the gap without allowing communities more

responsibility in the decisions that affect their lives and this includes service delivery.70

‘matters relating to their internal and local affairs’.

In other words, our communities must start exercising self-determination.

Over the years, the term ‘self-determination’ has fallen in and out of fashion. This is a shame because far from

being a fad in Aboriginal and Torres Strait Islander affairs, it is a key human right that applies to all peoples. It

peoples. I see it firstly, as a human right that accrues to all Australians and then secondly, my mind turns to

what it means for us as Aboriginal and Torres Strait Islander peoples.

While there has been a lot of talk about self-determination over the years, I would argue that comprehensive

self-determination has never really been given a chance to work for Aboriginal and Torres Strait Islander

peoples in this country. I say this with immense appreciation and admiration for the individuals and

organisations that work very hard to try and enable and exercise self-determination.

But these pockets of good practice are based mainly on the energy, goodwill and commitments of individuals

rather than the systemic embedding of this right in our governance structures and in government institutions.

69 M Davis, ‘Community control and the work of the National Aboriginal Community Controlled Health Organisation: Putting meat

70 M Davis, ‘Community control and the work of the National Aboriginal Community Controlled Health Organisation: Putting meat

Professor Davis articulates another challenge of self-determination; it must reflect our experiences and needs:

Self-determination must become more specific and personalised in order to be capable of reflecting what

self-determination means for Aboriginal peoples in their daily lives. And we cannot leave it to the state to do

that for us. We must do that ourselves as Aboriginal people.72

As I have noted earlier in this chapter, the Declaration Dialogues will inform this common understanding.

Ultimately, I want to see our communities organise themselves in ways that they choose, in accordance with

the principles of good governance and in ways that ensure our most vulnerable, our elders, our women and

our children, and not just the strong alone, are being heard in our communities and organisations. I want these

structures to be recognised and respected by governments, built on relationships of mutual respect and good

faith, and I want community and government engagement to take place at a more localised level.

Prime Minister Abbott has recognised the need to shift the focus from Canberra to the community, stating:

The real challenges are not just in this building; they are in the country, the communities, the suburbs and the

regions of our nation. Real change does not happen in this building, although it may start here. Real change

happens in places where Australians live.73

Finally, I want to see our communities positioned to make this change happen through local decision-making

so that they remain in control of decisions affecting them.

Once this is happening we will see empowered communities exercising real self-determination.

(a) Our governance is determined by us

Part of the failure of previous attempts to place our communities in control has been poor governance. In the

The exercise of self-determination can only be achieved if we have good community governance. This

means the existence of ‘effective, accountable and legitimate systems and processes’ where Aboriginal

and Torres Strait Islander peoples can ‘articulate their interests, exercise their rights and responsibilities and

reconcile their differences.’74

and legitimate Indigenous governance.75

This model acknowledged that the ways that our communities and organisations make decisions must be

grounded in our right to self-determination. To reset the way in which we make decisions, we must take

responsibility for our social problems and find ways to deal with these problems ourselves. We need to turn

our rights into outcomes that reflect our aspirations as Aboriginal and Torres Strait Islander peoples.

Governments, NGOs and businesses that engage with our communities have a role to support – not to direct

– our decisions and decision-making processes and to not create additional strains and stresses on our

72 M Davis, ‘Community control and the work of the National Aboriginal Community Controlled Health Organisation: Putting meat