HREOC Social Justice Report 2002: Summary

Social Justice Report 2002

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Executive
Summary

• Overview
• Contents
  of report
• Chapter
  2: Self-determination - the 'freedom to live well'
• Chapter
  3: National progress towards reconciliation in 2002 - an equitable partnership?
• Chapter
  4: Measuring Indigenous disadvantage
• Chapter
  5: Indigenous women and corrections - A Landscape of Risk
• Chapter
  6: International developments in the recognition of the rights of Indigenous
  peoples

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Overview

The Social Justice
Report 2002 discusses initiatives currently underway or in development
at the federal, state and territory levels in relation to Aboriginal and
Torres Strait Islander Affairs. The report commends the following positive
developments in Indigenous policy:

• The commitment
  of governments at all levels to partnerships with Indigenous peoples,
  including through statements of commitment to negotiate service delivery
  arrangements with Indigenous organisations and commitments to negotiation
  justice agreements;
• The commitment
  of the federal government to principles for the equitable provision
  of services to Indigenous peoples as part of its response to the Commonwealth
  Grants Commission's report on Indigenous funding;
• Recognition by
  governments of the central importance of capacity building of Indigenous
  communities and of supporting and developing Indigenous governance structures;
• The commitment
  of the Council of Australian Governments to processes for addressing
  Indigenous disadvantage, including the establishment of a framework
  for reporting on Indigenous disadvantage, the formulation of action
  plans at the inter-governmental level in specific areas and a trial
  in ten communities of a whole-of-government approach to service delivery;
  and
• Support of the
  federal government at the international level to the effective operation
  of the newly created UN Permanent Forum on Indigenous Issues.

Overall, however,
the Report evidences that the past year has been another difficult one
for Indigenous peoples in this country.

In trying to provide
a snapshot of the status of Indigenous policy making and achievements
by governments over the past year, it is difficult to see any consistent
forward trend. There have been marginal improvements in some statistical
indicators, but deterioration in others. The policy approaches of governments
are ultimately full of inconsistencies, ad hoc developments, and commitments
that not only remain unmet but which are not adequately supported by
institutional developments.

There have been two
particularly worrying trends that have been confirmed over the past
year at the federal level. The first is a continuation of the antagonistic
and adversarial approach to Indigenous policy by the federal Government.

Substantial
bi-partisan support for reconciliation and directions in Indigenous
policy has been undermined by the limited focus of the Government.
Those areas on which there is common ground are relatively few - and
basically relate to agreement on the need to overcome Indigenous disadvantage
- and there is even less agreement on what are the best ways to address
such issues.

The second worrying
trend is the relegation of Indigenous issues to a second tier issue for
the Government. While reconciliation was a priority for the second
term of the Government, it does not even rate a mention in recent announcements
of the Government's strategic long term vision for Australian society.

Indigenous issues
are not treated as a national priority, and there are no public commitments
to timeframes for achieving results in areas on which there is substantial
agreement - such as Indigenous disadvantage.

At the state and
territory levels, there is much goodwill being expressed with extensive
commitments to partnerships with Indigenous peoples. These partnerships
remain works in progress and it is unfortunate that they have not yet
been accompanied by the necessary institutional support or action.

The one true highlight
of the past year, however, has been the demonstration through a range
of processes that Indigenous peoples are not going to sit back and wait
for governments' to solve the various problems faced in communities.

Indigenous communities
across the country are demonstrating that they are not passive victims
but distinct peoples fighting hard for the survival and recognition
of their cultural distinctiveness. Indigenous communities across the
country know what they want and are working towards building their capacity
and striking agreements with governments to implement it.

There are two main
issues that run through this report. First, the Report continually seeks
to establish whether the Government's preference for certain words and
symbols is merely rhetorical and is consistent with the principles that
they symbolically reject, or whether it is in fact amounts to a substantive
change of direction in Indigenous policy.

The second feature
of the report is that given the minimal framework for Indigenous policy
being set by the federal government, it deliberately seeks to place Indigenous
issues within a broader context. The report highlights the differences
between self-determination and self-empowerment; practical reconciliation
and progressive realization and a rights framework for addressing Indigenous
disadvantage; and by considering international developments in the recognition
of Indigenous rights. Each demonstrates the severely constrained approach
that has been adopted by the federal Government and hints at the potential
in a broader, rights-based approach.

