Reconciliation - Where to Now?

Speech delivered by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner at the Sydney and Adelaide Launches of the Social Justice Report 2001 and the Native Title Report 2001, 17 July 2002.

Acknowledgements - Gadigal people / Eora nation; those present.

Today's launch here in Sydney is part of a national program of launches that I have been undertaking in recent weeks in order to bring issues of human rights significance raised by my latest social justice and native title reports to the attention of Indigenous and other interested communities and organisations. So far, launches have been held in Melbourne, Perth and Broome, with launches in the next week in Alice Springs and Adelaide; to be followed by Brisbane and Darwin after that.

At each of these launches I have asked prominent leaders of Indigenous groups as well as broader community groups to join me in launching the reports and to share their views on the issues raised in them. So far I have been joined by Professor Marcia Langton of the University of Melbourne and Monica Morgan of the Yorta Yorta nation in Melbourne; Dennis Eggington of the Aboriginal Legal Aid Service and Dr Harry Blagg of the Crime Research Centre in Perth; and Pat Dodson and Peter Yu in Broome. I am pleased to be joined here today by Senator Ridgeway, Professor Larissa Behrendt of UTS and Andrew McAllum the National President of ACOSS, as well as by Australians for Native Title and Reconciliation who have agreed to co-host this event. I offer my thanks and welcome to these guests for agreeing to speak here.

I would also like to thank you all for attending this launch. In the absence of an adequate response from government to a process of such national significance as reconciliation it is important that people such as yourselves continue to ponder and pursue solutions to the question of 'reconciliation - where to now?' for achieving equity and social justice for Indigenous people in Australia.

On 14 May 2002 the Attorney-General tabled the Social Justice Report 2001, my annual review of the exercise of human rights by Indigenous Australians, and the Native Title Report 2001, my annual review of native title developments, in federal Parliament.

In both my reports I found cause to express serious concerns about the nation's progress in recognising and respecting Indigenous rights. The Social Justice Report highlights the ongoing failure to address Indigenous overrepresentation in the criminal justice system ten years on from the Royal Commission into Aboriginal Deaths in Custody. In particular, it focuses on the human rights implications of mandatory sentencing laws and diversionary schemes for juveniles in Western Australia and the Northern Territory.

It also examines significant policy issues that have emerged in regard to the use of mutual obligation and welfare reform policies to address Indigenous disadvantage, and new initiatives for governance and capacity-building in Indigenous communities.

The Native Title Report expresses concern at the administration of the right to negotiate provisions by tribunals and governments; as well as at the inequitable funding levels within the native title system which disadvantage native title representative bodies in the process. It also explores the capacity for framework agreements to be better utilised to elaborate standards for the co-existence of interests in land.

In releasing my reports this year the issue of reconciliation, and the lack of national leadership and commitment shown by the federal government to furthering this process, has provided a focal point for evaluating the exercise and the enjoyment of human rights by Indigenous Australians.

To date, there has been no formal, comprehensive public response by the federal government to the reconciliation documents handed to the government at Corroboree in May 2000 or the recommendations of the Council for Aboriginal Reconciliation's final report of December 2000. This is despite the passage of moer than eighteen months since CAR's final report and over two years since the documents of reconciliation were released at Corroborree 2000.

The timing of my latest reports in itself provides further cause for reflection on the nation's failure to make significant inroads on the reconciliation process.

The year 2001 marked the tenth anniversary of the final report of the Royal Commission into Aboriginal Deaths in Custody. We have also recently commemorated the tenth anniversary of the Mabo decision, which rejected terra nullius and recognised the continued existence of native title. It is also the fifth anniversary of the Bringing them home report.

Indigenous affairs seems to have become a series of anniversaries - operating as an annual reminder of the unfulfilled promises and commitments of governments.

The reports of the Royal Commission marked a turning point in the recognition of the wrongs of the past, and did so unreservedly. They also provided great optimism that serious attention would be devoted to overcoming the systemic, structural discrimination that Indigenous people face in Australian society as a result of colonialism.

But while some genuine efforts to this end have been made in the decade since the Royal Commission and continue to be made today, Indigenous people have continued to die in custody at high rates and the average rate of Indigenous people in corrections representation has in fact worsened - rather than improved.

The number of Indigenous prisoners has increased at an average rate of 8% per year since 1991, compared with an increase in the non-Indigenous prisoner population of 3% per year on average. Indigenous people currently constitute 20% of the total prisoner population compared to 14% in 1991. That a group that constitutes just over 2% of the total population provides 20% of the country's prisoners is shocking.

Indigenous juveniles remain grossly over-represented in juvenile corrections. In 2000, Indigenous juveniles were in juvenile corrections at a rate 15.5 times more than the non-Indigenous rate, compared to 13 times in 1993. Since 1997, Indigenous juveniles in corrections have consistently made up approximately 42% of the total juvenile detention population.

