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Submissions made by the Aboriginal and Torres Strait Islander Social Justice Commissioner

Legal Legal
Friday 14 December, 2012

Submissions made by the Aboriginal and Torres Strait Islander Social Justice Commissioner


Submissions focussing on Social Justice Issues


Submissions filed on common difficulties facing Aboriginal witnesses. 23 April 2007

The Aboriginal and Torres Strait Islander and Social Justice Commissioner was granted leave to appear as amicus curiae in two proceedings before the Queensland Supreme Court: Giblet & Ors v Qld & Anor, Chong & Ors v Qld & Anor.

Each of the proceedings involve allegations of unpaid wages to Aboriginal workers on church-run missions in Queensland in the late 1970s and early 1980s. The Commissioner considered that it may assist the Court and the parties to file written submissions on common difficulties faced by Aboriginal witnesses, given that many of the witnesses in the case are Aboriginal, as well as elderly and living in remote parts of the State. These submissions draw on extensive research relating to miscommunication problems that frequently arises in a courtroom setting due to linguistic and cultural differences between many Aboriginal and non-Aboriginal persons.

Click here for further information on the Commission's Amicus Curiae function


Submission to the Department of Families, Community Services and Indigenous Affairs Discussion Paper
13 March 2007


Submission to the Parliamentary Joint Committee on the Australian Crime Commission
13 March 2007


Submission to the Senate Legal and Constitutional Affairs Committee on the Crimes Amendment
13 July 2006


Submission to the Australian Senate, Community Affairs, Legislation Committee on the Aboriginal land rights
13 July 2006


Information Note - the Committee on the Elimination of Racial Discrimination and the periodic reporting process
14 March 2005

Australia is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The Convention has been ratified by 170 nations (only the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination Against Women have been ratified by more nations).


Submission to the Expert Seminar on Indigenous People and the Administration of Justice

The United Nations High Commissioner for Human Rights convened a workshop in conjunction with the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people in Madrid from November 12-14 2003. The workshop considered issues relating to Indigenous peoples' contact with criminal justice systems.

The Social Justice Commissioner made the following three submissions to the Special Rapporterur for the workshop:


United Nations Committee on the Rights of the Child - Day of General Discussion on the Rights of Indigenous Children

The Committee on the Rights of the Child will be convening a Day of Discussion on Indigenous Children as part of its forthcoming session on 19 September 2003.

The Aboriginal and Torres Strait Islander Social Justice Commissioner has made three submissions to the Committee relating to the following themes to be considered at the Day of Discussion:


Submission to ATSIC Review

Social Justice Commissioner calls on government to strengthen ATSIC

Dr Bill Jonas has called on the government to strengthen the monitoring role of ATSIC at the national level as well as provide it with enhanced powers at the state and regional levels. Dr Jonas is the Aboriginal and Torres Strait Islander Social Justice Commissioner. His comments were made in a submission made on behalf of the Human Rights and Equal Opportunity Commission and lodged with the ATSIC Review this week.In the submission, Dr Jonas argues that in order for ATSIC to represent Indigenous peoples effectively its current powers must be enhanced at the each of the national, state/territory, and regional levels. What is required to make ATSIC more effective is not a redistribution of ATSIC’s current powers from the national to the regional level but instead an enhancement of the existing powers at all levels. Click on the links below to to access:


Submission to the Northern Territory Law Reform Committee inquiry into Aboriginal Customary Law in the Northern Territory

The Aboriginal and Torres Strait Islander Social Justice Commissioner has made a submission to the Northern Territory Law Reform Committee's inquiry into the recognition of Aboriginal customary law. The submission contains:

  • An overview of recent developments in Indigenous policy which are relevant to Aboriginal Customary Law and which provide guidance as to how Aboriginal Customary Law might appropriately be recognised; Relevant human rights principles for determining the circumstances in which Aboriginal Customary Law should be recognised formally or informally; Considerations for recognising Aboriginal Customary Law in a manner that protects the rights of Aboriginal women; The relevance of building Aboriginal community capacity and supporting Indigenous governance mechanisms in order to recognise, strengthen and provide support to Aboriginal Customary Law, particularly within the context of criminal justice and family violence issues; Case studies of capacity building and recognising Customary Law; and
  • Recommendations for advancing formal and informal recognition of Aboriginal Customary Law in the Northern Territory.

