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'Still Riding for Freedom’ – An Aboriginal and Torres Strait Islander Human Rights Agenda for the Twenty-First Century (2008)

Aboriginal Aboriginal and Torres Strait Islander Social Justice

‘Still Riding for Freedom’ – An
Aboriginal and Torres Strait Islander Human Rights Agenda for the Twenty-First
Century

Mr Tom Calma
Aboriginal and Torres Strait
Islander Social Justice Commissioner,

Australian Human Rights
Commission

The Charles Perkins AO Memorial Oration 2008, University
of Sydney

23 October 2008


I acknowledge the traditional owners of the land where we are meeting
tonight, the Gadigal peoples of the Eora nation. I pay my
respects to your elders and to those who have come before us. And thank you to
Chicka Madden for your generous welcome to country. Chicka and I spent a
term together on the Board of Aboriginal Hostels.

Can I also acknowledge the Perkins family (Eileen, Hetti, Rachel and Adam),
and thank Sydney University and the Koori Centre for the great honour and
privilege of being invited to address you this evening in memory of a truly
great Aboriginal leader and great Australian.

Can I also pay my respects to all of the Aboriginal and Torres Strait
Islander students who will graduate tonight. I am also honoured to share this
stage with you as we recognise your achievements.

There can be no more fitting legacy for Dr Perkins than to see –
every year – an increasing number of our Indigenous brothers and
sisters graduate from this esteemed university. We have certainly come a long
way from 1965, when Charles Perkins was the lone Aboriginal student graduation
ceremony. Thankfully, the graduation of Aboriginal men and women is not such a
rarity these days – although I would still like to see a lot more
of you!

Some reflections:

We have gathered in this Great Hall tonight to honour and remember Charles
Perkins, a man who had the courage to bring Australians together in a
quest for equality.

As I considered what I might say about Charlie tonight, it immediately became
clear to me that no few well chosen words could sum up his life and his
legacy.

Charlie was a proud Arrente man, a scholar, an avid sports fan and footballer, a bureaucrat, an agitator, and a human rights champion.

And if we look back at each of the major developments in Indigenous policy
since the 1960s – Charlie was always there. Sometimes he was an outsider
breaking down walls and fighting for justice for Aboriginal
people. And other times he worked from within the system – but
with much the same approach, and almost always with some results.

Be it the freedom ride and the fight for people’s rights to swim at the
local pool or to go the movies without being cordoned off like second
class citizens – right through to the 1967 Referendum, the
land rights movement, the building of major institutions such as the Aboriginal
Development Commission, the NAC, ATSIC and the Council for Aboriginal
Reconciliation – Charlie was there, and always had plenty to say.

If there was injustice – he didn’t shy away from it, even
if the issue was controversial, or difficult for the majority of Australians to
face up to.

In the 2007 documentary ‘Vote Yes for Aborigines’, Warren Mundine
remembered the Charles Perkins of 1967 as an immaculately groomed campaigner
– polite, well spoken, dressed in a suit with a thin tie, and
‘the shiniest black shoes you’ve ever seen’.

Yet many people would also clearly remember the anger and passion that
Charles brought to so much of his dealings with government throughout his life
– from the early years on the freedom ride campaign, to being suspended
from his role as a senior public servant for calling the actions of a state
government racist, to furiously yelling at John Howard about his refusal to
acknowledge the existence of, and apologise to, the Stolen Generations at the
Opera House shortly before his passing in the year 2000.

There is no shortage of public achievements by which we can remember Charles
Perkins.

But to relegate Charlie’s achievements to these memories would fail to
capture another important part of his legacy. For Charles was also a role model
to all of us, as well as a son, a husband, a father, and a grandfather.

And I think that everyone that has involvement with the Perkins family will
know that they all embody Charlie’s strength of character and
determination. Over the past few weeks, I’m sure that many of you will
have been watching Charlie’s daughter Rachel’s excellent series
“The First Australians” - and will agree that the Perkins family
continues, today, to contribute powerfully to efforts to change the way that
mainstream Australia thinks about the Indigenous peoples of this nation.

Charlie had a tireless dedication to human rights and social justice for
Indigenous Australians. And I speak to these issues tonight in his memory.

