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Care vs Justice conference panel

Indigenous Policy and Dialogue Conference
New Relationships, New Possibilities

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

The John Niland Scientia Building
University of New South Wales

18-19 November 2010

Panelists:

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner

Professor Bettina Cass
Social Policy Research Centre - UNSW

Professor Muriel Bamblett
Victorian Aboriginal Child Care Agency

Outline

In the introduction to his recent book The Politics of suffering, Peter Sutton writes that in developing policy and programs designed to ameliorate Indigenous disadvantage and community dysfunctionality “considerations of care should be put before considerations of strict justice, as a matter of principle” (Sutton 2009). Sutton’s provocative argument suggests that academics and policy practitioners in the field of Indigenous affairs have been seduced by abstract notions of human rights at the expense of the more urgent and pressing need for interventions in Indigenous community life. This panel asks whether the choice between care and justice is, in fact, necessary. Panelists will draw on their own field of expertise to discuss the connections and ambiguities inherent to debates about both Indigenous rights and care for vulnerable member of Indigenous communities.

Key points

Sutton’s work is based on the assumption that the notion of human rights (achieving justice) is abstract and has no practical or real affect on the lives of vulnerable peoples. His worldview is driven by the assumption that only intervention style approaches that aim to control people will result in overcoming the disadvantage that is faced by Aboriginal and Torres Strait Islander peoples across this country (or caring).

It is my view, that the notions of care and justice are not mutually exclusive.

When it comes to human rights, Aboriginal and Torres Strait Islanders are the most vulnerable group in this country.

One of the major differences between the wider Australian population and Aboriginal and Torres Strait Islander communities is our ability to realise our human rights and fundamental freedoms.

Let me provide a few examples. We were not counted as citizens of Australia until 1967. We do not enjoy the same standards of education. Our children were removed in the Stolen Generation. And today as a result of the Northern Territory Intervention there are 73 communities where the very instrument to prevent race discrimination, the Racial Discrimination Act 1975 (Cth) has been suspended. That means in those 73 communities’ people have only limited protection against racial discrimination for the sole reason that they are Indigenous.

Aboriginal and Torres Strait Islander peoples, do not take human rights for granted. Professor Mick Dodson puts it this way:

The existence of human rights standards is not the source of Indigenous disadvantage. Human rights do not dispossess Indigenous peoples, they do not marginalise them, they do not cause their poverty, and they do not cause gaps in life expectancy and life outcomes. It is the denial of rights that is a large contributor to these things. The value of human rights is not in their existence; it is in their implementation.[1]

Human rights are not just abstract concepts that exist in documents such as treaties, conventions and declarations alone. And we are advised to remember that human rights only become meaningful when they are able to be exercised.

Sutton’s view that intervention equates to care is flawed. We have no evidence to suggest that imposing solutions on an unwilling population leads to positive outcomes. To the contrary. The NT Intervention stands as a stark reminder that imposing solutions without the buy-in of the local people it is designed to effect do not work. On the other hand, where local communities are empowered to address the issues confronting them real ground can be made.

In my forthcoming Social Justice Report I profile the Fitzroy Valley where the community has led a transition from crisis to control and has begun to address difficult and culturally sensitive issues including substance abuse, fetal alcohol spectrum disorders and overall governance.

This is care and this is justice. It is care because the vulnerable in the community have been determined to address their issues. It is justice because those affected by these decisions have been active and substantive players in the design, development and implementation of the solutions.

The value of a human rights paradigm is that it offers a different way to look at difficult policy issues. Governments around the world have human rights obligations to ensure Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. However, those obligations should be achieved without trampling on other rights such as the right for our women and children to be safe in their homes and in their communities.

Two key features of a human rights framework are that the rights espoused to are universal and indivisible. The Social Justice Report 2006 described this point:

Universality means that (rights) apply to everyone, everywhere, everyday. They apply equally and regardless of circumstance – they are intended to reflect the essence of humanity.

Indivisibility of human rights means that all rights - economic, social, cultural, civil and political rights – are to be applied consistently – you cannot claim to be performing an action in exercise of your rights if it causes harm or breaches the rights of another person.[2]

Bishop Desmond Tutu once said ‘I am not interested in picking up crumbs of compassion thrown from the table of someone who considers himself my master. I want the full menu of rights’.[3] 

As I said earlier in my opening address, we have available to us in Australia one of the most important documents that sets out our human rights as Indigenous peoples – and it is the United Nations Declaration on the Rights of Indigenous Peoples.

The Declaration, is one of the most significant milestones in the protection of indigenous human rights. It catalogues in one place the human rights outlined in other binding international instruments as they apply to indigenous peoples. In that sense it is sourced from binding international law like the Convention on the Elimination of All Forms of Racial Discrimination. The Declaration should inform how these obligations apply to indigenous peoples.[4]

Any reading of the text of the Declaration makes it clear that it offers a programmatic approach - or a road map - to dealing with indigenous disadvantage.[5] The Declaration should be seen as a remedial instrument, designed to rectify a history of failings when it comes to protecting indigenous peoples human rights.

