Skip to main content

Social Justice Report 2000: Chapter 1: Introduction

Social Justice Report 2000

  • back to contents
  • Chapter 1: Introduction

    The past year has
    been one of great contrasts. On the one hand, we have experienced the
    apparent harmony and healing of the walk across the Sydney Harbour Bridge
    and similar walks in other states and on the other hand, the national
    outpourings of grief and anger at the death of a 15-year-old boy in custody
    in Don Dale Detention Centre in Darwin in February. During the year there
    has been the introduction of new programs such as the Indigenous Literacy
    and Numeracy Strategy, the Indigenous Employment Strategy and the establishment
    of an Indigenous Leadership Program in conjunction with the Australian
    Institute of Aboriginal and Torres Strait Islander Studies. Alongside
    this has been the refusal to overturn mandatory sentencing laws in the
    Northern Territory and Western Australia, and the hostile reaction to
    the expression of views by various United Nations human rights treaty
    committees under routine reporting mechanisms.

    The year has seen
    the acceptance by most state and territory Parliaments of the Council
    for Aboriginal Reconciliation's Australian Declaration Towards Reconciliation
    and Roadmap towards Reconciliation, and the establishment of collaborative
    partnerships between ATSIC and state governments. But it has witnessed
    too the government's submission to a Senate inquiry stating that there
    is no stolen generation and the refusal to offer an official government
    apology or to establish alternatives to litigation to provide redress
    to people affected by forcible removal policies. The year has also moved
    between the unifying experience of the Sydney Olympic games and the continued
    high levels of Indigenous over-representation and deaths in custody -
    some ten years after the Royal Commission into Aboriginal Deaths in Custody
    was in operation.

    Policy debate has
    also shifted between calls (similar to those in the late 1970's and late
    1980's) for the negotiation of a treaty with Indigenous peoples on the
    one hand, and 'practical reconciliation' on the other.

    The defining feature
    of the past year has been the focus on reconciliation. This year has been
    the one in which the Council for Aboriginal Reconciliation was required
    to put to the Australian people its views on what actions are required
    to achieve the Council's vision of 'a united Australia which respects
    this land of ours; values the Aboriginal and Torres Strait Islander heritage;
    and provides justice and equity for all'. The Council had reached the
    stage where it was required to prepare the nation for the next stage of
    the road towards reconciliation.

    But as we reach this
    crucial stage in relations between Indigenous and non-Indigenous Australians,
    reconciliation has come to mean different things to different people.
    Reconciliation has been described as a 'people's movement' and something
    that, to be successful, must affect the 'hearts and minds' of all Australians.
    It is seen as having reached a level of community support that it is now
    unstoppable. For the government it is also a term that means practical
    measures to achieve practical improvements in the livelihoods of Indigenous
    peoples -an outlook that is more about giving Aboriginal people 'a leg
    up' than challenging the imbalances in power in society. For many Indigenous
    people it has been seen as yet another opportunity - like the Social Justice
    Package or the Makarrata or national land rights proposals - for a durable
    resolution to the ongoing consequences of the taking of these lands and
    waters since 1788.

    Ultimately, these
    differing views of what reconciliation involves have a common point of
    departure: the appropriate role of human rights to the reconciliation
    process.

    Many of the divisions
    that have emerged over the past year - from the refusal to overturn mandatory
    sentencing, the response to forcible removal policies, the reaction to
    the United Nations human rights treaty committees and the calls for the
    negotiation of a treaty - have involved attempts by the federal government
    to downplay the significance of human rights. The government has gone
    out of its way to emphasise, for example, that in responding to the mandatory
    sentencing laws of the Northern Territory by providing that government
    with an additional $20 million over four years for the development of
    diversionary programs and an interpreter service, it has not acted because
    of concerns about human rights.

    There has been a
    worrying trend to de-legitimise a human rights discourse, and to promote
    a view of democracy as majority rule. But democracy is much more than
    government in accordance with the wishes of the majority. It also requires
    compliance with the rule of law, and with principles of basic fairness
    and equality. It also entails the notion of responsible government - that
    government is there to protect the freedom of all sectors of society,
    including the vulnerable and those not in the majority. As Thomas Fleiner
    notes 'Democracy and freedom are Siamese twins. The one cannot exist without
    the other'. [1] Human rights are an essential bedrock
    on which democracy must be built.

    These are the weighty
    issues that are considered in this report. It is based on the theme of
    reconciliation and how to achieve it.

    One cannot underestimate
    the enormously difficult nature of the challenge that reconciliation raises
    for Australia as a nation. As Peter Russell notes:

    Aboriginal Reconciliation is a distinctive Australian endeavour.
    It reflects an awareness of the extent to which the settler population
    has denied Aboriginal and Torres Strait Islander participation in
    Australian history. While the dispossession and domination of indigenous
    peoples in the other English-settler countries (Canada, New Zealand
    and the United States) - especially through the nineteenth century
    - was not significantly less oppressive than in Australia, those countries
    did not so systematically, in such bald legal and constitutional terms,
    deny the indigenous peoples any recognition or rights. Australia's
    settlers practices and believed in the purest form of terra nullius
    with the consequence that their heirs, now moved by a less racist
    and more liberal outlook, have the furthest to go, the widest chasm
    to bridge, in finding a consensual way of sharing citizenship and
    country with the first peoples of their land. That is the challenge
    of reconciliation.
    [2]

    This report argues
    that the only way that this challenge will be met is by adopting an approach
    that recognises and protects Indigenous people's human rights.

