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Social Justice Report 2004 : Chapter 1: Introduction

Social Justice Report 2004

Chapter 1: Introduction


This is my first Social Justice Report to the federal Parliament as Aboriginal and Torres Strait Islander Social Justice Commissioner. I commenced my five year term at the Human Rights and Equal Opportunity Commission on 12 July 2004.

I write this report as a Kungarakan and Iwaidja man. My peoples are traditional owners of lands in the Top End of the Northern Territory.. For the past three plus decades I have worked in numerous Indigenous specific and mainstream Australian government and academic roles in the Northern Territory, Canberra, India and Vietnam.. Most recently, I worked in the agency Aboriginal and Torres Strait Islander Services on community development, capacity building and Indigenous education policy and programs.

The Social Justice Report is produced in accordance with section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This requires that the Social Justice Commissioner report annually on the enjoyment and exercise of human rights by Aboriginal peoples and Torres Strait Islanders, and to make recommendations where necessary on the action that should be taken to ensure that these rights are observed.

I have taken up the position of Social Justice Commissioner at a time of great uncertainty for Indigenous peoples. As the report documents, there are significant changes underway in the approach of the federal government to Indigenous affairs. These range from the proposed abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) through to the movement to new arrangements for administering Indigenous programs and developing Indigenous policy.

The changes will leave the Human Rights and Equal Opportunity Commission (HREOC), and specifically the position of Aboriginal and Torres Strait Islander Social Justice Commissioner, as one of very few mechanisms remaining that are able to independently monitor the activities of governments from a national perspective.

Accordingly, I have decided to use this introductory chapter of my first Social Justice Report to indicate to Indigenous peoples and communities, governments and to the federal Parliament, how I intend to fulfil the duties of the role that I have been tasked with.

The role of the Social Justice Commissioner

The position of Social Justice Commissioner was created in 1993 in response to the Royal Commission into Aboriginal Deaths in Custody and HREOC's National Inquiry into Racist Violence. It was created to ensure an ongoing, national monitoring agency for the human rights of Indigenous peoples.

Both previous Commissioners (Professor Mick Dodson and Dr William Jonas) have made a significant and lasting contribution to the promotion of Indigenous human rights in Australia. This has also been recognised internationally, as most recently demonstrated by the election of Professor Mick Dodson to the position of regional representative of the Indigenous peoples of the Pacific to the United Nations Permanent Forum on Indigenous Issues.

The legacy of my predecessors is vast. It includes that Indigenous peoples, non-government organisations and governments have come to expect rigorous analysis and fierce advocacy for the promotion and protection of Indigenous human rights by the Social Justice Commissioner. This will continue.

The Social Justice Commissioner is tasked with a range of significant roles in promoting acceptance of and compliance with the human rights of Indigenous peoples. Specifically, the Commissioner is required to:

  • prepare the annual Social Justice Report to the federal Parliament;
  • prepare an annual report on the impact of the Native Title Act 1993 (Cth) on the exercise and enjoyment of human rights by Indigenous peoples (the Native Title Report);
  • promote awareness and discussion of the human rights of Indigenous peoples;
  • undertake research and educational programs for the purposes of promoting respect for, and exercise and enjoyment of, human rights by Indigenous peoples; and
  • examine and report on laws and proposed laws at any level of government to ascertain whether they recognise and protect Indigenous peoples' human rights.

The Social Justice Commissioner is also a member of the Human Rights and Equal Opportunity Commission. There are two main consequences of this. First, I have responsibilities collectively with the other Commissioners and the President of HREOC in promoting awareness and respect for the human rights of all Australians. At present, I also have significant responsibilities as the acting Race Discrimination Commissioner. Second, HREOC is recognised at the United Nations as complying with principles adopted by the General Assembly for the establishment and operation of independent national human rights institutions. In performing my duties, I will not compromise this independence.

