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Annual Report 2001-2002: Chapter 4

Human Rights and Equal Opportunity Commission Annual Report 2000-2001

Chapter 4: Aboriginal and Torres Strait Islander Social Justice

Aboriginal and Torres Strait Islander Social Justice Commission Dr William JonasAboriginal
and Torres Strait Islander Social Justice Commissioner and acting Race
Discrimination Commissioner,

Dr William Jonas, AM

Monitoring and Reporting

Social
Justice Report 2000

Under section 46C(1)(a)
of the Human Rights and Equal Opportunity Commission Act 1986,
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).

The 2000 Social
Justice Report is the second by Dr Jonas. It tabled in both houses of
the federal Parliament on 28 March 2001. The theme of the report is
reconciliation and human rights.

The report commences
by addressing the issue of why human rights are relevant to the reconciliation
process (Chapter 2). The report claims that the broader Australian community
lacks an understanding of how the basic human rights principles of non-discrimination
and equality before the law relate to the reconciliation process. The
view that ‘everybody should be treated the same’ overlooks
the simple fact that throughout Australian history Indigenous people
never have been (p19).

The report argues
that the current approach of ‘practical reconciliation’ does
not recognize these factors. The report suggests that an alternative,
human rights, approach would:

  • Acknowledge
    that Indigenous disadvantage is historically-derived and remedial
    measures are needed to give Indigenous people equal opportunity;
  • Empower Indigenous
    people by ensuring they take part in decisions affecting them;
  • Use human rights
    principles as benchmarks to assess the adequacy and appropriateness
    of the government’s response; and
  • Prioritise resources
    to satisfy basic human rights standards.

The report considers
the ‘social cost’ of ‘managing’ (rather than overcoming)
Indigenous disadvantage and argues that this will escalate unless an
extensive and long-term commitment is made to redressing disadvantage.

Chapter 3 then
examines Australia’s current performance in relation to Indigenous
human rights. It focuses on the dialogue between the Australian government
and the Committee on the Elimination of Racial Discrimination (CERD)
in March 2000 concerning Australia’s compliance with our obligations
under the United Nations racial discrimination convention. It considered
a range of issues that must be addressed for reconciliation to be meaningful.

The report reproduces
extensive excerpts from the dialogue to explain why the Committee raised
particular issues, to examine the adequacy of the Government’s
responses, and the appropriateness of the conclusions and concerns expressed
by the Committee. The chapter also exposes a number of myths surrounding
the operation of the UN human rights treaty system and Australia’s
international obligations.

The report expresses
concern at the following issues:

  • Australia’s
    obligations to protect cultural diversity:
    The government demonstrated to CERD a poor understanding of its obligations
    to ensure equality before the law, including by taking ‘protective
    measures’ to protect the cultures of Indigenous peoples;
  • Inadequate protection
    of human rights in Australian law:
    The federal government breaches its international obligations when
    it refuses to use its powers to ensure that state and territory laws
    comply with our human rights obligations – such as with the refusal
    to overturn mandatory sentencing laws;
  • Inadequate protection
    in Australian law against racial discrimination:
    Despite the existence of the Racial Discrimination Act 1975, the federal
    government may still introduce racially discriminatory laws –
    such as the native title amendments. The Constitution also lacks an
    entrenched guarantee against racial discrimination;
  • Extent of Indigenous
    disadvantage:
    The Committee confirmed that the extent of Indigenous disadvantage
    raises serious concerns about Australia’s compliance with the
    requirement to provide equality before the law and to treat people
    in a non-discriminatory manner. It expressed concern at ‘the
    extent of the dramatic inequalities that are still being experienced
    by these population groups when they represent no more than 2% of
    the population of a highly developed, industrialised state’.
    Australia also has an obligation to adopt special measures to overcome
    this disadvantage – as a matter of human rights compliance;
  • Indigenous
    over-representation in criminal justice systems:
    The report highlights the necessity to adopt measures to address socio-
    economic marginalisation and to develop appropriate diversionary options;
  • Mandatory sentencing:

    The report highlights a series of concerns about mandatory sentencing,
    including its racially discriminatory impact. It notes the ‘deeply
    unsatisfactory’ explanations provided by the government on this
    issue; and
  • Reconciliation
    and ‘Bringing them home’:
    The report highlights the need for a consensual approach to reconciliation
    – negotiated with Indigenous peoples; and the importance of responding
    appropriately to the Bringing them home report.

