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Editors --- "Aboriginal and Torres Strait Islander Social Justice Commissioner Social Justice Report 1999 - Digest" [2000] AUIndigLawRpr 21; (2000) 5(2) Australian Indigenous Law Reporter 107

Inquiries and Reports - Australia

Aboriginal and Torres Strait Islander Social Justice Commissioner

Social Justice Report 1999

Human Rights and Equal Opportunity Commission

Sydney

January 2000

The Aboriginal and Torres Strait Islander Social Justice Commissioner is required to report annually to the Federal Attorney-General under s 46C(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) regarding the exercise and enjoyment of human rights by Australia’s indigenous peoples. This provision also allows the Commissioner to make recommendations as to action that should be taken to ensure such enjoyment.

The Human Rights and Equal Opportunity Commission (HREOC) has a role in monitoring and evaluating the human rights performance of Australian governments in concrete and specific circumstances. In doing so it can assess domestic situations by reference to international human rights benchmarks. The Office also has a role to identify the broad patterns and structural issues which underlie current human rights violations and discrimination against indigenous Australians and can assist in the design of frameworks which will ensure that government programs and services are conducive to the enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.

The Seventh Report 1999 was tabled in Federal Parliament on 6 April 2000, and is the first by Dr William Jonas, who commenced his term as Commissioner in May 1999. It focuses on issues concerning indigenous young people. Chapter 2 identifies the disadvantage faced by indigenous young people and the human rights requirements to redress this disadvantage. Chapter 3 examines the vexed issue of identity, and the ways that this manifests in the daily lives of many indigenous young people. It then considers the development of identity rights in the international arena, that is, those rights that recognise and protect the distinct characteristics of indigenous peoples worldwide.

Chapter 4 then examines the social, cultural and educational benefits of biligunal education, the decision of the Northern Territory Government to abolish bilingual education programs and the human rights implications of that decision. Chapter 5 examines the mandatory detention regimes of the Northern Territory and Western Australia against the background of human rights principles, the over-representation of indigenous peoples in criminal justice processes, and alternatives to mandatory detention that are available to governments and consistent with the previously elaborated principles.

The introductory chapter, which is reproduced here, examines current themes in indigenous policy formulation at the Commonwealth level and evaluates them from a human rights perspective.[1]

Chapter 1: Introduction

This is my first Social Justice Report as Aboriginal and Torres Strait Islander Social Justice Commissioner.[2] It is also the last such report of this century. Accordingly, I have decided to incorporate into the review that is required by my statutory obligations[3] some links with the future.

This report deals with a wide range of issues that relate to young Indigenous people, for they are the future of Indigenous Australia.

All is far from well with the situation of Indigenous young people.[4] Generally speaking, they do not enjoy and exercise their basic human rights to the same extent that non-Indigenous youth do. At the same time, it is from these young people that the future leaders of Indigenous Australia will emerge and, despite the many problems that they face, my experiences with them provide me with solid grounds for hope in a better future.

Indigenous youth, of course, face many of the issues faced by the broader Indigenous community. In this introductory chapter I review some of those issues from a human rights and social justice perspective, before turning specifically to issues that affect young Indigenous people directly in the following chapters.

Permeating this report, and indeed all of my work, is a theme that I have a duty to pursue — the meaning of the principle of equality. By any measuring stick Aboriginal and Torres Strait Islander people are not equal with the rest of Australian society and continue to experience worse socio-economic conditions. Integrally linked to redressing this disadvantage is the requirement that Indigenous people be able to enjoy and exercise fundamental human rights.

What is also particularly clear is that Indigenous people themselves want their situation to change: the fact that marginalisation exists and continues is not the preference of the marginalised, nor is it caused by them. This disadvantage is a human rights issue — much of it being historically derived through overt and structural forms of discrimination. In order to break out of these conditions, and in order for Indigenous people to enjoy a position of equality in Australian society, justice demands that we acknowledge this disadvantage and make special effort to redress it. Governments do not need to be apologetic about adopting differential treatment to redress disadvantage, for it is required in order to achieve equality in Australian society.

When we have the advantaged and the disadvantaged, the haves and the have nots, treating people identically, as if they are the same when clearly they are not, ensures that the disparity in enjoyment of human rights endures. It may even result in an increase in the inequality faced by that group. Positive intervention is needed, and special measures must be adopted. I pursue this theme in chapter 2 of this report.

Current themes in Indigenous policy

In this chapter I examine what I consider to be some of the current key ‘dialogues’ or themes in debates about Indigenous policy formulation. My role as Social Justice Commissioner is to ensure that the human rights implications of these themes are understood and fully considered so that they may affect the design of government policies and programs, and the understanding that the broader community has of these. I will focus on the following four inter-related themes:

• Moving beyond welfare dependency;

• Accountability;

• Participation; and

• Reconciliation.

Moving beyond welfare dependency

Recent years have seen a shift in focus of public debate, in Australia and abroad, towards concepts related to mutual obligations. Broadly put this view states that with rights and entitlements come attached responsibilities and obligations. This has been reflected in debates on Indigenous policy in the context of the dependency of many Indigenous people on welfare.

As the federal government’s 1999-2000 budget papers state:

The government commenced its second term with a continuing commitment to address disadvantage suffered by Indigenous people. This commitment incorporates a major effort to assist Indigenous Australians move beyond welfare dependency through improvements in the key areas of health, housing, education, employment and economic development. Until the disadvantage that exists in these areas is addressed many Indigenous Australians will remain locked into welfare dependency with limited opportunities to share in the quality of life and standards of living enjoyed by their fellow Australians.[5]

Welfare in this context is seen as financial support for which no reciprocity or personal responsibility is required from the individual recipient.[6]

The concept of mutual obligation is, of course, not alien to Indigenous peoples. Many Indigenous people argue that it is a concept that is fundamental to Indigenous social and cultural values. Indigenous people do not, for example, see themselves as ‘users’ of land. They are related to and part of the land, with custodial obligations to nurture and protect it. Native title in this context is seen as a right which enables Indigenous people to fulfil their custodial obligations over the land.