How far have we come?

In the introduction to Charlie’s autobiography ‘A Bastard Like
Me’, Ted Noffs argued that ‘it is not too much to say that Charles
Perkins is to the Aboriginal population in Australia what Martin Luther King
Jr
was to black people in the United States’.

And like King, at all times, Perkins’ vision was one of equality of
rights, equality of access, and freedom from discrimination.

But perhaps more than ever, at this time in history, the comparison of King
to Perkins is a telling one.

In just two weeks, we may well see the first black candidate elected to the
presidency of the United States of America. Today, in the United States,
King’s dream - that one day a man might be judged not by the colour of
his skin, but by the content of his character, seems one step closer to
realisation.

But when we look closer to home, and reflect on our own progress in
Australia, we see a markedly different picture.

As was the case in America, powerful calls for equal rights were heard in
Australia in the 1960s. But despite the gains that we have made, we have hardly
any formal human rights protection mechanisms at all.

What I want to do in my remarks tonight, is indicate to you that the gaps in
our legal system around human rights protection have a real effect on the
opportunities and life chances that Aboriginal and Torres Strait Islander
peoples have in Australia today.

In my view, one of the most perverse developments over the past decade has
been the bad press that human rights have consistently received in public debate
within Australia.

And according to some, it is time to ‘get serious’ and face up
to ‘practical issues’ facing Indigenous peoples like
‘addressing disadvantage’ rather than concerning ourselves with
issues such as human rights for Indigenous peoples - which after all, are
really only symbolic.

But let me put this question to you: is our democracy really working so well
for Aboriginal and Torres Strait Islander peoples in the year 2008?

Unlike all other western democracies, in Australia we have no Charter of
Rights – not for Aboriginal people, and not for anyone! And as the
Northern Territory intervention demonstrates, the commitments that we do have
across our society to non-discrimination and to equal treatment for Indigenous
peoples are such that many in our society deem it acceptable to simply
‘switch off’ the protection from racial discrimination when
it is expedient to do so.

Unlike Canada, we have no constitutional recognition of the rights and status
of our First Nations peoples. In fact, we are distinguished, (and I use that
word advisedly!) as perhaps the only country which has a Constitution that
permits discrimination against its indigenous peoples on the basis of our race.

Unlike New Zealand, we still have no treaty, or permanent mechanism for the
ongoing resolution of land claims through a process of self-determination.

And unlike the vast majority of member states of the United Nations, we have
not yet endorsed the Declaration on the Rights of Indigenous Peoples.

Now, if human rights were only symbolic, maybe none of these things would
matter very much. If things were fine just the way they were, and we had a
system of government where we were well represented, well serviced, and well
protected, then maybe we could forget conversations about human rights for
Aboriginal and Torres Strait Islander peoples.

But let’s look at the reality.

Today in Australia, we see a federal parliament which has no Indigenous
members.

We see a system of service delivery to Indigenous peoples – by
governments at both the federal and state levels – that struggles to
deliver the most basic of services for the benefit of Indigenous peoples.

We see a system with too many bureaucrats who do not see themselves as
accountable to Indigenous peoples or as having responsibilities to ensure that
Indigenous peoples benefit from their efforts.

We see a system in which the likelihood of an Indigenous person rising to the
top of the bureaucracy – like Charlie and his niece Pat Turner did
– is unlikely to occur anytime soon - except for a very small number of
senior Indigenous bureaucrats in our federal and state governments.

And we see limited engagement with Indigenous peoples in the setting of
policy and programs, with no formal mechanism for Indigenous national
representation at present, or a formal commitment to self-determination.

I suspect Charlie would have had a lot to say about what we’ve got in
2008.

But it should be clear to all of us tonight, even without Charlie with us,
that we should not be content simply resting on our laurels, and celebrating the
gains that we have won.

Tonight, I will argue that there remains a pressing need to question
inequality in Australian society, and to question how we protect the most
vulnerable among us. And that is why I have titled this oration,
Still riding for freedom: An Aboriginal and Torres Strait Islander
Human Rights Agenda for the Twenty-First Century’
.

I see the next few years as critical in our continued struggle for equality
and the recognition of the rights of Indigenous peoples.