Chapter 4 then
sets out what measures must be taken to achieve meaningful reconciliation
that respects human rights. The report argues that it is critical to
ensure greater government accountability for Indigenous policies, and
accordingly that the government must:

  • Make an unqualified
    national commitment to redressing Indigenous disadvantage;
  • Facilitate the
    collection of data for decision making, reporting and monitoring progress;
  • Set benchmarks
    – negotiated with Indigenous peoples, state and territory governments
    and service delivery organizations, with clear timeframes for achieving
    longer term and short term goals;
  • Provide national
    leadership to facilitate inter-governmental cooperation; and
  • Ensure the full
    participation of Indigenous peoples in the design and delivery of
    services.

Having noted that
the current level of protection of human rights in Australia is inadequate,
particularly as it relates to Indigenous people, the report recommends:

  • A constitutional
    Bill of Rights – this is identified as the preferable, longer
    term objective that would bind all levels of government;
  • A prohibition
    of racial discrimination in the Constitution – this is identified
    as an immediate priority, which would bind all levels of government
    and ‘place the commitment of government to (the principle of
    non-discrimination on the basis of race) at the highest possible level,
    and guarantee that such commitment could never be put aside for more
    expedient political purposes’; and
  • A legislated
    Bill of Rights – which would guarantee compliance by the states
    and territories with human rights obligations, and provide moral authority
    for successive federal governments to act consistently with human
    rights obligations. People would have time to become more comfortable
    with a Bill of Rights before a referendum to constitutionally enshrine
    it.

To improve Australia’s
objective accountability for human rights at an international level
the report also recommends that:

  • Australia ratify
    all individual communication mechanisms under United Nations human
    rights treaties, including under the Convention on the Elimination
    of All Forms of Discrimination Against Women;
  • The government
    respond more appropriately to the conclusions of treaty committees;
    and
  • The government
    increase the priority with which it processes periodic reports under
    human rights treaties.

The report also
calls for the negotiation of agreements or treaties with Indigenous
peoples to redress historical injustices in tandem with a framework
for protecting rights in the future. The report recommends a two stage
process for agreement making:

The first stage
is the introduction of framework agreements legislation, which recognizes
the need to negotiate with Indigenous peoples about a range of matters
and sets out protocols and a negotiation framework within which negotiations
will take place. It should provide legislative force to agreements
with Indigenous organizations on a local, regional and national level...

It recommends the
adoption of the Social Justice Package principles as the basis of negotiations.
Having introduced framework legislation, and provided appropriate resources
for agreement processes, the second stage would be a commitment to work
towards constitutional entrenchment of agreements by:

amending the
Commonwealth Constitution along similar lines to the current section
105A to provide the Commonwealth with the power to make agreements
with Indigenous peoples. Section 105A of the Constitution provides
that the Commonwealth may make agreements with the States with respect
to the public debts of the States. It further provides that the federal
Parliament has power to legislate any matter contained in the agreement;
that such agreements can be varied or rescinded by the parties; and
that agreements, and any variations, are to bind all levels of government.

Chapter 5 of the
report then examines the importance of providing reparation for the
victims of forcible removal policies to reconciliation. The report reviews
international human rights principles that suggest that measures aimed
at rehabilitation and atonement are appropriate and necessary responses
to gross violations of human rights.

The Report then
examines the response of the federal government to Bringing them home.
It criticises the Government’s rejection of a formal national apology,
its refusal to consider monetary forms of compensation, and its insistence
on legal liability as a prerequisite to compensation.

The report considers
recent international experience in responding to violations of human
rights and concludes that the refusal to apologise, the failure to develop
comprehensive reparations programs and reliance on litigation as an
appropriate redress mechanism are contrary to a world-wide trend.

An executive summary,
the full report and press release can be downloaded from the Commission’s
website at http://www.humanrights.gov.au/social_justice/index.html.

