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Annual Report 1999-2000: Aboriginal & Torres Strait Islander Social Justice

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to 1999 - 2000 Annual Report Contents

Annual Report 1999 - 2000

Dr Bill Jonas, Aboriginal and Torres Strait Islander Social JusticeAboriginal
and Torres Strait Islander
Social Justice Commissioner

Dr William Jonas
commenced his appointment as Aboriginal and Torres Strait Islander Social
Justice Commissioner on 6th April 1999 for five years.

Monitoring and Reporting

Social Justice Report 1999

Under section 46C(1)(a)
of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the
Social Justice Commissioner is required annually to submit a report to
the Attorney-General on the exercise and enjoyment of human rights by
Aboriginal persons and Torres Strait Islanders (the Social Justice Report).

1999 Social Justice ReportThe
1999 Social Justice Report is the first by Dr Jonas. It was transmitted
to the Attorney-General on 20 January 2000, and tabled in both Houses
of the federal Parliament on 6 April 2000. The report focuses on issues
relating to Indigenous young people.

Chapter 2 presents
a social profile of Indigenous young people and demonstrates the gross
disadvantage faced by Indigenous people across every social and economic
indicator. The report argues that the disproportionate disadvantage faced
by young Indigenous people has the potential to increase and further entrench
the disparity between Indigenous and non-Indigenous Australians over the
coming decades unless greater effort is made now to reduce the inequality
that they face.

The report explains
how human rights principles of non-discrimination and equality justify
and may in fact require governments to redress this disadvantage through
the adoption of remedial programs, or `special measures'.

Chapter 3 of the
report examines issues surrounding Indigenous identity. These issues include
how non-Indigenous definitions of `Aboriginality' have been used by policy-makers
to manage and control Indigenous peoples; the challenge faced by Indigenous
youth of striking a balance between involvement in the Indigenous community
and the mainstream Australian community; and the continuing impact of
the historical treatment of Indigenous peoples in Australia. Young Indigenous
people variously speak of being alienated from both black and white communities,
of difficulty in coming to terms with the past, of living somewhere `between
two worlds', and being unable to find a point of balance.

The report then considers
identity rights. That is, human rights principles that recognise
and protect the distinct cultural characteristics of Indigenous peoples
worldwide. The report considers relevant international human rights principles
within the following two themes:

i) the legitimacy
of recognising cultural difference - principles of non-discrimination
and minority group rights; and

ii) requirements
of `effective participation' and self-determination.

The report argues
that for reconciliation between Indigenous and non-Indigenous Australians
to be lasting and meaningful it must involve the full recognition of identity
rights.

Chapter 4 considers
the human rights implications of the decision of the Northern Territory
Government to abolish bilingual education programs for Aboriginal students
in public schools.

Bilingual education
is the teaching of children in traditional languages with English gradually
becoming the main language of instruction. This process helps maintain
Indigenous language, culture and identity, and improves Indigenous students'
participation in the formal mainstream education system. It is an example
of human rights principles in practice.

The philosophy behind
bilingual education is strongly supported by educational research and
international human rights principles such as the right to an education,
the appropriate recognition of cultural difference and self-determination.

The report argues
that the governments of the Northern Territory and the Commonwealth have
a responsibility to support the principles behind bilingual education
as a means to improving students' experience of and participation in the
formal education system and supporting the maintenance of unique cultures
and languages. Bilingual education programs have tangible long term benefits.

Chapter 5 examines
sentencing laws in the Northern Territory and Western Australia which
make detention mandatory for particular property offences.

The report:

  • Places concerns
    about mandatory detention laws within the context of long held, and
    widely accepted, concerns of Indigenous over-representation in criminal
    justice processes;

  • reviews statistics
    on mandatory sentencing and the criminal justice system;

  • outlines the
    key human rights principles applying to the mandatory sentencing debate;
    and
  • identifies alternatives
    to mandatory detention.

Using case studies,
the report analyses the disproportionate impact of mandatory sentencing
laws on Indigenous youth in Western Australia and the Northern Territory.
The report concludes that these laws are inconsistent with the widely-accepted
aim of minimising Indigenous contact with the criminal justice system
and are in breach of Australia's international human rights obligations.

The report also presents
positive alternatives for dealing with Indigenous juvenile crime and highlights
the number of times these recommendations have been made previously. It
explains how these alternatives fit within international human rights
standards and urges governments to give more urgent consideration to them.

The report recommends
that:

WA and the NT
should repeal the mandatory sentencing provisions. As they have chosen
not to, the federal Parliament should exercise its constitutional
power under section 51(xxix) of the Constitution (the external affairs
power) to bring the law in WA and the NT within Australia's international
obligations under CROC and the ICCPR. The passage of overriding legislation
by the Commonwealth would send a clear message to the states and territories
that they do not have unfettered power to introduce laws that further
disadvantage indigenous Australians. It will also re-emphasise and
focus states and territories on the fundamental imperative of the
Royal Commission into Aboriginal Deaths in Custody, namely reducing
the over-representation of Indigenous people in criminal justice processes
(p169).