There are a few reasons for this.

First, we are at a time of rapid advance in the recognition of Indigenous
peoples rights at the international level. The passage of the UN Declaration on
the Rights of Indigenous Peoples has provided much momentum throughout the UN
system to strive to improve how Indigenous peoples’ rights are protected.
We can expect that over time this increased focus will place greater
expectations and scrutiny on our approach here in Australia – be this
through reporting to human rights treaty committees, the universal periodic
review processes of the UN Human Rights Council or through changes to global
practices for development cooperation.

And second, we have the prospect of renewal with a new federal government
that has signalled its intention to enter into genuine partnerships with
Indigenous peoples. This has been a central feature of commitments made to Close the Gap in Indigenous health inequality and was very strongly
articulated by the Prime Minister in his Apology speech back in February this
year.

Of course, the actions are still needed to match the rhetoric of the new
government.

So tonight, I want to consider the following main elements of a human rights
agenda for Indigenous peoples in Australia:

  • Changing how we conceive of poverty so it is treated as a human rights
    issue;
  • Addressing the lack of formal legal protection of human rights in our legal
    system; and
  • Providing due recognition to the First Nations status of Indigenous
    Australians.

Conceptualising poverty as a human right

As the starting point, let me start with a deceptively complex issue that I
see as one of the most profound challenges that we face in Australia today.
This is the challenge of redefining how we conceive of poverty so it is squarely
addressed as a human rights challenge.

For too long now, we have heard it argued that a focus on Aboriginal and
Torres Strait Islander peoples rights takes away from a focus on addressing
Aboriginal and Torres Strait Islander peoples disadvantage.

This approach, is in my view, seriously flawed for a number of reasons. It
represents a false dichotomy - as if poorer standards of health, lack of
access to housing, lower attainment in education and higher unemployment are
not human rights issues or somehow they don’t relate to the cultural
circumstances of Indigenous peoples.

And it also makes it too easy to disguise any causal relationship between the
actions of government and any outcomes, and therefore limits the accountability
and responsibilities of government.

In contrast, human rights give Aboriginal and Torres Strait Islander peoples
a means for expressing their legitimate claims to equal goods, services, and
most importantly, the protections of the law – and a standard that
government is required to measure up to.

The focus on ‘practical measures’ was exemplified by the emphasis
the previous federal government placed on the ‘record levels of
expenditure’ annually on Indigenous issues.

As I have previously asked, since when did the size of the input become more
important than the intended outcomes? The Howard government never explained
what the point of the record expenditure argument was – or what
achievements were made.

Bland commitments to practical reconciliation have hidden the human tragedy
of families divided by unacceptably high rates of imprisonment, and of too many
children dying in circumstances that don’t exist for the rest of the
Australian community.

And the fact is that there has been no simple way of being able to decide
whether the progress made through ‘record expenditure’ has been
‘good enough’. So the ‘practical’ approach to these
issues has lacked any accountability whatsoever.

It has also dampened any expectation that things should improve from among
the broader community. And so we have accepted as inevitable horror statistics
of premature death, under-achievement and destroyed lives.

I am sure history will show that this past decade was one of significant
under-achievement in addressing Indigenous disadvantage – and quite
inexplicably, under-achievement at a time of unrivalled prosperity for our
nation.

If we look back over the past five years in particular, since the demise of
ATSIC, we can also see that a ‘practical’ approach to issues has
allowed governments to devise a whole series of policies and programs without
engaging with Indigenous peoples in any serious manner. I have previously
described this as the ‘fundamental flaw’ of the federal
government’s efforts over the past five years. That is, government
policy that is applied to Indigenous peoples as passive recipients.

Our challenge now is to redefine and understand these issues as human rights
issues.

We face a major challenge in ‘skilling up’ government and the
bureaucracy so that they are capable of utilising human rights as a tool for
best practice policy development and as an accountability mechanism.

