Searching for justice, the challenges ahead
Paper delivered at Searching for justice: A conference of Community Legal Centres in New South Wales on Thursday 29 June 2000 by Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner
I would like to acknowledge the Eora people, the traditional owners and custodians of the land where we are meeting today.
Just over a month ago I wrote an opinion piece on reconciliation that was published in The Australian newspaper. That article was published on the eve of Corroborree 2000 and the handing over to the people of Australia of the declaration towards reconciliation by the Council for Aboriginal Reconciliation. In that article, I posed the following question:
Will we as a nation take this opportunity to challenge the fundamental contradiction that lies at the heart of our society?
For on the one hand we are a nation that prides itself internationally as a defender of human rights and as a model democracy. Yet on the other hand we are a nation that has not faced the consequences of being built on the exploitation and dispossession of Aborigines and Torres Strait Islander peoples.
To me, this question encapsulates the fundamental challenge in the search for justice in Australia. It requires acknowledgement of the wrongs of the past, as well as the fact that much of the present disadvantage of Indigenous Australians is historically derived. It also requires that the human rights of Indigenous people in Australia be fully respected and recognised. Until we address these issues, and resolve this contradiction, we will be - as the Governor General has previously stated - 'a diminished nation'
In the time available to me, I am going to briefly refer to the following issues that illustrate different aspects of the search for social justice for Indigenous Australians, namely: Indigenous disadvantage; native title and the stolen generations.
Last week, the Australian Institute of Health and Welfare released its biannual report on the health status of Australians. The report contains numerous statistics that highlight the gross levels of disadvantage in health status experienced by Indigenous Australians. My predecessor once commented that people tend to develop a kind of 'industrial deafness' when they here such figures. They are met with predictable expectation.
I will quote to you just one figure - a very well known one - from that report. The Institute of Health and Welfare notes that Indigenous people have a life expectancy approximately 20 years lower than non-Indigenous Australians.
Let us reflect on this figure for a moment.
As the Institute notes in their report, this means that the life expectancy of Indigenous Australians is presently the same as that experienced by the non-Indigenous community in the year 1900. At the turn of the twenty-first century Indigenous people have yet to reach a standard that existed for the rest of Australia at the beginning of the twentieth century.
If social justice is to become a reality in Australian society then we must redress the disadvantage faced by Indigenous people that is reflected by statistics such as this.
This is not to say that the provision of social justice is about solely redressing disadvantage. I would put the imperative for redressing this disadvantage at a higher level - it is a matter of entitlement, and of human rights. Social justice is not primarily a matter of the relief of suffering. It is the matter of the fulfilment of a responsibility.'[1]
Indigenous people, as with every other member of Australian society, should expect no less than the full recognition of and respect for their human rights. Human rights standards constitute minimum acceptable standards of behaviour that Australia has committed itself to observe by signing these treaties or to which Australia is bound through our participation as 'good citizens' in the broader international community.
I will mention just one human rights standard that is central to the discussion today. It is the principle of equality before the law. This principle is expressed in the Convention on the Elimination of All Forms of Racial Discrimination as follows:
States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law ...[2]
The meaning of this principle is well established in international law.
The essential feature of the principle of equality is the understanding that the 'promotion of equality does not necessitate the rejection of difference.'[3] In his now classic statement of this, Judge Tanaka of the International Court of Justice explained this concept as follows:
The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equally and unequally what are unequal ... To treat unequal matters differently according to their inequality is not only permitted but required.[4]
There are two approaches to equality contrasted in this passage. The first is often referred to as the substantive equality model, or the provision of equality in fact. This is the approach adopted by Judge Tanaka. This approach takes into account 'individual, concrete circumstances.' It acknowledges that racially specific aspects of discrimination such as socio-economic disadvantage, historical subordination and a failure to recognise cultural difference, must be taken into account in order to redress inequality in fact.[5]
Such an approach acknowledges, for example, that Indigenous people are disadvantaged in Australian society. In order to achieve equality in fact or in reality, this approach permits differential treatment of Indigenous people in order to redress this disadvantage. For only when this disadvantage is addressed will Indigenous people be equal in society.
The alternative approach - often referred to as formal equality - relies on the notion that all people should be treated identically regardless of their differing circumstances.
As Dr Michael Wooldridge, the Minister for Health and Aged Care, has stated in relation to the delivery of health services to Indigenous Australians:
This is, of course, a false view of justice that offers those people who are disadvantaged nothing. Justice does not mean treating everyone the same ...Justice means giving people their due. A fair go means giving people what is their due and Aboriginal people are justly entitled to health care that addresses their needs ...
All we are doing is catching up and to characterise Aboriginal people as somehow privileged is false and misleading. To rectify injustice is not to discriminate but is simply to 'set right'.[6]
In adopting a substantive equality or equality in fact approach, international law indicates that there are two types of differential treatment that are 'legitimate' and therefore not discriminatory. These are firstly, actions that constitute 'special measures' and secondly, those which recognise and protect the distinct cultural characteristics of minority groups
Special measures recognise that the present enjoyment of human rights is determined by the extent to which they have been recognised and protected in the past. Where there has been on-going and systematic discrimination against a particular group, whether it be on the basis of the race, or sex, or religion, for example, there needs to be a period whereby such a group is given a chance to catch up. Otherwise mere formal equality of treatment will result in further entrenchment of the discrimination which such a group has inherited.
