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Start Stronger, Live Longer, National Aboriginal Health Symposium
Kulunga Research Network


Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner

UWA, University Club, Perth

8 June 2010

I would like to begin by acknowledging the Nyoongar people, the traditional owners of the land we are meeting on today. I pay my respects to their elders past and present. I thank you Kim Collard for your warm welcome.

I am of the Ghangulu from the Dawson Valley in Central Queensland and when I speak to my Elders, they ask me to pass on their greetings to the traditional owners of the land I visit for their continued fight for their country and their culture.

Perth is very special to me with my youngest daughter being born here and my oldest daughter now studying law here at this University. I therefore want to thank the Nyoongar for allowing my two daughters, strong Ghangulu women, to grow on their country.

Please also allow me to acknowledge Prof Fiona Stanley of the Telethon Institute of Child Health Research and Mr Sam Walsh from Rio Tinto and my close friend and colleague Mr Glenn Pearson.

For those who may not know me, my name is Mick Gooda and I began my 5-year term as Aboriginal and Torres Strait Islander Social Justice Commissioner in February this year.

My position is one of six within the Australian Human Rights Commission which has existed in its current form since 1986. The other Commissioners and their responsibilities are:

We are the peak human rights body in Australia. We are a federal government agency established by Act of Parliament but effectively independent from the government.

The Commission is mandated to conduct four core activities:

As Aboriginal and Torres Strait Islander Social Justice Commissioner, I report to Parliament once a year with my Social Justice Report which addresses the human rights of Indigenous Australians. I also provide a Native Title Report which looks at native title issues. I also:

I am appointed by the Governor General not a Minister. Whilst this may seem a subtle distinction it is a very important distinction, because I am accountable to Parliament and as a consequence I enjoy independence from the political process. My duty is to fulfil the role as it is defined in the Australian Human Rights and the Native Title Acts and report to Parliament, not to the Government, not to a Minister and certainly not to a Departmental Head.

I have worked in Indigenous affairs for all of my professional life and when I was first approached about this position as Commissioner I was hesitant at first because I didn’t see myself as a human rights activist. But as one of my closest colleagues pointed out, you can’t work on Aboriginal issues without being a human rights activist, working in Indigenous affairs means that you are working with human rights day in and day out.

All the issues being dealt with in Indigenous affairs; effective engagement, poverty, education, health, protection of culture and languages, incarceration rates, protection of women and children, all of these issues are human rights issues.

Rights are universal and indivisible

Since commencing in this position some four months ago I have had to get my head around the language of Human Rights and two things that confronted me almost immediately were the concepts of the universality and the indivisibility of human rights.

The Social Justice Report 2006 described this point as thus:

In simple terms universality means that (rights) apply to everyone, everywhere, equally and regardless of circumstance – they are intended to reflect the essence of humanity. They are the standards of treatment that all individuals and groups, irrespective of their racial or ethnic origins, should receive for the simple reason that we are all members of the human family. They are not contingent upon any factor or characteristic being met – you do not have to ‘earn’ rights or have to be ‘deserving’ for them to be protected.

And the indivisibility of human rights means that all rights - economic, social, cultural, civil and political rights – are of equal importance. There is no hierarchy or priority for the protection or enjoyment of rights. Similarly, this means that all 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.[1]

Put simply, there is no hierarchy of human rights and all rights are interconnected. For example people talk about the right to drink alcohol. I can find no such right per se but I think people get this confused with the right to equal access to goods and services. However, if in accessing the equal rights to goods and services people do consume alcohol, in exercising this right they should not compromise the rights of others, for example the right of Aboriginal and Torres Strait Islander women and children to be safe and secure.

Immediately you can see that when we talk about rights there is also a responsibility that is also attached that at the very least implies that by exercising a particular right means you have a duty not to interfere with, compromise or impede the rights of others, in this case and it is worth repeating here, of Aboriginal and Torres Strait Islander women and children to be safe and secure, and indeed the right to life.

I will return to this theme of responsibility later in this presentation.

I now want to discuss health from a human rights perspective.

