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HREOC - Annual Report 2001 - 2002: Chapter 4: Aboriginal and Torres Strait Islander Social Justice

Human Rights and Equal Opportunity Commission

Annual Report 2001-2002

Chapter 4: Aboriginal and Torres Strait Islander Social Justice

Dr William Jonas, AM - Aboriginal and Torres Strait Islander Social Justice CommissionerAboriginal
and Torres Strait Islander Social Justice Commissioner

Dr William Jonas
was appointed Aboriginal and Torres Strait Islander Social Justice
Commissioner in April 1999. He is also the acting Race Discrimination
Commissioner, a position held since September 1999.

Statement from the Commissioner

The past year
has been one of great upheaval in regard to the importance that the
community attaches to human rights generally and the rights of Indigenous
peoples in particular. The year has seen the Government continue with
an approach that seeks to obscure important human rights considerations
from the Indigenous policy making lens.

Nowhere is this
more clearly present than in the government's 'practical reconciliation'
agenda. I have criticised this approach in great detail in the Social
Justice Report 2001
and Native Title Report 2001. In short,
my concerns with the government's approach can be summarised as relating
to the largely ahistorical context within which they apply their policies;
their failure to acknowledge the extent of the marginalisation faced
by many Indigenous people and the systemic, institutionalised nature
of the very real oppression that continues to be felt as a result;
and the lack of recognition of the distinct status of Indigenous families
and communities which require solutions that extend beyond individualism
and self-empowerment and which instead recognise and protect Indigenous
cultures.

Instead, practical
reconciliation presents itself as a cruel illusion of equality which
manages and maintains the status quo of the inequality faced by Indigenous
peoples and makes little effort to re-empower or transfer power back
to Indigenous communities. Indigenous communities, many of which are
dysfunctional and have broken down structures of authority, are treated
as passive recipients of government directed programmes and priorities.
Ironically, the rhetoric of government policy also attacks those same
communities for being passive recipients and for not escaping the
extreme poverty and dire circumstances that they face.

Integral to this
process of directing policy making towards practical assistance measures
has been the refusal to respond to the broader agenda of issues that
have been raised by Indigenous peoples, by the now defunct Council
for Aboriginal Reconciliation and by the Social Justice Commissioner.

The Council for
Aboriginal Reconciliation had been mandated to develop over a 10 year
period a series of recommendations for transforming the relationship
between Indigenous and non-Indigenous people. Yet more than two years
after the Council presented its Australian Declaration towards
reconciliation
and four national strategies for reconciliation
at Corroborree 2000; and over eighteen months after it made six final
recommendations to the Government in December 2000, there has been
no formal, public response to these documents. There has similarly
been no formal response to the fourteen recommendations on human rights
and reconciliation contained in the Social Justice Report 2000
and a rejection of the call by Indigenous people to negotiate 'unfinished
business'.

The failure to
respond to these important processes is of great concern. But they
form part of a broader picture in which we have seen significant rises
in the number of Indigenous people in the criminal justice system
and in rates of Indigenous over-representation. This has also been
accompanied by an increase in the number of Indigenous deaths in custody
and only a marginal decrease in the rate of such deaths over the past
decade. As I note in my review of ten years since the Royal Commission
into Aboriginal Deaths in Custody in the Social Justice Report 2001,
Indigenous juveniles now regularly comprise 42 percent of all people
in juvenile detention and Indigenous adults comprise 20 percent of
the adult corrections population on a national basis. This is worse
than the circumstances at the time the Royal Commission was established
and exists despite Indigenous people constituting just over two percent
of the total Australian population.

The situation
is similar regarding standards of health and education, employment
status and other measures of socio-economic status. Some gains are
being made, but they are overwhelmed by the continued hardship, stress
and trauma faced by the majority of Indigenous peoples and the extremely
slow pace of change.