The introduction
to the report also considers four key themes that currently dominate debate
about the development of Indigenous policy at the national level and highlights
the human rights concerns that they raise. The four themes are:

  • Welfare dependency
    and mutual obligation;

  • Accountability;
  • Effective participation
    in decision-making; and

  • Reconciliation.

The report argues
that there are a number of human rights concerns about the welfare dependency
and mutual obligation approach, namely:

  • It can reduce
    Indigenous disadvantage to an individual level and fail to recognise
    the broader, systemic nature of Indigenous disadvantage;

  • It breaks down
    the process of redressing disadvantage into individual programs rather
    than taking as its frame of reference a broader systemic approach.
    The focus on individual programs is `too narrow.' Dr Jonas states
    that policies that do not acknowledge the fundamental linkages between
    issues (land and health for example) `stand a reduced chance of being
    effective in redressing Indigenous disadvantage'; and

  • there is little
    acknowledgment, through this approach, that integral to the shift
    from welfare dependency is the empowerment of Indigenous Australians
    through the full recognition and equal enjoyment of their human rights
    - including `the right to self-determination, to participate in decisions
    that affect us, as well as having our cultural practices recognised
    and protected within Australian law.'

Similarly, while
welcoming a government focus on accountability in Indigenous affairs,
the report argues that a lack of coordination in funding and service delivery
hampers the goal of improving Indigenous living conditions.

The report argues
that accountability should be expected in every aspect of service delivery
to Indigenous people, from all levels of government through to Indigenous
organisations. In this regard, Australia's international human rights
obligations require governments to provide services and redress Indigenous
disadvantage in culturally appropriate, non-discriminatory manner and
with adequate consultation. This is to ensure the effective participation
of Indigenous peoples, particularly in the design and delivery of services
that affect them.

The report warns
that `it is essential that the apparently objective aim of ensuring accountability
is not used as a subterfuge for not addressing the legitimate and clearly
expressed aspirations of Indigenous people. Indigenous people have a role
in determining what is `a rational allocation of resources'.

The report also highlights
that international scrutiny is a form of accountability:

A further and
significant type of accountability of the federal government is to
the international community through the upholding of human rights
standards and compliance with treaties to which Australia is a signatory.
These instruments reflect minimum standards of behaviour commonly
accepted by the international community (p13).

The report also argues
that the requirement of `effective participation' of Indigenous people
in decisions that affect them is essential to secure movement away from
welfare dependency:

despite the apparent
acceptance of the importance of this principle governments continue
in most instances to act in a manner that conceives of it as aspirational
rather than essential. The consequence of this is that Indigenous
perspectives and concerns are able to be dismissed or outweighed when
there is a contrary or competing set of interests (pp16-17).

Finally, the report
considers the meaning of reconciliation. It argues that reconciliation
must include recognition of rights to equality, non-discrimination and
effective participation, and must give weight to the aspirations of Indigenous
Australians:

A reconciliation
process which is based on anything less than negotiation over these
principles will join proposals such as the Social Justice Package
as an empty, unfulfilled commitment to social justice for all Australians
(p24).

Native Title Report 1999Native
Title Report 1999

Under s.209 of the
Native Title Act 1993 (Cth), the Social Justice Commissioner is required
annually to submit to the Attorney-General a report on the operation of
the Native Title Act and the effect of the Act on the exercise and enjoyment
of human rights of Aboriginal peoples and Torres Strait Islanders.

The Native Title
Report 1999 is the first by Dr Jonas. It was transmitted to the Attorney-General
on 23 December 1999 and tabled in both Houses of the federal Parliament
on 6 April 2000.

The report considers
the implications of the March 1999 decision of the United Nations Committee
on the Elimination of Racial Discrimination (CERD Committee) which found
that the Federal Government's 1998 amended Native Title Act 1993 is in
breach of Australia's obligations under the International Convention on
the Elimination of All Forms of Racial Discrimination (CERD).

The report provides
an overview of Australia's obligations under CERD and how the CERD Committee
operates. It provides a detailed analysis of the dialogue between the
CERD Committee and the government in March 1999. This dialogue centred
on discussion of the two fundamental requirements of the Convention, that
parties to the Convention:

1. treat all
people equally and in a non-discriminatory manner; and

2. ensure the
`effective participation' of Indigenous people in decisions which
affect them.

The report notes
that the government sought to justify the native title amendments by arguing
that:

  • past discrimination
    cannot be undone,

  • the amendments
    do no more than validate past discrimination and so are not discriminatory
    in themselves, and

  • the human rights
    obligation on effective participation is limited to consultation with
    Indigenous groups and does not require informed consent.

