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Aboriginal Aboriginal and Torres Strait Islander Social Justice

Press statement by Dr William
Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner
- Social Justice
Report 2002
and Native
Title Report 2002

20 March 2003, HREOC Offices,

Acknowledgement of
the traditional owners.

Thank you for attending
this press conference to discuss the release of the Social Justice
and Native Title Report for 2002. As you would be aware,
these reports are the annual report card on the government's performance
on Indigenous issues and native title.

This year's Social
Justice Report provides:

  • a progress report
    on reconciliation;
  • an analysis of
    the adequacy of the Government's approach to benchmarking Indigenous
  • an evaluation
    of how the government addresses Indigenous issues when compared to the
    understanding of self-determination in international law;
  • an overview of
    the situation of Indigenous women in criminal justice processes; and
  • a review of international
    developments in Indigenous rights.

I note that last
year's report had called for a Senate inquiry to be established into progress
towards reconciliation. That inquiry was established and is due to report
by June this year. Much of the material in this year's report is relevant
for that inquiry.

The Native Title
Report provides an analysis of a series of significant High Court and
Federal Court decisions which have clarified the law of native title and
identifies areas for law reform.

I am concerned that
the federal Government has adopted an antagonistic and adversarial approach
to Indigenous policy. Substantial bi-partisan support for reconciliation
and directions in Indigenous policy has been undermined by the limited
focus of the Government. Those areas on which there is common ground are
relatively few - and basically relate to agreement on the need to overcome
Indigenous disadvantage - and there is even less agreement on what are
the best ways to address such issues.

I am also concerned
that while reconciliation was a priority for the second term of the Government,
it does not even rate a mention in recent announcements of the Government's
strategic long term vision for Australian society. Indigenous issues are
no longer treated as a national priority.

The Report concludes
that there are two main features which run through the government's practical
reconciliation approach:

  • It marginalises
    Indigenous people from having any role in setting the priorities or
    agenda for Indigenous affairs, even under the rubric of 'partnership
    and agreement-making'; and
  • The efforts of
    the Government have been directed towards the goal of cementing this
    reductive approach into place, including at the inter-governmental level.
    The consequence of this is that the limited processes for accountability
    are not directed to those issues which the Government does not agree

I look in detail
at the main issue that the Government has committed to - addressing Indigenous
disadvantage - from the perspective of their commitments, targeting and
benchmarking. The absence of an absolute commitment to overcoming such
disadvantage - with short, medium and long term targets - masks the distinct
lack of progress in addressing Indigenous disadvantage within the framework
of practical reconciliation.

While I commend a
number of initiatives that have occurred during the past year, the report
identifies as the one true highlight of the year the way that Indigenous
peoples have demonstrated that they are not going to sit back and wait
for governments' to solve the various problems that they face.

Indigenous communities
across the country are demonstrating that they are not passive victims
but distinct peoples fighting hard for the survival and recognition of
their cultural distinctiveness. Indigenous communities across the country
know what they want and are working towards building their capacity and
striking agreements with governments to implement it.

An issue that I discuss
in some detail in the Social Justice Report is the distressing
status of Indigenous women in the criminal justice system. What is clear
is that there is a crisis in the level and type of contact of Indigenous
women with correctional systems in Australia. There is insufficient attention
devoted to their circumstances when in custody and insufficient attention
to the environmental factors which contribute to their being in custody
in the first place. Indigenous women live in 'a landscape of risk' and
suffer at the crossroads of race and gender.

Consider the following

  • Indigenous women
    are currently incarcerated at a rate higher than any other group in
    Australia. There has been a 250% increase in their rate of incarceration
    in the past decade.
  • While Indigenous
    men face unacceptably high rates of incarceration, the rate for Indigenous
    women is significantly higher and is rising at a faster rate. For the
    June 2002 quarter, Indigenous women were over-represented at 19.6 times
    the non-Indigenous rate compared to Indigenous men at 15.2 times.
  • The over-representation
    of Indigenous women occurs in the context of intolerably high levels
    of family violence, over-policing for selected offences, ill-health,
    unemployment and poverty.
  • Studies of Indigenous
    women in prison reveal experiences of life in a society fraught with
    danger from violence.
  • The consequences
    to the community of the removal of Indigenous women are significant
    and potentially expose children to risk of neglect, abuse, hunger and
  • Indigenous women
    also serve comparatively shorter sentences, suggesting a general failure
    to employ the principle of imprisonment as a last resort; and
  • Once imprisoned,
    recidivism statistics also indicate that Indigenous women are at greater
    risk of returning to gaol.

