Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission
Convention Centre, Darling Harbour
Sunday 1 July 2012
I would like to begin by acknowledging that we sit on the lands of the Gadigal peoples of the Eora Nation, and I thank the Traditional Owners for allowing us to do so.
My people are the Ghangulu from the Dawson Valley in Central Queensland.
On behalf of my Elders I also salute your Elders, both past and present, for their continued struggle for their country and their culture here in the place where our colonisation began.
I also acknowledge the NSW Teachers Federation. Some of you might remember that I’ve spoken before at your Council Meeting and it’s a pleasure to be back with you again today, at your Annual Conference.
As some of you may already be aware, the priorities I have identified for my term as the Social Justice Commissioner are focused on the improvement of relationships between us as Aboriginal and Torres Strait Islander peoples within our own communities, but also with governments and with the broader Australian community.
So I would like to start by updating you on some of the work that we have been doing at the Commission to advance this agenda. In particular, I would like to talk about the journey that our country has embarked upon towards constitutional recognition of Aboriginal and Torres Strait Islander peoples – about where we are on that journey and how far we still have to go.
The role of Social Justice Commissioner and current work
Each Social Justice Commissioner has their own priorities for their term, and I outlined mine back in 2010.
My agenda is focused on developing stronger and deeper relationships:
- Firstly, between Aboriginal and Torres Strait Islander peoples and governments;
- Secondly, between Aboriginal and Torres Strait Islander peoples and the broader Australian Community; and
- Thirdly, within Aboriginal and Torres Strait Islander communities themselves.
My agenda ties in with the broader priorities of the Australian Human Rights Commission, which at the moment are: ‘violence, bullying and harassment’ and ‘building understanding and respect for rights’. These themes in my work will become clearer as I go through some of the things I’m working on.
I’ve been working on Constitutional Recognition for the last couple of years. I believe that both the journey towards and the goal of constitutional recognition go to each of these types of relationships which I have prioritised.
I will talk more about constitutional recognition later.
Another thing that my team and I are working on at the moment is ‘the Declaration Project’. I’ll explain what that is.
The United Nations Declaration on the Rights of Indigenous Peoples was formally adopted by Australia in 2009 and my team and I have been attempting to ensure that the Declaration receives its due prominence in the federal Government’s Human Rights Framework and Action Plan.
The Declaration contains a number of key principles underpinning the rights it protects. Those key principles can be summarised as:
- First, self-determination – which is also a key right protected by the major international treaties
- Second, participation in decision-making and free, prior and informed consent
- Third, respect for and protection of culture
- Forth, non-discrimination and equality.
In my opinion, the Declaration and its key principles and rights can be viewed as a remedial instrument to build the types of relationships I talked about earlier.
The Declaration should form the basis of a new relationship of respect and engagement between government and Aboriginal and Torres Strait Islander people.
I have seen that there is a lot of goodwill within government and I believe there is a genuine intention to engage respectfully with Aboriginal and Torres Strait Islander people. But government lacks the skills and knowledge – in particular the cultural competency – to do it properly. The Declaration is a good place to start getting the necessary practical guidance.
The Declaration can also be used by Aboriginal and Torres Strait Islander people to guide the development of healthy, respectful and inclusive relationships within our communities. For example, we can ask, are our representative organisations obtaining our free, prior and informed consent? Or how are they ensuring people participate in decisions that affect them?
And the Declaration should also be used as a tool for reconciliation generally – for building relationships based on respect between Aboriginal and Torres Strait Islander people and the broader Australian community.
The Declaration outlines how Aboriginal and Torres Strait Islander peoples should be valued in the broader, non-Indigenous society, in order for our human rights to be enjoyed equally with others.
Human rights in practice – using the Declaration
One of the main challenges I face as Social Justice Commissioner – and the Australian Human Rights Commission faces more generally – is communicating to the Australian public what ‘human rights’ mean in practice.
Human rights are not just abstract concepts that exist in documents such as treaties, conventions and declarations alone.