In light of current events, the need for a Social Justice Commissioner has never been stronger. As I discuss in detail in the report, the abolition of ATSIC and the movement to new arrangements for designing policy and delivering programs and services to Indigenous peoples raise many challenges for governments at all levels. It has the potential to impact significantly on the enjoyment of human rights by Indigenous peoples by either leading to improved performance and outcomes by government, or by undermining the enjoyment of human rights by Indigenous peoples.

The existence of an independent monitoring agency specifically tasked with establishing the impact of governmental activity on the ability of Indigenous peoples to enjoy their human rights is essential in this climate.

My functions, as set out above, envisage that my activities as Commissioner will be a mix of reactive and proactive measures. Where significant human rights issues are raised by an event in the community or action or decision by government, the Social Justice Commissioner will respond to it. This is particularly where situations arise that may involve significant or systemic breaches of Indigenous peoples human rights. I will respond through engagement with the relevant government and/or the media, the making of submissions to Parliament or governments, appearing in court cases, or providing appropriate support (such as education and training) to Indigenous communities or groups.

However, I hope that the majority of my work will not be dictated by a need to respond to abuses of Indigenous peoples' human rights.

I will seek to proactively engage in emerging debates and issues to promote best practice and celebrate success, as well as set out a forward looking agenda to address potential breaches of Indigenous peoples' human rights before they happen.

My annual Social Justice Report and Native Title Report will be vital tools in achieving this. This year's Social Justice Report, for example, clearly elaborates what are the key challenges raised by the new arrangements for the administration of Indigenous affairs at the federal level. It explicitly sets out the role of the Social Justice Commissioner in monitoring these arrangements. This provides clear guidance to governments and Indigenous peoples as to my forthcoming activities. Governments are on notice about particular issues of concern, and Indigenous people have a focal point through which they can direct information and their concerns.

Given the very different audiences that I will need to engage with, I also intend to produce the Social Justice Report and Native Title Report in several formats. This is particularly to ensure that the issues raised are in an acceptable language style and are accessible to Indigenous people and communities.

I will also be seeking to focus debate on key human rights issues through the release of discussion / issues papers, the convening of regional forums as well as national roundtables, and through building partnerships with community and government agencies, as appropriate and within my resources.

There are two further features of how I intend to fulfil my role as Social Justice Commissioner.

First, I have already indicated to government that I intend to engage fully with them and maintain an ongoing dialogue about issues of mutual interest and concern. I will raise concerns with government when they come to my attention and seek resolution of them. The findings of a Social Justice Report, for example, will not be a surprise to the Government as significant concerns will already have been raised with them. The report will provide acknowledgement where concerns have been raised with the Government and subsequently addressed and will identify good practice.

It is not realistic for the Government to expect that it will receive a report which does not contain some criticism of government activity. This is particularly so when the statutory obligation in producing the report is specifically to analysis the impact of government activity on the enjoyment of human rights by Indigenous peoples.

I consider it important that in engaging fully with government we will be able to exchange frank views. Accordingly, the Government should expect that there will be constructive criticism in the report and I should be able to expect a reasoned and timely response to this.

Second, I will also seek to consult widely with Indigenous peoples and communities. Indigenous peoples are the experts on the needs and priorities in Indigenous communities. I also consider that it is only through processes of community engagement and education that the findings of a specialist, national human rights office such as HREOC can have true meaning at the grass roots level. Not only are Indigenous people the intended beneficiaries of the findings and proposals for reform identified in processes such as my reports to Parliament, but they are also the best advocates for seeking these changes to be put into place.

The challenge of protecting the human rights of Indigenous peoples

As Social Justice Commissioner, my role is to monitor the ability of Indigenous peoples to enjoy their human rights. As this is the touchstone for my work, it is important to make some general comment about current debates about human rights.

It is unfortunate that we currently live in a time in which human rights are seen by some as either well intentioned platitudes; distractions from the real issues at hand;
good in principle but difficult to implement in practice; or even by some as the cause of problems that we currently face in our society.