We have started to see some change with the Close the Gap process. As you may
know, the Rudd government, and all Australian Governments through COAG, have
agreed to a series of targets to be achieved over the next five to ten years to
start the process to close the gap in health status and ultimately in life
expectancy, as well as across a range of other measures.
In March this year,
the Prime Minister, the Leader of the Opposition, Ministers for Health and
Indigenous Affairs, every major Indigenous and non-Indigenous peak health body
and others signed a Statement of Intent to close the gap in health
inequality which set out how this commitment would be met. It commits all of
these organisations and government, among other things, to:

  • develop a long-term plan of action, that is targeted to need, evidence-based
    and capable of addressing the existing inequities in health services, in order
    to achieve equality of health status and life expectancy between Aboriginal and
    Torres Strait Islander peoples and non- Indigenous Australians by 2030.

  • ensure the full participation of Aboriginal and Torres Strait Islander
    peoples and their representative bodies in all aspects of addressing their
    health needs.

  • work collectively to systematically address the social determinants that
    impact on achieving health equality for Aboriginal and Torres Strait Islander
    peoples.

  • respect and promote the rights of Aboriginal and Torres Strait Islander
    peoples, and

  • measure, monitor, and report on our joint efforts, in accordance with
    benchmarks and targets, to ensure that we are progressively realising our shared
    ambitions.

These commitments were made in relation to Indigenous health issues
but they form a template for the type of approach that is needed across all
areas of poverty, marginalisation and disadvantage experienced by Indigenous
peoples.

They provide the basis for the cultural shift necessary in how we
conceptualise human rights in this country. Issues of entrenched and ongoing
poverty and marginalisation of Indigenous peoples are human rights
challenges. And we need to lift our expectations of what needs to be done to
address these issues and of what constitutes sufficient progress to address
these issues in the shortest possible timeframe so that we can realise a vision
of an equal society.

This will be deceptively hard to achieve and it will take a generation. But
it is a vital part of the human rights challenge for all Australians.

Addressing the lack of formal legal protection of human rights in our
legal system

A different but no less formidable or important challenge is addressing the
lack of formal protection of human rights in our legal system.

There are two main challenges here – first, is the lack of
protection provided for many basic human rights; and the second, is the
vulnerability of the protection that does exist.

Many people are surprised when they learn that we have endorsed and supported
human rights standards for over forty years in the international arena, and yet
have failed to give practical meaning and protection to many of them in our
domestic legal system.

This isn’t simply a failure that sits at the international level. It
is a failure to deliver on commitments to the Australian public about the basic
standards of treatment that they can expect at all times.

We have parked most human rights at the door, leaving Australian citizens in
the unenviable position that in relation to the majority of rights, we
don’t have any formal mechanisms for considering how laws and policies
impact on people’s rights or for providing redress where rights are
abused.

As an example, we have very limited enshrinement in our legal system of the
rights contained in the two main international human rights treaties, on
economic, social and cultural rights and civil and political rights.

This is an issue that ultimately affects all Australians. Although usually,
the consequences of such a lack of protection impacts the most on those who are
the most vulnerable and marginalised in our society – such as Indigenous
peoples.

The end result is a legal system that offers minimal protection to human
rights and a system of government that treats human rights as marginal to the
day to day challenges that we face.

We need better protection of human rights in our legal system as well as
mechanisms to ensure that the courts, the executive and the Cabinet have human
rights at the forefront of their thinking at all times.

Accordingly, I strongly endorse the calls for a Charter of Rights that can
provide comprehensive recognition of human rights consistent with our
international obligations as well as remedies where rights have been abused.

I see another equally important role for a Charter in our society.

A Charter of Rights can play a vital role in improving the accountability of
government by requiring a greater focus and concentration on identifying the
human rights implications of policies and legislation when they are formulated.
This is through mechanisms such as statements of compatibility and human rights
analyses of proposed new laws.

By putting human rights issues front and centre and making bureaucrats and
politicians explicitly consider what the human rights impacts of their laws and
policies are, a Charter of Rights can have a transformative effect in improving
the decision making process. It would also hopefully prevent many human rights
violations from occurring in the first place.

We have lacked appropriate coverage and protection of human rights for too
long, and a Charter of Rights is long overdue. This will be a key issue for
debate in the coming year and so I hope that we will finally take this important
step and close the ‘protection gap’ that currently exists for all
Australians.

But there is a second aspect to our current system of legal protection that
also needs to be addressed. This is an issue that has very acutely impacted on
Indigenous Australians.