Human rights provide governments with a set of minimum legal standards which must apply equally to all people. A human rights framework provides parameters – universally agreed parameters – for a society to foster dignity and equality of all citizens. And equality means substantive equality – equality in outcomes, not just in writing.
Fortunately, most Australians are lucky enough to take human rights for granted. But for those rights to be realised by Aboriginal and Torres Strait Islander people, additional support and focus is often required.
It can be difficult to explain why rights which seem to apply only to Aboriginal and Torres Strait Islander people are not benefiting one group of Australians over another. Rather, some rights are exercised by the broader Australian community without people even realising it, for example the right to culture.
The human right to education, for example, is enshrined in international human rights law, specifically the International Convention on Economic, Social, and Cultural Rights (ICESCR) and the Convention on the Rights of the Child.
Education must be available, accessible, acceptable and adaptable.
Article 13 of the Convention on Economic Social and Cultural Rights gives us some guidance about what the right to education means in practice.
There are the more obvious elements of the right to education, for example:
- primary education shall be compulsory and available free to all
- higher education shall be made equally accessible to all
We know that even these aspects of the right to education are difficult to fulfil for Aboriginal and Torres Strait Islanders in some parts of Australia.
And then there are those aspects of the right that take a bit more effort to understand the full meaning of, for example:
- education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms.
- education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups.
To fully understand all the implications of these aspects of the right to education, particularly in relation to Aboriginal and Torres Strait Islander people, I think that the Declaration on the Rights of Indigenous Peoples is a very good starting place.
The Declaration highlights that having free education simply ‘available’ does not mean that it is ‘accessible’ or that the education provided necessarily fulfils the human right to education.
For Aboriginal and Torres Strait Islander people who find the education system does not include their culture or language, a free school next door to their home is still not ‘accessible’.
An amazing woman whom I recently had the pleasure of meeting and who is doing excellent work in early childhood education for Aboriginal children said to me: ‘in my experience, you could actually pay Aboriginal parents and they still won’t send their children to a pre-school if it isn’t culturally safe.’
Article 14 of the Declaration goes into more detail about what the right to education means in practice for Aboriginal and Torres Strait Islander people:
- Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.
- Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.
- States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.
This means that the state must work with Aboriginal and Torres Strait Islander people to ensure that our children can receive the education they are entitled to – an education that meets the standards necessary to live in today’s modern Australia, but which values and respects and promotes our cultures too.
The Declaration goes further in Article 15:
- Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.
- States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.
In fact, Australia is acting on these obligations. As part of the Government’s Human Rights Framework and Action Plan, the Australian Curriculum and Reporting Authority (ACaRA) have been working to include our histories and cultures in the education curriculum. ‘Aboriginal and Torres Strait Islander histories and cultures’ is one of three cross-curriculum priorities that are to be embedded in all learning areas across the National Curriculum.
So you can see that the Declaration has some very practical guidance to offer in interpreting and applying human rights in Australia today. And that in the education field, some of those practical steps are being taken.
Constitutional recognition is one of the other main areas I’ve been working on over the last couple of years.
I see Constitutional recognition of Aboriginal and Torres Strait Islander peoples as extremely important. It has a role in all of my relationship-building priorities:
- Firstly, it is an important part of the path to reconciliation between Aboriginal and Torres Strait Islander peoples and the broader Australian community;
- Secondly, it is an important way of respecting the human rights of Aboriginal and Torres Strait Islander people, at a formal government level, and in this way reflects the potential for a new relationship between government and Aboriginal and Torres Strait Islander people. Thirdly, it is an important part of the process of healing which will contribute to Aboriginal and Torres Strait Islander people creating and maintaining healthy relationships with each other, within our communities, free from lateral violence.
So, what exactly is meant by ‘constitutional recognition’?
Despite the fact that Australia is home to the oldest living culture in the world, there is currently no mention of Aboriginal or Torres Strait Islander peoples in our Constitution. There is no mention of the fact that the history of our country, as opposed to our nation, began many years before British colonisation.