Native Title Report 2000

Under section 209
of the Native Title Act 1993, 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 2000 is the second by Dr Jonas, and was tabled in both houses
of the Federal Parliament on 28 March 2001.

The 2000 Native
Title Report finds that the Australian law of native title, both the
common law and statute, provides insufficient protection to the relationship
that the Indigenous peoples of Australia have with their traditional
land and sea country. In Australia, non-Indigenous interests will always
prevail over Indigenous interests in the same area. While this discriminatory
treatment of Indigenous peoples is of concern what is even more worrying
are developments in the case law that find that even where minor clashes
occur between Indigenous and non-Indigenous rights, native title will
be extinguished forever in order to give non-Indigenous interests full
enjoyment of their title. Both the common law and the legislation governing
native title permit this extreme discrimination to occur.

The Report’s
criticism of the Native Title Act and its interpretation in the courts
is based on international human rights norms contained in various treaties
to which Australia is a signatory. Three human rights committees that
oversee the implementation of the International Convention on the Elimination
of All Forms of Racial Discrimination, the International Covenant on
Civil and Political Rights and the International Covenant on Economic
Social and Cultural Rights respectively have, within the reporting period,
criticised Australia’s failure to provide protection to Indigenous
relationships to their traditional lands in accordance with its treaty
obligations. Chapter One of the Report analyses the international dialogue
that has taken place in relation to native title through the Committee
process. The meaning of equality and self-determination that has emerged
out of this dialogue is discussed.

In chapter 2, the
Native Title Report analyses the way in which the construction of native
title as a bundle of rights by the majority of the Court in the Miriuwung
Gajerrong case renders Indigenous rights vulnerable to discriminatory
extinguishment. Under this approach the erection of a fence on pastoral
leasehold land is considered inconsistent with the exercise of any native
title rights and will extinguish native title forever. A more resilient
construction is offered in a depiction of native title as a right to
traditional land. The deep spiritual relationship between Indigenous
people and their land allows native title to survive the grant of many
Indigenous interests even though native title rights cannot be exercised
for a period of time. In this way Indigenous and non-Indigenous people
are able to co-exist on the same land.

Chapter 3 compares
the recognition that both the common law and the Native Title Act give
to traditional relationships to sea country, with the recognition that
is given to traditional relationships to land. The decision of the Full
Federal Court in the Croker Island case is analysed in the Report as
an example of how the legal system imposes severe limitations on the
recognition of traditional fishing rights and the spiritual connections
that exist between the Indigenous native title groups and the sea. The
level of protection provided is inadequate to ensure the survival of
Indigenous culture and Indigenous marine economy.

Also discussed,
in chapter 4, is the failure of the Native Title Act and the common
law to give protection to Aboriginal heritage. While the recognition
of native title offered an opportunity to reframe the protection of
Indigenous heritage within the broader framework of a human right to
enjoy one’s culture, governments have squandered this opportunity.
The amendments to the NativeTitle Act take heritage out of the native
title framework of rights and relegate it to inadequate targeted legislation
that conceives of Aboriginal heritage as a relic of a dying civilisation.
The recommendations of the Evatt Report to reform Aboriginal heritage
legislation so as to provide better protection to Aboriginal culture
have been largely ignored in the proposed amendments to the Aboriginal
Heritage Act.

The Report, in
chapter 5, expresses deep concern at the reduction of procedural rights
under the amended Native Title Act. The few opportunities that native
title holders have under the Act to advise governments, mining companies
and developers of the nature of their traditional links with the land
and the adverse impact that might result from specific developments
have been interpreted to have little value in the decision-making process.
Neither government nor private decision-makers are compelled to take
Indigenous concerns into account. Moreover where Aboriginal peoples’
procedural rights are completely ignored actions and decisions that
adversely affect native title rights are valid nonetheless. The report
concludes that procedural rights under the Native Title Act provide
only nominal protection to native title holders.

An executive summary,
the full report and press release can be downloaded from the Commission’s
website at http://www.humanrights.gov.au/social_justice/index.html.

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 1986 to promote discussion and
awareness of human rights in relation to Aboriginal persons and Torres
Strait Islanders.