This concept has also been applied to Indigenous people in government programs since 1986. Most notably, it has been applied by the Community Development Employment Projects Scheme (CDEP), which is effectively an Indigenous ‘work for the dole’ program.[7]

To the extent that this debate reflects the government’s desire to improve the situation of Indigenous peoples, so that we are not locked into welfare dependency and can live in situations that are economically viable and sustainable in the long term, I am in agreement. This is a desire that has long been expressed by Indigenous leaders and communities.

It is a desire, for example, that lies at the core of debates over regional governance and the recognition of native title rights. It was also the basis of the social justice package proposals put forward to the then government in 1995 by the Council for Aboriginal Reconciliation (CAR), the Aboriginal and Torres Strait Islander Commission (ATSIC), and the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner.

However, I have a number of concerns from a human rights perspective about this approach.

It can reduce Indigenous disadvantage to an individual level, implying that there is a lack of responsibility on the part of Indigenous people who are on welfare, while also failing to recognise the broader, systemic nature of Indigenous disadvantage in this country. It can relocate power to the individual, and in doing so absent the government from its position of responsibility.

Furthermore, it makes distinctions between particular types of government programs and policies according to whether or not they are sufficiently connected to the reduction of welfare dependency. The Minister for Aboriginal and Torres Strait Islander Affairs (the Minister) has indicated, for example, that the government is concerned with ‘real issues’ — health, housing, education, employment and economic empowerment — as opposed to ‘symbolic issues’ that are not seen as leading to a reduction of welfare dependency.

As an example, while recognising that land is important to Indigenous people ‘for cultural, historical and symbolic reasons’, the Minister has represented the Government’s view that it is ‘not a panacea to the social and economic challenges facing Indigenous communities.’[8] After making this comment the Minister then asks in his speech, ‘what then are the real issues?’[9] He continues that reducing welfare dependency means:

policies that facilitate and promote genuine economic independence for Indigenous people, policies that go beyond the catchcry of land and mining royalties and encompass both individual skills development and productive business enterprises.[10]

In this context, the process of redressing Indigenous disadvantage is broken down into individual programs rather than being viewed as of a broad systemic nature, where programs are necessarily integrated. This focus on individual programs is, in my view, too narrow.

The necessity for adopting a systemic, integrated approach to Indigenous disadvantage was vividly demonstrated in the Royal Commission into Aboriginal Deaths in Custody.[11] Recent research also supports this view. Researchers have found that there is a significant relationship between the arrest record of an Indigenous person and their employment status. The consequence of this is that:

Ensuring that Indigenous citizens are dealt with in ways which minimise contact with the formal criminal justice system should be a priority policy for governments who are concerned about Indigenous employment outcomes.[12]

Similarly, the 1997 Darwin Declaration of the Royal Australasian College of Physicians acknowledges that:
The health of Aboriginal and Torres Strait Islander Australians is disastrously poor compared with other Australians and that the fundamental cause is disempowerment, due to various factors including continued dispossession from land, cultural dislocation, poverty, poor education and unemployment.[13]

Issues of health status cannot be separated from issues of land ownership, just as employment issues cannot be separated from issues of contact with the criminal justice system. Policies that do not acknowledge these fundamental linkages stand a reduced chance of being effective in redressing Indigenous disadvantage.

An approach that distinguishes between ‘real issues’ and ‘symbolic issues’ is also at odds with the ideological foundations of the international human rights system. This system has at its core the notions of universality and indivisibility of human rights.[14] Put simply, these values reflect that human rights apply to all humans, and each human right applies equally. Consequently, there are not more important and less important rights. Rights to land are not less important than rights to basic levels of health care, education or employment. While governments must undertake the task of prioritising which areas they will focus attention and expenditure on, this does not condone the non-recognition or infringement upon the human rights of Indigenous peoples in other areas.

I am also concerned that in calling for a move away from welfare dependency to economic empowerment there is little acknowledgment that integral to this shift is the empowerment of Indigenous Australians through the full recognition and equal enjoyment of their human rights.

What Indigenous people have consistently called for in the shift from the welfare mentality of governments is a move to a rights-based approach. As my predecessor Dr Mick Dodson stated in the 1995 Social Justice Package proposal:

The time has come for a fundamental shift in public policy in respect of Australia’s Indigenous peoples... At the basis of this shift must be the transition, too little understood, from the administration of Indigenous welfare to the recognition of Indigenous rights.15

Indigenous rights in this context encompass equality or citizenship rights — rights which apply to all people simply by virtue of being human — as well as the distinct, collective rights of Indigenous peoples, or identity rights.

Sarah Pritchard has commented:

Recent discussion about the crippling effects of welfare has suggested that this is a condition desired and perpetuated by Indigenous communities. Such talk ignores the fact that Indigenous peoples have been arguing for greater control over, responsibility for, and independence for their own lives and communities. The 1995 social justice submissions are informed by a desire for real equality with non-Indigenous Australians. They express a commitment to a future in which all Australians enjoy their human rights and fundamental freedoms and in which Aboriginal and Torres Strait Islander peoples are able to exercise their distinct rights as Indigenous peoples. They contain concrete proposals for establishing and developing foundations for Indigenous economic self-sufficiency as an alternative to welfare...[16]

The movement away from welfare dependency is integrally linked to the recognition of the rights of Indigenous peoples. This includes the right to self-determination, to participate in decisions that affect us, as well as having our cultural practices recognised and protected within Australian law. I pursue these themes in chapters 2 and 3 of this report.

Accountability

The Government’s Indigenous affairs policies over the past three years have focused on highlighting principles of accountability. This focus has been on the efficient funding of Indigenous programs as well as targeting programs towards areas of the greatest need. The commitment of the federal government in this regard is:

to pursue a strong agenda promoting rational allocation of resources in Indigenous affairs, a coordinated effort with the states and territories, and a clear outcomes and accountability focus in all expenditure.[17]

I welcome a commitment to ensure the highest standards of accountability possible. For too long a lack of coordination in funding and service delivery has hampered the goal of improving the conditions under which many Indigenous Australians live.