Issues about
which the community would have once expressed great concern, even
outrage, now pass by almost unnoticed or simply accepted. But we can
never accept this situation as inevitable, to be expected or a reflection
of the way things are. This situation reflects serious failure to
make progress towards an equal society. It also reflects a serious
breakdown in government accountability for human rights.

What concerns
me greatly is the lack of momentum to change this situation. The status
of Indigenous communities should be attracting bi-partisan political
support for commitments at the national level to address it as a matter
of urgency and priority, with clear targets and goals for the short,
medium and long terms, with funding directed towards meeting such
goals, and with processes being instituted which facilitate Indigenous
participation in decision making processes. It is in everybody's interests
for such change to occur.

An opportunity
to make real changes based on the inherent rights of Indigenous people
was presented in the High Court's recognition of native title 10 years
ago. Rather than maximising the potential of native title to deliver
economic, social and political outcomes for Indigenous people the
government's response has been to encase native title in a legal armature
that is aimed at restricting rather than maximising this potential.
The amendments to the Native Title Act which ensure that the
grant of a non-Indigenous interest extinguishes, partially extinguishes
or prevails over Indigenous interests render native title powerless
to transform the lives of Indigenous people.

Through the combination
of the Council for Aboriginal Reconciliation, the landmark report
of the Commonwealth Grants Commission, the work of the Aboriginal
and Torres Strait Islander Commission and the Social Justice Commissioner,
a plethora of parliamentary committees and other agencies there is
much guidance on how to go about improving this situation.

As Social Justice
Commissioner I will continue to critically analyse the adequacy of
governmental efforts towards this goal even though it gives me no
pleasure to report on governmental failure.

I will also continue
to give prominence to positive initiatives by government and by Indigenous
communities - such as through my focus in my latest reports on governance
initiatives and community capacity building processes, developments
in the introduction of diversionary processes for juveniles in the
Northern Territory, and agreement making processes under the Native
Title Act.

I will continue
my efforts to provide a broader understanding of the importance of
human rights standards to Indigenous people's lives, through the redevelopment
of the National Indigenous Legal Studies Curriculum for Aboriginal
Legal Services' field officers; the redevelopment and outreach of
the Tracking your Rights package; the distillation of further best
practice principles and case studies similar to those developed for
juvenile diversion in the past year; and the enhancing of Indigenous
community capacity to understand and incorporate human rights to protect
culture and land through my ongoing corporate responsibility, land
and resources project. And I will continue to seek to persuade the
broader community to recognise and respect the valuable, distinct
characteristics of Indigenous cultures.

Monitoring and reporting

Social Justice Report 2001Social
Justice Report 2001

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

The Social
Justice Report 2001
is the third by the current Commissioner.
It was transmitted to the Attorney-General on 23 December 2001, and
tabled in both houses of Federal Parliament after 15 sitting days
on 14 May 2002.

The Report expresses
concern at developments ten years on from the Royal Commission into
Aboriginal Deaths in Custody:

The sense of
urgency and commitment to addressing Indigenous over-representation
in criminal justice processes has slowly dissipated. Indigenous
people have continued to die in custody at high rates in the decade
since the Royal Commission, and the average rate of Indigenous people
in corrections has steadily increased on a national basis since
the Royal Commission. Yet in 2001 this hardly raises a murmur of
discontent yet alone outrage among the broader community. These
facts either go unnoticed, or perhaps even worse in the age of reconciliation,
are simply accepted and not challenged. As a consequence, Indigenous
affairs seem to have become a series of anniversaries - operating
as an annual reminder of the unfulfilled promises and commitments
of governments. (Social Justice Report 2001, page 7).

In reviewing
government progress in the first year since the final report of the
Council for Aboriginal Reconciliation, the Report also focuses on
measures adopted to ensure reconciliation is ongoing; processes for
measuring and evaluating outcomes; and the leadership of the federal
government.