Face the Facts

Dr Jonas released
an updated, revised version of Face the facts – Some questions
and answers about Immigration, Refugees and Indigenous Affairs on 21
March 2001.

The publication
is available on the Commission’s website at:
http://www.humanrights.gov.au/racial_discrimination/face_facts/index.html

or in hard copy from the Commission.

The publication
contains updated material on commonly asked questions about Indigenous
affairs and native title. For further information on Face the Facts
see the report on race discrimination (chapter 7).

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 in the performance
of his functions. The Social Justice Commissioner has sought to promote
an awareness of human rights issues facing Aborigines and Torres Strait
Islanders by participating in the processes of the Council for Aboriginal
Reconciliation.

Dr Jonas has provided
regular briefings to the Council’s Secretariat on human rights
issues, as well as 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 and ahead of the Council’s Final Report
to Parliament in December 2000.

Since the release
of the Council for Aboriginal Reconciliation’s four national strategies
and final report to Parliament, Dr Jonas has examined how the Council’s
recommendations can be implemented in the course of the performance
of the Social Justice Commissioner’s functions. In the Social Justice
Report 2000, Dr Jonas commits to reporting on the implementation of
the Council’s recommendations in the Social Justice Report each
year.

National Reparations Conference

During the financial
year, the Commission entered a partnership with the Aboriginal and Torres
Strait Islander Commission and the Public Interest Advocacy Centre to
run a national conference on reparations for the stolen generations.
The conference, Moving forward – achieving reparations for the
stolen generations will take place on 15-16 August 2001 at the University
of New South Wales. The purpose of the conference is to develop a model
for providing reparations for the stolen generations. The conference
features a range of national and international speakers including representatives
of the stolen generations, government and non-government parties, the
churches, Reconciliation Australia, as well as the Aboriginal Healing
Foundation (Canada), Law Commission of Canada, Waitangi Tribunal, and
a former South African Truth and Reconciliation Commissioner. The secretariat
for the conference is located at the Commission, who are also providing
managerial and budgetary oversight of the conference. Conference details
and outcomes can be viewed online at www.humanrights.gov.au/movingforward.

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 organisations
and agencies, particularly international Indigenous organisations. 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 has participated in a range of international
dialogues on human rights during the financial year. In particular,
Commissioner Jonas:

  • Attended the
    United Nations in Geneva to observe the Human Rights Committee in
    their consideration of Australia’s 3rd and 4th periodic reports
    under the International Covenant on Civil and Political Rights, and
    to participate in the Working Group on Indigenous Populations, in
    July 2000;
  • Attended the
    United Nations in Geneva to observe the Committee on Economic, Social
    and Cultural Rights in their consideration of Australia’s 3rd
    periodic report under the International Covenant on Economic, Social
    and Cultural Rights in August 2000; and
  • Participated
    in international preparations for the World Conference Against Racism,
    Racial Discrimination, Xenophobia and Related Intolerance (for further
    details of this involvement see the report on race discrimination).

Dr Jonas made submissions
to both the Human Rights Committee and the Committee on Economic, Social
and Cultural Rights on behalf of the Human Rights and Equal Opportunity
Commission. These submissions were based on material previously provided
to the government.

Human Rights Committee (July
2000)

Dr Jonas made a
written submission to the Human Rights Committee in relation to Australia’s
3rd and 4th periodic reports in July 2000. The submission highlighted
issues of Indigenous heritage; disadvantage (in health, housing, education,
and employment); deaths in custody and over-representation in criminal
justice processes; mandatory sentencing laws; native title and the implementation
of Bringing them home. Commissioner Jonas also addressed the Committee
in an informal briefing on 19 July 2000 in which he discussed concerns
about the detention of asylum seekers; mandatory sentencing; Bringing
them home and deaths in custody. In concluding his comments, Dr Jonas
noted:

In respect of the
great majority of our concerns raised with you today Indigenous Australians
are at great relative and absolute disadvantage in Australian society.
Australia is a very wealthy country and when only two per cent of its
population suffer in this way some fundamental issues of equality and
rights must be raised.