Governments have acknowledged this, as demonstrated by the adoption by the Council of Australian Governments in 1992 of the National commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders (the framework agreement). This framework agreement between Australian governments sets out principles on the roles of the different levels of government. It also forms the basis of a series of bilateral agreements between governments such as the benchmarking agreements for Indigenous health programs finalised in August 1997,[18] and similar agreements on Indigenous housing and infrastructure, and education. The framework agreement establishes the following as guiding principles for all levels of government:

4.4 effective coordination in the formulation of policies, and the planning, management and provision of services to Aboriginal peoples and Torres Strait Islanders by governments to achieve more effective and efficient delivery of services, remove unnecessary duplication and allow better application of the available funds; and
4.5 increased clarity with respect to the roles and responsibilities of the various spheres of government through greater demarcation of policy, operational and financial responsibilities.[19]

The framework agreement also acknowledges the importance in improving the effectiveness of service delivery of:

4.1 empowerment, self-determination and self-management by Aboriginal peoples and Torres Strait Islanders;
4.2 economic independence and equity being achieved in a manner consistent with Aboriginal and Torres Strait Islander social and cultural values;
4.3 the need to negotiate with and maximise participation by Aboriginal peoples and Torres Strait Islanders through their representative bodies, including the Aboriginal and Torres Strait Islander Commissioner, Regional Councils, State and Territory advisory bodies and community-based organisations in the formulation of policies and programs that affect them.[20]

This second set of principles are also measures of accountability. They reflect Australia’s international human rights obligations, which require governments to provide services and redress Indigenous disadvantage in a manner that is culturally appropriate, non-discriminatory and with adequate consultation.[21] This is to ensure the effective participation of Indigenous peoples, particularly in the design and delivery of services that affect them.

I discuss the requirement of Indigenous participation further below. In this context it is sufficient to note that it is essential that the apparently objective aim of ensuring accountability is not used as a subterfuge for not addressing the legitimate and clearly expressed aspirations of Indigenous people. Indigenous people have a role in determining what is ‘a rational allocation of resources.’

There are several layers of accountability that we should expect in the delivery of services to Indigenous peoples. Accountability should be expected in every aspect of service delivery from the federal government, state/territory and local governments as well as from Indigenous organisations.

There has been great attention on one of these groups in particular in recent years — namely, Indigenous organisations. ATSIC, for example, has been the subject of intense scrutiny. Stringent accountability requirements have been applied, and ATSIC has by and large met these. The public interest in such high levels of scrutiny to an extent reflects a misunderstanding of ATSIC’s role:

Within current resources ATSIC is hard-pressed trying to meet its core obligations as a source of policy advice and as a monitor of service delivery to Aboriginal and Torres Strait Islander people. It is certainly not in a position, either through its legislative charter or in terms of capacity, to fill gaps left by mainstream providers at either the State or Commonwealth level.[22]

There was continuing scrutiny of the accountability of Indigenous organisations in the past year. Amendments to the Native Title Act 1993 (the Act or NTA) have triggered extensive scrutiny of the operations of Native Title Representative Bodies. These amendments set in train a transitional period during which each representative body must re-apply to the Minister for recognition as the representative body for a particular region. Not all current representative bodies will be able to be re-recognised (as some regions have been amalgamated and the Act now provides there can only be one body per region), and will consequently lose their representative body status and funding. To be re-recognised bodies must indicate that they are capable of fulfilling a range of new service delivery functions as well as meeting rigorous accountability requirements. The implications of these amendments are discussed at length in chapter 5 of my 1999 Native Title Report.

Significantly, in 1999 the Australian National Audit Office also conducted a performance audit of ATSIC’s delivery of housing and infrastructure to Indigenous communities under the National Aboriginal Health Strategy.[23] This program is the largest single program administered by ATSIC and is complementary to programs administered by the Department of Health and Aged Care.

The Auditor-General concluded that:

• ATSIC has established ‘effective mechanisms for the identification and determination of priorities that produce informed and objective assessments of national needs for major housing and infrastructure projects in Indigenous communities’;[24]
• ATSIC and the Department of Health and Aged Care are working cooperatively to maximise their combined impact on Indigenous health outcomes[25];
• The selection process for project managers and project implementation by ATSIC establish ‘an effective framework for project delivery and place a high level of accountability on project managers to deliver large... projects in accordance with requirements’[26];
• Project management arrangements ‘established a framework for project managers to develop good working relationships with communities to deliver appropriate housing and infrastructure to (Indigenous) communities’;[27] and
• That ATSIC has joined in effective partnerships with state and territory governments.[28]

The Auditor-General made recommendations aimed at improving the methodology for assessing the relative needs of projects, as well as improving benchmarking and performance targets for the Strategy.[29]

A similar audit was conducted during 1998 of the Aboriginal and Torres Strait Islander Health Program administered by the Commonwealth Department of Health and Aged Care.[30] The Auditor-General concluded that the Department:

met the Government’s and the Parliament’s external accountability requirements. However, management processes could be enhanced by greater attention to allocation of program resources on the basis of need;... clearer identification of Indigenous Australians as a special needs group in the Department’s mainstream programs; clearer specification of the health outputs and outcomes or performance standards the Department expects from its programs;... (and) greater cooperation with ATSIC in environmental health...[31]

The government also embarked during the reporting year on a significant reform to improve the accountability of the federal and state/territory governments in the delivery of services to Indigenous peoples.