Contents
of report

Chapter
2 -'Self-determination: the freedom to live well' - examines the core
principles which underpin the federal Government's approach to Indigenous
affairs. Since 1998, the Government has openly rejected self-determination
as the basis of policy formulation. This chapter provides an overview
of international developments on Indigenous self-determination and compares
this to the way the Government explains its policy approach in order to
identify its limitations and considers options for reform.

Chapter
3 - 'National progress towards reconciliation in 2002 - an equitable
partnership?' - provides a progress report on reconciliation over the
past year. It notes developments at the inter-governmental level,
the federal government's responses to the documents of the Council for
Aboriginal Reconciliation and the report of the Commonwealth Grants Commission,
and the Government's agenda for reconciliation. Ultimately it questions
the basis on which the Government seeks to engage with Indigenous peoples,
and the lack of equality in the partnerships that it seeks to enter.

Chapter
4 - 'Measuring Indigenous disadvantage' -provides a detailed
analysis of current approaches to addressing Indigenous disadvantage.
It draws on significant international developments in countering poverty
and economic marginalisation, as well as international human rights standards.
The chapter also considers in depth the framework for measuring Indigenous
disadvantage that is currently being prepared for the Council of Australian
Governments. There are some clear contrasts between the limiting framework
of practical reconciliation and the more focused and accountable approach
based on international guidance and standards.

Chapter
5 - 'Indigenous women and the criminal justice system - A landscape
of risk' - focuses on Indigenous women and their experiences of contact
with criminal justice processes. This chapter paints a disturbing
picture of the lack of support provided to Indigenous women in many areas
of society and its consequent impact through criminalisation. The lack
of attention to these issues by policy makers to date is a matter of great
shame.

Chapter
6 - 'International developments in the recognition of the rights of
Indigenous peoples' - notes the extensive developments in the recognition
of Indigenous rights at the international level. These are considered
within two main contexts - the current review taking place within the
United Nations of all the existing mechanisms at the UN dealing with Indigenous
issues; and the International Decade for the World's Indigenous Peoples
which is now in its final two years. This review illustrates how Australia
has moved towards the most conservative end of the spectrum in addressing
Indigenous rights.

The report then concludes
with an appendix which summarises
partnerships and agreements that have been entered into between Indigenous
peoples and state or territory governments in recent years.

Chapter
2: Self-determination - the 'freedom to live well'

In both the domestic
and international arenas, Australia's opposition to recognition of a
right to self-determination has been based on simplistic, and often
legally incorrect, assumptions which present self-determination as purely
symbolic, as a catchcry for all the failings of Indigenous policy in
the past thirty years, or as 'a rigid choice between all or nothing
- between the forming of an independent state or complete denial of
a cultural and political identity'. The reality of Indigenous self-determination,
however, lies between these extremes and is a process of negotiation,
accommodation and participation.

This chapter answers
the question 'what is Indigenous self-determination?' by examining how
this concept has developed in international law. It then examines the
Government's position on self-determination in both the domestic and international
arenas and provides an analysis of their approach.

Self-determination and the
'politics of symbolism'

Historically, the
term self-determination was first applied to Indigenous policy by the
Whitlam government in 1972. It replaced the by then largely discredited
policy of assimilation and was a statement of the practical reality that
assimilation simply didn't work. Since 1996, however, the Government has
stated that it no longer supports self-determination as the basis of Indigenous
policy formulation and announced that it would actively oppose recognition
of Indigenous peoples' entitlement to such a right in international negotiations.

In light of the broad
acceptance of self-determination by Government for just under thirty years,
the question that has to be asked is how have we now reached the situation
where the current Government has rejected self-determination on the basis
that it is purely a matter of 'symbolism' divorced from the day to day
lives of Indigenous peoples? In my view, there are four main answers to
this question.

• First, the concept
  of self-determination has never transcended its historical roots in
  Australia. Self-determination has in many ways been defined by what
  it is not, i.e. assimilation. For many it has become a political slogan
  and a rhetorical device.
• Second, a bureaucratic
  version of self-determination has been imposed on communities, often
  fitting them into a different straight-jacket for service delivery and
  decision making to the one that previously existed. This has seen communities
  'handed' control and resources through this new organisational sector
  with limited efforts to develop their institutional capacity to effectively
  manage and control the process.
• Third, Indigenous
  communities have been tied to the control of government. Control mechanisms
  have been retained by governments and institutional reform has been
  limited to the creation of new layers of bureaucracy.
• Fourth, for all
  the commitments to self-determination, such as through COAG's 1992 National
  Commitment and the responses to the Royal Commission into Aboriginal
  Deaths in Custody, these were in reality never implemented. Self-determination
  as the centre-piece of Indigenous policy has to a large extent been
  a statement of intention rather than of action. Real self-determination
  has never been tried. There remains a need to address the deficiencies
  in the implementation of self-determination over the past thirty years.