The Report notes
that in this period there has been no formal response by the federal
government to the documents of reconciliation or the final report
of the Council for Aboriginal Reconciliation:

There is a
danger that the reconciliation walks from last year will be the
high watermark of support for reconciliation, as national attention
(necessarily related to the ability of Reconciliation Australia
and the government to keep a national profile for reconciliation)
slowly dissipates…. better results may have been achieved with
a more active leadership role being played by the Commonwealth,
including through the use of forms of leverage to ensure compliance
such as performance conditions on grants to states and territories.
(Social Justice Report, page 203).

To refocus attention
on the reconciliation process, and to ensure adequate accountability
and transparency of government, the Commissioner makes two recommendations
in the Report relating to reconciliation, namely that the Senate establish
a committee inquiry into the response of government to the reconciliation
process and that the government provide a response to the Social Justice
Report in Parliament within 15 sitting days of tabling the Report.

Dr William Jonas speaks to members of the media at the launch of the 2001 Social Justice and Native Title ReportsThe
Report also analyses criminal justice issues relating to juvenile
diversionary schemes and mandatory sentencing in Western Australia
and the Northern Territory. There are four recommendations directed
at the Western Australian government to improve the juvenile diversionary
system. This does not currently benefit Indigenous juveniles due to
a range of factors including the culturally inappropriate nature of
the system, the lack of Indigenous participation in designing and
delivering programs, and the lack of services outside Perth.

There are six
recommendations for the Northern Territory government to improve their
newly introduced juvenile diversionary schemes. The Report finds that
the schemes have been rapidly progressed in their first year but require
additional legal safeguards and must involve greater government coordination
and Indigenous participation.

The Report also
considers the mutual obligation approach to welfare reform. While
noting it has many positive features the Report also expresses concern
at the limitations of this approach and its potential to effect Indigenous
people detrimentally. The Commissioner calls for a more widespread,
consultative approach to be adopted to Indigenous welfare reform which
gives sufficient acknowledgement of Indigenous specific dimensions
of Indigenous welfare dependency, which range from cultural to historical
factors. The Report also provides case studies of community capacity
building and governance initiatives which provide examples of alternatives
to the mutual obligation approach.

An executive
summary and the full report can be found on the Commission's website
at www.humanrights.gov.au/social_justice/.

Native Title Report 2001Native
Title Report 2001

Under section
209 of the Native Title Act 1993, the 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 2001
is the third by the current Commissioner. It
was transmitted to the Attorney-General on 2 January 2002 and tabled
in both houses of the federal Parliament on 14 May 2002.

The Report considers
progress in the 10 years since native title was first recognised in
the Mabo decision. It finds that the potential outcomes of native
title have not been realised because the native title system, as structured
by the Native Title Act and the common law, operates to restrict rather
than enhance the capacity of native title to deliver real outcomes.

The Report evaluates,
against human rights standards, the administrative practices developed
in Western Australia, Northern Territory, Queensland, New South Wales,
and Victoria in creating and managing non-Indigenous interests (largely
mineral tenements) on land where native title does or may exist. It
also evaluates against the same standards, the management of the expedited
procedure (a process where a government can 'fast track' a proposed
development where there will be only limited effects on Indigenous
interests in the relevant land) by state governments and the National
Native Title Tribunal. The Report concludes that:

"the failure
to provide native title parties with the opportunity to negotiate
about the development of their native title lands favours the property
rights of kinds held by non-Indigenous people over those held by
Indigenous people". (Native Title Report, page 51).

The Report considers
how the allocation of funds by the Commonwealth government to institutions
participating in the native title system impacts on the level of protection
extended to native title. The Report explains the distribution of
funding within the native title system, assessing the division between
the Federal Court, National Native Title Tribunal, Commonwealth Attorney-General
and native title representative bodies. Following these comparisons
the Report then looks at the level of funding of native title representative
bodies compared to their statutory functions, and demonstrates the
critical factors that are not reflected in the levels of funding:

From a human
rights perspective, it is essential that the organisations whose
function is to ensure the recognition and protection of native title
and the participation of native title parties in economic development
of their land are properly funded. The allocation of funds in the
Federal budgetary process has not apportioned sufficient funds to
the representative bodies responsible for carrying out these functions.
The inadequate funding of representative bodies relative to their
statutory functions has had the cumulative effect of undermining
their capacity to adequately promote and protect Indigenous interests
in the native title process. (Native Title Report, page 55).