The Committee responded
that:

  • it is an obligation
    under CERD that past discrimination be redressed - in other words,
    equality must be given substance, it must be achieved in fact; and

  • merely to consult
    with Indigenous groups as interested stakeholders does not meet the
    standard of effective participation which applies to issues, such
    as native title, which affect Indigenous people at a fundamental level.
    The Committee
    made it clear that unless the legislative regimes which affect native
    title are negotiated with Indigenous people the Committee will continue
    to scrutinise and criticise State parties at an international level.

The report argues
that native title is a non-discriminatory recognition of Indigenous culture
that, under CERD, Australia has an obligation to recognise and protect.
The Report agrees with the reasoning of the CERD Committee which found
that significant amendments to the Native Title Act withdrew the protection
which the original Act extended to native title holders, and accordingly
that the amended Native Title Act is racially discriminatory.

In determining that
the amendments to the Native Title Act were discriminatory, the CERD Committee
looked at the level of participation of Indigenous people in the formulation
of the amendments, and whether the informed consent of Indigenous people
was given. The report concludes, consistently with the CERD decision,
that the standard required under the Convention is that of informed consent,
and that the government did not meet this standard in formulating the
native title amendments.

The Report then considers
the two fundamental principles of the Convention in relation to the following
aspects of the Native Title Act:

  • the adequacy
    of the minimum standards which the Commonwealth requires state governments
    to comply with in their management of native title regimes;

  • the impact of
    the registration test on native title claims; and

  • the impact of
    the amendments to the Native Title Act in relation to Native Title
    Representative Bodies on the capacity of Indigenous people to participate
    in and determine the outcomes of the decisions which affect them.

The report expresses
concern that the minimum standards which the Commonwealth presently applies
to state-based native title regimes do not incorporate the human rights
of Indigenous people as expressed through the principles of equality and
effective participation.

The report examines
the impact of the amendments to the registration test to be applied to
most native title claims lodged since the inception of the NTA in 1994.
The report states that the principle of equality requires that legislation
protects native title from the destructive impact of mining and other
developments. The level of protection is unacceptable if it fails to protect
Indigenous culture and title to land.

The report concludes
that the conditions of registration exceed those that, on a prima facie
basis, satisfy a claim to native title at common law. The test is contrary
to the principles of equality and effective participation established
by the CERD Committee as the cornerstones of Australia's international
obligations to Indigenous people.

The final chapter
of the report examines the amendments to the NTA which have significantly
altered the identity and functions of native title representative bodies.

Jurisdictional boundaries
and eligibility criteria have been substantially amended and accountability
requirements significantly changed. The range of functions for representative
bodies has been greatly expanded. The report examines the overall effect
of the amendments from a human rights perspective and asks whether the
amendments improve the capacity of Indigenous people to participate in
and determine the outcome of decisions which affect them.

The chapter concludes
that the emphasis for representative bodies is now on organisational transparency
and accountability. The need to support and to develop appropriate organisational
mechanisms is stressed but not at the expense of meaningful Indigenous
participation at local national and international level.

The report concludes
that the guiding principle of equality and effective participation have
been eroded by the Government's amendments to the Native Title Act and
diluted by an ever-expanding labyrinth of state legislation. The report
urges an end to the divisive approach to Indigenous issues and calls for
an acknowledgment that Indigenous people have a right to enjoy their cultural
identity.

Promoting awareness and discussion
of human rights issues

The Social Justice
Commissioner is required under section 46C(1)(b) of the Human Rights and
Equal Opportunity Commission Act to promote discussion and awareness of
human rights in relation to Aboriginal persons and Torres Strait Islanders.

Indigenous Youth

On August
5-6 1999, the Social Justice Commissioner ran a two-day forum for 60 young
Indigenous people aged between 15 and 30 years at Tranby College in Sydney.

The
objectives of the forum were to:

  • Promote discussion
    and awareness of Indigenous human rights and social justice issues
    from a young Indigenous perspective;

  • Discuss and
    articulate attitudes and expectations of young Indigenous people towards
    issues of Indigenous identity and reconciliation between Indigenous
    and non-Indigenous Australians;

  • Provide a forum
    for a dialogue between young Indigenous people and Indigenous leaders;
    and

  • provide material
    for use by the Aboriginal and Torres Strait Islander Social Justice
    Commissioner in the performance of his statutory functions.

Dr Bill Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner with Dr Evelyn Scott, Chair of the Council for Aboriginal Reconciliation at the Youth Forum.Participants
were selected through a nomination and application process, with an emphasis
placed on bringing together a diverse group of young Indigenous people,
with geographical location, area of interest and expertise, age and gender
balance all being taken into consideration.

A range
of organisations and institutions around Australia were encouraged by
the Social Justice Commissioner to nominate a young person to attend the
forum. Applicants were also able to nominate themselves. Almost all interstate
participants and those travelling to Sydney from regional areas gained
support from their workplaces, or philanthropic and community organisations
to meet the cost of their travel and accommodation.