(Re-)Defining self-determination

Debate on the application
of self-determination to the situation of Indigenous peoples remains among
the most difficult and controversial in any area of the United Nations.
There are, however, a number of key features about the right of self-determination
that are now established in international law which are of great assistance
in evaluating the adequacy of the current approach by the Government in
Australia.

The right of self-determination
is Article 1 of the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR). Australia is a party to both of these covenants and is
bound to act in compliance with their terms.

Article 1

1. All peoples have the right of self-determination. By virtue
of that right they freely determine their political status and freely
pursue their economic, social and cultural development.

This formulation
is repeated in Article 3 of the Draft Declaration on the Rights of Indigenous
Peoples. There are two main areas of debate internationally about the
provisions of the draft Declaration as well as about the application of
the provisions of the international covenants. First, is whether Indigenous
peoples are entitled to a right of self-determination? Second, if they
are, what is the content of that right and what are the limitations on
its exercise (or put simply, what is Indigenous self-determination)?

a) Do Indigenous
peoples have a right to self-determination?

Indigenous peoples
have been recognised as a separate, distinct category from minorities
in international law. This is on the basis that Indigenous peoples possess
a collective status whereas minorities in general do not. Some UN studies
and the United Nations human rights committees have concluded that Indigenous
peoples are in fact 'peoples' within the context of Article 1 of the international
covenants and are therefore entitled to a right to self-determination.

The contention by
governments that Indigenous peoples constitute a 'peoples' and possess
the necessary collective identity to be recognised as enjoying a right
to self-determination can no longer be challenged with any legitimacy
or credibility. Governments have not yet accepted this conclusion.

b) What is Indigenous
self-determination?

Definition of
self-determination: Self-determination is an ongoing process of
choice for the achievement of human security and fulfilment of human
needs with a broad scope of possible outcomes and expressions suited
to different specific situations. These can include, but are not limited
to, guarantees of cultural security, forms of self-governance and autonomy,
economic self-reliance, effective participation at the international
level, land rights and the ability to care for the natural environment,
spiritual freedom and the various forms that ensure the free expression
and protection of collective identity in dignity.

The protection of
self-determination unquestionably involves some kind of collective political
identity for indigenous nations and peoples, i.e. it requires official
recognition of their representatives, institutions and distinct cultural
values.

Respect for Indigenous
peoples' relationship to land and resources is an integral component of
self-determination, from an economic, social, political and cultural dimension.
A lack of control of traditional lands and resources is often a significant
institutional barrier to the realisation of Indigenous self-determination.

Essential to the
exercise of self-determination is choice, participation and control. The
essential requirement for self-determination is that the outcome corresponds
to the free and voluntary choice of the people concerned. Accordingly,
self-determination does not have a prescribed or pre-determined outcome.
It is a process that is ongoing. It is not a one off event or something
that is defined as at a particular moment in history.

A notion of popular
participation is inherent to self-determination. In a democracy, Indigenous
peoples right to self-determination is not necessarily safeguarded or
respected by a reliance on majority rule. The nature of participation
and representativeness required by self-determination necessitates going
beyond sameness of treatment and to strive for institutional innovation.

The maintenance of
the territorial integrity of the State is linked to respect for self-determination.
Numerous UN declarations limit the exercise of self-determination so that
it does not threaten territorial integrity or unity of States. This is
so long as those states conduct themselves in compliance with the principles
of equal rights and self-determination of peoples and are representative.
Continued government representivity and accountability is therefore a
condition for continued application of the territorial integrity and national
unity principles. The recognition of Indigenous self-determination in
the draft Declaration on the Rights of Indigenous Peoples is also qualified
in a way that guarantees the territorial integrity of States

Secession is an extreme
expression of self-determination and one that will only occur in the rarest
of cases when all other processes have failed. The equation of self-determination
with secession is made without reference to the existing state of international
law and without an eye to history.