There is an urgent
need for the situation and needs of Indigenous women to be considered
by governments across Australia (and there are statistics relating to
each state contained in the press summary of the report). In particular,
there is a need for pre and post release programs addressing Indigenous
women's needs as a specifically targeted group and not simply as
Indigenous people or as women. Some of the issues that require detailed
attention include:

  • Transitional
    housing arrangements upon release;
  • Community based,
    Indigenous specific programs to help women deal with the effects of
    violence and to develop alternative strategies for coping with future
  • Support for women
    to maintain contact with their children while they are incarcerated
    or regular information about the well being of their children;
  • Programs which
    are sensitive to the kinship obligations of Indigenous women and supportive
    of these roles;
  • Support relating
    to financial issues, employment, education and training - it has been
    suggested for example that there could be a CDEP style scheme for Indigenous
    women in custody; and
  • Improved access
    to health services, including drug abuse rehabilitation.

Again, the report
highlights a number of initiatives currently underway and predominately
being run and developed by Indigenous women for Indigenous women
dealing with these issues. These include the Sisters Inside program in
Queensland and the Yulawirri Nurai program in NSW - but they are of course
not funded and supported as they should be.

The Native Title
Report 2002
analyses the law of native title as crystallised in the
decisions of the High Court in Croker Island, Miriuwung Gajerrong,
Wilson v Anderson
and Yorta Yorta. What has emerged from the
High Court is a concept of recognition as not simply the law providing
a vehicle for Indigenous people to enjoy their culture and property rights.
Rather the law becomes a barrier to their enjoyment and protection.

In the Yorta Yorta
decision the High Court interpreted the Native Title Act as requiring
proof that the society under whose laws and customs native title rights
arise has continued to exist from colonial rule until now. As such a claimant
group must prove a continual observance and acknowledgement of traditional
laws and customs since sovereignty. In addition Indigenous claimants must
satisfy a court that the contemporary expressions of their culture and
their religion, do not emanate from Indigenous laws or customs that were
created after sovereignty but have their origins in pre-sovereign traditions
and customs.

The difficulty of
establishing native title contrasts markedly with the ease with which
it can be extinguished.

In the Miriuwung
Gajerrong case the High Court confirmed native title could be extinguished
either on a piecemeal basis or completely whenever an inconsistency between
non-Indigenous rights and native title rights occurred. Based on this
test the creation of a nature reserve in Western Australia, an interest
generally accepted as complementary to Indigenous interests, was found
to extinguish native title completely. In Wilson and Anderson the driving
logic of inconsistency resulted in extinguishment of native title over
42% of NSW, as a result of the creation of perpetual grazing leases under
the Western Lands Act. Glaringly absent from this logic of either/or is
the possibility of co-existence, and of a reconciliation of interests
where rights are negotiated and mediated to enable a diversity of interests.
The test of extinguishment ensures Indigenous interests are permanently

These legal tests
for the recognition and extinguishment of native title together ensure
the economic, social and cultural outcomes that native title could have
delivered to Indigenous People are held back by the present regime. While
it is pleasing to see the Minister for Workplace Relations and Employment,
Tony Abbott, include native title as a tool in the establishment of an
economic base for Indigenous people, a genuine approach to this issue
would include reforming the native title system to make native title available
to a greater range of Indigenous people and to strengthen it against extinguishment.
These fundamental reforms do not appear to be on the government's agenda.

The Court's finding
that the Native Title Act rather than the common law directs the
native title processes of extinguishment and recognition, confirms the
primary role of the Commonwealth in strengthening native title as a tool
for economic and social transformation.

The Native Title
Report maps out various levels on which the reform of native title could
proceed. At the statutory level the Native Title Act should be amended
to apply the non extinguishment principle to a wide range of past activities.
In this way non-Indigenous interests can still be fully enjoyed and the
traditional relationship to land maintained.

You can also access:

updated 20 March 2003.

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