The
Council for Aboriginal Reconciliation generously contributed $5000 towards
the costs associated with the forum, and workshops and discussions held
with the participants formed part of the Council's consultation process
on the draft declaration and documents of reconciliation. Tranby Aboriginal
College contributed greatly to the success of the forum by hosting it
at their premises in Glebe, Sydney. Students of Tranby were also involved
in the forum, and their participation counted towards their academic work.

Young
Indigenous people at the forum had the opportunity to meet, question and
speak with Indigenous leaders such as Dr Bill Jonas, Aboriginal and Torres
Strait Islander Social Justice Commissioner; Christine Christophersen,
Jabiluka activist and artist; and Evelyn Scott, Chairperson of the Council
for Aboriginal Reconciliation.

Participants
also had the benefit of the knowledge and experiences of young Indigenous
leaders such as Trevor Dodds and Nancia Guivarra from ABC's Radio National;
Caroline Barton from Koori Radio; film-maker Pauline Clague; Jason Field
from the Department of National Parks and Wildlife; and Neva Collings
from the Indigenous Law Centre.

The
particular human rights and social justice issues discussed at the forum
included education, juvenile justice and criminal law processes, the United
Nations Draft Declaration on the Rights of Indigenous Peoples, Indigenous
people and the media, identity, and reconciliation. Identity, education
and reconciliation emerged as the major themes of the forum.

Discussions
and perspectives put forward by the young people at the forum has informed
the work of the Social Justice Commissioner. The 1999 Social Justice Report
focused on youth issues and in particular, contained chapters on identity,
education and a statistical profile of Indigenous young people, based
on a presentation to the forum by Kate Ross and Tony Barnes of the Australian
Bureau of Statistics.

UNICEF 10th Anniversary
Conference on the Convention on the Rights of the Child

To mark
the 10th anniversary of the Convention on the Rights of the Child, the
Tuscan Regional Authority, in co-operation with UNICEF and the Italian
National Committee for UNICEF, held an international conference in Florence,
Italy. The meeting specifically addressed the question of cultural diversity
and discrimination by looking at the rights of children of minorities,
immigrants and Indigenous peoples.

Elsie
Fischer, an 18 year old woman from South Australia, was sponsored by the
Social Justice Commissioner to attend the meeting. Elsie was a participant
in the Indigenous Young People's Forum. The Australian Youth Foundation
and an anonymous donor contributed to the costs of Elsie's travel.

Prior
to leaving for Florence, Elsie met with Prime Minister Howard, Senator
Aden Ridgeway and Senator Natasha Stott Despoja, who as a result put forward
a three-part motion to the Senate, passed unanimously, recognising the
anniversary of the Convention and expressing support for Elsie.

The
involvement of Elsie contributed greatly to the proceedings of the conference.
Elsie contributed to the Firenze Youth Statement, which encapsulated the
outcomes of the conference. As the youth representative for Australia,
Elsie presented the section on Poverty Issues, bringing to the conference
her own perspective as a young Indigenous woman.

Reconciliation

Under
section 46C(4)(c) of the Human Rights and Equal Opportunity Commission
Act 1986, the Social Justice Commissioner must have regard to the objectives
of the Council for Aboriginal Reconciliation Act 1991. The Social Justice
Commissioner has sought to promote an awareness of human rights issues
through consultation with the Council for Aboriginal Reconciliation.

Dr Jonas
has provided regular briefings to the Council's Secretariat on human rights
issues, as well as highlighting the human rights dimension of the Council's
work through participating in the Council's Document's Reference Committee.
This Committee allowed Dr Jonas to attend full council meetings and to
make contributions to the debate on the draft documents of reconciliation.

International
activities

Section
46C(3) of the Human Rights and Equal Opportunity Commission Act 1986 states
that in the performance of the Commissioner's functions, the Social Justice
Commissioner may consult with international organizations and agencies.
Section 46C(4) states that in the performance of the Commissioner's functions,
the Commissioner must have regard to international human rights treaties
to which Australia is a party, including the International Convention
on the Elimination of All Forms of Racial Discrimination and the International
Covenant on Civil and Political Rights.

In accordance
with these functions, Dr Jonas attended the United Nations in Geneva to
observe the Committee on the Elimination of Racial Discrimination in their
consideration of Australia's 10th, 11th and 12th periodic reports under
the International Convention on the Elimination of All Forms of Racial
Discrimination.

Dr Jonas
made a submission to the Committee on behalf of the Human Rights and Equal
Opportunity Commission highlighting a range of matters concerning Indigenous
people and race discrimination generally. The submission was based on
material previously provided to the government.