Left to right: John Southalan (Human Rights and Equal Opportunity Commission), Professor Ciaran O'Faircheallaigh (Griffith University), Margaret Donaldson (Human Rights and Equal Opportunity Commission), Rhonda Kelly (Griffith University), Robynne Quiggan (Terri Janke and Company, Lawyers) - attending the Forum on Resource Development on  Aboriginal Land: A Human Rights Approach

In view of the
limitations in the current native title system and the practices developed
to administer native title policies, the Report considers the use
of framework agreements as an opportunity for both Indigenous and
non-Indigenous parties to settle upon a set of standards for the co-existence
of their interests in land.

The Report argues
that the content and process in the development of a framework agreement
needs to be guided by human rights standards. Issues such as recognising
Indigenous interests, contemporary Indigenous culture, and the communal
nature of native title are vitally important to developing an equitable
agreement. Issues that can be addressed through agreements consistent
with human rights principles include meaningful acknowledgement of
Indigenous interest in the relevant area, recognition and protection
of contemporary cultural practices, allowing (and where necessary,
assisting) the involvement of all native title holders who may be
affected by outcomes of any framework agreement, and ensuring a cooperative
approach to implementing any agreement.

Framework agreements
can provide certainty and stability in the relationships that they
engender, and will be a viable option for commercial entities wanting
to do business with Aboriginal people. The drawback however, is that
while framework agreements may provide an effective way forward, they
depend on being voluntarily adopted by those engaging directly with
Indigenous people. While native title rights are seen as limited non-exclusive,
easily extinguishable rights, it will be increasingly difficult to
convince developers, mining and resource companies, pastoralists,
local and state governments, to voluntarily adopt a human rights approach.
An executive summary and the full report can be found on the Commission's
website at www.humanrights.gov.au/social_justice/.

Submissions

The Commissioner
provided submissions into a number of projects and reviews in 2001-02.
These include:

Review of the Project
Development Approvals System (Western Australia)

The Western Australian
Government commissioned an independent committee to review the system
in Western Australia for dealing with proposals to develop projects
in the State. The Commissioner made a submission on the interim report
urging the Committee to address, in its analysis of the development
approval system in Western Australia, the human rights of Indigenous
peoples and their relationship to that system.

A threshold issue
of concern in the review was the lack of Indigenous input. Various
human rights standards indicate that the effective participation of
Indigenous peoples is essential in decision making that will affect
their traditional lands and lifestyles. The Committee was urged to
ensure that its deliberations were well publicised to Indigenous organisations
and people who may be affected by those deliberations, and that, where
necessary, the participation of those parties be facilitated by the
Committee.

In the Commissioner's
view the interim report adopted a development oriented perspective
at the expense of human rights principles relevant to Indigenous people.
Even where the status and role of Indigenous people is centrally important,
for example in discussing the operation of the Native Title Act and
Aboriginal heritage, this is not reflected in the report.

The Commissioner
was particularly concerned by the Committee's view that '[I]t is not
sensible to allow obstacles to be placed before the owner of a resource,
as that owner may have alternatives elsewhere, where land is not an
issue'. In the context of the Report, 'obstacles' refers to 'Aboriginal…claims
to hold native title'.

Mining, Minerals and Sustainable
Development Project

The Mining Minerals
and Sustainable Development (MMSD) project, is a two year global project
run by the World Business Council for Sustainable Development (a coalition
of 150 international companies "united by a shared commitment
to sustainable development") and the International Institute
for Environment and Development ("an independent, non-profit
organisation promoting sustainable patterns of world development through
collaborative research, policy studies, networking and knowledge dissemination").
The MMSD Project is divided into regions, with the Australian part
including various projects and meetings to:

  • identify
    how the mining and minerals industries can best contribute to sustainable
    development
  • build understanding
    and trust between the industry and people affected by its operations
  • develop a
    common understanding of the industry's contribution - positive and
    negative - to society
  • develop a
    shared vision for future minerals development in Australia.