Self-determination
is not self-executing, unilateral or absolute in its application and is
a process of engagement and negotiation. When balanced against principles
such as the protection of territorial integrity, the international community
is highly unlikely to recognise secessionist movements in States that
are conducting themselves in good faith. There are no examples of aspirations
for secession being expressed by Indigenous Australians.

The fear by governments
of secession is not soundly based in existing law or political reality.
What is required for progress in recognition of Indigenous self-determination
is for governments to stop acting in bad faith by automatically equating
self-determination with secession.

The Government's approach
to self-determination

The current Government
has made clear that it does not support self-determination as the underlying
principle for policy development in Australia. As the Government has gone
about the task of locking into place its practical reconciliation approach
it has simply disengaged on issues that it does not agree with. Accompanying
this trend has been the tendency for the Government to co-opt language
that has traditionally been used in relation to self-determination. An
important question that must be addressed therefore is whether their opposition
to self-determination is largely rhetorical and simply reflects a preference
for a different word, or whether it is a genuine rejection of the legal
concept of self-determination.

Through domestic
policy debates as well as international negotiations we can identify the
following factors which are of relevance to the Government's position
on self-determination.

The government acknowledges
that Indigenous peoples are the first people of Australia with a unique
status and identities. The Government acknowledges that Indigenous peoples
have not always been provided with equal opportunities in the past and
that there is a need for special measures to overcome any consequent disadvantage
that has resulted.

The Government opposes
recognising a right of Indigenous peoples to self-determination in domestic
policy formulation as well as in international instruments. The government
misrepresents self-determination as providing the right to unilaterally
challenge national sovereignty and to imply the possibility of the establishment
of a separate indigenous state or states within Australia. It is implied
that self-determination or recognition of cultural group rights runs counter
to the belief that all Australians should be equally subject to a common
set of laws with no special treatment.

While the Government
does not support self-determination it does support Indigenous peoples
having meaningful opportunities to exercise control over aspects of their
own affairs and be engaged to the maximum extent possible as partners
in the design and delivery of services. The opportunity to exercise control,
however, is clearly confined within the context of citizenship entitlements
and the 'same' benefits (or common rights) that all other Australians
are entitled to.

The extent of such
control is never specified, although forms of self-government are rejected
as a 'distraction'. The right of Indigenous people to exercise control
over aspects of their lives is contrasted with the unacceptable
contention that self-determination implies that a government must in some
way relinquish responsibility for and control over those aspects of well-being
over which it 'rightly has jurisdiction'. Agreement-making is seen as
the 'new' way to achieving the acceptable goal of 'active partnership
and consultation with government'. Capacity building of communities to
be self-managing is also identified as an essential component to this
'new' partnership approach.

However, this approach
appears to not extend to recognition of Indigenous sovereignty and the
transfer of institutional control to Indigenous communities. The Government's
preferred concepts of self-empowerment and responsibility, defined as
individuals being able to 'determine their own destiny', emphasise sameness,
unity or 'one-ness'.

While not accepting
that there is a right to self-determination, the Government's position
provides support in international negotiations to attempts by other countries
to limit the recognition of self-determination to 'internal' as opposed
to 'external' applications.

Implementing Indigenous self-determination
in Australia

There are a range
of significant differences between the Government's approach to self-determination
and the understanding of it that has developed internationally. Ultimately,
when we scratch beneath the surface of the Government's rhetoric their
approach is exposed as a reductive, minimalist one that is not prepared
to accommodate Indigenous aspirations or recognise any distinct status
of Indigenous peoples in any meaningful way. The implications of this
approach are significant and cannot be rejected simply as rhetorical or
as representing a preference for a particular type of language.

There are five
main concerns that I have about the Government's approach, when compared
to the fuller understanding of self-determination provided earlier.

1) The Government's
reliance upon inflammatory, provocative untruths to reject Indigenous
self-determination;

2) The failure,
or perhaps refusal, of the Government to accept that any consequences
flow from recognising the unique, distinct status of Indigenous peoples
in this country.
The Government seeks to limit the recognition of Indigenous peoples' status
as if they were an undifferentiated minority group whose needs can be
addressed under the umbrella of say multiculturalism and by guaranteeing
sameness of treatment or opportunities for the same level of development.
Native title, land rights and measures such as the Indigenous Land Corporation
which are intended to address the consequences of Indigenous dispossession,
are perfect illustrations of how Indigenous issues do not comfortably
fit in this way. A more wide-ranging definition of equality, which focuses
on outcomes (such as in terms of equality of protection of culture) rather
than on inputs (such as by purely guaranteeing equality of opportunities,
as if there were a level playing field) is needed.