Second, this situation
is not new – it is profound, it is deep and it is enduring. We
must also ask, therefore, why things not only remain distressingly bad,
but on many measurements actually get worse. And, I am sad to report,
until a genuine human rights approach is adopted towards Australia’s
Indigenous people – until Australia accepts and implements its
fundamental Covenant obligations - many of our most basic human rights
will continue to be denied.

The Human Rights
Committee provided its concluding observations on 28 July 2000.[1]
The Committee welcomed the establishment of the Aboriginal and Torres
Strait Islander Social Justice Commissioner position within the Commission
and positive developments in the recognition of traditional rights to
land in Mabo and the original Native Title Act 1993. The Committee
expressed the following concerns relating to Indigenous issues.

  • The insufficient
    action taken to assure Indigenous peoples their right to self-determination.
    The Committee urged that ‘The State party should take the necessary
    steps in order to secure for the Indigenous inhabitants a stronger
    role in decision-making over their traditional lands and natural resources.
  • The Native Title
    Amendments of 1998, which ‘in some respects limits the rights
    of Indigenous persons and communities, in particular in the field
    of effective participation in all matters affecting land ownership
    and use’. The Committee urged that the ‘State party take
    further steps in order to secure the rights of its Indigenous population
    under article 27 of the Covenant. The high level of the exclusion
    and poverty facing Indigenous persons is indicative of the urgent
    nature of these concerns. In particular, the Committee recommends
    that the necessary steps should be taken to restore and protect the
    titles and interests of Indigenous persons in their native lands,
    including by considering amending anew the Native Title Act, taking
    into account these concerns.’
  • The inadequate
    protection of Indigenous heritage, and urged that ‘in the finalization
    of the pending Bill intended to replace the Aboriginal and Torres
    Strait Islander Heritage Protection Act (1984), the State party should
    give sufficient weight to the above values’.
  • The continuing
    effects of forcible removal policies. The Committee urged that ‘the
    State party intensify these efforts so that the victims themselves
    and their families will consider that they have been afforded a proper
    remedy. (articles 2, 17 and 24)’.
  • The absence
    of entrenched protections of rights, such as a Bill of Rights; and
    legislative attempts to limit the effectiveness of rights such as
    through the Administrative Decisions (Effect of International Instruments)
    Bill;
  • The failure
    to ensure compliance of the states and territories with Australia’s
    human rights obligations. The Committee noted that ‘political
    arrangements between the Commonwealth Government and the governments
    of states or territories may not condone restrictions on Covenant
    rights that are not permitted under the Covenant’.
  • Legislation
    regarding mandatory imprisonment in Western Australia and the Northern
    Territory, ‘which leads in many cases to imposition of punishments
    that are disproportionate to the seriousness of the crimes committed
    and would seem to be inconsistent with the strategies adopted by the
    State party to reduce the over-representation of Indigenous persons
    in the criminal justice system’ and which raises serious issues
    of compliance with various articles in the Covenant. The Committee
    urged the government to ‘reassess the legislation regarding mandatory
    imprisonment so as to ensure that all Covenant rights are respected’.

Working Group on Indigenous
Populations (July 2000)

Following the Human
Rights Committee’s consideration of Australia, Dr Jonas remained
in Geneva to participate in the 18th session of the Working Group on
Indigenous Populations from 24-28 July 2000. Dr Jonas made an intervention
in the working group on the theme of Indigenous children and youth,
as well as chairing a workshop on Indigenous people and juvenile justice.

Committee on Economic, Social
and Cultural Rights (August 2000)

Dr Jonas attended
the United Nations in Geneva to observe the Committee on Economic Social
and Cultural Rights’ consideration of Australia in their consideration
of Australia’s third periodic report under the International Covenant
on Economic Social and Cultural Rights.

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. The submission addressed the issues of native title, heritage
protection, mandatory sentencing, deaths in custody, Indigenous disadvantage
(including health, mortality rates, education, and domestic violence).

The Committee on Economic, Social and Cultural Rights provided concluding
observations on 1 September 2000, noting as positive the allocation
of 2.3 billion dollars to Indigenous programmes while at the same time
expressing deep concern that despite the efforts and achievements, the
Indigenous people of Australia continue to be at a comparative disadvantage
in the enjoyment of economic, social and cultural rights particularly
in the field of employment, housing, health and education. The Committee
also noted with regret that the amendments of the 1993 Native Title
Act had ‘affected the reconciliation process between the State
party and the Indigenous populations who view these amendments as regressive’.