In an
informal briefing of the Committee, Dr Jonas highlighted four key areas
of concern in relation to Australia's compliance with its obligations
under the Convention in regard to Indigenous peoples:

1) Native title

Despite
the Committee having found in March and August 1999 that the native title
amendments are racially discriminatory, the States and territories have
continued to introduce discriminatory legislation, under the authorisation
of the Commonwealth. Dr Jonas stressed that this meant that Australia
was not just acting in contravention of the recommendations made by the
CERD Committee in March and August 1999 (see discussion of Native Title
Report above), it was further breaching its obligations under the Convention.
In particular:

  • Article 2(1)(a)
    of the Convention requires States parties to undertake not to engage
    in any `act or practice of racial discrimination against persons.
    and to ensure that all public authorities and public institutions,
    national and local, shall act in conformity with this obligation';
    and

  • Article 2(1)(c)
    provides further that States `shall take effective measures to review
    governmental. policies, and to amend, rescind or nullify any laws.
    which have the effect of creating or perpetuating racial discrimination
    wherever it exists.'

2) The lack of
an entrenched guarantee against racial discrimination in Australian law

Dr Jonas
expressed concern that, despite the existence of the Racial Discrimination
Act 1975 (RDA), there still exists the capacity for the federal Parliament
to introduce laws that discriminate on the basis of race. That they have
done so twice in the past four years - first in relation to the removal
of the protection of the RDA in relation to native title, and second through
removing the protection of the Aboriginal and Torres Strait Islander Heritage
Protection Act in relation to the Hindmarsh Bridge affair - raises concerns
under Articles 1,2 and 5 of the Convention.

It also
raises concerns under Article 6 of the Convention, which provides that
`States. shall assure to everyone within their jurisdiction effective
protection and remedies. against any acts of racial discrimination.' There
is no remedy against this discrimination, as the Australian legal system
permits such laws.

3) Indigenous
disadvantage

Indigenous
Australians remain the most disadvantaged of all Australians. There are
clear disparities between Indigenous and non-Indigenous Australians across
all indicators of quality of life. This disadvantage impacts on the lives
of Indigenous people in a number of ways, including through contact with
the criminal justice system and welfare services. The Royal Commission
into Aboriginal Deaths in Custody concluded, for example, that the over-representation
of Indigenous people in the criminal justice system is directly linked
to their socio-economic disadvantage. This disadvantage raises concerns
under Articles 2 and 5 of the Convention.

Dr Jonas
noted that while there is government funding and programs aimed at redressing
Indigenous disadvantage, they are clearly not sufficient to raise Indigenous
people to a position of equality within Australian society. International
human rights principles provide justification for giving higher priority
to Indigenous disadvantage and for taking steps, or further steps, to
redress this disadvantage and achieve equality of outcome across the full
range of economic, social and cultural rights. Articles 1(4) and 2(2)
of CERD require this.

4) Mandatory
sentencing laws

Dr Jonas
noted that mandatory sentencing laws in the Northern Territory and Western
Australia raise concerns under Articles 2 and 5 of CERD. In particular:

  • The mandatory
    sentencing provisions target crimes that are generally committed by
    people from lower socio-economic backgrounds. In the Northern Territory
    and Western Australia this necessarily means Indigenous people. The
    limited statistics available show that since the introduction of mandatory
    detention in the NT there has been an increase in Indigenous women
    prisoners by approximately 225%. In WA, in the first year of operation
    of the laws, approximately 80% of juveniles incarcerated under these
    laws were Indigenous. This is despite their constituting less than
    10% of the WA population. These laws have a clear disparate impact
    upon people of different races. They breach Article 2 and 5 of the
    Convention.

  • In the NT, mandatory
    detention laws are coupled with the failure of the government to provide
    interpreter services in courts and medical services. Consequently,
    Indigenous people appear on mandatory detention charges without an
    interpreter and often do not understand the nature of the charges
    or why they are being imprisoned. This is a clear breach of Article
    5(a) of the Convention.

  • These laws have
    also been introduced against the background of the over-representation
    of Indigenous peoples in criminal justice processes and the recommendations
    of the Royal Commission into Aboriginal Deaths in Custody and the
    Stolen Generations report. In June 1999 for example, for every 1 non-Indigenous
    person per 100,000 in corrections in WA there were 22 Indigenous people
    in corrections. In the NT, the rate for - Indigenous people is approximately
    14 times that for non-Indigenous people. Mandatory detention provisions
    are not consistent with the principal goals of the Deaths in Custody
    Royal Commission, namely to reduce the rate of over-representation
    of Indigenous people with the criminal justice system.

Dr Jonas
noted that:

The ultimate
message that I am delivering to you today - and while I have a responsibility
to deliver it, I am still saddened to deliver it is that the issues
that I have focussed on demonstrate a genuine lack of equality for
Indigenous people within Australia. In terms of the Convention, they
expose serious deficiencies in Australia's compliance.