A key right contained within the Declaration is our collective and individual right to self-determination. This right moves us beyond having solutions to our problems imposed on us – to allowing us to identify and prioritise the challenges we face and involving us in developing solutions to overcome them.

So the human rights paradigm is based on achieving justice and care through engagement, participation and consent, rather than control, intervention and contempt.

This goes to the core of the false dichotomy created by those who argue against a human rights based approach to overcoming disadvantage – that is the idea that rights can be pitted against each other, one right favoured over another. Of particular concern is the juxtaposition of the right of protection for women and children being pitted against wider rights of Aboriginal and Torres Strait Islander peoples in general, such as being free from discrimination.

Probably the most visible manifestation of this is the NT Intervention. Much has been written about the NT Intervention, its background, its content and its controversies, Sutton’s book being one example.

The most important consideration here is how the valuing of one right over another leads to poor policy outcomes.

It is this view that has led to support for the more controversial aspects of the NT Intervention, namely the suspension of the Racial Discrimination Act.

I am not doubting the bona fides of the intentions at play here. However, I do believe the outcome of this dichotomy is dangerous. It creates enemies between what is indivisible. One human right, the protection of women and children is championed over the protection of basic rights to dignity and the freedom from discrimination. It is playing rights off against each other.

This leads to a ‘with us, or against us’ approach. And the previous government was particularly adept at using this argument to capture the moral high ground. That is if you don’t support our action in the Northern Territory, you must support the abuse of women and children.

I believe that this dichotomy builds policies to fail. It leads to riding rough over adequate consultation, effective participation in decision-making and proper engagement of Aboriginal and Torres Strait Islander peoples. There is no care, nor is there justice.

This has been highlighted by both human rights experts like the UN Special Rapporteur on Indigenous peoples rights[6] and in the report reviewing the Intervention[7] as the crucial link missing from the Intervention for it to meets its policy goals.

So in dealing with possible conflicting rights - a human rights, and dare I say ‘best-practice’ solution seeks to ensure policies are compatible with all rights.

For example, a minority of people have tried to couch violence against women as being part of Aboriginal customary law. A human rights framework recognises that across the world some traditional, religious and cultural practices have been used to justify the subordination of women and violations of their human rights. But under a human rights framework, governments are required to ensure that certain human rights, such as cultural rights, are not exercised in a manner that violates other fundamental rights, like:

In this context, Aboriginal customary law must be applied consistently with other human rights standards. At no stage does customary law override the rights of women and children to be safe and to live free from violence.

If we are serious and care and justice we also need to be serious about relationships.

This is another central tenant of the Declaration, namely the importance of re-setting relationships between indigenous peoples and the broader community but more particularly governments. In other words, better engagement.

Central to the notion of ‘caring’ is having a relationship and one that is based on trust and mutual respect.

The Declaration in affirming indigenous peoples collective rights to self-determination and decision-making through the principle of free, prior and informed consent, is not an instrument of division, rather an instrument to create the institutional structures, arrangements and process needed for indigenous peoples to be able to effectively engage in a relationship with Governments based on mutual respect.[8]

So in getting the crux of Sutton’s argument, human rights offers a holistic platform to address the challenges we face that is strongly based on both care and justice.

It provides a practical road map for government to establish a framework for a better society.

And if we accept that all human rights are interrelated and indivisible then governments should be able to develop a holistic and integrated approach to addressing disadvantage in Aboriginal and Torres Strait Islander communities.

In this regard, care and just are not mutually exclusive – they are inextricably linked.

Thank you.


[1] M Dodson, ‘Foreword’, in Amnesty International Australia, United Nations Declaration on the Rights of Indigenous peoples (2001) 3, p 3.
[2] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2006, Human Rights and Equal Opportunity Commission, (2007), pp3-5. Emphasis added.
[3] D Tutu, If there is only one message of wisdom you could leave behind for humanity what would it be? , at: http://www.tutufoundation-usa.org/exhibitions.html (viewed 1 November 2010).
[4] See Committee on the Elimination of Racial Discrimination, Concluding Observations on the United States of America, UN Doc CERD/C/USA/CO/6 (2008), para 29. At http://www1.umn.edu/humanrts/CERDConcludingComments2008.pdf (viewed 20 January 2010).
[5] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), preambular paras 2 and 3. See also S Anaya, International Human Rights and Indigenous Peoples (Aspen Publishers, Austin, 2009).
[6] Human Rights Committee, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms, Addendum The situation of indigneous seoples in Australia, James Anaya, Report to the Human Rights Council 15th Session, UN Doc A/HRC/15 (4 March 2010), Appendix B. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/docs/ReportVisitAustralia.pdf (viewed 6 May 2010).
[7] Northern Territory Emergency Response Review Board, Report of the Northern Territory Review Board, Attorney-General’s Department, Canberra (2008), pp 10-11. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 28 April 2010).
[8] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), preambular para 18.