Perhaps most worrying of all is the rise in imprisonment of Indigenous women since the Royal Commission. The total number of Indigenous female prisoners on a national basis increased by 262% between 1991 and 1999, and their rate of imprisonment nearly doubled during this period. At the end of the June 2001 quarter, Indigenous women were incarcerated at a rate 21 times that of non-Indigenous women.

This level of over-representation for Indigenous women is worst here in New South Wales, where Indigenous females are incarcerated at more than 26 times the non-Indigenous rate at the end of the March 2002 quarter.

But in 2001, ten years on from the Royal Commission, these deteriorating circumstances hardly raised a murmur of discontent yet alone outrage among the broader community. The sense of urgency and commitment to addressing Indigenous over-representation in criminal justice processes has slowly dissipated. The facts about Indigenous people in custody now either go unnoticed, or perhaps even worse in the age of reconciliation, are simply accepted and not challenged.

We should also remember that the Council for Aboriginal Reconciliation's Australian Declaration towards Reconciliation and the Roadmap to Reconciliation were the result of a ten year process partly instigated by the Royal Commission, the National Report of which identified reconciliation as 'an essential commitment on all sides if change is to be genuine and long term'. The reconciliation process was implemented as an initiative of government, not of Indigenous people themselves, and one to which Indigenous people responded and acted in good faith.

But now instead we face a deplorable situation in which not only has the federal government failed to respond adequately or comprehensively to CAR's recommendations, they have quite deliberately sought to shut down debate and avoid any engagement about them by stating that they are committed to practical reconciliation.

There is limited material available which explicitly identifies the government's views on the recommendations in anything more than a general sense. We know generally that they are committed to 'practical reconciliation' but not specifically their response to the Council's documents or the Social Justice Report.

In pursuing this approach, the government has responded to only one of the six recommendations of CAR's final report - through the limited focus of COAG's framework for addressing disadvantage. They have ignored the broader-based agenda for reconciliation put forward by CAR that recognised the necessary interrelatedness of symbolic and practical measures to Indigenous people's self-determination.

There is a danger that the reconciliation walks from 2000 will be the high watermark of support for reconciliation, as national attention slowly dissipates. Vital to the success of the reconciliation process would be a more active leadership role by the Commonwealth in order to prevent a repeat of the mistakes of the past, especially in regard to ensuring adequate accountability, transparency, effective monitoring and long term planning.

The impoverished notion of practical reconciliation will not in and of itself lead to meaningful reconciliation between Indigenous and non-Indigenous peoples. It is simply not enough to assert that what is needed is for Indigenous people to assimilate to mainstream society or that reconciliation will be the product of a country that is relaxed and comfortable with itself.

The government often presents its commitment to practical reconciliation and reducing Indigenous disadvantage through the much-touted 'record' additional spending on Indigenous-specific programmes in Budgets 2001 and 2002. Last year the government announced a commitment of $2.39 billion to Indigenous-specific spending; this year it made a commitment of $2.5 billion. Most of this additional funding was a flow-on from the $327 million in initiatives over 4 years announced with Budget 2001.

While increases to funding and new initiatives are welcome, the definition of Indigenous-specific is extremely broad and includes all expenditure that in some way relates to Indigenous people. Some of the expenditure identified as Indigenous-specific is also clearly detrimental to Indigenous people's advancement, such as funding to oppose native title applications, to support non-claimant applications or to litigate against members of the stolen generations in the Cubillo-Gunner case.

Indigenous-specific programs are also not in a position to replicate the level of services and expertise provided by mainstream programs. The focus of Indigenous spending needs to be outcomes-based. While the additional Indigenous-specific spending in the last two Budgets offers some small gains in areas such as housing and infrastructure, CDEP and community capacity-building, it does not move beyond the current status quo of managing rather than overcoming Indigenous disadvantage.

For example, Budget 2001's release of $75 million over 4 years for housing and infrastructure falls far short of the estimated deficit of $3 billion in this area. Of the $86 million spending on native title, $17.4 million will go to assist organisations representing native title claimants and a priority claims litigation program. However, the majority of funds will go to the National Native Title Tribunal and the Federal Court and will support those opposing native title claims as well as native title claimants.

The government also allocated $11 million funding for Indigenous-specific family violence projects over a four-year period. Yet despite the intense media attention given to the subject of violence in Indigenous communities over the past year and the government's use of this issue as a political football to reinforce its call for a practical reconciliation, there were no increases to funding for projects and services in this crucial area in this year's Budget.

Instead we hear through the Senate Estimates process that the government underspent $4.3 million through the Office for the Status of Women's program for domestic violence, while ATSIC spent $4.9 million on Indigenous family violence issues and claimed that they could easily have spent the extra $4.3 million on programs to improve community safety for Indigenous women and children.

These issues surrounding the federal Indigenous-specific spending indicate a need to develop a more fundamental and far-reaching understanding of social justice and equity in addressing Indigenous disadvantage. It is simply not enough to suggest, as in the past year, that the rights agenda is over by splintering the focus on Indigenous affairs and shifting attention from one topical issue to another, whether it be violence or substance abuse or petrol sniffing in Indigenous communities.