A former Attorney-General has referred to the Constitution as ‘our nations Birth Certificate’. The current Chief Justice of the High Court of Australia has referred to it as ‘defining our legal universe’.
Our nation’s birth certificate should represent our full history, our diverse cultures, and the true spirit of our nation. It should reflect our complete genealogy – not just one part of the family tree.
Constitutional reform is not a new idea. Aboriginal and Torres Strait Islander peoples have a history of fighting for formal recognition as the first peoples of this place now known as Australia.
In 1938, two great Aboriginal warriors - Jack Patten and Bill Ferguson, stated that:
You are the New Australians, but we are Old Australians. We have in our arteries the blood of the Original Australians; we have lived in this land for many thousands of years. You came here only recently, and you took our land away from us by force.
Following this, around 30 years of advocacy – involving activists such as William Cooper, Jack Patten, Bill Ferguson, and Charlie Perkins, Pearl Gibbs and Joyce Clague just to name a few – played a significant role in the lead up to the successful 1967 referendum.
In that referendum, the Australian public overwhelmingly voted to remove two references in the Constitution that discriminated against Aboriginal people. Voters supported this with 90.8 per cent of Australian voters recording ‘yes’, the largest ‘yes’ vote in an Australian referendum.
The two changes in 1967 meant that:
- Aboriginal and Torres Strait Islander peoples were included in the counting of the Census, and
- the Commonwealth had the power to make laws for ‘the people of any race for whom it is deemed necessary to make special laws’ – including instead of explicitly excluding Aboriginal and Torres Strait Islander peoples, who had previously been excluded so that States and Territories could make whatever laws they saw fit regarding our peoples.
The history of constitutional activism continued throughout the 20th century. In 1999, then Senator Aden Ridgeway, the second ever Aboriginal person in the federal Parliament, played a key role in the campaign to recognise Aboriginal and Torres Strait Islander people in a Constitutional preamble (in the same referendum as the republic question).
At the first meeting of the National Congress of Australia’s First Peoples – the national representative voice for Aboriginal and Torres Strait Islander peoples – almost 90% of the 630 members surveyed said it was very important that Aboriginal and Torres Strait Islander people are recognised in the Australian Constitution.
Some people ask: what difference will recognising us in our nation’s Constitution make to the day-to-day disadvantage we face as Aboriginal and Torres Strait Islander peoples?
I think it can be the vehicle to increasing and improving our:
- self worth
- our resilience
- our relationship with the broader Australian community; and
- our relationship with governments.
The Royal Australian and New Zealand College of Psychiatrists believes that constitutional change would improve Indigenous mental health. According to the College President, Dr Maria Tomasic:
Recognition in the Constitution would have a positive effect on the self esteem of Indigenous Australians and reinforce their pride in the value of their culture and history. It would make a real difference to the lives of Indigenous Australians.
And so, in improving our sense of self-worth, our resilience, our mental health, and our relationships with the broader community and government, recognition can lead us towards the goal of a reconciled nation.
The prospect of this referendum provides us all with a great opportunity to reframe and reset our relationship as a nation, and to establish new relationships that open our hearts and minds to new possibilities.
This opportunity not only provides us with a chance to frame our national identity through recognition – it also allows us to address the provisions within the body of the Constitution that permit, enable or anticipate racial discrimination.
After all, how can you recognise Aboriginal and Torres Strait Islander people on the one hand, and still allow discrimination against us and other races on the other?
So what stage is the constitutional recognition process at now?
This most recent movement seems to have cross party support and I’m very hopeful that it will ultimately succeed. But it might take some time.
I was a member of the Expert Panel which the Government appointed to report on the options for constitutional change and approaches to a referendum that would be most likely to obtain widespread support across the Australian community. We reported to the Government in February this year.