    The report commences
    with chapter 2, which answers the question 'what
    is the relevance to reconciliation of human rights?' It sets out to address
    a range of concerns that have been raised during the debate on reconciliation
    about human rights. I address the issues of the relevance of recognising
    the role of the past in explaining the current conditions and experiences
    of Indigenous peoples; of why reconciliation does not amount to 'special
    treatment' for Indigenous Australians; and explaining the two core human
    rights bases of reconciliation - the need to recognise and embrace cultural
    difference, and the meaning of self-determination.

    Chapter
    3
    then examines how Australia is currently performing in recognising
    and protecting Indigenous rights. It focuses on the dialogue between the
    Commonwealth Government and the Committee on the Elimination of Racial
    Discrimination in March 2000. This dialogue examined Australia's compliance
    with our obligations under the International Convention on the Elimination
    of All Forms of Racial Discrimination. The dialogue considered a range
    of issues that must be addressed for reconciliation to be meaningful.

    There has been a
    great deal of misunderstanding about the nature of the dialogue between
    the government and the Committee, and so I have explicitly chosen to reproduce
    extensive excerpts from the dialogue in order to explain a range of issues
    - such as why the Committee raised particular issues; the adequacy of
    the Government's responses; and the cogency of the analysis by the Committee.

    Overall, the purpose
    of the dialogue with human rights committees is to assist Australia to
    improve its compliance with the principles of the Convention. Chapter
    4
    of the report takes up this aim by identifying a series of crucial
    commitments that government must make if it is to make reconciliation
    a reality. These commitments range from matters concerning adequate data
    collection and benchmarking of progress towards redressing Indigenous
    disadvantage; to processes for strengthening Indigenous governance and
    autonomy; to measures to ensure adequate protection of Indigenous people's
    human rights within our federal system of government. Ultimately, these
    commitments have been identified with the purposes of improving government
    accountability and transparency for policy making, and facilitating greater
    participation by Indigenous people in decisions that affect their daily
    lives.

     

    To this end I have
    included a number of recommendations to the federal government. These
    recommendations are intended to make governments commit to turning their
    rhetoric about reconciliation into action and outcomes. For too long governments
    at all levels have committed to overcoming Indigenous disadvantage, for
    example, yet have not backed up this commitment with measures by which
    to hold themselves accountable to the public.

    Chapter
    5
    then considers the issue of reparations for gross violations of
    human rights. This chapter focuses specifically on reparations for victims
    of forcible removals policies and seeks to explain the international law
    principle of reparations. It also provides models for reparations in other
    countries. The concern that is raised is that the response to reparations
    issues in Australia lags seriously behind the approaches adopted in other
    countries, and does very little to resolve ongoing grave injustices.

    The report then ends
    with two appendices, the first appendix reproduces
    my submissions to the various United Nations human rights committees from
    earlier in the year. The second appendix reproduces
    the concluding observations of the Committee on the Elimination of Racial
    Discrimination.

    Looking
    ahead

    With the winding
    up of the Council for Aboriginal Reconciliation the responsibility for
    maintaining the momentum of the reconciliation process has now spread
    to governments, Reconciliation Australia, institutions such as the Human
    Rights and Equal Opportunity Commission, and the general community. It
    would be a tragedy to look back in ten years time and to observe that
    we did not take this opportunity. Already as a nation we have let valuable
    opportunities to improve relations between Indigenous people and the wider
    community slip through our fingers too often.

    From the perspective
    of the Human Rights and Equal Opportunity Commission, we will continue
    to support the reconciliation process. Activities to promote the achievement
    of reconciliation will remain a high priority in my work program. Over
    the next six months I shall develop a program for the Commission to commence
    work on the many actions that the Council for Aboriginal Reconciliation
    have recommended that we undertake.

    In
    particular, I note the Council's suggestion in section 10 of the Reconciliation
    Bill 2000 that each year my Social Justice Report include consideration
    of the national progress towards reconciliation from a human rights perspective.
    My legislative functions allow me to take up this recommendation in absence
    of the passage of the Reconciliation Bill 2000. Accordingly, I will consider
    progress in addressing the human rights dimensions of reconciliation in
    my report for 2001. This will inevitably include consideration of the
    response of the federal government to the recommendations of this report.

    Dr William Jonas - Aboriginal and Torres Strait Islander Social Justice Commissioner

    Dr
    William Jonas


    Aboriginal and Torres Strait Islander

    Social Justice Commissioner


    1.
    Fleiner, T, What are human rights?, The Federation Press, Sydney
    1999, p36.

    2. Russell, P, 'Corroboree 2000 - A national defining
    event
    ' (2000) 15 Arena Journal 25, p27.