Click here to access the Commissioner's submission and an executive summary.

The Sex Discrimination Commissioner has also made a submission to this inquiry. To access that submission click here.


Submission to the Senate Legal and Constitutional Legislation Committee on the Australian Human Rights Commission Legislation Bill 2003

A strong and independent national human rights organisation is crucial to promote and protect fundamental values of fairness, equality, tolerance and non-discrimination.Since its establishment in 1986, the Human Rights and Equal Opportunity Commission has successfully worked to foster greater understanding, respect and protection of human rights in Australia, with a particular focus on sex, race and disability discrimination, as well as the rights of Indigenous Australians.However, proposals contained in the Australian Human Rights Commission Legislation Bill 2003 have the potential to significantly undermine the integrity, independence and efficiency of the Commission.For further information on the Commission's major concerns with the Australian Human Rights Commission Legislation Bill 2003, which is currently being reviewed by the Senate Legal and Constitutional Committee click on the links below:

You can also access:


Submission to the Australian Law Reform Commission's Inquiry into the protection of human genetic information

The Aboriginal and Torres Strait Islander Social Justice Commissioner has made a submission to the Australian Law Reform Commission's inquiry into the protection of human genetic information. For information about the inquiry visit: http://www.alrc.gov.au/inquiries/current/genetic/index.htm

To access the Submission to the Australian Law Reform Commission inquiry into the protection of genetic information by the Aboriginal and Torres Strait Islander Social Justice Commissioner click here.


Submission to the United Nations Committee on Economic, Social and Cultural Rights

The commission has made a submission to the United Nations Committee on Economic, Social and Cultural Rights. The submission provides information to the Committee when it considers Australia's periodic reports under the International Covenant on Economic, Social and Cultural Rights. Click here to view the submissions.


Submission to the United Nations Human Rights Committee

The commission has made a submission to the United Nations Human Rights Committee on Australia's periodic reports under the International Covenant on Civil and Political Rights. Click here to view the submissions.


Submission to the Senate Legal and Constitutional Reference Committee's Inquiry into the Stolen Generation

Click on the links below to access


Submissions focussing on Native Title Issues


Proposed minor native title amendments


Inquiry into the Native Title [Amendment] Bill 2006


Review of the claims resolution process in the Native Title System


Native title Respondent Funding


Submission Towards an Alternative Settlement Framework for native title
February 2006


Native Title Act 1993 regarding the Native Title Representative Bodies
27 February 2006


Prescribed bodies corporate submission,
January 2006


Parliamentary Inquiry into the capacity of Native Title Representative Bodies (Commonwealth)
3 August 2004

In April 2004 the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund began an inquiry into the capacity of Native Title Representative Bodies to discharge their responsibilities under the Native Title Act. The terms of reference and other information about this inquiry are available at: www.aph.gov.au/senate/committee/ntlf_ctte/rep_bodies/index.htmThe Aboriginal and Torres Strait Islander Social Justice Commissioner made a submission to the Committee on 29 June 2004. The Commissioner's submission is made under the following headings:

1. The structure and role of NTRBs
1.1 A Human rights framework
1.2 The importance of NTRBs to the workability of the native title system
2. Resources available to NTRBs
2.1Commonwealth funding of the native title system
2.2 Under-funding of NTRBs
2.3 Allocation of funding between native title organisations and parties
2.4 Funding Procedures
3. NTRB Capacity Development; a new direction

The Commissioner's full submissions are available here: www.aph.gov.au/senate/committee/ntlf_ctte/rep_bodies/submissions/sub15.pdf.The Commissioner's recommendations, set out in the submissions, are:"That the Joint Committee note:

  • the importance of NTRBs in the recognition and protection of native title, in the effective participation of traditional owners in decisions affecting them, and in the efficient and effective operation of the native title system; and,
  • that NTRBs are insufficiently funded to perform these important functions.