The
Committee on the Elimination of Racial Discrimination provided the Australian
government with its concluding observations on 24 March 2000.[1]
The Committee welcomed the adoption of various recommendations of the
Royal Commission into Aboriginal Deaths in Custody, and expressed concern
on the following issues affecting Indigenous peoples in Australia:

  • The lack of
    an entrenched guarantee against racial discrimination (para 6);

  • The failure
    of the Commonwealth government to ensure compliance of the states
    and territories with treaty obligations (para 7);

  • The continuation
    of discriminatory practices in relation to native title, particularly
    the development of state native title regimes (para 8);

  • The unsatisfactory
    response to the Committee's findings that the native title amendments
    are racially discriminatory (para 9);

  • Proposed changes
    to the role and function of ATSIC and the Social Justice Commissioner
    (para 11);

  • The progress
    of reconciliation, and the apparent loss of confidence of Indigenous
    people in the process (para 12);

  • The inadequate
    response of the government to the recommendations of Bringing them
    home (para 13);

  • Over-representation
    of Indigenous people in the criminal justice system (para 15); - Lack
    of interpreter services for Indigenous people in court processes (para
    15);

  • The discriminatory
    impact of mandatory sentencing laws in the Northern Territory and
    Western Australia (para 16); and

  • The extent of
    continuing discrimination and disadvantage faced by Indigenous people
    (para 18).

While in Geneva,
Dr Jonas also met with a variety of people within the United Nations,
including the Deputy High Commissioner for Human Rights; Secretary of
the Working Group on Indigenous Populations; Special Rapporteur on Racism,
Xenophobia and Other Forms of Racial Intolerance; members of the Committee
on the Elimination of Racial Discrimination; and with other international
organizations including the Anti-Racism Information Service; and the International
Commission of Jurists.

Research and
educational programs

Under
section 46C(1)(c) the Social Justice Commissioner is required to undertake
research and educational programs for the purposes of promoting respect
for, and enjoyment and exercise of, human rights by Aboriginal persons
and Torres Strait Islanders.

National Community
Education Program - Tracking Your Rights

Tracking
Your Rights was developed in response to recommendation 211 of the Royal
Commission into Aboriginal Deaths in Custody, which called on the Commission,
and State Anti-discrimination Commissions, to further programs to inform
the Aboriginal community about anti-discrimination legislation and how
to use it. The package aims to transfer information about anti-discrimination
laws to Aboriginal and Torres Strait Islander people so that they know
their legal rights and can thereby facilitate the successful resolution
of community and individual conflicts.

Tracking
Your Rights was launched in January 1998. The implementation of the program
relies heavily on coordination with the states and territories, and a
number of initiatives is currently in place to promote the program in
each state and territory.

The
Commission entered into a memorandum of understanding with the Commonwealth
Public Service and Merit Protection Commission (PSMPC) for the conduct
of training of the Tracking Your Rights package for Commonwealth public
servants. A national select tender was conducted by HREOC and the PSMPC,
and a pool of appropriate training providers with national coverage was
selected.

During
the reporting period, the PSMPC conducted two Tracking Your Rights training
programs. The first was held in March and the second in June 2000. Further
courses are planned in the coming year, including through regional offices
of the PSMPC.

The
South Australian Government have played a critical role in implementing
Tracking Your Rights in that State. Following a launch of the resource
in April 1999, the Office of the Commissioner for Public Employment has
continued to promote the program and the South Australian Equal Opportunity
Commission (SAEOC) conducted two one-day pilot Tracking Your Rights in
Port Lincoln in June 2000. The SAEOC is currently planning further pilots
in Port Augusta.

Negotiations
are also under way between the SAEOC and the SA Department of Correctional
Services for delivery of the course. The Department of Human Services
has also contracted Tauondi College to pilot a Tracking Your Rights course
during the year and, at the time of writing, were considering its implementation
on a more systemic basis.

The
Anti-Discrimination Commission, Queensland (ADCQ), has also been funded
by the Queensland government to prepare the Queensland component of the
Tracking Your Rights manual. Tranby College in New South Wales has also
received a grant from the Department of Aboriginal Affairs for delivery
of the program.

National Indigenous
Legal Studies Curriculum

The
National Indigenous Legal Studies Curriculum was developed in 1996 to
increase the level of human rights and legal education and training available
to Aborigines and Torres Strait Islander peoples, particularly those working
as Aboriginal Field Officers in legal services.

As at
30 June 2000, there are seven registered training organisations licensed
to use the curriculum. The Institute for Aboriginal Development have also
been conducting the course on a trial basis to a number of Aboriginal
students in years 11 and 12 of Centralian College and Alice Springs High
School. The initiative is endorsed by the Northern Territory Department
of Education.

Collaboration
with state and territory equal opportunity and anti-discrimination commissions

In December
1999, HREOC Commissioners and the state and territory equal opportunity
Commissioners agreed to work collaboratively on three projects relating
to Indigenous peoples:

  • Education on
    issues relating to Indigenous Australians;

  • Implementation
    of `Tracking Your Rights' program; and

  • Examining processes
    for racial discrimination complaints and Indigenous Australians.

Dr Jonas
has carriage for the first two projects, and Ms June Williams, Anti-Discrimination
Commissioner of Western Australia, the third.