At present, the
relationship between Indigenous people is defined according to little
more than the beneficial intentions of Government to improve the life
conditions of grossly disadvantaged Indigenous peoples. Such intentions
are easily twisted into resentment and frustration at the amount of
money spent when the desired improvements are not forthcoming. Defining
a peoples' status and rights purely through their experiences of disadvantage
is a dominating and disempowering approach. It is not a respectful basis
for a relationship.

3) The lack of
recognition of Indigenous peoples' unique status has meant that there
is no underlying basis, no guiding principles, for relations between governments
and Indigenous peoples. Indigenous peoples have on several occasions
identified principles that should underpin negotiations between themselves
and Government, so that sufficient attention is paid to their distinct
cultural characteristics and unique status in this country. The current
approach, which has no such underpinning, leaves Indigenous policy formulation
to develop without a consistent focus as to its purpose and without appropriate
recognition of the status of Indigenous peoples.

4) The Government's
current framework is oppositional in its approach and sets up Indigenous
peoples as competitors of government. There is a fear in the Government's
approach that Indigenous peoples are going to usurp control and power
over matters which they believe more appropriately belong as responsibilities
of government. It is a strange, indeed almost paranoid, view of partnership.
It is also, in my view, an unrealistic one that does not accurately reflect
Indigenous aspirations nor reflect historical reality.

Underlying the
Government's concern about Indigenous control is a notion of loss of
accountability. Central to the principle of self-determination is a
notion of responsibility. Indigenous communities must be accountable
for their decision making and expenditure. Issues of accountability,
however, run two ways - accountability to the funding agency and government,
and accountability to the community who are intended to benefit from
the programme or policy intervention that is made. At present, there
is a real imbalance with limited accountability back to Indigenous communities
(and to the community as a whole).

Ultimately, however,
concern about ensuring adequate lines of accountability is not a
reason for not engaging in a substantial process of involving Indigenous
people in decision making and programme design and management. It is
a reason to do so on an agreed basis, with a clear understanding as
to accountability and monitoring requirements.

5) There is no
general acceptance by the Government of the legitimacy of Indigenous peoples
being the primary decision makers on matters that affect their daily lives,
and for efforts to build the capacity of Indigenous communities being
directed at this aim.

Conclusion - Reclaiming self-determination

The Government's
opposition to self-determination is not merely rhetorical. It has consequences
and places limitations on the breadth of enjoyment of rights by Indigenous
peoples and on their ability to participate meaningfully in processes
that affect their lives.

Overall, the concerns
identified here point to major differences between a rights based approach
to reconciliation and Indigenous policy formulation, and the approach
currently favoured by the Government. There are two broad consequences
that flow from this.

First, a number of
the concerns and contentions that are raised by the Government about self-determination
in both the domestic and international arenas are unjustified. Some are
not supported by developments in international law; others simply lack
reality. In my view, these limitations and gaps in the Government's approach
militate against effective policy and programme design in Australia. Second,
the current approach of the Government to Indigenous policy formulation
is introverted and myopic. It is unwilling to build on international developments
or to accept that at core we are dealing with problems in relation to
Indigenous peoples that are being faced globally. The current Australian
approach is at the most conservative end of the spectrum internationally.

Despite the Government's
current approach, I remain heartened due the fact that Indigenous peoples
have not sat by while this framework has been implemented or been passive
in their response to it. Communities all over the country continue to
work away at the realisation of their aspirations and goals with the often
limited tools that they have at their disposal. The fact that the government
does not support self-determination or put into place processes for its
realisation is not the end of the matter. By focusing on the capacity
of the community to resolve and own these problems, they place the community
in a more powerful and central role to take control of their destinies.
A central factor to the success of these processes, however, is the level
of Government engagement and support for them. When we look to some current
initiatives within a framework of self-determination, we can see the inconsistencies
and ad hoc nature of the Government's intervention.