Such an approach indicates a failure to move beyond the policy paradigm of throwing palliatives in the form of quick-fix, short-term solutions at the urgent problems experienced by Indigenous people an approach which often serves only to manage and even perpetuate enduring cycles of disadvantage, at the expense of resourcing more holistic and far-reaching solutions.

The short-sightedness of the government's "practical reconciliation" approach to addressing Indigenous disadvantage is also evident in its application of mutual obligation policies to welfare dependency. The mutual obligation approach over-stretches itself in its application to Indigenous welfare reform by assuming that the intensity and scale of personal and social problems, wrongly attributed to welfare dependency, can be addressed through mechanisms which both enable, and ultimately compel, individuals to engage with the formal economy.

But unless the underlying factors contributing to Indigenous poverty and inequality are acknowledged and adequately addressed, then urging self-reliance for Indigenous people in many contexts will be at best fanciful.

In my Native Title Report I have found cause to express further concern at the failure of the Native Title Act to deliver lasting outcomes for Indigenous peoples. Ten years on from the landmark Mabo decision, the native title process has become a travesty of the justice it was meant to deliver to Indigenous Australians.

As an embodiment of social relations, the native title system places Indigenous interests at a lower level than non-Indigenous interests, every time. As an embodiment of economic relations, the native title system removes Indigenous people's effective control over their only asset: exclusive rights to land and sea country. And as an embodiment of political relations, native title fails to recognise traditional decision-making structures.

Of particular concern is the administration of the right to negotiate provisions by tribunals and governments: in the past year some governments have failed to accord to native title parties their right to negotiate on lands where the status of native title is as yet uncertain. Some governments have avoided the operation of the right to negotiate by implementing their own regimes permitted by the Native Title Act which undermine the right to negotiate.

In fact, the increasingly technical approach to native title has had the effect of reducing the necessity to negotiate with native title parties over developments on lands potentially subject to native title. These actions breach international human rights standards.

There also continues to be inequitable funding levels within the native title system which disadvantage the native title representative bodies who advocate for claimants in the process. Critical factors relating to the functions of native title representative bodies are not reflected in funding levels. This under-funding limits the options available to Indigenous people in protecting their native title rights.

The Native Title Report also examines the capacity for framework agreements to provide a vehicle for importing human rights standards into the native title process in the face of the failure of the native legal system to guarantee this. Framework agreements could be better utilised to elaborate standards for the co-existence of interests in land, and in doing so, provide greater certainty and stability, and present a viable option for commercial entities wanting to do business with Aboriginal people.

An important focus of this year's Native Title Report is the distinction between two sorts of rights. Those that are enjoyed by every Australian, including Aboriginal people, commonly referred to as citizenship rights; and those that are inherent to Indigenous people only. Native title belongs to this latter category.

When an opportunity arose in 1992 to recognise inherent rights through native title it was immediately encased in a legal armature that gave it no room to deliver real outcomes. Its capacity to provide economic opportunities for Indigenous people, to provide equal respect for Indigenous culture and to provide governance structures for Aboriginal communities has been severely limited through the Native Title Act and the common law.

Critics of the rights agenda often imply that when Indigenous people gained citizenship rights mostly by the 1960's that this agenda was fully implemented - and that a rights approach has failed Indigenous people and should be abandoned. But that is incorrect. Citizenship rights came 170 years late. Indigenous rights, ones that recognise Aboriginal people for what they are, and have the capacity to change their dire living circumstances, have never been embraced as a way forward.

What has fundamentally been lacking all along is a rights culture that respects Indigenous people and provides them with the opportunity to participate on an equal footing in Australian society. The refusal to tolerate the discriminatory practices of exclusion from welfare, education and participation in the mainstream society and economy any longer, that is by granting citizenship rights, was merely the first step on the road to a culture of rights and respect for Indigenous people.

What is required is that an effective, democratic partnership be negotiated with Aboriginal people, that they be given the full enjoyment of their inherent rights through native title and that Indigenous disadvantage be addressed with the full participation of those affected.

The lack of progress in addressing the concerns of the Royal Commission offers us a stark reminder of what is at stake in this country with reconciliation.

It is for these reasons that I am calling for a Senate inquiry into the reconciliation process and in particular into the documents produced by the Council for Aboriginal Reconciliation and the recommendations of the Social Justice Report 2000. This inquiry would examine the adequacy of the Federal government's response to each of these recommendations. It would also consider the processes by which by which government agencies have reviewed their policies and programs against the documents of reconciliation, as well as the adequacy of targets and benchmarks adopted and monitoring and evaluation mechanisms.

As I have held similar launches around the country I have been joined in the call for such an inquiry.

At the end of a ten year, multi-million dollar process of such pivotal importance to the development of Australian society as reconciliation, it would be reasonable to expect a formal response so that all members of the Australian community are clear as to the level of commitment provided by the government. As a society we cannot afford to look back in 10 years' time on the reconciliation process with the same regrets we now do on the Royal Commission into Aboriginal Deaths in Custody.

(Thank you, etc)


Last updated 17 July 2002