That is the vulnerability of the human rights protections that do exist in
our legal system.

On three occasions in the past twelve years we have seen racial
discrimination protections removed solely for Aboriginal people by the federal
government. This has been in relation to the exemption from heritage
protection laws of the Hindmarsh Island bridge in South Australia; the Wik ten
point plan amendments to the Native Title Act – provisions that
remain in breach of our international treaty obligations I might add –
and the exemption from the Racial Discrimination Act of the NT intervention
legislation.

Our existing system works like this.

States and territories are bound by the protections of the Racial
Discrimination Act (or RDA) by virtue of the Australian Constitution. This
provides that state and territory laws will be invalid to the extent that they
are inconsistent with a valid law of the federal Parliament – such as the
RDA.

In both the Hindmarsh Island and Wik situations, the federal Parliament
authorised state and territory governments to introduce discriminatory laws
against Indigenous peoples. Because this was authorised by a federal law that
was more recent than the RDA, the more recent law prevailed and the
discrimination was legally valid. The fact that it was legally valid does not
change the fact that it is in breach of our international obligations so you
then also have an inconsistency between our domestic legal system and
international obligations.

Notably, if the state or territory levels of government initiated such
discriminatory provisions themselves then they would be found to be
constitutionally invalid – as happened in Queensland in 1985 when they
sought to prevent Eddie Mabo from pursuing his claims of native title by
acquiring all native title rights for the Crown, and in Western Australia in
1995 when the WA government similarly sought to extinguish all native title
rights across the state and replace it with a lesser right. So the states and
territories cannot initiate racially discriminatory actions themselves.

The Wik ten point plan amendments also involved the Commonwealth
discriminating against Indigenous peoples themselves – not just through
the states and territories. As the RDA is an ordinary enactment of the federal
parliament the principle of parliamentary sovereignty applies to it –
meaning that laws that are made at a later time will override the RDA to the
extent of any inconsistency.

So the states and territories must comply with the RDA, unless the federal
Parliament exempts them. But the federal Parliament is not so bound and may
legally discriminate against Indigenous peoples if it so chooses - so long as
it does so through the passage of a law that the Parliament has the
constitutional power to enact in the first place.
And this is where some of
you may also be very surprised. For our Constitution permits the federal
Parliament to enact laws that racially discriminate against Indigenous peoples
– and indeed against any other group based on race.

This is how. Section 51(26) of the Constitution – the very provision
that Charlie and others fought so hard to amend through the 1967 Referendum
– enables the federal Parliament to make special laws for the peoples of
a particular race. This has been interpreted by the High Court as meaning any
special laws – including ones that are discriminatory. Surely this is a
perversion of the intention of the 1967 referendum.

We need to revise the scope of Section 51(26) of the Constitution –
the so-called ‘races power’ so that we clarify that it only permits
the making of laws that are for the benefit of people of a
particular race. There is no place in modern day Australia for legalised
discrimination.

But I also see a need for constitutional reform to go further than this.

For example we could consider inserting into the Constitution a new provision
that unequivocally provides for equality before the law and non-discrimination.
Article 26 of the International Covenant on Civil and Political Rights provides
a starting point for what such protection might say. It reads:

All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.

It is arguable that this protection would have addressed the serious
deficiencies of the NT intervention upfront and ensured that actions were more
fairly and better targeted from the outset.

I would also support a new preamble for the Constitution that recognises
Aboriginal and Torres Strait Islander peoples within the fabric of the nation.
However, I must say that the preamble is secondary to the above issues and
should not be used as an alternative to efforts to ensure that one day we have a
Constitution that does not permit racial discrimination.

So a major challenge that we face is how we ensure that our commitment to
non-discrimination and equality, and to human rights more generally, is not
something that is swept aside whenever it gets difficult or inconvenient or when
it is expedient to simply override this protection.

And on that note, let me comment briefly on the NT intervention.

I have been a strong critic of aspects of the intervention –
particularly the way that it has resorted to racially discriminatory measures to
achieve its purposes. This is something that I have said from day one will
undermine all the positive efforts being undertaken. I also firmly believe that
measures to protect children can and should be undertaken, but that they can be
achieved without discrimination.