We made five recommendations for changes to the Constitution:
- Repeal of section 25 (which allows States to disqualify people from voting on the basis of race);
- Repeal of section 51(xxvi) (which allows the Commonwealth to make laws regarding people of a particular race), together with
- A new section 51A recognising Aboriginal and Torres Strait Islander peoples and allowing the Commonwealth to make laws regarding Aboriginal people in the context of acknowledging our continuing relationship to traditional lands and waters and the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.
- A new section 116A prohibiting racial discrimination, except for the purpose of overcoming disadvantage.
- A new section 127A recognising English as the national language of Australia and that Aboriginal and Torres Strait Islander languages are the original languages of Australia and part of our national heritage.
We also made eight recommendations regarding the process of a referendum, for example:
- that it should be a single question on a package of questions, and
- that the referendum should only proceed when it is likely to be supported by all major political parties and a majority of State governments.
The Opposition supports Constitutional recognition generally, although it is unclear yet whether they will support the Expert Panel’s recommendations in whole or in part.
The Government’s response to the Expert Panel’s report was to give Reconciliation Australia $10 million from July 1 to conduct an ‘education campaign’ about what constitutional recognition is, why it is needed and what needs to happen for the changes to go through.
Reconciliation Australia has recruited Tim Gartrell as the education campaign manager. He is a well-known campaigner, responsible for Labor’s successful 2007 campaign. They also have the support of a range of individuals and organisations across the political divide.
At the moment, before we know what the referendum question will be, the aim is to try and build popular support and momentum. We are aiming to educate people on the reasons why change is necessary and the positive effects it will have on Aboriginal and Torres Strait Islander people and the whole nation.
I am a member of the RA Reference Group and under Tim Gartrell’s steerage, Reconciliation Australia is coordinating a selection of different stakeholder groups. The NGO Group has met several times already but there are going to be other groups established very soon, for example a business group, a sporting group, a community organisations group, etc. This will need to be a community movement; we will need to take the whole community with us.
You’ve got some handouts with you, I understand. And if you’re looking for some more excellent resources, ANTaR has put together some very useful stuff on their website and I highly recommend you take a look.
And if you want to get more involved, take a look on the You Me Unity website or call Reconciliation Australia to find out how you can.
Unfortunately, although the Government committed to a referendum before the next election, I understand that they are also hesitant to put a referendum to the country which might not succeed. I have to agree that rushing a referendum would not be a good outcome of all the hard work.
That’s for two reasons:
- part of the benefit of this process is the journey itself and the fact that people are talking about our constitution firstly, and secondly about Aboriginal and Torres Strait Islander peoples’ place in our nation. And hopefully people are learning and are developing their understanding and their opinions accordingly.
- The second reason is that I believe it is important that the referendum succeed. It would be a blow to reconciliation if it did not; and it would be such a boost to national pride and our national spirit if it did.
I’ll finish by saying that, as educators, you have an especially important role in this constitutional reform movement – to make sure that accurate information is disseminated and that it generates a feeling of mutual respect in our communities, not hostility.
To make sure that the next generations of young Australians understand the full history of this country, understand and respect Aboriginal and Torres Strait Islander cultures, and ultimately understand and respect human rights.
I also encourage you to know the Declaration on the Rights of Indigenous Peoples and in educating the Australian people on who we are as Aboriginal and Torres Strait Islander peoples use the Declaration as your guide and teach others to use it also.
There is a long way to go and a lot of work to do. But I believe in the innate decency of the Australian people to walk with us on the next important stage of our journey towards reconciliation.
It’s a journey that can help build the healthy relationships necessary for an agenda of hope.
Relationships that are built on understanding, dialogue, tolerance, acceptance, respect, trust and reciprocated affection.
 Committee on Economic, Social and Cultural Rights, General Comment No.13 – the Right to Education, UN Doc E/C.12/1999/10 (1999), paras 6-7.
 The other two are ‘engagement with Asia’ and ‘sustainability’: http://www.acara.edu.au/curriculum/cross_curriculum_priorities.html (viewed 20 June 2012).
 J Patten and W Ferguson, quoted in S Bennett, Aborigines and Political Power (1989), p 5.