People who criticise governments on human rights grounds have been dismissed for focusing on 'symbolic' or unimportant issues, while the government gets about the business of dealing with the real or 'practical' issues being faced in the community.

And when push comes to shove, human rights have even been blamed for the failures of governments over successive decades. In Indigenous affairs, for example, we have been told that it is precisely because of commitments to human rights such as the right to self-determination that Indigenous peoples continue to suffer unequal conditions of life today.

I don't agree with these arguments. What is clear, however, is that such arguments have been very effective in distancing human rights perspectives from the way governments go about their business. There are, for example, very few explicit commitments to human rights through processes such as the Australian National Action Plan on Human Rights. This has led to commitments to human rights being reduced to aspirational statements by some in our society.

If human rights are understood to be nothing more than platitudes, then it is a self-fulfilling prophesy that they will become exactly that - empty, rhetorical words.

It is worth remembering that human rights standards are not intended to be associated with particular political standpoints. They are not 'left-wing' tools or constructs. They are objective standards that are intended to transcend particular legal systems, ideology or political persuasion. Human rights are intended to reflect the core of humanity - setting out standards of treatment that individuals and groups should receive for no reason other than that they are members of the human family.

The problem we face - and the challenge we must address - is the general lack of understanding of what human rights are; of what is required to implement human rights; and as a consequence, an inability to know whether governments are meeting their human rights obligations.

The challenge we have in promoting human rights is to give content and meaning to human rights and to hold governments to account for whether or not they have faithfully implemented the content of these rights. Human rights standards have a very detailed content that ought to be guiding the development of policy and the delivery of programmes to Indigenous peoples.

It is a great tragedy that those who suffer most from the lack of understanding of human rights are those who are worst off in our society. Indigenous people, for example, are continually blamed and subject to community anger for the lack of improvement in our social and economic conditions. But for Indigenous peoples, such commitments have been made for thirty plus years. The reality is that Indigenous people still suffer at the hands of such good will. Good will alone does not improve livelihoods.

I am very strongly of the view that individual responsibility is critical for people to be empowered and to achieve lasting improvements in their social conditions. But I also believe that for too long we have let governments off the hook for the lack of improvement in the conditions in which our communities live. Effective and sustainable change will only occur with the empowerment of Indigenous peoples to identify issues and solutions and to do this in partnership with governments at all levels.

Forthcoming work of the Social Justice Commissioner

There are many human rights challenges that remain in Australia, particularly in relation to Indigenous peoples. In the first six months of my term as Commissioner, I have indicated some of the issues that I propose to address in the coming years. They include the following.

First, perhaps more so than any other area of life, programmes for addressing Indigenous health reveal the problem of a lack of implementation of human rights. It doesn't matter whether we look at the National Aboriginal Health Strategy of 1989 or the current National Strategic Framework for Aboriginal and Torres Strait Islander Health. The issue is the same with both.

Each of these frameworks has been agreed by the Commonwealth with the states and territories. They provide a detailed series of commitments and identify a range of areas that require attention. Both documents identify, from a human rights perspective, the key issues that must be addressed to improve Indigenous health. They are good, solid policy documents.

And yet they have made very little difference to Indigenous health. Indeed, it is arguable that health standards have declined in many key areas over the past decade. Worryingly, the gap between Indigenous people and non-Indigenous people has increased in recent years and progress has not matched that achieved in other countries, such as New Zealand, Canada and the United States, with a similar history in relation to Indigenous peoples.

It appears that the lack of progress can not be explained as a result of there not being any answers to the problems faced by Indigenous people - instead it appears to be a matter of taking the necessary steps to implement what are fairly universally agreed solutions.

The Social Justice Commissioner's office has already undertaken extensive research into issues relating to Indigenous health status. Over the next six months I will be releasing the outcomes of this research and looking to engage with governments, communities and organisations about how to address this situation.

I think we should have a campaign for equality within our lifetime. I consider that it is feasible for governments to commit to meet the outstanding primary health care and health infrastructure needs of Indigenous communities within a reasonable time period of say 5 to10 years and with the goal of achieving equality of health status and life expectation within the next generation (approximately 25 years).