I think that the Review Team on the intervention was spot on in identifying
the fundamental flaw of the intervention when they state in their report
that:

There is intense hurt and anger at being isolated on the basis of race and
subjected to collective measures that would never be applied to other
Australians. The Intervention was received with a sense of betrayal and
disbelief. Resistance to its imposition undercut the potential effectiveness of
its substantive measures.[1]

Measures that deny people basic dignity will never work. As the NT Review
report notes, it is this singular problem that has undermined the effectiveness
of the intervention and has broken down the trust and relationship between
government and Indigenous peoples across the Territory.

Now I was very interested to read the editorial in The Australian this
past weekend. It read:

You would have to search hard in today's Australia to find anyone who does
not support the broad principles of equality before the law or who does not
abhor racial discrimination...

At the time (the intervention was introduced), The Weekend Australian
supported the suspension on the grounds that the rights of Aboriginal children
to a decent life free of fear trumped every other consideration...

It is now clear, however, that the (Racial Discrimination) act can be safely
reinstated without hindering the intervention. The reinstatement of the act
deserves bipartisan support.

My Social Justice Report 2007 provides a ten point plan on how to
achieve this. That plan also shows how the Minister for Indigenous Affairs
could today remove a significant portion of the discriminatory provisions of the
intervention legislation through using her existing administrative powers
– without recourse to Parliament.

The Rudd government must act decisively on this issue to ensure that the
intervention legislation is consistent with human rights and is
non-discriminatory. A failure to do so will fundamentally contradict the
commitments that the government has made – including those to Close to Gap
and to work in genuine partnership with Indigenous communities.

But there are two comments by The Australian that I think illustrate
this deeper problem of human rights protection in Australia that I have been
discussing.

The first is the suggestion that you can ‘turn on’ and
‘turn off’ protection against racial discrimination whenever it
suits. And the second is that the only way children could be protected in the
NT when the intervention was introduced was by racially discriminating against
them and against their families and communities.

I am deeply troubled by the suggestion that there may be circumstances where
protections against racial discrimination can be removed for some ‘greater
good’. It raises the unsettling question of who decides what the
greater good is? Misplaced best intentions have been something Indigenous
peoples have suffered for a long time in this country.

I also reject totally the suggestion that resort to discrimination was
necessary in order to protect children. I also totally reject any suggestion
that at the time of the intervention we faced a crossroads of choosing between
either racially discriminating or protecting women and children. This was a
choice that was set up by design and it was, and still is, avoidable. The only
sound policy choice is one where children are protected and are not
discriminated against as well.

The Convention on the Rights of the Child itself is explicit in Article 2
that discriminatory measures can never be justified on the basis that they
further other human rights and that there needs to be a consistent approach in
how all human rights are applied.

Nevertheless, the recommendations of the Northern Territory Emergency
Response (NTER) Review Report now provide an opportunity to refocus the Federal
Government’s efforts from an emergency to community development approach
in improving the lives of Northern Territory Aboriginal children.

There is a major challenge for communities across the Northern Territory, and
Australia, to demonstrate that they understand and accept that women and
children have rights to be safe and free from violence. And there are many
examples that show that this is in fact the view of Indigenous people in the NT.

For example, in July there was a major men’s health summit on the lands
of Charlie’s people – the Arrente – which provided clear
leadership from Indigenous men about addressing violence and abuse. The
outcomes of that Summit are contained in the Inteyerrkwe Statement. It
reads:

We the Aboriginal males... gathered... to develop strategies to ensure our
future roles as grandfathers, fathers, uncles, nephews, brothers,
grandsons, and sons in caring for our children in a safe family environment
that will lead to a happier, longer life that reflects opportunities
experienced by the wider community.

We acknowledge and say sorry for the hurt, pain and suffering caused by
Aboriginal males to our wives, to our children, to our mothers, to our
grandmothers, to our granddaughters, to our aunties, to our nieces and to our
sisters.

We also acknowledge that we need the love and support of our Aboriginal women
to help us move forward.