World Conference Against
Racism

During 2001, in
his capacity as acting Race Discrimination Commissioner, Dr Jonas also
participated in various preparatory meetings for the United Nations
World Conference Against Racism, Racial Discrimination, Xenophobia and
Related Intolerance at both the national and international level. Dr
Jonas was the opening speaker at the ATSIC Regional meeting of Indigenous
Peoples of Australia, New Zealand, Hawaii, Canada and the United States
of America in Sydney in February 2001. A full report on these meetings
is contained in the report on race discrimination (chapter 7).

Visit of the United Nations
Special Rapporteur on Contemporary Forms of Racism and Racial Discrimination

The Special Rapporteur,
Professor Maurice Glèlè-Ahanhanzo conducted a country-visit
to Australia from 22 April to 10 May 2001 in order to ascertain Australia’s
record on contemporary forms of racism. Dr Jonas provided briefing materials
to the Rapporteur and met with him on two occasions, alongside the Human
Rights Commissioner Dr Ozdowski. The Rapporteur also opened the Commission’s
National Summit on Racism and Civil Society in Canberra on 8 May 2001.
The Rapporteur will report to the General Assembly of the United Nations
on his visit in approximately March 2002.

Research and educational
programs

Under section 46C(1)
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 federal agencies and with the states
and territories, and a number of initiatives are currently in place
to promote the program.

The Commonwealth
Public Service and Merit Protection Commission (PSMPC) conducted several
Tracking Your Rights training programs during the financial year.
The South Australian Equal Opportunity Commission (SAEOC) have continued
to promote the program in South Australia, including through the running
of pilot programs in Port Augusta and providing course training to the
Department of Human Services.

The Anti-Discrimination
Commission, Queensland (ADCQ) entered into a partnership arrangement
with the Commission for the updating of the Queensland component of
the Tracking Your Rights manual. The Queensland manual was researched
and written by the ADCQ with funding provided by the Commission, ADCQ
and the Queensland government. The ADCQ launched the manual in Aboriginal
communities across Queensland in September 2000, distributing 500 copies
and providing training. The Commission has placed the updated manual
on its website to ensure greater accessibility to the material at: http://www.humanrights.gov.au/social_justice/tracking/index.html.

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 curriculum
must be re-accredited by mid-2002. During the financial year, the Australian
National Training Authority agreed to contract the Business Services
Advisory Board to evaluate the curriculum against training competencies
in order to ascertain the scope of the re-accreditation task.

Examining enactments for
compliance with human rights principles

Under section 46C(4)
of the Human Rights and Equal Opportunity Commission Act 1986, the Social
Justice Commissioner may examine and report on enactments and proposed
enactments to ascertain whether or not they recognise 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.

Senate motion regarding
mandatory sentencing

On 13 April 2000
the Senate passed a motion requesting that the Commission 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 the Commission 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 commenced
examining these issues during the financial year and will report the
outcomes of his research in the Social Justice Report 2001.

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

The Commission
made a submission to this inquiry on 8 June 2000 and appeared before
the Committee on 12 July 2000. The submission considered 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 the Bringing them home report. 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 Commission’s website. An updated version
of the submission was also included as Chapter 5 of the Social Justice
Report 2000.

Intervention in court proceedings

Section 11(1)(o)
of the Human Rights and Equal Opportunity Act provides that the Commission
may seek leave to intervene in court proceedings (see page 92 of Legal
Section Report for discussion on Intervention).

On 6 March 2001
the Aboriginal and Torres Strait Islander Social Justice Commissioner
was granted leave by the High Court to intervene in the case of Western
Australia v Ward
. The decision to intervene had several bases including
the significance of the case in the development of the common law’s
approach to the nature of native title; the power of the Crown to extinguish
native title; the meaning of the statutory definition of native title
in the context of the Native Title Act 1993 and the extent to
which the courts should take account of international human rights law
in developing new jurisprudence. It was considered that a human rights
approach to the issues raised in the case could assist in the survival
of Indigenous laws and customs in Australia.