MMSD Australia
has prepared research studies and an overall draft report. The Commissioner
made submissions in relation to the studies and the draft report and
participated in key meetings and workshops. The Commissioner is pleased
that the final report of the Australian component of the project included,
as one of its critical issues, 'The promotion of the rights and well
being of Indigenous communities' The report recognised that it was
essential that mineral development operations receive the prior informed
consent of local Indigenous communities; that traditional owners are
able to assess and respond to mining proposals; and benefits of the
project are equitably distributed between companies, communities and
government.

Wand Review of the State
Governments "General Guidelines for Native Title Determinations
and Agreements"

The "Wand
Review" established a set of draft negotiating principles for
the settlement of native title applications in Western Australia.
The Draft Guidelines state that the Government will pursue a 'cooperative
approach' to the resolution of native title claims. The main focus
of the Guidelines is to establish the level of evidence that will
be required by Government of connection to country before they will
engage in negotiations.

On 14 August
2001 the Commissioner made a submission to the Review which applauded
the attempt of the Western Australian Government to identify and adopt
appropriate processes for negotiating agreements, but noted with concern
that in some respects, the approach adopted did not endorse essential
minimum standards that require outcomes to be consistent with basic
human rights standards.

The submission
recommended that any minimum standards should recognise that:

  • Native title
    interests are entitled to the same level of protection as non-Indigenous
    interests.
  • Negotiations
    be based on the non-extinguishment of native title.
  • Agreements
    should be negotiated that encourage and allow continued observance
    of Indigenous laws and customs.
  • Agreements
    should be negotiated that encourage and allow Indigenous governance
    within their traditional lands.
  • Native title
    holders should be recognised as owners or joint owners and managers
    of the land.
  • Joint management
    arrangements in national parks should be provided for.
  • Native title
    is a group right and that the intergenerational aspect of the right
    must be protected.
  • Native title
    parties' "connection" to land should not be interpreted
    restrictively.

It was submitted
that the process for negotiation of native title agreements should
also reflect these principles.

Technical Taskforce on
Mineral Tenements and Land Title Applications

In August 2001
the Western Australian Government released a discussion paper on mineral
tenements and land title applications which recommended amendments
to Western Australian mining legislation aimed to reduce the backlog
of mining lease applications.

The Commissioner
commended some elements of the Technical Taskforce's recommendations,
but remained concerned about:

  • The focus
    of the recommendations on the reduction of the 'backlog' of mining
    license applications (and other future act applications), rather
    than the development of a long term approach to the inclusion of
    native title rights within land management in Western Australia.
  • The substitution
    of heritage agreements for more substantial negotiation with native
    title parties.
  • The failure
    to adopt a policy of non-extinguishment for all dealings with native
    title land.

Protection of human genetic
information

The Commissioner
made a submission to the Australian Law Reform Commission's Inquiry
into the Protection of Human Genetic Information. The submission noted
the particular vulnerability of Indigenous people to exploitation
of their genetic heritage, the necessity for specific protection from
such exploitation and the necessity for processes to require their
informed consent and participation. The submission also referred to
developing international human rights standards for the protection
of genetic information. The submission is available on the Commission's
website at www.humanrights.gov.au/social_justice/genetic_information.html.

Senate motion regarding
mandatory sentencing

On 13 April 2000
the Senate passed a motion requesting that the Commission inquire
into all aspects of mandatory sentencing in the Northern Territory
and Western Australia in two stages.

The Commission
responded to the first stage of the request in May 2000 and indicated
that the Commissioner would then:

  • 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
  • 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.