Examining enactments
for compliance with human rights principles

Under
section 46C(4) of the Human Rights and Equal Opportunity Commission Act
1986 (Cth), the Social Justice Commissioner may examine and report on
enactments and proposed enactments to ascertain whether or not they recognize
and protect the human rights of Aboriginal persons and Torres Strait Islanders.

The
Social Justice Commissioner has sought to fulfill this role through submissions
to parliamentary inquiries, as well as by providing briefings on the work
of the Commission to various parliamentary committees.

Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund - Inquiry into CERD and the Native Title Amendment Act 1998

The
Social Justice Commissioner made a written submission to the Committee
on 3 May 2000 and appeared before the Committee on 22 February 2000. The
Submission addresses the three terms of reference of the Inquiry, namely;

  • whether the
    finding of the Committee on the Elimination of Racial Discrimination
    (CERD Committee) that the Native Title Amendment Act 1998 is inconsistent
    with Australia's international legal obligations, in particular the
    Convention on the Elimination of all Forms of Racial Discrimination,
    is sustainable on the weight of informed opinion;

  • what amendments
    are required to the Act, and what processes of consultation must be
    followed in effecting those amendments, to ensure that Australia's
    international obligations are complied with; and

  • whether dialogue
    with the CERD Committee on the Act would assist in establishing a
    better informed basis for amendment to the Act.

The
submission states that the test of whether native title is treated equally
to non-Indigenous title under the CERD is a substantive test, namely whether
the protection extended to native title by the legislation is the same
as the protection extended to non-Indigenous title. The government, in
both its oral and written submissions, accepted that, at international
law, substantive equality is the relevant standard.

The
submission further states that in applying the test of equal protection
to the amended NTA, it is clear that native titleholders are not protected
to the same degree as non-Indigenous titleholders. The submission points
out that in all the situations in which there is a conflict or potential
conflict between the interests of native titleholders and the interests
of non-Indigenous titleholders, the amended NTA ensures that the interests
of non-Indigenous titleholders prevail.

The
submission rejects the government's proposition that the CERD permits
discriminatory treatment so long as such treatment is reasonable and has
a legitimate purpose. Discriminatory treatment cannot be justified by
reference to the objective of providing certainty to non-Indigenous titleholders
or by reference to the purpose of balancing the interests of all stakeholders.

The
submission is available on the HREOC website.

Senate motion
regarding mandatory sentencing

On 13
April 2000 the Senate passed a motion requesting that HREOC inquire into
all aspects of:

I. the agreement
between the Northern Territory government and the Commonwealth regarding
the Territory's mandatory sentencing regime;

II. the consistency
of mandatory sentencing regimes with Australia's international human
rights obligations; and

III. Western
Australia's mandatory sentencing regime.

The
Senate requested that HREOC report on (i) within 4 weeks; and (ii) and
(iii) within 12 months.

The
Commission responded to part (i) of the Senate's request by letter dated
3 May 2000. The Commission expressed disappointment that under the deal
between the Northern Territory and Commonwealth governments, mandatory
detention laws are retained. The Commission commended the raising of the
age of majority from 17 to 18 years, and encouraged Queensland and Victoria
to follow suit. The Commission also supported announcements for greater
use of diversionary programs, the funding of an Indigenous interpreter
service and attempts to improve coordination in service delivery.

However,
the Commission also noted that the success or appropriateness of these
initiatives would depend on the detail of the agreement. The Commission
encouraged the two governments to ensure that the diversionary programs
introduced complied with international standards as well as recommendations
previously made by the Commission in the Bringing them home and Seen and
Heard reports.

In relation
to parts (ii) and (iii) of the motion, the Commission indicated that the
Social Justice Commissioner intends to undertake the following project
over the next twelve months:

  • assess the
    continued impact of mandatory sentencing laws in the Northern Territory
    and Western Australia on Indigenous Australians;

  • assess the
    impact on Indigenous Australians of the additional discretion placed
    in the Northern Territory Police; and

  • develop a methodology
    against which to assess the appropriateness and success of diversionary
    schemes in the Northern Territory and Western Australia, and assess
    these schemes on this basis.

Dr Jonas
stated that:

The development
of a methodology against which to assess the appropriateness and adequacy
of the Northern Territory and Western Australian schemes will also
form the basis of further consideration of diversionary programs for
Indigenous youth in other states and territories. Such consideration
could significantly enhance the development of best practice models
for Indigenous youth in juvenile justice processes Australia-wide.

Senate Legal
and Constitutional References Committee - Inquiry into the stolen generation

The
Commission made a submission to this inquiry on 8 June 2000. The submission
considered terms of reference 1 of the inquiry, namely the adequacy and
effectiveness of the federal government's response to the recommendations
of Bringing them home.

The
submission identifies three principles for evaluating the adequacy of
the government's response:

  • national coordination
    and leadership;

  • addressing
    forcible removal issues within a human rights framework; and

  • ensuring the
    `effective participation' of Indigenous people in decisions that affect
    them.