The Commonwealth Grants Commission Amendment Bill 1999 was introduced to the House of Representatives in March 1999, and passed through the House in June 1999. It was introduced to the Senate in June 1999 but at the time of writing had not entered the 2nd reading stage. The Bill seeks to amend the Commonwealth Grants Commission Act 1973 (Cth) to provide that the Commission is required to inquire into and report to the Minister into any matters referred to it by the Minister relating to:

• Works and services in respect of Indigenous persons that are provided or funded (directly or indirectly) by the Commonwealth or an authority of the Commonwealth;
• A grant of financial assistance under section 96 of the Constitution to a State for the purpose of being applied by the State to pay for works and services in respect of Indigenous persons in the State; or
• A grant of financial assistance made to a territory State for the purpose of being applied by the Territory to pay for works and services in respect of Indigenous persons in the Territory.[32]

The purpose of the Bill is to further the government’s election commitment:

to work with the Indigenous community and ATSIC to develop and adopt appropriate arrangements to improve the allocation of funding for Aboriginal and Torres Strait Islander peoples. The amendments... allow the government to ask the Commonwealth Grants Commission to develop measures of relative disadvantage that could be used to target resources for the Indigenous community more effectively to the area of greatest need.[33]

It is expected that an inquiry of the scope provided for in the Bill would identify the inefficiency of service delivery to Indigenous people by the States and Territories. For example, it is estimated that 52% of all revenue for Indigenous health programs and 46.1% of funding under the Indigenous Education Strategic Initiatives Program provided to the Northern Territory government is spent on administration.[34] This is an unacceptably high level.

This Bill responds to calls from Indigenous peoples dating back to 1992 during the Commonwealth Grants Commission’s 1992-1993 round of review of the relativities for funding distribution between the states and territories. CAR, ATSIC and the Social Justice Commissioner also recommended a version of the Bill in the Social Justice Package proposals in 1995.[35] The Social Justice Commissioner, for example, called for:

A comprehensive study by the Commonwealth Grants Commission of the potential application of the fiscal equalisation principle among Indigenous communities in Australia. Such a study to be undertaken in a manner which allows for the outcomes to be broken down into both State/Territories and regions; and a specific reference to the Commonwealth Grants Commission to explore solutions to the enormous and inequitable capital infrastructure needs of Indigenous communities.[36]

I welcome the government’s initiative in introducing the Bill. I am hopeful it will pass through the Senate and that an inquiry will be referred to the Commonwealth Grants Commission by June 2000.

A concern I have that is related to the passage of this Bill is that, while the Government has budgeted to fund the conduct of an inquiry to develop measures of relative disadvantage to target resources more effectively to the areas of greatest need, it has not as yet made a commitment to devote additional funding to address the relative disadvantage that is identified. Instead, the government has indicated that ‘the measures of disadvantage will enable ATSIC and mainstream departments and agencies to improve the allocation of funding to Indigenous people.’[37]

A commitment by the government to provide additional funding to redress the disadvantage identified by the Commonwealth Grant Commission inquiry would be a significant contribution to the reconciliation process.

A further and significant type of accountability of the federal government is to the international community through the upholding of human rights standards and compliance with treaties to which Australia is a signatory. These instruments reflect minimum standards of behaviour commonly accepted by the international community.

Australia was called to account to the international community earlier this year for its treatment of Indigenous Australians. The Committee on the Elimination of Racial Discrimination instituted an early warning procedure against Australia in August 1998,[38] due to its concern that Australia may be acting in violation of its obligations not to racially discriminate against Indigenous people following the passage of the Native Title Amendment Act 1998 (Cth) in July 1998.

The Committee considered the Australian situation at its 54th session in March 1999. In a decision dated 18 March 1999 they found that the native title amendments breach Australia’s obligations under CERD.[39] The Committee expressed concern that:

• the native title amendments raise concerns that Australia is not acting in compliance with its obligations under Articles 2 and 5 of the Convention (the non-discrimination principle and the requirement to provide equality before the law);[40]
• that, as a consequence of this, the amended NTA cannot be characterised as a special measure under Articles 1(4) or 2(2) of the Convention;[41] and
• that the process leading to the amendments raises concerns about the lack of ‘effective participation’ of Indigenous people in the formulation of the amendments, in breach of Australia’s obligations under Article 5(c) of the Convention and contrary to the Committee’s General Recommendation XXIII on Indigenous People.[42]

The findings of the Committee on the Elimination of Racial Discrimination are serious. As I explain in my 1999 Native Title Report, which analyses the CERD decision in detail, their reasons for finding as they did are compelling.[43] The decision reflects the lack of recognition of the human rights of Indigenous Australians. As I noted earlier, human rights are indivisible — this decision cannot be dismissed as not affecting the ‘real commitment’ of the government to addressing Indigenous disadvantage.

This decision is not the only current international concern expressed about Australia’s performance on Indigenous issues. The Committee on the Elimination of Discrimination Against Women expressed its concern in July 1997 at ‘the continuing adverse situation of Aboriginal and Torres Strait Islander women.’[44] Their concerns included ‘higher rates of maternal mortality, lower life expectancy, reduced access to the full range of health services, a high incidence of violence, including domestic violence, and high unemployment rates.’[45]

The Committee on the Rights of the Child expressed its concern in October 1997 at ‘the special problems still faced by Aboriginal and Torres Strait Islander (children)... with regard to their enjoyment of the same standards of living and levels of services, particularly in education and health.’[46] They also expressed concern about the

unjustified, disproportionately high percentage of Aboriginal children in the juvenile justice system... (and) at the enactment of new legislation in two states, where a high percentage of Aboriginal people live, which provides for mandatory detention and punitive measures of juveniles, thus resulting in a high percentage of Aboriginal juveniles in detention.[47]

The Committee on the Elimination of Racial Discrimination, in considering Australia’s most recent periodic report to the Committee, also expressed concern at the disadvantage of Indigenous people in education, employment, housing and health services, and the rates of deaths in custody.[48] The Committee further expressed its concern that:

Although the Commonwealth government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of the states and territories which have almost exclusive jurisdiction over many of the matters covered by the Convention and cannot be compelled to change their laws.[49]

As a consequence of this, and in relation to the treatment of Indigenous Australians, the Committee expressed the view that:

The Commonwealth Government should undertake appropriate measures to ensure the harmonious application of the provisions of the Convention at the federal and state and territory levels.[50]

The obligation to ensure consistency with Australia’s international obligations lies with the federal government, which is accountable for failures of the states to comply with these obligations.

Participation

I have already referred to the requirement that Indigenous people be able to fully participate in decisions that affect them. This is essential in order to secure a move from welfare dependency. It is also a yardstick of best practice which governments must comply with if they are to ensure greater efficiency in service delivery. They are also accountable to ensuring participation of Indigenous peoples to the international community through Australia’s human rights obligations.