The Commissioner
addressed the Senate Legal and Constitutional References Committee
Public Hearing for their Inquiry into Mandatory Sentencing on 14 August
2001 in Sydney and updated his progress in this work. A submission
was also provided to the Committee.

The Commissioner
published the results of his research on mandatory sentencing and
diversionary schemes in the Social Justice Report 2001 which
was tabled in Parliament on 14 May 2002.

Promoting awareness and
discussion of human rights issues

The 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 peoples and Torres Strait Islanders.

Corporate Responsibility
Forum

In May 2002 Commissioner
co-hosted, with Griffith University, a forum in which approximately
30 Aboriginal people from diverse resource regions of Australia developed
a set of principles for resource development on their land. The forum
explored the question: "What would the relationship between Indigenous
communities and resource development companies look like if human
rights, such as the right of Indigenous people to effective participation
in the management of their land and the right to cultural recognition,
were shared values?"

The significance
of this forum lay, not only in the principles, but also in the unique
process by which their formulation took place. The forum was held
over three days. On the first two days Indigenous participants and
representatives developed principles as a response to the issues that
have arisen for them on their land. Fundamental to this process was
the belief that, as an exercise of the right to self determination,
Indigenous people must be given the opportunity to decide, from their
perspective, the obstacles that need to be overcome and the priorities
that need to be set in their relationship with resource companies.

On the third
day of the forum the draft principles were presented to mining company
representatives and non-government organisations for feedback and
discussion. Company representatives were asked to provide the participants
with honest feedback on whether, and if so how, the principles could
best operate in the field. It was agreed that as a result of this
process, both company representatives and Indigenous people gained
a greater understanding of their respective values and priorities.

The principles
are intended to have a number of uses including: for the use of Indigenous
communities wishing to develop their own policy on mining; to assist
in framing issues for negotiation with mining companies; for incorporation
into social responsibility policies of companies, and for use by auditors
and assessors in developing benchmarks for company's social responsibility
performance.

Further information
and documents concerning the forum can be found at www.humanrights.gov.au/social_justice/corporateresponsibility/.

National Reparations Conference

The Commissioner
co-hosted Moving Forward - Achieving Reparations for the Stolen
Generations
with the Aboriginal and Torres Strait Islander Commission
(ATSIC) and the Public Interest Advocacy Centre (PIAC) on 15-16 August
2001 at the University of New South Wales.

The Commission,
ATSIC and PIAC were concerned about the inadequacy of the responses
of governments and the churches to the issues raised in Bringing
them home
, the Report of the National Inquiry into the Separation
of Aboriginal and Torres Strait Islander Children from their Families.
The three organisations agreed to join in a partnership to convene
a national conference to facilitate discussion about ways to move
forward and better meet the needs of those people forcibly removed
from their families.

The conference
sought to provide a forum to consider the adequacy of government measures
to meet the needs of those affected by forcible removals; international
law principles and models for providing reparations for violations
of human rights; the findings of PIAC's national consultation process
on reparations; government and church responses to the history and
effects of forcible removals; and the importance of reparations in
advancing the process of reconciliation.

Funding for the
conference and a conference secretariat were provided by ATSIC. The
Commission agreed to manage the organisation of the conference, provide
finance processing, website design and public awareness.

The conference
featured a number of international guests providing perspectives on
proposals for reparations in other countries, as well as representatives
of government, the opposition, the churches and stolen generations
groups in Australia.

What became apparent
fairly early in the conference was that members of the stolen generations
continue to suffer great hardships, and that efforts to date have
not ameliorated their harm. Stolen generations members needed to be
able to share their stories and experiences as part of their individual
healing process. Throughout the conference, members of the stolen
generations rose to speak about their lives and the problems they
face as a consequence of their removal.

The emotion and
the reality of their experiences stood in stark contrast to the response
by the Government that immediately followed, with its detailed rejection
of the concept of a reparations tribunal. There could be no greater
gulf between the individual cries for help heard during the conference,
and the narrowness and unwillingness of the Government to consider
alternative approaches to redressing this harm.

