Social Justice Report 2000
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
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.