That the Joint Committee recommend:

  • that the Commonwealth Government increase its funding of NTRBs so they have the capacity to conduct their functions addressing the recognition and protection of native title, the effective participation of traditional owners in decisions affecting them, and the efficient and effective operation of the native title system.
  • that the NTRB funding should:
    • respond to the long term strategic plans of NTRBs and claimant groups; not be limited to native title outcomes, but instead provide the opportunity for NTRBs to assist in addressing social and economic development of traditional owner groups;
    • not be subject to the unfettered discretion of the funding authority.

Mineral Exploration Action Agenda

In September 2002 the Commonwealth Government announced the development of a Mineral Exploration Action Agenda in partnership with industry. Action agendas are 'a cornerstone of the Federal Government’s industry policy [and] bring together industry and government leaders to work on long-term strategies'.The Mineral Exploration Action Agenda aimed to explore impediments and incentives for mineral exploration. The process involved the formation of a 'strategic leaders group' which prepared Draft Recommendations. The Aboriginal and Torres Strait Islander Social Justice Commissioner provided comments on the Draft Recommendations, addressing:

(1) sustainable development and human rights;
(2) human rights and native title;
(3) common misconceptions of native title; and
(4) analysis of exploration trends.

Click on the links below to access:


Trust Regulations

The Commonwealth Attorney General's Department requested comments from the Aboriginal and Torres Strait Islander Social Justice Commissioner on proposed regulations under the Native Title Act regarding monies to be held in trust from future act determinations. The Commissioner provided comments to the Attorney General's Department raising human rights concerns with the legislative provisions under which the regulations were proposed and also about the manner in which trustee's expenses may be dealt with.


Ministerial Inquiry into Greenfields Exploration (Western Australia)

During 2002, an Inquiry was held to identify strategies to increase resource exploration in Western Australia. The Inquiry, headed by WA parliamentarian John Bowler, investigated reasons for 'reduced...investment in greenfields mineral exploration in Western Australia and recommend[ed] actions that might be taken to achieve the level of expenditure necessary for a sustainable future for this...sector'. The Inquiry was specifically invited to cover 'Land access difficulties related to native title issues... [and] Issues associated with delays in approvals processes and granting of mineral title'. The Aboriginal and Torres Strait Islander Social Justice Commissioner made submissions to the Inquiry and the WA Government (after the Inquiry's report was released for public comment), and exchanged correspondence with Mr Bowler.

The comments of the Commissioner in relation to the Inquiry's report are available here. In these comments, the Commissioner:

  • explains the relevance of human rights to the WA Government's consideration of and response to the Inquiry, raises concerns about the lack of Indigenous participation in the Inquiry,emphasises the lack of effect of native title on exploration relative to other factors, discusses the relationship between mining and Indigenous rights,questions the Inquiry's recommendations in relation to Indigenous interests, and
  • explains the importance of prior informed consent.

The Commissioner's letter of 5 December 2002 to Mr John Bowler MLA is available here.Click on the links below to access:


Parliamentary Inquiry into Resources Exploration Impediments (Commonwealth)

In May 2002 the Standing Committee on Industry and Resources was requested to inquire into and report on any impediments to increasing investment in mineral and petroleum exploration in Australia. The terms of reference and other information on this inquiry can accessed via: http://www.aph.gov.au/house/committee/isr/resexp/index.htm

The Aboriginal and Torres Strait Islander Social Justice Commissioner made submissions to the Committee. The Commissioner's submissions are available at: http://www.aph.gov.au/house/committee/isr/resexp/sub17.pdf


Review of the Project Development Approvals System (Western Australia)