As noted, Indigenous people have continually expressed the importance of this principle, as well as reiterating the fact that we are, like all Australians, entitled by right to participate in decisions that affect us. The requirement of participation and adequate consultation is a principle that underpins the National commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders.

Yet despite the apparent acceptance of the importance of this principle governments continue in most instances to act in a manner that conceives of it as aspirational rather than essential. The consequence of this is that Indigenous perspectives and concerns are able to be dismissed or outweighed when there is a contrary or competing set of interests.

This was emphasised by the decision of March 1999 by the Committee on the Elimination of Racial Discrimination in relation to the native title amendments. In addition to its concerns that the native title amendments breach Australia’s obligations to act in a non-discriminatory manner and to provide equality before the law, the Committee expressed concern that:

The lack of effective participation by Indigenous communities in the formulation of the amendments... also raises concerns with respect to the State Party’s compliance with its obligations under Article 5(c) of the Convention.[51]

In explaining the application of the Convention to Indigenous peoples the Committee had previously called on States Parties to:

ensure that members of Indigenous groups have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are to be taken without their informed consent.[52]

The Committee confirmed to Australia that this requirement of informed consent was not merely aspirational but a positive obligation on States Parties to the Convention.[53] As I state in my 1999 Native Title Report:

The government’s interpretation of the Convention’s requirement of effective participation follows from what it saw as its role of striking a balance between all those whose interests were affected by the native title legislation...
The Australian government’s written and oral submissions (to the Committee) present Indigenous parties as but one of a series of parties with a stake in the legislation... In mediating an outcome between stakeholders the government gives Indigenous interests the same weight as the interests of miners, pastoralists, governments and other industries.
The Committee responded to this by pointing out, in paragraph 6 of the decision, that the Convention requires that State parties balance the rights of different groups identifiable by race.[54] An appropriate balance based on the notion of equality is not between miners, pastoralists, fishing interests, governments and Indigenous people, but between the rights — civil, political, economic, cultural and social — of Indigenous and non-Indigenous titleholders.[55]

The principle of effective participation is integrally linked to the concept of equality before the law. This principle is also a manifestation of the broader principle of self-determination. As the Committee on the Elimination of Racial Discrimination has noted:

The right to self-determination of peoples is a fundamental principle of international law... the implementation of the principle of self-determination requires every State to promote, through joint and separate action, universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations...[56]

The principle of self-determination is set out in Article 1 of the ICCPR and ICESCR:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 3 of the Draft Declaration on the Rights of Indigenous Peoples is worded identically.

There are two features of this principle that I want to highlight in relation to its application to Indigenous peoples. First, the right of self-determination applies to all peoples and is separate from rights that provide recognition and protection to the cultural identity of minority groups, including Indigenous peoples.[57] It is also a principle that does not threaten the territorial integrity of sovereign states. In this regard the Committee on the Elimination of Racial Discrimination has distinguished between two aspects of the right of self-determination:

In respect of self-determination of peoples two aspects have to be distinguished. The right of self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5(c) of the ICERD. In consequence, governments are to represent the whole population without distinction as to race, colour, descent, or national or ethnic origin. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based on the principle of equal rights and exemplified by the liberation of peoples from colonialism and by prohibition to subject people to alien subjugation, domination and exploitation.[58]

In November 1996 the Minister for Aboriginal and Torres Strait Islander Affairs announced that the government’s Indigenous affairs policy would no longer be based on the principle of self-determination. In part, the justification put for this was an interpretation of the principle of self-determination that equates it solely with this external aspect. Instead, government policy is now based on the concept of ‘self-empowerment.’ This concept, which has no meaning in international law, is exemplified by the government’s calls for Indigenous peoples to move beyond welfare dependency:

self-empowerment enables Aborigines and Torres Strait Islanders to have a real ownership of (their) programs thereby engendering a greater sense of responsibility and independence... In this sense, self-empowerment varies from self-determination in that it is a means to an end — ultimately social and economic equality — rather than merely an end in itself.[59]

This misunderstands the scope and intent of the principle of self-determination. Self-determination cannot accurately be described as an end of itself. The right of self-determination is the right to make decisions and to control their implementation. As Dr Lowitja O’Donoghue has described it, ‘self-determination is a ‘dynamic right’ under the umbrella of which Aboriginal and Torres Strait Islander peoples will continue to seek increasing autonomy in decision making.’[60]

In July 1998 Cabinet decided to persuade Canada, New Zealand and the United States to support the removal of the term ‘self-determination’ from the Draft Declaration on the Rights of Indigenous Peoples.[61] This move is inconsistent with one of the fundamental principles of the human rights system — the universality of human rights, i.e the application of the right of all people to self-determination. Ironically, it also goes against the clearly expressed aspirations of Indigenous peoples — the very thing that the principle of self-determination reinforces should be valued by nation States.

Reconciliation

We have now entered the final eighteen months of the term of the Council for Aboriginal Reconciliation. In May this year CAR released for discussion a draft document of reconciliation and three draft national strategies for reconciliation. These documents will be at the centre of debates about Indigenous policy development over the coming eighteen months.

Section 46C(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) provides that in the performance of my functions (which are centred on promoting awareness and discussion of the human rights of Indigenous Australians) I must have regard to the object of the Council for Aboriginal Reconciliation Act 1991 (Cth). I intend to work collaboratively with CAR, ATSIC and Indigenous communities over the next eighteen months to promote an understanding of the importance of the recognition of the human rights of Indigenous people to the reconciliation process.

For reconciliation to be lasting and meaningful it must involve the full recognition of and respect for the human rights of Indigenous peoples. As Sir Gerard Brennan has stated, ‘reconciliation is an obligation of justice, not a manifestation of benevolence.’[62] Reconciliation must include recognition of rights to equality, non-discrimination and effective participation. I maintain great optimism that the reconciliation process may deliver on these rights and consequently improve the livelihoods of many Indigenous Australians.