Ultimately, 28
recommendations were formed at the conference. These remained open
for comment and community consultation for approximately 10 weeks
after the conference and were finalised in early November 2001.

The recommendations
reflect concerns at the level of implementation of the recommendations
of Bringing them home, with conference participants urging
the Government to see the recommendations as a package of integrated,
complementary measures. Conference participants considered that there
are significant social and economic costs to the current approach
of not adequately responding to the recommendations, and reaffirmed
the ongoing and urgent need for reparations and healing.

A strong message
from the conference was the need for broader consultations with stolen
generations' members about the forms reparations should take. They
considered that PIAC's reparations tribunal model was an appropriate
basis on which to conduct further consultations.

One of the main
outcomes of the conference was that it expanded the knowledge of participants
on the reparations approach and national and international developments
in this regard. Many people left the conference keen to go back to
their communities to share their experiences and their knowledge.
They saw the conference outcomes as the start of further important
processes which might bring some resolution to their calls for redress.

The conference
recommendations and speeches are available at the conference website
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 Social Justice Commissioner's
functions, the 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.

In accordance
with these functions, and in his dual capacity as Social Justice and
acting Race Discrimination Commissioner, the Commissioner attended
the World Conference Against Racism in South Africa in August-September
2001. A full report on the World Conference is contained in the Race
Discrimination Section at Chapter 7 of this Report.

In May 2002,
the Commissioner also attended the inaugural session of the United
Nations Permanent Forum on Indigenous Issues in New York. The establishment
of a Permanent Forum was identified as one of the major goals of the
United Nations International Decade for the World's Indigenous People
which ends in 2004.

The Commissioner
made two interventions in the Forum, highlighting issues of human
rights significance in the Forum's interaction with United Nations
agencies and setting out key considerations for how the Forum should
operate from an Australian Indigenous perspective. Information about
the Permanent Forum and copies of Commissioner Jonas' interventions
are available on the Commission's website at
www.humanrights.gov.au/social_justice/.

A new International
Indigenous issues section was added to the Social Justice Commissioner's
website in May 2002 which provides simple access to relevant United
Nations documents on Indigenous issues and international scrutiny
of Australia's Indigenous affairs policies. The address is www.humanrights.gov.au/social_justice/internat_develop.html.

Research and educational
programs

Under section
46C(1)(c) of the Human Rights and Equal Opportunity Commission
Act 1986
the 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 peoples and
Torres Strait Islanders.

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. There are
currently seven registered training organisations licensed to use
the curriculum.

Nationally recognised
accreditation for the curriculum was due to expire in April 2002.
The package of courses that make up the curriculum must be reformatted
from their current module based format into a competency framework
in accordance with national training accreditation guidelines in order
for them to be reaccredited.

The Commission
obtained an extension for re-accreditation from the Australian National
Training Authority until 2003, and during the past financial year
the Commissioner commenced the re-accreditation process.

In 2001, the
Business Services Advisory Board of the Australian National Training
Authority conducted a mapping exercise for the Commission to identify
how current modules of the curriculum could be matched against competencies
in existing registered training packages. The results of this process
were then used to consult with existing registered training providers
about the re-accreditation process.

The Commission
has since been provided with $30 000 funding from the National Policy
Office of the Aboriginal and Torres Strait Islander Commission and
other assistance from the Legal Preventative Services Branch of this
Commission towards the necessary process for the re-accreditation
of the curriculum. Curriculum designers will shortly be hired by the
Commission to complete the necessary revisions, and a Curriculum Development
Advisory Committee comprising educational providers, Aboriginal legal
services and peak bodies is currently being formed to guide the process
in accordance with national reaccreditation guidelines.

The Commission
will be able to apply for reaccreditation of the Curriculum by February
2003. Further details about the accreditation process can be obtained
from the Commission's website at www.humanrights.gov.au/social_justice/education/.