At the hearing
the Commission argued that native title should not be construed as a
bundle of rights that could be severally or jointly extinguished by
the creation of any inconsistent interest. Rather it should be construed
as a resilient relationship between Indigenous people and their land.
This relationship was capable of surviving even if particular rights
could not be exercised due to their inconsistency with non-Indigenous
interests in the same land.

The High Court
has reserved its decision in the case.

Speeches

Attached is a selection
of speeches, seminars and presentations made by Dr Jonas in the reporting
period. Selected papers are available on the Commission’s website
at: http://www.humanrights.gov.au/speeches/.

4 July 00 Launch,
The Aboriginal Hunter Gateway Website at the Yamuloong Group Initiatives
Pty Ltd, Newcastle.

19 - 21 July 00,
Workshop on Indigenous Children and Youth, United Nations Working Group
on Indigenous Populations, Theme Two – Juvenile Justice, Palais
des Nations, Geneva.

13 October 00,
The University of Newcastle – Laws, Societies and Cultures Research
Group Conference: ‘Treaties and Constitutions Representing Indigenous
Peoples in the Pacific’ on `Unfinished Business – The Recognition
of Aboriginal and Torres Strait Islander Rights’, Newcastle.

19 October 00,
HREOC Youth Challenge, Darwin.

25 October 00,
Centre for Aboriginal Programs - Lunch Meeting, University of Western
Australia.

25 October 00,
Sir Wallace Kyle Oration ‘Reconciliation: Whose Rights, Whose Responsibilities?’
University of Western Australia.

29 October 00,
Community Aid Abroad and Oxfam Australia launch of the Oxfam International
Investigative Mission into the Rights of Indigenous Australians, Sydney.

30 October 00,
Indigenous Studies Unit, Koori Centre, University of Sydney on Indigenous
Australians and Human Rights, Sydney.

1 November 00,
The Yarramundi Lecture, University of Western Sydney on ‘Reconciliation
and the Recognition of Aboriginal and Torres Strait Islander Rights’,
Richmond.

4 November 00,
Public hearing on a proposal for a Hunter People’s Inquiry into
a Treaty between Indigenous and non-Indigenous Australians, Newcastle.

8 November 00,
Centre for Aboriginal Economic Policy Research (CAEPR) Conference “The
Indigenous Welfare Economy and the CDEP Scheme: Autonomy, Dependence,
Self- Determination and Mutual Obligation on Welfare Reform and Social
Justice”, Canberra.

21-23 November
00, Indonesian National Commission on Human Rights KOMNAS HAM on “Transitional
Justice and Racial and Religious Discrimination”, Surabaya, Indonesia.

27 November 00,
HREOC and Australian Human Rights Centre (UNSW) “Prisoners as Citizens”
Workshop entitled “Citizens Inside”, Sydney.

30 November 00,
HREOC, Anti-Discrimination Boards and Equal Opportunity Commissions
Legal Officers Seminar, Sydney.

11 December 00,
University of Technology Sydney, Equity, Social Justice and Human Rights
Awards, Sydney.

17 February 01,
Sydney Leadership Program Day on Aboriginal Issues, Sydney.

20 February 01,
Dr Jonas addressed the opening session at the Conference of Indigenous
Peoples and Racism, A Regional Meeting for the United Nations World
Conference Against Racism, Racial Discrimination, Xenophobia and Related
Intolerance, Sydney.

21 February 0,1
Panel discussion and workshop session at the Conference of Indigenous
People of Australia, New Zealand, Canada and the United States –
Indigenous Peoples and Racism, Sydney on the theme of prevention of
racism.

30 March 01, Launch,
Exhibition of weavings by the women of Central Australia (Ngaanyatjarra
Pitjantjatjara Yankunytjatjara (NPY) Women’s Council) titled Manguri
Weaving at Araluen Cultural Centre, Alice Springs.

19 June 01, Dr
Jonas addressed the Sydney office of the Native Title Tribunal on the
Social Justice and Native Title Reports, Sydney.

UN
Doc: CCPR/CO/69/AUS