The
submission concludes that:

The Commission
is of the view that the Commonwealth government's response to date
has been inadequate and inappropriate. The Commission particularly
notes that the government's submission to this inquiry constitutes
a fresh response to many of the recommendations of Bringing them home,
which rejects several recommendations of report on the basis of flawed
arguments and poor reasoning.

The Commission
is of the view that the government has not provided any sound arguments
for failing to implement the recommendations of the report. The Commission
reiterates that the recommendations constitute the minimum acceptable
policy response to the separation of Aboriginal and Torres Strait
Islander children from their families.

The
first section of the submission provides comment on the government's response
to particular recommendations of Bringing them home. The second section
examines the government's submission to the Senate inquiry and rejects
the reasoning of the government in relation to issues of compensation,
reparation and the violation of human rights. It also corrects misrepresentations
by the government of the methodology of the Bringing them home report.
The final section provides international examples of governmental responses
to gross violations of human rights, which demonstrate that the Australian
government is out of step with international practice in responding to
violations of human rights.

The
submission is available in full on the HREOC website.

Aboriginal and
Torres Strait Islander Heritage Protection Act - Submission regarding
Boobera Lagoon

The
Social Justice Commissioner made a submission to a review of the commencement
date of the declaration made under s10 of the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 in relation to Boobera Lagoon. The
submission expressed concern that any further delay of the declaration,
originally made on 24 December 1998, would result in the desecration of
the Lagoon as the sacred site of the Rainbow Serpent. The submission also
points out that permitting the lagoon to be used as a recreation site
for water skiers for a further two years shows a lack of respect for the
cultural and spiritual significance of the area to the Indigenous community
involved and constitutes a breach of international human rights instruments
to which Australia is a signatory.

Provisions which
require the protection of minority rights, provisions which promote
equality on the basis of race, and provisions which protect freedom
of religious practice are integral to Australia's duty to protect
indigenous cultural heritage. In addition to this duty, these instruments
also require the effective participation of Indigenous people in decisions
which effect them.

Australia
has extensive human rights obligations to protect Indigenous heritage.
These are violated by any delay to the protection promised by the declaration
in 1998.

On 28
June 2000 Senator Hill decided to postpone the protection of Boobera Lagoon
for a further two years to 1 May 2002.

Speeches

Attached
is a selection of speeches, seminars and presentations made by Commissioner
Jonas in the reporting period. Selected papers are available on the HREOC
website.

Keynote
address to the Model United Nations Conference, Sydney University. 12
July 1999.

Address
to the NSW Reconciliation Convention, Wollongong. 14 August 1999.

Address
to Human Rights and Sport Conference: `How You Play the Game: The Contribution
of Sport to the Protection of Human Rights', Bondi. 1 September 1999.

Address
to the Institute of Australian Geographers Annual Conference, Sydney.
28 September 1999.

Address
the Australian Institute of Criminology Conference, Best Practice Interventions
in Corrections for Indigenous People on Indigenous Community Expectations
of Best Practice Interventions in Corrections, Adelaide. 14 October 1999,

Address
to the Geelong Catholic Social Justice Committee on Human Rights: Indigenous
Australians Current and On-Going Issues, Geelong. 20 October 1999.

Address
Environment Australia, State of the Environment Advisory Committee, Canberra.
8 November 1999.

Address
the Aboriginal Anti-Discrimination and Equal Opportunity Conference on
Racial Discrimination and the Native Title Amendment Act, Sydney. 11 November
1999.

Address
the ACOSS Congress on A New Deal for a New Century - Justice for Indigenous
Australians, Sydney. 11 November 1999.

Address
the Link-Up, National Bringing Them Home Conference, The Spirit of Family
Our Future/Our History The Stolen Generations, Friend or Foe - The Government's
Role, Gold Coast, Queensland. 23 November 1999.

Launch
of "Too Much Wrong": A Report on the Death of Edward James Murray, Sydney.
26 November 1999.

Address
Australian Local Government Association's National General Assembly on
Social Justice for All, Canberra. 29 November 1999.

Address
the Southern Cross University, Indigenous Human Rights Conference - `The
legitimacy of special measures', Ballina. 11-13 February 2000.

Launch
of Maitland's Heritage Month Celebrations and Opening of the Yinarr Baran
Bali Exhibition, Mindaribba Local Aboriginal Land Council Community Centre,
Maitland. 29 March 2000.

Address
the NSW Department of Aboriginal Affairs - Aboriginal Seniors Yarn Up
Conference on Our Rights and Responsibilities as Older People, Eagle Hawk
Hill, Canberra. 1-3 May 2000.

Address
the NSW Community Legal Centres Conference - Searching for justice, `Searching
for justice, the challenges ahead', Sydney. 3-9 June 2000.


[1]
UN Doc: CERD/C/56/Misc.42/rev.3. Available on the internet at: http://www.faira.org.au/cerd.index.html

Last
updated 1 December 2001.