Best practice principles
for diversion of juveniles

In November 2001
the Commissioner released the fifth instalment in the Human Rights
Brief
series - Best practice standards for the diversion of
juveniles.
The Brief provides practitioners and policy makers
with a simple, schematic guide to human rights principles relevant
to the establishment of diversionary mechanisms from custody for juveniles.
It includes a practitioner's checklist to ensure compliance with human
rights standards. The principles in the Brief were utilised in the
review of juveniles diversion in the Northern Territory and Western
Australia contained in Chapter 5 of the Social Justice Report 2001.

The brief is
available on the Commission's website at www.humanrights.gov.au/human_rights/briefs/brief_5.html.

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 develop
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
peoples 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. A number of initiatives that are currently
in place to promote the program were discussed in last year's Annual
Report.

During the financial
year the Commissioner began to consider options for the updating and
review of the project.

Intervention in court
proceedings

Section 11(1)(o)
of the Human Rights and Equal Opportunity Act 1986 provides
that the Commission may seek to intervene in court proceedings.

On 23 May 2002
the Commission was granted leave by the High Court to intervene in
the native title case of Members of the Yorta Yorta Aboriginal
Community v The State of Victoria & Ors.

The Commission
made submissions on the substantive issues of the appeal, namely,
abandonment of native title; the concept of traditional laws and customs;
the requisite connection with the claimed land or waters; the burden
of proof in relation to cessation, and the role of oral testimony
in native title claims. The Commission submitted that the provisions
of the Native Title Act which affect these substantive issues, among
others section 223(1), must be construed consistently with human rights
standards relating to equality before the law, the rights of indigenous
minorities to practice and revitalise their culture, and freedom of
religion. Further information can be found in the Legal Section at
Chapter 3 of this Report.

The High Court
has reserved its decision in the case.

Speeches

A selection of
speeches, seminars and presentations made by, or on behalf of, Commissioner
Jonas during 2001-02 are listed below. Further speeches are available
on the Commission's website at www.humanrights.gov.au/speeches/social_justice/.

Welfare Poison
or Welfare Autonomy
, University of New South Wales: Social Policy
Conference, Sydney, 6 July 2001.

Indigenous
Disadvantage: Australia's Human Rights Crisis
, Australian Council
of Social Services/Australians for Native Title and Reconciliation
Seminar: Practical Reconciliation or Treaty Talks, Canberra, 25 July
2001.

Moving forward
- from 'practical reconciliation' to social justice
, Moving Forward
- Achieving Reparations for the Stolen Generations Conference, Sydney,
14 August 2001.

Evolving Law
and Order Policy - A Rights Perspective
, Aboriginal and Torres
Strait Islander Commission Conference: The Royal Commission into Aboriginal
Deaths in Custody Forum - Unfinished Business, Sydney, 2 November
2001.

Capacity Building
Workshop for Native Title Representative Bodies, Noosa, 20 November
2001.

International
Workshop on Indigenous People and Relationships with the Mining Sector,
MMSD Australia, Perth, 4-6 February 2002.

Indigenous
Rights Recognition in Public Policy - a domestic perspective
,
Aboriginal and Torres Strait Islander Commission: National Policy
Conference, Canberra, 28 March 2002.

Community
Justice, Law and Governance
, Reconciliation Australia: Indigenous
Governance Conference , Canberra, 4 April 2002.

Opening Speech,
Human Rights and Equal Opportunity Commission Corporate Responsibility
Forum, Alice Springs, 6 May 2002.

The right
to self-determination of Indigenous Peoples - an Australian perspective
,
The International Centre for Human Rights and Democratic Development:
Self-determination workshop, New York, United States, 18 May 2002.

Reflections
on the History of Indigenous People's Struggle for Human Rights in
Australia - What Role Could A Treaty Play
, Treaty - Advancing
Reconciliation, Murdoch University, Perth, 27 June 2002.