True self-determination
requires communities to marginalise the role of government in the functioning
of their communities. It is a perversion that governments continue
to exercise almost total control over many Indigenous communities. It
is not a normal functioning of those communities or of government. We
must continue to challenge the narrowness of the approach of the government.
Communities must also not be discouraged from seeking their own resolutions
to the problems that they face as communities. They must continue to
reclaim self-determination from the government.

Chapter
3: National progress towards reconciliation in 2002 - an equitable partnership?

Implementing 'practical reconciliation'

1) 'Changing Direction',
the 5-point plan

The 5-point plan
outlined by Minister for Aboriginal and Torres Strait Islander Affairs
at the ATSIC National Policy Conference in March 2002 reinforces the government's
minimalist policy agenda on practical reconciliation. It includes:

• An emphasis on
  the achievement of individual citizenship rights in the domain of education,
  health, housing, employment and a safe environment for families.
• Consideration
  of the rights to culture, to own land for cultural, economic and social
  purposes and to contribute to environmental preservation (including
  native title and self-determination) only secondarily to citizenship
  rights.
• Self-determination
  as it occurs within the Minister's model of an 'inclusive society' is
  defined in terms of individual rather than collective rights.
• An individualist
  emphasis on replacing welfare disadvantage with economic independence,
  as problems of corporate governance within Indigenous community organizations
  become the rationale for a shift to individual and family rights.

The rights agenda
presented by the Minister's speech effectively strips away the right of
Indigenous Australians to define their own destiny, governance and culture
as autonomous peoples and promotes their absorption within rather than
their co-existence with the Government's neo-rationalist conception of
society as an 'aggregation of individuals'.

2) 'Agreement
making and sharing common ground'

The Minister's speech
at the ATSIC National Treaty Conference in August 2002 refutes claims
that the Government's approach to Indigenous policy is assimilationist.
The Minster emphasises citizenship rights and the ideal of an inclusive
society but does elaborate what recognition the special place that Indigenous
people occupy as the 'first Australians' or recognition of Indigenous
culture might entail.

The offer of inclusiveness
to Indigenous Australians without consideration of the rights and values
inherent within Indigenous cultures sounds all too much like invitation
to conform to mainstream Australian society without extending a reciprocal
invitation to non-Indigenous Australia to examine its relationship to
the Indigenous population. Inclusiveness as defined in the Minister's
speech is potentially a form of neo-assimilation.

3) Expenditure
on Indigenous-specific programmes

A major component
of the Government's approach to reconciliation is its reference to the
record high levels of expenditure on Indigenous affairs. In the 2002-03
Budget this record expenditure reached $2.5 billion on Indigenous-specific
programmes. Most of the increase on previous years was a flow-on from
the $327 million of initiatives over 4 years announced in the 2001-02
Budget.

This injection
of additional funding still falls a long way short of the necessary funds
projected to meet outstanding deficits across a range of key areas. Significantly
the Budget also did not provide any increase in the government's existing
allocation of $11 million funding for Indigenous-specific family violence
projects over a four-year period, despite the intense media attention
given to this subject over the past year and the government's use of this
issue to reinforce its call for a practical reconciliation

4) The Council
of Australian Government's reconciliation framework

The COAG Reconciliation
Framework: Report on Progress in 2001 (Progress Report) was released
subsequent to the COAG communiqué of 5 April 2002. While there
is evidence of much good will in the Report, there is yet to be substantial
progress made in addressing Indigenous disadvantage. Much of the Progress
Report is devoted to detailing initiatives that are already in train and
which consequently, have not necessarily been driven by COAG's priorities
or commitments.

Of particular concern
are the developments (or lack of them) in regard to reporting Indigenous
data and the establishment of action plans by each of the Ministerial
Councils under COAG. The next progress report is to be submitted by the
end of 2003.

At the April 2002
meeting of COAG it was agreed to commission the Steering Committee
for the Review of Commonwealth/State Service Provision (SCRCSSP) to
develop a framework for reporting on key indicators of Indigenous disadvantage.

The Steering Committee
will publish a Framework for reporting on Indigenous disadvantage
in August/September 2003, which will be included in the COAG report on
reconciliation in December 2003. It is anticipated that the reporting
under the framework will facilitate debate about the adequacy and appropriateness
of policies and programs in functional areas (see chapter 4).