To assist, the men also called for community based violence prevention
programs that are specifically targeted at men; the establishment of places for
healing for Aboriginal men; resources for rehabilitation services for alcohol
and drug problems; and better support for literacy and numeracy for Aboriginal
men and linking of education to local employment opportunities. I am unaware
whether there has been any response to this call - despite the request that
there be so by September 2008.

I have every confidence that Indigenous communities – supported by
government – can own the problems that exist in their communities and
more so, that they want to own the problems.

For governments, you have to stop seeing Indigenous people as problems and
recognise our role as the solution brokers to the problems that debilitate us.

For Aboriginal communities the challenges is to seize back your role in
determining your futures; determine what measures are needed in your community
to ensure the basic functioning of the community.

Recognising the first nations status of Indigenous Australians

Finally, the other piece of the puzzle to ensure adequate human rights
protection in Australia revolves around the recognition of the status of
Indigenous Australians as the first peoples of this land.

We have never come to terms with what this means in a comprehensive or
holistic manner. Instead, we have dealt with those aspects of our shared
history that have emerged from time to time – such as native title –
by treating them as impediments and seeking to overcome them.

In the coming years we will jointly face other major challenges that threaten
our way of life as Australians – such as access to water resources and
dealing with the impacts of climate change. The traditional knowledge of
Indigenous peoples and the traditional lands and waters and custodianship
practices of our peoples will have a key role to play in dealing with these
issues. So they provide another opportunity to consider the important place of
Indigenous peoples within our society.

We should address these issues alongside outstanding issues relating to the
colonisation of the country and outstanding issues of land justice, reparations
and addressing the entrenched inter-generational poverty and trauma that still
exists.

The United Nations Declaration on the Rights of Indigenous Peoples will
provide us with an important tool in how we could move forward in this way.

The Declaration highlights that we have failed Indigenous peoples for
centuries and that one of the contributing factors for this has been the lack of
support for Indigenous peoples’ collective characteristics. This is not
about special status, it is about maintenance of identity and ensuring that
cultures that – in most countries – are vulnerable to exploitation
and are marginalised, are not lost with the full human tragedy that goes with
that loss.

It is a very positive, aspirational document that sets out ambitions for a
new partnership and relationship between Indigenous peoples and the nation
states in which they live. For example:

  • It affirms that indigenous peoples make a unique contribution to the
    diversity and richness of civilizations and cultures, and promotes cultural
    diversity and understanding.

  • It explicitly encourages harmonious and cooperative relations between States
    and indigenous peoples, as well as mechanisms to support this at the
    international and national levels.

  • It is based upon principles of partnership, consultation and cooperation
    between indigenous peoples and States. So for example, Article 46 requires that
    every provision of the Declaration will be interpreted consistent with the
    principles of justice, democracy, respect for human rights, non-discrimination
    and good faith.

I don’t recall seeing any public discussion of the
Declaration that talks about it in this positive light or that recognises that
it is fundamentally a document about partnership. Instead, the public
discussion has been much more alarmist and negative in its tone.

Over the coming months and year we will see the government take two important
steps for appropriate recognition of Indigenous peoples. First, they will
formally endorse the UN Declaration as an appropriate framework to guide the
relationship with Indigenous Australians. And second, they will support the
establishment of a national Indigenous representative body.

Both will provide impetus to reconfiguring the relationship with Indigenous
peoples based on respect for our cultures and with a view to entering genuine
partnerships with us. This will challenge many Australians. And it will
provide the opportunity for us to deal with longstanding, unfinished business.

Conclusion

I have offered my comments tonight to both provoke and to stimulate. And
hope that I have offered them constructively and in a spirit of reconciliation
– and to honour the legacy of the great Charlie Perkins.

When asked about his legacy in 1994, Charles Perkins said:

I'm here today, gone tomorrow, and I've only just played a small role like
other Aboriginal leaders do, but we're only passing, you know: ships in the
night really. And where the answer lies, is with the mass of Aboriginal people,
not with the individuals.

Addressing the continuing non-recognition of our rights, and dealing with the
consequences that flow from that non-recognition, is the true challenge of our
age. And I urge you tonight to recognise that the journey that Charlie
undertook, that great ride to Freedom, still continues today.

Please remember, from self respect comes dignity, and from dignity comes
hope.

Thank you


[1] P8.

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