By definition, special measures are differential treatment specifically designed to provide targeted assistance to particular disadvantaged groups. Special measures are deliberately designed to differentiate between those who have been historically disadvantaged by discrimination and those who have not.
It is very ironic that many of the attacks that are made on the level of services for Indigenous people are based on a 'false view of justice.' It is argued, for example, that special programs for Aborigines should be abolished because everyone should be treated equally. Of course, such programs often constitute special measures that have been developed precisely because Indigenous people are not equal and have been the subject of discrimination for too long
It remains a challenge for governments, and bodies such as the Human Rights Commission, to explain the legitimacy of taking steps (or special measures) to redress Indigenous disadvantage.
The case for the withdrawal of special measures is when they have done the job which they were established to do. This is when the cycle of discrimination is broken and the target group is no longer in need of special treatment. However, there is certainly no evidence that Indigenous Australians no longer suffer the effects of past discrimination.
As I said earlier the second type of treatment that is consistent with the principle of equality and is therefore not discriminatory is action that recognises the distinct cultural identity of a minority group. An example of this is native title.
The High Court in Mabo uncovered the discriminatory practices against Indigenous Australians that were veiled by the legal fiction of terra nullius. As Justice Brennan stated in that case:
It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land.[7]
The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal societies when sovereignty was acquired by the British in 1788. In deciding whether to recognise that Indigenous law, the Court considered that it was no longer necessary to find that the Indigenous relationship to land bore a resemblance to those already known to the common law. In fact to require as such would be discriminatory. As Justice Brennan continued:
The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principal to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher 'in the scale of social organisation' than Australian Aborigines whose claims were 'utterly disregarded' by existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.[8]
The choice in Mabo was thus between perpetuating discrimination of the past or in recognising the cultural identity of Indigenous Australians. The Court, consistent with the principle of equality as it exists in international law, chose the latter. The current government, through amendments to the Native Title Act in 1998, has stripped away much protection of native title and made it more vulnerable to impairment or extinguishment. In March 1999 the Committee on the Elimination of Racial Discrimination (herein CERD) reached the conclusion that the native title amendments are discriminatory. The CERD Committee called for the government to reopen negotiations with Indigenous people to find a solution that is non-discriminatory and acceptable to Indigenous people.
Yesterday, the Joint Parliamentary Committee on Native Title released a report that considers the findings of the CERD Committee. The majority report, of government members of the Committee, rejects the findings of the CERD Committee that the amended Native Title Act is discriminatory, on the basis of a misconceived understanding of Australia's obligations under the racial discrimination convention. In essence, the Parliamentary Committee interpreted Australia's obligations as requiring that the legislation achieves a balance between all the parties with an interest in native title. This overlooks the obligation under CERD to protect Indigenous interests in land to the same extent that non-Indigenous interests are protected.
It is regrettable that a government that has been a party to an international treaty for over 25 years does not fully comprehend its' obligations under that treaty. Overcoming this lack of understanding is a significant challenge on the road to justice in Australia.
A further, significant impediment to the achievement of social justice remains the attitude of the government to the stolen generations. Earlier this week the Human Rights Commission's submission to the Senate legal and Constitutional Committee's stolen generations inquiry was released. The submission is now available on the Human Rights Commission website
In that submission I argue that the government's response to the Bringing them home report has been inadequate and inappropriate. There are two aspects of that response that I will briefly mention. First, the government has not accepted the human rights basis of the findings of the report. In particular, it does not acknowledge that international principles dictate that there be reparation for gross violations of human rights, and does not accept that forcible removal policies amount to a violation of human rights. Second, in taking the stance that they have, the government is acting contrary to a world wide trend. Other nations, including Canada, Norway, Denmark, New Zealand and South Africa, have accepted the validity of the principles of reparation, and of the need to acknowledge the past and apologise for harm caused.
So if we return to the question that I posed at the beginning of this presentation: will we challenge the fundamental contradiction at the heart of our nation. The issues that I've briefly discussed today indicate that there is a long way to go and that the challenge is a large one. But importantly, I don't think that it is insurmountable. Ultimately, the messages that I have left you with today are simple ones. And there are many people in Australia who are committed to them. The reconciliation walks over the past month in Sydney, Brisbane, Canberra and Adelaide demonstrate this. And, as many Aboriginal people before me have said: we are still here, and we aren't going away. The sooner the broader Australian community accepts this, and recognises the validity of our cultures and systems the better.
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[1] Aboriginal and Torres Strait Island Social Justice Commissioner, Social Justice Report 1993, HREOC 1993, p6.
[2] CERD, Article 5.
[3] Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, ibid., p31.
[4] South West Africa Case (Second Phase) {1966} Rep 6, pp303-304, 305.
[5] Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, op.cit, pp31-32.
[6] The Hon. M Wooldridge, Minister for Health and Aged Care, Aboriginal health: The ethical challenges, op.cit., pp2-3.
[7] Mabo (1992) 175 CLR 1, p39.
[8] Ibid, p40.