In order to do so, appropriate weight must be given to the aspirations and concerns of Indigenous Australians during this process. There can be no doubt as to what these aspirations are. Indigenous people have consistently called for the recognition of the full spectrum of our human rights. In the last decade alone such calls have been made in the Barunga statement, the Social Justice Package proposals, the Reconciliation Convention of 1997, the federal Constitutional Convention of February 1998, and most recently the Kalkaringi and Batchelor statements of the Combined Aboriginal Nations of Central Australia.

The Kalkaringi and Batchelor statements of August and November 1998 were made in the context of the Northern Territory Statehood debate. A Statehood Convention had been held in Darwin in March and April 1998, which adopted a proposed draft Constitution for the Territory as the basis for a movement to Statehood. The Legislative Assembly of the Northern Territory adopted this draft Constitution on 13 August 1998.

Indigenous people in the northern Territory have been highly critical of the process surrounding the Statehood debate. Many Indigenous organisations boycotted the Statehood Convention, and delegates who represented organisations that did not boycott the convention walked out before the final vote on resolutions.[63] Substantial criticism was made by Indigenous people of the outcomes of the Convention, as reflected in the revised draft Constitution. These criticisms were focused on the removal of provisions from the previous draft document which had proposed constitutionally entrenching land rights and the protection of sacred sites, providing special status and protection to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and entrenchment of the principle of Aboriginal self-determination through an act of Parliament.

In response to the adoption of the draft Constitution by the Legislative Assembly the Combined Aboriginal Nations of Central Australia met from 17-20 August 1998 on the land of the Gurindji people at Kalkaringi. They met on the anniversary of the Gurindji walk off at Wave Hill station,[64] and discussed issues of constitutional reform, statehood and governance.

Out of this meeting, attended by over 700 delegates, came a statement expressing the aspirations and concerns of the Combined Aboriginal Nations of Central Australia — the Kalkaringi statement.[65] The statement begins:

The Aboriginal nations of Central Australia are governed by our own constitutions (being our systems of Aboriginal law and Aboriginal structures of law and governance, which have been in place since time immemorial). Our constitutions must be recognised on a basis of equality, co-existence and mutual respect with any constitution of the Northern Territory.

On the Statehood issue, the statement indicates:

1. That we do not consent to the establishment of a new State of the Northern Territory on the terms set out in the Draft Constitution adopted by the Legislative Assembly on 13 August 1998.

2. That we withhold our consent until there are good faith negotiations between the Northern Territory government and the freely chosen representatives of the Aboriginal peoples of the Northern Territory leading to a Constitution based upon equality, co-existence and mutual respect.

The issue of Statehood was put to the people of the Northern Territory in a referendum in October 1998. It failed with 51.31% of people voting no. Following this, the Northern Territory Aboriginal Nations Convention on Standards for Constitutional Development was conducted at Batchelor in November 1998. The resolutions of this Convention — the Batchelor Statement — adopted the Kalkaringi statement as the basis for the discussions at the Convention and for the ‘ongoing development of Indigenous policy on the content of the Northern Territory and Australian constitutions.’[66]

These statements represent the freely expressed aspirations of the Aboriginal Nations of Central Australia. They identify a range of issues that appropriately must be fully considered as part of the reconciliation process. They call for the recognition of the distinct rights of the Aboriginal peoples of the Northern Territory, including the following:

• Rights of self-determination and self-government, including recognition of the role of Indigenous governance structures and the direct Commonwealth funding of Indigenous organisations and communities;
• The recognition of Indigenous customary law;
• Protection in the Northern Territory Constitution of the rights of Aboriginal people to land, sacred sites and significant areas;
• Procedures to ensure effective levels of representation of Aboriginal people in the Northern Territory Parliament;
• The prohibition of discrimination and the full recognition of Australia’s human rights obligations;
• Recognition of the right to equal access to essential services and infrastructure, and the appropriateness of adopting special measures for the provision of these services to people living in remote areas;
• The adoption of special measures for the immediate improvement of the social and economic conditions of Aboriginal people;
• The right to determine and control service delivery programs through adequately resourced institutions;
• Recognition of the right of Aboriginal children to all levels of education, to Indigenous control of and the culturally appropriate delivery of educational services;
• Effective participation of Aboriginal people in the justice mechanisms of the Northern Territory, and the resourcing of community justice mechanisms;
• Provision of interpreter services in legal and administrative proceedings; and
• The repeal of mandatory sentencing legislation.

I address a number of these issues during this report. These are the recently expressed aspirations of the Indigenous peoples of the Northern Territory. They emanate from the call for recognition of Indigenous rights based on the principles of equality, co-existence and mutual respect.

A reconciliation process which is based on anything less than negotiation over these principles will join proposals such as the Social Justice Package as an empty, unfulfilled commitment to social justice for all Australians.

Indigenous young people

As I stated earlier, the body of this report is focused on issues relating to young Indigenous people.

Indigenous youth comprise more than half of the total Indigenous population. They also comprise a larger percentage of the total youth population than Indigenous people are for the total population. The relatively young age structure of the Indigenous population will mean that over the next decade there will be a substantially higher proportion of Indigenous people entering working age.

Consequently, issues that face Indigenous children and young people today, which ought to be a significant focus of Indigenous policy debates, will also raise significant policy challenges for Indigenous adults over the coming decades.

Prior to my appointment as Social Justice Commissioner, the Office of the Social Justice Commissioner initiated an Indigenous Young Peoples Forum. This forum took place with 60 Indigenous young people from across the country in early August 1999. Over two days these 60 young people, aged from 15 to 29 years, discussed a range of issues that affect their daily lives ranging from identity, leadership and community, through to juvenile justice, education, international law and human rights, and reconciliation.

I left the Forum with great confidence about the future of Indigenous peoples in this country. Their perspectives across the full spectrum of issues were insightful and considered. They demonstrated their commitment and dedication to their communities, and their pride in being Indigenous.

I also took from the Forum an increased understanding of the perspectives of Indigenous young people and the issues that they face. These people are experts on what it is like to live as an Indigenous young person in Australia at the turn of the century. In writing this report I have listened to their voices and their priorities. This is reflected in the content of this report.