The WA Government commissioned an independent committee to review the system in WA for dealing with proposals to develop projects in the State. The Aboriginal and Torres Strait Islander Social Justice Commissioner made submissions to the committee which are available here:

The Committee released an interim report, available on the WA Government web-site at: http://www.ministers.wa.gov.au/main.cfm?MinId=10&Section=1001, which the Aboriginal and Torres Strait Islander Social Justice Commissioner had concerns with. The Commissioner provided extensive submissions to the committee about its interim report, pointing out various ways in which the interim report's recommendations will reduce Indigenous rights. Some of the main points covered in the Commissioner's submissions included:

  • The Committee should re-assess its approach to incorporate human rights and an Indigenous perspective into the development approval process; The Committee should conceptualise native title as a pre-existing and unique interest in land originating in the laws and traditions of Indigenous people - any land management system, including the development approval system, needs to address the different cultural bases of native title from that of non-Indigenous property interests, ensuring that both are equally protected and enjoyed;The non-extinguishment principle should be adopted in relation to all interests created in land that may be covered by a native title claim - accordingly the Committee should recommend against the use of compulsory acquisition of native title as a way of progressing developments; and
  • The Committee, if it wishes to endorse an approach to resolve native title issues by agreement rather than litigation, should recommend increased funding for NTRB's.

The Commissioner's response to the interim report is available here


Yorta Yorta High Court proceedings

In May 2002, the High Court heard an appeal in the Yorta Yorta native title claim relating to land in south-western NSW and north-western Victoria. The initial claim was dismissed in December 1998, with the trial judge ruling that the ancestors of the Yorta Yorta people had lost their culture to such an extent that native title could no longer be recognised. An appeal from this decision was dismissed by the Full Federal Court (in February 2001), and the Yorta Yorta people appealed the Full Federal Court's decision to the High Court.The Human Rights & Equal Opportunity Commission was granted leave to intervene in the High Court's hearing and make submissions to the High Court on relevant human rights principles. The High Court has reserved its decision.

The transcript of the High Court proceedings is available here:


Mining, Minerals and Sustainable Development

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 organization 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 of MMSD including various projects and meetings to:

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

More information on the MMSD Process is available from their web-site at: http://www.ameef.com.au/mmsd/index.htmMMSD Australia has prepared research studies and an overall draft report. The Aboriginal and Torres Strait Islander Social Justice Commissioner made submissions in relation to the studies and the draft report.Click here to access:


Technical Taskforce on Mineral Tenements and Land Title Applications

The Western Australian Government also released a discussion paper on native title and future acts. The discussion paper recommended amendments to Western Australian mining legislation aimed to reduce the backlog of mining lease applications. The discussion paper also made recommendations about the processing of non-mining future acts. The Discussion Paper is available at: http://www.ministers.wa.gov.au/ripper/Native_Title.htmThe Aboriginal and Torres Strait Islander Social Justice 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; and

The failure to adopt a policy of non-extinguishment for all dealings with native title land.

The Aboriginal and Torres Strait Islander Social Justice Commissioner’s submission to the Technical Taskforce on Mineral Tenements and Land Title Applications is available here in PDFPDF (121K) and WordWord (151K) formats.


National Native Title Tribunal - expedited procedure

The Native Title Act requires that where a government wants to grant an interests in land/water that could affect native title, the government has to follow the 'future act' procedure. For many proposed grants, native title parties have a right to negotiate. However, the government can use an expedited procedure, and make the grant without negotiating, where the government considers the only activities that could occur through the grant are not likely to (a) interfere directly with Indigenous community or social activities, (b) interfere with significant areas or sites, AND (c) involve major disturbance to the land. If native title claimants disagree with the government's view on this, they have the right to object in the Native Title Tribunal.The National Native Title Tribunal released guidelines ('Guidelines') explaining how the Tribunal will deal with objections to the expedited procedure. The Aboriginal and Torres Strait Islander Social Justice Commissioner has various concerns with the Guidelines and the Tribunal's management of objections to the expedited procedure.Click on the links below to access:


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 ‘co-operative 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.The Draft Guidelines are available at: http://www.ministers.wa.gov.au/ripper/Native_Title.htmThe Aboriginal and Torres Strait Islander Social Justice Commissioner made a submission to the Wand Review Draft Guidelines. In his submission the Commissioner applauded the attempt of the Western Australian Government to identify and adopt appropriate processes for negotiating agreements, but noted with concern that the approach adopted did not endorse essential minimum standards that require outcomes to be consistent with basic human rights standards.The Aboriginal and Torres Strait Islander Social Justice Commissioner’s submission to the Wand Review is available here in PDFPDF (54K) and WordWord (129K). formats.

 


Indigenous Land Use Agreements: The Commonwealth Parliamentary Joint Committee Inquiry

The Commonwealth Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (the PJC) initiated an Inquiry into the operation and effectiveness of Indigenous Land Use Agreements in 2000. The Committee requested comment on the following issues:

  • The usefulness and scope of the ILUA provisions in the Native Title Act 1993; Case studies or examples of negotiating ILUAs; The ILUA registration requirements and process; The role local/state/federal governments play in the negotiations; The factors influencing a decision to enter into ILUA negotiations rather than using other procedures under the Native Title Act; The advantages/disadvantages of ILUAs compared with agreements outside the framework of the Native Title Act;
  • The resources (technical/financial) that are necessary to successfully negotiate agreements.

Further submissions to the PJC Inquiry can be found at:
http://www.aph.gov.au/senate/committee/ntlf_ctte/ilua/index.htmThe PJC’s Nineteenth Report: Second Interim Report for the s.206(d) Inquiry - Indigenous Land Use Agreements, issued in September 2001, can be found at:
http://www.aph.gov.au/senate/committee/ntlf_ctte/report_19/index.htm

The Aboriginal and Torres Strait Islander Social Justice Commissioner made a submission to the PJC Inquiry which is available here in PDFPDF (89K) and WordWord (95K) formats.


Miriuwung Gajerrong High Court proceedings

In February 2001, the High Court heard an appeal in relation to the Miriuwung Gajerrong native title claim relating to land in northern Western Australia and the Northern Territory. The Human Rights & Equal Opportunity Commission was granted leave to intervene in the hearing and make submissions to the High Court on relevant human rights principles.


Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - May 2000

The submission by Dr Bill Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, relates to the Decision of the Committee on the Elimination of Racial Discrimination that the amended Native Title Act 1998 is discriminatory.

  • Download the submission in PDFPDF (187K), WordWord (93K)

Submission to the United Nations Committee on the Elimination of Racial Discrimination - August 1999

In July 1999, the United Nations Committee on the Elimination of Racial Discrimination wrote to the Aboriginal and Torres Strait Islander Social Justice Commissioner requesting information for consideration at the Committee's 55th session in Geneva in August 1999. This submission, dated 11 August 1999, responds to the Committee's request for information. It considers the development of native title legislation at the state and territory level and the impact of the registration test of the amended Native Title Act 1993 (Cth) on native title claimants.

  • Download the submission in PDFPDF (86K), WordWord (91K)

Submission to the United Nations Committee on the Elimination of Racial Discrimination - March 1999

In December 1998, the United Nations Committee on the Elimination of Racial Discrimination wrote to the Aboriginal and Torres Strait Islander Social Justice Commissioner requesting information at the Committee's 54th session in Geneva, 1-19 March 1999. This submission, dated 3 March 1999, responds to the Committee's request for information on changes to native title legislation, policy approaches to Aboriginal land rights and the functions of the Social Justice Commissioner and their compatibility with Australia's international obligations.

  • Download the submission in PDFPDF (155K), WordWord (148K)

Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund

Submission by Mick Dodson, former Aboriginal and Torres Strait Islander Social Justice Commissioner, 3 October 1997. Relates to the Native Title Amendment Bill 1997.

  • Download the submission in PDFPDF (158K), WordWord (161K)