Second, while there has been significant focus on the challenges in addressing Indigenous health status in recent years, there has been very little attention devoted to the issue of Indigenous mental health.

My experience in communities is that there is very little infrastructure or expertise in addressing mental health issues facing Indigenous peoples. It is a forgotten issue. Mental health issues are often masked through passive welfare or dealt with, inappropriately, through the criminal justice system. I have no doubt that mental health issues contribute to the crisis of family violence, anti-social behaviour, substance misuse and confrontation with the legal system, in Indigenous society. Similarly, while there are not very accurate figures on suicide, it is anecdotally known that Indigenous youth suicide is disproportionately high.

I intend to consider the adequacy of current approaches in addressing Indigenous mental health issues.

Third, I will continue to engage with international processes for the recognition of the rights of Indigenous peoples. 2004 signified an uncertain time in the recognition of Indigenous rights in the international system. The First International Decade for the World's Indigenous People ended in December and the Working Group on the Draft Declaration on the Rights of Indigenous Peoples concluded its tenth session without consensus on a Declaration.

However, there were significant achievements in the first International Decade, such as the establishment of the Permanent Forum on Indigenous Issues within the United Nations and the work of the Special Rapporteur on Indigenous Issues. Despite these, Indigenous peoples were dismayed by the overall achievements of the decade - and in particular by the failure to adopt the Draft Declaration on the Rights of Indigenous Peoples. This had been one of the objectives of the Decade.

On 20 December 2004, the United Nations General Assembly proclaimed the Second International Decade of the World's Indigenous People. The Decade commenced on 1 January 2005 and its goal is the further strengthening of international cooperation for the solution of problems faced by Indigenous peoples in such areas as culture, education, health, human rights, the environment and social and economic development.

In April 2005, the Commission on Human Rights will consider the adequacy of progress in the negotiations of the Draft Declaration. The Chairman of the Working Group on the Draft Declaration has recommended a continuation of the process in order to build on the significant progress achieved in recent years. There appears to be a narrowing of positions in the Draft Declaration process and it is feasible that there could be agreement on this important document with some more time.

The Social Justice Commissioner's office will continue to engage with government and Indigenous peoples about the Draft Declaration process. In light of the demise of ATSIC, I see it as particularly important to disseminate information about this process. In March 2004, the Social Justice Commissioner's office convened a technical workshop on the Draft Declaration and ran community workshops to provide information about developments in the recognition of Indigenous rights through international processes from March through to July, and co-hosted a workshop on self-determination in November. We also maintain a detailed website with updates on international issues (available at These are examples of the type of activities that I will continue to undertake.

I will also work with Indigenous organisations and government to consider domestic programs of action for the second international decade. I note that ATSIC was the coordinator for activities in Australia during the first decade and it is not clear, as yet, who will coordinate activities for the second decade.

I will also work to promote awareness of the role of the Permanent Forum on Indigenous Issues. I anticipate that I will be co-hosting some events in Australia with the Permanent Forum in mid-2005.

Fourth, I will also continue the focus on the reconciliation process that my predecessor has established. In the Social Justice Report 2001 my predecessor committed to providing consideration of progress on reconciliation in each Social Justice Report. This commitment has met with approval from the Senate Legal and Constitutional Committee, which recommended in its report into reconciliation in 2004 that this be made a statutory requirement.

This year's focus on reconciliation is provided through the consideration of the new arrangements currently being introduced for the administration of Indigenous affairs at the federal level. This focus is due to the importance of these new arrangements, and their relationship to the commitments on reconciliation made by the Council of Australian Governments - most recently through the adoption in June 2004 of a series of principles on the delivery of services to Indigenous peoples. I anticipate that in subsequent years, I will also look to different components of reconciliation, such as performance monitoring and evaluation processes established through COAG, the role of the private sector and success stories at the community level.