Chapter 2 examines the extent of Indigenous disadvantage from the perspective of our future — our young people. It provides a profile of Indigenous people aged 15-29 years. It also provides human rights justifications for redressing the disadvantage faced by Indigenous youth — through the appropriate adoption of programs that recognise cultural difference, as well as the adoption of special measures.

Chapter 3 then considers the issue that the participants in the Indigenous Young People’s Forum considered most important — identity. This chapter considers why Indigenous identity is important, from a youth perspective, as well as why it is an issue of human rights and social justice.

Chapter 4 examines the debate surrounding the abolition of bilingual education programs in the Northern Territory. This chapter examines the principles of bilingual education and relates them to Australia’s human rights obligations. Rights to education, language, respect for cultural difference, self-determination and native title are all raised by current and ongoing debates nationally and internationally about bilingual education.

Finally, chapter 5 considers the disproportionate involvement of Indigenous youth in the juvenile justice and criminal justice systems. The challenge of reducing this over-representation has been much discussed, from the Royal Commission into Aboriginal Deaths in Custody through to the National inquiry into the separation of Aboriginal and Torres Strait Islander children from their families, or Bringing them home. This chapter examines a series of national standards and benchmarks that emerge from numerous reports and Australia’s international human rights obligations. It applies these principles and benchmarks to the mandatory sentencing legislation in the Northern Territory and Western Australia, as well as to alternative policy approaches.

One factor that emerges from these chapters is the inter-connectedness of issues faced by Indigenous young people. There is, for example, an integral link between the disadvantage of Indigenous young people and their over-representation in the criminal justice system. Similarly, education is crucial in redressing disadvantage and reducing over-representation in criminal processes. Also entwined with these links is the imperative for policies and programs to be designed and delivered with Indigenous involvement, and to be culturally appropriate. They must recognise and protect the distinct identity of Indigenous young people.

Conclusion

The disadvantage faced by Indigenous Australians continues despite a much greater awareness of, and international developments in, the application of human rights standards to Indigenous peoples. The Social Justice Commissioner’s office has played, and continues to play, a significant role in this regard and I would like to pay tribute to the efforts of my predecessors in the position.

Dr Mick Dodson, the first Social Justice Commissioner, set the highest standards of advocacy for the human rights of Australia’s Indigenous peoples and his achievements are lasting. Zita Antonios, who filled the role in an acting capacity for eighteen months, maintained this role in a period of intense public debate, increased workloads and great change. Both are to be warmly congratulated for their efforts. I have inherited from them a strong legacy from which to continue to advocate for the rights of Indigenous Australians.

It is the role of the Social Justice Commissioner’s office to seek to ensure that the human rights of Indigenous Australians are recognised and fully realised in order that we may one day enjoy equally the benefits of Australian society. Full and proper debates on these issues are thus essential, and for almost a decade Indigenous issues have been at the forefront of public debate. This has been largely due to the recognition of native title in the High Court’s decisions in Mabo and Wik; as well as a result of the National Inquiry into the separation of Aboriginal and Torres Strait Islander children from their families, or Bringing them home.

Unfortunately, the public debates on these issues have often been divisive, pitting Australian against Australian; scape-goating Indigenous people as somehow being ‘privileged’ and enjoying ‘special treatment’ to that of the general population. The reality could not be further from the truth. It is my role and my duty to pursue and report on this truth. Social justice demands no less. l

[1] The full report and a summary is available on the HREOC website at <hreoc.gov.au/social_justice/index.html>.

[2] I was appointed to the position on 3 March 1999 and took up my appointment on 3 May 1999.

[3] Each year I am required, among other duties, to ‘submit a report to the Minister... regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders, and including recommendations as to the action that should be taken to ensure the enjoyment and exercise of human rights by those persons.’: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46C(1)(a).

[4] Generally, this report relates to issues facing Indigenous people aged 15-29 years.

[5] Minister for Aboriginal and Torres Strait Islander Affairs, A better future for Indigenous Australians, Budget 1999-2000, Commonwealth of Australia, Canberra, 1999, p 1.

[6] The Minister has stated this view on numerous occasions. See for example: Minister for Aboriginal and Torres Strait Islander Affairs, Statement on behalf of the Australian Government at the 17th session of the United Nations Working Group on Indigenous Populations, 29 July 1999, <www.atsia.gov.au/content/media/releases/speech_united.htm>.

[7] For more information on the CDEP program, see Race Discrimination Commissioner, The CDEP Scheme and Racial Discrimination, HREOC Sydney, December 1997.

[8] Minister for Aboriginal and Torres Strait Islander Affairs, above note 5, p 4.

[9] As above.

[10] As above, p 6.

[11] See in particular: Royal Commission into Aboriginal Deaths in Custody, National Report — Volume 2, AGPS, Canberra, 1991; Royal Commission into Aboriginal Deaths in Custody, National Report — Volume 4, AGPS, Canberra, 1991.

[12] Hunter, B and Borland, J, ‘The effect of arrest on Indigenous employment prospects’ (1999) 45 Crime and Justice Bulletin, June 1999, NSW Bureau of Crime Statistics and Research at 6.

[13] Cited in Jackson, L and Ward, J, ‘Aboriginal health: why is reconciliation necessary?’ (1999) 170 Medical Journal of Australia 437 at 438.

[14] The preamble to the Universal Declaration of Human Rights describes the thirty articles of the Declaration as ‘A common standard of achievement for all peoples and all nations.’

[15] Aboriginal and Torres Strait Islander Social Justice Commissioner, Volume 1: Indigenous social justice: Strategies and recommendations, HREOC, Sydney 1995, p 5.

[16] Pritchard, S, ‘The international arena, Indigenous internationalism and directions in Indigenous policy in Australia’ [1999] IndigLawB 65; (1999) 4(23) Indigenous Law Bulletin 4 at 6.

[17] Minister for Aboriginal and Torres Strait Islander Affairs, A better future for Indigenous Australians, above note 5, chapter 12 ‘The Future’.

[18] See further: as above, chapter 7 ‘Health’.

