Executive Summary

It is with great pleasure that I present my fourth Social Justice and Native Title Report 2013 (the Report) as the Aboriginal and Torres Strait Islander Social Justice Commissioner.

One of my primary responsibilities is to report annually on the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples, and to make recommendations on the action that should be taken to ensure that these rights are observed.^[1] This responsibility is fulfilled through the submission of an annual Social Justice Report^[2] to the Australian Parliament.

I also report annually on the operation of the Native Title Act 1993 (Cth) (the Native Title Act) and the effect of the Act on the exercise and enjoyment of human rights of Aboriginal and Torres Strait Islander peoples.^[3] This requirement is fulfilled through the submission of the Native Title Report.^[4]

In 2013, I have combined the reporting requirements into the Social Justice and Native Title Report, which will cover the period from 1 July 2012 to 30 June 2013.

In this Report, I focus on planning for the future based on the approach of our communities meaningfully participating in decisions that affect them.

I also outline a continuing agenda for Aboriginal and Torres Strait Islander peoples, with a focus on a human rights approach using the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) as the guide.

I provide a number of cases studies which illustrate why this focus is so important. These case studies demonstrate the constructive outcomes and improved relationships between Aboriginal and Torres Strait Islander peoples and business that stem from business acting in a manner that is consistent with our human rights.

Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

This year marks 20 years since the establishment of the Aboriginal and Torres Strait Islander Social Justice Commissioner (Social Justice Commissioner) role under the Australian Human Rights Commission Act 1986 (Cth).

This chapter reflects on the journey toward the realisation of our human rights as Aboriginal and Torres Strait Islander peoples and the significant role that previous Social Justice Commissioners have played in this journey. There is no doubt that their hard work has cemented the role of the Social Justice Commissioner in the Aboriginal and Torres Strait Islander human rights and policy landscape whilst their considered approach has established a high level of credibility for this position.

I think it also appropriate that I acknowledge the staff of the Commission over these 20 years, whose energy and commitment has supported and underpinned the work of each Commissioner. For instance, Darren Dick has worked with all Commissioners while Katie Kiss commenced as a policy officer with Dr Calma and rose to the position of Director of the Social Justice Team at the beginning of my term.

The chapter then goes on to provide a snapshot of the developments and contributions of Social Justice Commissioners in the key areas outlined in the Social Justice Reports 1993-2012 including:

• Stolen Generations
• shifting government approaches to Aboriginal and Torres Strait Islander affairs
• constitutional recognition
• health equality
• criminal justice issues
• family violence
• education
• recognition of our human rights in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).

By looking back over 20 years we can see there has been some progress and in many areas we’re on the right track. Our progress in areas of constitutional recognition and health equality are examples of this. However, in other areas such as criminal justice and government approaches to Aboriginal and Torres Strait Islander affairs, I think it is fair to say that we still have a long way to go.

Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

Social Justice Commissioners have shown constant leadership and advocacy in reporting on Aboriginal and Torres Strait Islander peoples’ rights to our lands and waters in the Native Title Reports written between 1994 and 2012.^[5]

In this chapter, I provide a snapshot of developments and contributions of previous Social Justice Commissioners in the key areas of native title over the last 20 years including:

• the Mabo^[6] decision by the High Court
• negotiating the Native Title Act 1993 (Cth) (Native Title Act)
• the objectives of the Native Title Act
• key themes in the Native Title Reports
• the Social Justice Package.

Looking back on 20 years of native title and the Social Justice Commissioner role, I am extremely concerned that the opportunities and promise of the early 1990s have not been realised. There is still much to do. A good place to start is with the outstanding recommendations for reform made by Social Justice Commissioners.

Chapter 3: How do we keep moving forward? A road map for our future

In chapter 3, I explore how those lessons learnt over the past 20 years can take us forward and how the realisation of our human rights can produce long term sustainable improvements in our life outcomes.

This chapter considers how we can give real meaning to the rhetoric of human rights by using the Declaration to guide our work towards improving the lives of Aboriginal and Torres Strait Islander peoples.