Australians generally accept being healthy on face value. However, for Aboriginal and Torres Strait Islanders this is not the case. Far from it, Aboriginal and Torres Strait Islander people have a life expectancy between 10 and 17 years less than non-Indigenous Australians. Poor health outcomes are decimating our communities across the length and breadth of Australia. It is an uncontested fact to say that Aboriginal and Torres Strait Islander peoples do not have the same health outcomes as non-Indigenous Australians. This is a human rights issue.

Rights in action – the Closing the Gap campaign.

Addressing health from a human rights perspective is a clear example of how practical rights can be. Framing health in the language of human rights can create the necessary political momentum that leads to action. The Closing the Gap campaign is a clear example of what I am talking about.

In 2005 my predecessor Tom Calma in his Social Justice Report called on Australian governments to commit to achieving health and life expectation equality between our people and non-Indigenous Australians within a generation. This was based on our right to health and right to enjoy the same opportunities to be as healthy as other Australians.[2]

That Report characterised Indigenous health inequality as a major human rights issue, and called for a human rights based approach to the Indigenous health gap.

And as a rights issue, Indigenous health inequality was largely framed as an opportunity gap – that Indigenous peoples in Australia did not enjoy the same opportunities to be as healthy as other Australians. That is, to see doctors when they needed them, eat fresh food, live in healthy housing and so on. And this is where human rights play such an important role in providing a sound intellectual and legal foundation for an approach to Indigenous health.

Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.

The right to health is essentially the right to opportunities to be healthy: it includes the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health. It is not to be understood as a right to be healthy (which is something that cannot be guaranteed solely by governments).

By Governments having the responsibility to provide opportunities to be healthy implies people then hold a personal responsibility to access those opportunities.

Aboriginal and Torres Strait Islanders are also citizens of this country and we therefore have a human right to the same opportunities to be healthy as other Australians.

This focus on ensuring equality of opportunity is reflected in the way the right to health is understood, largely as set out in General Comment 14 of the Committee on Economic, Social and Cultural Rights

Thus the right to health contains the following interrelated and essential elements:

I am sure if the health system in country was designed around the framework I have just outlined Aboriginal and Torres Strait Islander peoples would be provided the same opportunities to be healthy as all other Australians.

The right to health, like economic, social and cultural rights overall, also includes guidelines as to how states are to ensure rights – like to health – are respected in a context where, historically, they have not been.

Thus Governments have immediate obligations in relation to the right to health. In particular, the obligation to take deliberate, concrete and targeted steps towards the full realisation of the right to health - known as the progressive realisation principle.

The Close the Gap Campaign is a great example how a human rights based approach to a problem can influence Government policy. And how a rights agenda leads to practical action designed to achieve practical outcomes. It is clearly an indication of the practical power of human rights.[3]

Using the language of human rights can lead to change and action

So what I am saying is the language of human rights can lead to real change and action. Looking beyond the health arena, the Overcoming Disadvantage Report of the Productivity Commissioner, outlines the range of disadvantage confronting Aboriginal and Torres Strait Islander peoples and communities.[4] This disadvantage carries across the entire gamut of socio-economic indicators. Each of these indicia reveals an instance of the non-realisation of human rights.

This disadvantage cannot be divorced from human rights. I believe it will only be by articulating these issues through the language of human rights that we will see these issues practically addressed.[5] In this regard, human rights can be viewed as the lobby group for the powerless and a clear policy voice for the unheard.[6] Logically following on from this I believe that human rights standards represent the best-practice guidelines for dealing with disadvantaged communities.

Declaration on the Rights of Indigenous Peoples

I suggest we have to look to the standards contained in the UN Declaration on the Rights of Indigenous Peoples, the instrument that contains the minimum standards for the survival, dignity and well-being of indigenous peoples.[7] And in essence these standards are about creating better engagement between government and Indigenous peoples

Although only a declaration and therefore aspirational, this instrument is the most significant milestone in the protection of indigenous human rights. In one place it catalogues 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.[8] The Declaration will be used to inform how other binding human rights treaties, like the Convention on the Elimination of All Forms of Racial Discrimination should apply to indigenous peoples.[9]

The Declaration is clearly a remedial instrument, designed to rectify a history of failings when it comes to protecting indigenous peoples human rights.