[19] Council of Australian Governments, National Commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders, COAG, Perth, 1992, p 5.

[20] As above.

[21] On the meaning of adequate consultation see Jonas, W, Consultation with Aboriginal people about Aboriginal heritage, AGPS, Canberra, 1991.

[22] Council for Aboriginal Reconciliation and Centre for Aboriginal Economic Policy Research, Towards a benchmarking framework for service delivery to Indigenous Australians, CAR/CAEPR, Canberra, 1997, p 4.

[23] Australian National Audit Office, National Aboriginal health strategy — Delivery of housing and infrastructure to Aboriginal and Torres Strait Islander communities, Aboriginal and Torres Strait Islander Commission, Audit Report 39, 1998-99, ANAO, Canberra, 1999.

[24] As above, para 2.26.

[25] As above.

[26] As above, para 3.20.

[27] As above, para 3.28.

[28] As above, paras 3.32-3.41.

[29] As above, pp 20-21.

[30] Australian National Audit Office, The Aboriginal and Torres Strait Islander health program, Department of Health and Aged Care, Audit Report 13, 1998-99, ANAO, Canberra, 1998.

[31] As above, p 13.

[32] Commonwealth Grants Commission Amendment Bill 1999, Item 3, Schedule 1.

[33] Fahey, J, Explanatory memorandum — Commonwealth Grants Commission Amendment Bill 1999, Parliament of the Commonwealth of Australia, Canberra, 1999, p 2.

[34] Snowdon, W, Hansard, House of Representatives, 21 June 1999, 5430.

[35] Council for Aboriginal Reconciliation, Going forward: Social Justice for the first Australians, CAR, Canberra, 1995; ATSIC, Recognition, rights, reform, ATSIC, Canberra, 1995; Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Social Justice Strategies and Recommendations, HREOC, Sydney, 1995, pp 38-40.

[36] As above, p 40. See also Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report, HREOC, Sydney, 1995, p 91.

[37] Minister for Aboriginal and Torres Strait Islander Affairs, A better future for Indigenous Australians, above note 5, chapter 8. Targeting Resources Where They are Needed Most.

[38] Committee on the Elimination of Racial Discrimination, Decision 1(53) concerning Australia, 11 August 1998. UN Doc CERD/C/53/Misc.17/Rev.2.

[39] Committee on the Elimination of Racial Discrimination, Decision 2(54) on Australia — Concluding observations/ comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2. Herein CERD Decision.

[40] CERD Decision, para 8. For an analysis of these obligations see Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, HREOC Sydney 1999, pp 30-51.

[41] CERD Decision, para 8.

[42] CERD Decision, para 9.

[43] See in particular: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, HREOC, Sydney, 1999, Chapter 2.

[44] Committee on the Elimination of Discrimination Against Women, Concluding observations on Australia, 22 July 1997, UN Doc: A/52/38/Rev.1, Part II, para 397.

[45] As above.

[46] Committee on the Rights of the Child, Concluding observations on Australia, 10 October 1997, UN Doc: CRC/C/15/Add.79, para 13. Similar concerns were expressed about education by the Committee on Economic, Social and Cultural Rights when they considered Australia’s report on Articles 13 to 15 of that convention: Committee on Economic, Social and Cultural Rights, Concluding observations on Australia, 3 June 1993, UN Doc: E/C.12/1993/9, paras 8, 11.

[47] Committee on the Rights of the Child, as above, para 22.

[48] Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, 19 September 1994, UN Doc A/49/18, paras 543, 545. Australia appears before the Committee for its next periodic report in March 2000.

[49] Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, 19 April 1994, UN Doc A/49/18, para 542.

[50] As above, para 547.

[51] Committee on the Elimination of Racial Discrimination, Decision 2(54) on Australia, as above, para 9.

[52] Committee on the Elimination of Racial Discrimination, General recommendation XXIII, Indigenous peoples, UN Doc A/52/18, para 4 d.

[53] Mr Van Boven, in Foundation for Aboriginal Islander Research Action, Minutes of the 1323rd meeting of the Committee on the Elimination of Racial Discrimination, <www.faira.org.au/cerd/index.htm>, p 43. This is the unofficial transcript of Australia’s appearance before the Committee in March 1999.

[54] See also Mr Aboul-Nasr, as above, p 44.

[55] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, HREOC, Sydney, 1999.

[56] Committee on the Elimination of Racial Discrimination, General Recommendation XXI — Self-determination, UN Doc. A/51/18, paras 7, 8.

[57] Such as the principles of non-discrimination and equality before the law in Articles 2 and 5 of CERD and Articles 2 and 26 of the ICCPR, and cultural rights under Article 27 of the ICCPR.

[58] Committee on the Elimination of Racial Discrimination, General recommendation XXI, Self-determination, 1996, UN Doc A/50/18, para 9. See also para 11.

[59] Senator Herron, Ninth Annual Joe and Enid Lyons Memorial Lecture, as quoted in ATSIC, An analysis of the United Nations Draft Declaration on the Rights of Indigenous Peoples, second edition, March 1999, <www.atsic.gov.au/indigrights/five_a.htm>.

[60] As above.

[61] ‘Downer fears phrase will split Australia’, The Age, 22 August 1998.

[62] Brennan, G, ‘Reconciliation’ in (1999) 5(2) University of NSW Law Journal Forum 1 at 3.

[63] See further: Pritchard, S, ‘Constitutional development in the Northern Territory: The Kalkaringi Convention’ [1998] IndigLawB 72; (1998) 4(15) Indigenous Law Bulletin 12.

[64] See further: Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1998, HREOC, Sydney, 1999, chapter 1.

[65] The Kalkaringi statement is reproduced at: [1998] IndigLawB 73; (1998) 4(15) Indigenous Law Bulletin 14. It can also be located on the internet at: <www.clc.org.au/clc/statehood/statement.htm>.

[66] Northern Territory Aboriginal Nations, Convention on Standards for Constitutional Development (the Batchelor Statement), Resolution 1. The Statement can be viewed at: <www.clc.org.au/clc/statehood/intro.htm>.