Contents of this report

This report focuses on two issues - programs addressing the needs of Indigenous women exiting prison, and the new arrangements for the administration of Indigenous affairs at the federal level.

Chapter two of the report considers the needs of Indigenous women upon exiting prison.

The Social Justice Report 2002 contained research about the contact of Indigenous women with criminal justice processes. It found that there has been very little specific attention devoted to the needs of Indigenous women, despite there being a significant rise in imprisonment of Indigenous women over the past decade as well as high rates of recidivism. The report called for further research into the needs of Indigenous women, including upon exiting prison.

In 2003 and 2004, the Social Justice Commissioner's office conducted research into these needs. Information was requested from all governments and forums were held with Indigenous women and service providers across Australia. The title of the chapter - 'walking with the women' - expresses the sentiments of many of the participants in consultations for the chapter that greater support needs to be provide to Indigenous women in their transition from prison back to society.

The chapter provides an overview of government and community sector support programs for Indigenous women upon release from prison. The main findings of the consultations and research were the importance of housing and emergency accommodation options for Indigenous women when released from prison; the importance of being able to access a broad range of programs upon release, including healing; and the lack of coordination of existing government and community services, which has the result of limiting the accessibility of services to Indigenous women. Anecdotal evidence suggests that Indigenous women have difficulty in accessing support programs upon their release and are left to fend for themselves, sometimes leading them to homelessness, returning to abusive relationships or re-offending.

Chapter three then considers the new arrangements for the administration of Indigenous affairs at the federal level.

In early 2004, the federal government announced that it was introducing significant changes to the way that it delivers services to Indigenous communities and engages with Indigenous peoples. It announced that the Aboriginal and Torres Strait Islander Commission (ATSIC) and its service delivery arm, Aboriginal and Torres Strait Islander Services (ATSIS), would be abolished and responsibility for the delivery of all Indigenous specific programs would be transferred to mainstream government departments. It further announced that all government departments would be required to coordinate their service delivery to Indigenous peoples through the adoption of whole of government approaches, with a greater emphasis on regional service delivery. This new approach is to be based on a process of negotiating agreements with Indigenous families and communities at the local level, and setting priorities at the regional level. Central to this negotiation process is the concept of mutual obligation or reciprocity for service delivery.

These changes have become known as 'the new arrangements for the administration of Indigenous affairs'. The government begun to implement these changes from 1 July 2004. In light of the preliminary nature of the changes, the chapter is intended to provide information so that the commitments of the government and its intended approach are identified. Preliminary concerns about the new arrangements are expressed in the chapter.

Where there is a clear need for guidance for the process, I make recommendations. Where I maintain an ongoing concern, but consider it too early to know the impact of a particular change on Indigenous people and communities, I have explicitly identified how I will follow up and monitor the new arrangements over the next twelve months.

The chapter is supported by two appendices. Appendix one provides a timeline of events leading up to the announcement of the new arrangements as well as events in introducing them. It provides a straight forward, factual account of how events have unfolded over the past two years. I have included extracts from key Government documents to fully set out the intentions of government. I anticipate that this material will prove to be a useful reference point for people into the future. It is only through providing the information about the commitments and intentions of government that they can be held to account.

Appendix two provides information relating to one of the most important emerging issues for Indigenous peoples - the protections provided by race discrimination laws in negotiating agreements with the Government about mutual obligation. As I state in the appendix, it is too early to tell whether the Shared Responsibility Agreement process that is being embarked on by government will transgress the non-discrimination principle. The appendix sets out the relevant factors to identify where a particular situation may amount to discriminatory treatment.


Overall, this report is intended to provide clear guidance as to how I will be undertaking my role as Social Justice Commissioner over the coming years. I look forward to maintaining a robust dialogue with government about processes for improving the recognition and protection of Indigenous peoples human rights. And I look forward to working with Indigenous people and communities to support them in their efforts to freely determine their political status and freely pursue their economic, social and cultural development.