The minimum standards for survival, dignity and well-being

Article 43 is a key provision in the Declaration, it states:

The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

It is easy to miss the significance of this statement. However, when it is remembered that the Declaration was overwhelmingly adopted in the General Assembly of the United Nations, its importance becomes clear. The General Assembly is the home of Nation-States and their governments, not of academics nor human rights experts. So it was the governments of the world who stood up together in adopting this Declaration and said the rights in the Declaration are a road map not only for more equitable outcomes for indigenous peoples but for their very ‘survival, dignity and well-being’.

The key is re-setting the relationship

In following this road map, it is crucial to grasp another central tenant of the Declaration, namely the importance of re-setting relationships between indigenous peoples and the broader community but particularly governments. In other words better engagement. The Declaration in affirming indigenous peoples collective rights to self-determination and decision-making powers 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. Any doubt to this is made clear in the preamble which states the General Assembly is:

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance the harmonious and cooperative relations between the State and indigenous peoples.[10]

I believe that it is through a reform agenda borne out of and imbedded in the normative standards of human rights that we can finally embrace a true and genuine ‘mateship’ between Aboriginal and Torres Strait Islander peoples and the broader Australian community. It is through agreement making as guided by the Declaration that we can achieve true and lasting reconciliation in Australia.

Now is the time for action on the Declaration

I believe that the current political climate, including the reversal of Australia’s position on the Declaration and the commitment to a new partnership, is converging with the normative developments in international human rights law and it is the Declaration that will provide the guidance to achieve government policy goals. The Australian Government has indicated, most poignantly through the National Apology that it seeks in good faith a re-setting of the relationship with Aboriginal and Torres Strait Islander peoples based on partnership and mutual respect.[11]

The next step for the Australian Government is to work with Aboriginal and Torres Strait Islander peoples to develop a coordinated approach to achieving the ends of the Declaration, as is required by article 38 of the Declaration.

I believe the time has now come, in the spirit of good faith and the Australian Government’s stated commitment to re-setting the relationship with Aboriginal and Torres Strait Islander peoples that we begin down the path of the Declaration. We take our first steps on this human rights road map to equality.

I want to conclude with the words of Dr Dalee Sambo Dorough who has recently been appointed to United Nations Permanent Forum on Indigenous Issues, is an indigenous woman from Alaska. She was heavily involved in drafting and negotiating the Declaration. In a recent publication she eloquently sends out the true message and practical power of the Declaration:

Imagine the indigenous world as it was, for a moment [before colonisation]. Then think of the conditions that indigenous peoples currently face: encroachment, colonization, subjugation, exploitation, domination, leaving many of us in disarray. Now read the Declaration through from beginning to the end and dream of a world that “might someday be”.[12]


[1] 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.
[2] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005, Human Rights and Equal Opportunity Commission, (2005) ch 2.
[3] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission, (2009) ch 5.
[4] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009). At http://www.pc.gov.au/gsp/ reports/indigenous/keyindicators2009 (viewed 27 April 2010).
[5] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission, (2009) ch 2.
[6] B Saul, Towards an Australian Bill of Rights: Why Politicians Have Too Much Power and Judges Too Little, (Speech delivered at 2009 Annual Castan Centre Conference: The Changing Human Rights Landscape, Melbourne, 17 July 2009. At http://www.law.monash.edu.au/castancentre/events/2009/conference-09.html (viewed 27 April 2010).
[7] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), article 43.
[8] Permanent Forum on Indigenous Issues, Report on the eighth session, UN Doc E/2009/43 (2009), Annex General Comment 1, paras 6-13.
[9] 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).
[10] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), preambular para 18.
[11] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 171 (The Hon Kevin Rudd MP, Prime Minister).
[12] D. Sambo Dorough, ‘The Significance of the Declaration on the Rights of Indigenous Peoples and its Future Implementation’ in C Charters and R Stavenhagen, Making the Declaration Work (International Working Group for Indigenous Affairs, Denmark, 2009) 264, p 264. In this quote Dr. Sambo Dorough cites the work of M Brown, The Dream Book: First Come First Dream (Hopscotch Press, Berkeley, 1950).