To this end, I suggest a framework to give full effect to the Declaration based on the principles of:

• self-determination
• participation in decision-making, underpinned by free, prior and informed consent and good faith
• respect for and protection of culture
• equality and non-discrimination.

I also outline the development of a comprehensive National Strategy following a series of Declaration dialogues with governments, stakeholders and Aboriginal and Torres Strait Islander communities based on these principles.

Moving forward will be about staying the course and maintaining commitments to the approaches that are working. It will also require a more fundamental shift encompassing governance, the interplay between rights and responsibilities, and the allocation of resources. All of this is underpinned by rights, relationships and responsibilities.

I also provide commentary on the significant developments related to the following:

• Reform of the Australian Constitution and the importance of getting the referendum question right with sufficient resources to support the campaign.
• The need for continued engagement and support for the National Congress of Australia’s First Peoples to enable it to establish itself fully while it continues to represent the voices of Aboriginal and Torres Strait Islander people.
• To continue along the path of the Closing the Gap commitments and ensure long-term policy continuity.
• Improving efforts to reform the Native Title Act by reintroducing the Native Title Amendment Bill 2012 (Cth) and establishing a presumption of continuous connection.
• Support from our political leaders in the public discourse of racism and engaging with the National Anti-Racism Strategy.

The chapter also examines the need for our communities to be in control in order to produce the most profound changes over time. One way of addressing this question is to look to the Declaration for guidance. I discuss the need for our communities to start exercising self-determination based on a new narrative in which a human rights-based approach is essential in providing sustainable improvements in our communities and families. This approach involves rights and responsibilities standing side-by-side and we measure its effectiveness by how the most vulnerable in our communities are engaged and heard.

While our communities need to be in control, our governance needs to be determined by us. Governments, non-government organisations (NGOs) and businesses that engage with our communities have a role to support – not to direct – our decisions and decision-making processes.

This chapter also discusses the need for effort and resources to be directed to all parts of the country rather than through the lens of the urban and remote divide. It should be the duty of policy, program and systems developers to design and implement services that cater for these differences.

I also highlight the importance of organisations and governments working within our communities to operate in a culturally secure way. If engagement is to be effective and if programs are to deliver optimum outcomes, these must be done in a way that fits our way of doing things. To put it simply, this means dealing with people who are culturally competent and working within systems that are culturally secure. NGOs have the experience to complement the capacity of the Aboriginal community controlled sector but this should not be at the expense of our own organisations delivering services. Governments also have an obligation to ensure cultural security in service delivery and cultural competency of their staff working in our communities.

If we manage to stay the course with the things that are working and make the fundamental shift to putting our communities in control, I am very optimistic that our children will be given the opportunity to grow up to be happy and healthy adults, proudly carrying our culture forward for generations to come. That is why it is so important we act now.

Chapter 4: Human rights in practice – alcohol policy

Chapter 4 considers one of the most contested and intractable issues in our legal and policy sphere – alcohol management.

Alcohol consumption, misuse and related harm are some of the most challenging issues confronting communities across the length and breadth of Australia. These challenges are not limited to Aboriginal and Torres Strait Islander communities, but confront every demographic in Australian cities and towns.

I believe a human rights-based approach is the key to solving complex social policy issues confronting Aboriginal and Torres Strait Islander peoples and again the Declaration is one of the most valuable tools we have available to us.

In this chapter, I discuss how human rights treaties and the Declaration can be used to guide the development of alcohol policy as an example of the practical effect of a human rights approach. This approach to alcohol misuse advocates neither for the free flow of alcohol into every community nor the blanket application of alcohol bans. It requires that people are empowered to make decisions about the policies adopted to manage alcohol and the damage it causes within their communities.
What we know is that policies must address the underlying social determinants of alcohol misuse, including the effects of social deprivation, poverty, lack of education and intergenerational and contemporary trauma.

The effectiveness of any response is also highly influenced by the level of buy-in from the community. Responses should include measures focussed on harm reduction, supply reduction and demand reduction.

Policies developed in line with the principles of the Declaration are likely to align with what we know is effective in addressing alcohol misuse.

After discussing a human rights-based approach to alcohol policy, I then present two case studies on alcohol management and related policies in Queensland and the Northern Territory.

Both jurisdictions have implemented pathways for communities to develop their own Alcohol Management Plans. I welcome these developments and their potential to return power to communities and effectively address alcohol misuse with community developed solutions. However, the way the Plans are implemented will ultimately determine their compatibility with human rights and their overall effectiveness.

I also raise concerns about the effect of conflicting responses to alcohol misuse by different levels of government. The implementation of compulsory alcohol rehabilitation and the potential introduction of Alcohol Protection Orders in the Northern Territory have serious human rights implications and are likely to reduce the effectiveness of other responses.

Chapter 5: Business and our human rights in the Declaration

In Chapter 5 I seek to demonstrate why businesses should adopt a human rights-based approach to their operations.

I outline the potential benefits for business in embracing a human rights-based approach while arguing the legal and moral imperative for business to act in a manner that respects and protects the rights of Aboriginal and Torres Strait Islander peoples.

I believe the benefits for business are clear. Adopting a human rights-based approach can improve relationships, enhance reputations and boost employee morale. It can also provide a competitive advantage – building a stronger ‘licence to operate’ and opening access to new markets, consumers and investors.

There is a strong international framework that informs the human rights responsibilities of businesses and this chapter considers a human rights-based approach to business’ engagement with Indigenous peoples. It also highlights the role that business can play in protecting and promoting the exercise of our human rights as articulated in the Declaration.

This chapter presents five case studies of businesses adopting a human rights-based approach which includes the following:

• Supply Nation and the promotion of self-determination through economic development.
• KPMG and good business practices creating better opportunities for Aboriginal and Torres Strait Islander people.
• Rio Tinto and how the extractive industry can engage with the human rights of Aboriginal and Torres Strait Islander people.
• The Bourke Aboriginal Community Working Party and Lend Lease partnership supporting community led development.
• Westpac supporting the social and financial inclusion of Aboriginal and Torres Strait Islander people.

I am heartened by the work undertaken by some businesses in respecting and promoting our human rights. This chapter illustrates the positive outcomes that occur when engagement with Aboriginal and Torres Strait Islander peoples is based upon our rights as set in the Declaration.

Appendices

I also include two appendices, which report on the international mechanisms addressing Indigenous peoples’ human rights and key developments in native title for the reporting period from 1 July 2012 to 30 June 2013.

Conclusion

As we chart a road map for the future the opportunities are great. Never before have we seen the level of bipartisanship and commitment around addressing Aboriginal and Torres Strait Islander disadvantage and constitutional recognition.

However, the challenge is to ensure that we as Aboriginal and Torres Strait Islander people are not just passengers for this journey but are sitting in the driving seat.

Since the beginning of my term, I have seen the Declaration as that compass to guide me in ‘reviewing the impact of policies and laws on, and monitoring the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander people’.^[7]

It is time to breathe life into the Declaration and make it more practical for our everyday lives. It is my hope that as we further consider what the Declaration means to us, it will become a more powerful tool for Aboriginal and Torres Strait Islander peoples to advocate for our rights and improve the lives of our people.

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^[1] Australian Human Rights Commission Act 1986 (Cth), s 46C(1)(a).
^[2] For previous Social Justice Reports see Australian Human Rights Commission, Social Justice Reports. At http://www.humanrights.gov.au/publications/social-justice-reports-index (viewed 24 October 2013).
^[3] See s 209 of the Native Title Act 1993 (Cth).
^[4] For previous Native Title Reports see Australian Human Rights Commission, Native Title Reports. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 24 October 2013).

^[5] Available at http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[6] Mabo v Queensland [No 2] (1992) 175 CLR 1.
^[7] Australian Human Rights Commission Act 1986 (Cth), s 46C(1)