While the framework
is an important development it is of great concern that it is not
accompanied by other processes which ensure sufficient and appropriate
Indigenous participation in setting priorities and qualitative monitoring
processes. As a result, the framework as a stand alone mechanism has
the potential to reinforce practical reconciliation and marginalize
further other issues of significance to Indigenous peoples.

The framework also
needs to negotiate the continuing problems with data availability and
statistical collection, differentiation between population groups, and
linkage with other reporting processes. (this framework is analysed in
detail in chapter 4 of this report).

A third initiative
announced by COAG during the year was a trial of a 'whole-of-government'
approach to service delivery in ten Indigenous communities. This initiative
involves cooperation across government agencies under the leadership of
a taskforce directed by a group of Commonwealth departmental secretaries,
and includes ATSIC representation. Trials have commenced in the Cape York
region (Queensland) and the Wadeye community (Northern Territory).

This is a significant
and commendable initiative. However, the impact of duplication and poor
coordination services at an interagency level on service delivery to Indigenous
communities have been observed for some time in regard to increasing levels
of Indigenous disadvantage.

In fact a range of
approaches, including partnerships, agreements and governance arrangements,
have been proposed with the aim of improving the service delivery environment
for Indigenous Australians, most recently the Community Participation
Agreements (CPA) being trialled by ATSIC as part of the Budget 2001 welfare
reform package. This is no small part due to inflexibility and unwillingness
to change current service delivery in approaches at the federal level.

In order to avoid
replication of past problems it is crucial that the fundamental issues
concerning Indigenous service delivery be addressed and factored into
the trial's processes and evaluation framework. The rights and autonomy
of Indigenous partners be respected to ensure effective participation,
and for Indigenous ownership of processes and structures be involved
in modelling. Equal emphasis needs to be given to the responsibility
of governments and government departments and agencies in improving
their performance in regard to Indigenous communities.

5) The Government's
Response to the Commonwealth Grants Commission's Report on Indigenous
Funding

The Government responded
to the CGC's report in June 2002, observing that the Report provided a
valuable basis for development of evidence-based policy in Indigenous
affairs. It contains a number of important undertakings and commitments,
which are made in the context of 'Principles for equitable provision
of services to Indigenous people' an agenda that provides an accountability
framework for Government. The issue, as has been the case in the past,
will be whether the rhetoric will be matched by action and by the level
of priority accorded to these matters.

A concern about
the Government Response to the CGC is that it is confined to issues
that fall within the 'practical reconciliation' agenda. The Government
response states at the outset that 'the CGC report includes findings
and makes observations that go beyond the terms of reference for the
inquiry. [The Government's] response… is limited to those matters
that are within the terms of reference'.

The Government Response
to the CGC acknowledges the difficulty in constructing regional indexes
of relative needs because of the absence of adequate data. However, the
continued narrowing of the government's focus on Indigenous funding to
consideration solely of relative need means that some important issues
highlighted by the CGC Report are largely disregarded, such as:

• The practical
  and conceptual difficulties with the notion of applying a formula-based
  approach to allocation of Indigenous funding using indexes of relative
  need.
• The difference
  between the rate that Indigenous and non-Indigenous Australians access
  mainstream services.
• The difference
  between Indigenous and non-Indigenous perspectives in the inevitable
  use of value judgments in decision-making about funding priorities.
• The ramification
  of the historically-entrenched poverty and socio-economic marginalisation
  faced by Indigenous people for their relationship to government programs
  and services.
• The role of developing
  Indigenous community-capacity and control in service delivery processes.

The principles for
equitable provision of services to Indigenous people put forward by the
Government Response to the CGC could also be aligned more strongly with
a human rights framework that sets benchmarks for progressive realisation
of rights in addressing poverty and disadvantage. Such a framework could,
for example, assist in clarifying the outcomes to be achieved by a policy
approach for addressing Indigenous disadvantage and provide benchmarks
for measuring progress in addressing inequality within a long-term perspective.
As the principles currently stand it is difficult to see how they can
ultimately be effective in addressing Indigenous disadvantage.

Despite the difficulties
surrounding the relationship between need and resource allocation it is
important that the Government not repeat the mistakes of past policymakers
and that in seeking to make mainstream services genuinely more responsive
to Indigenous people, it builds a partnership that is grounded in standards
of equity, effective participation and self-determination.

6) The Government's
Response to the Council for Aboriginal Reconciliation's Final Report Reconciliation:
Australia's Challenge

Government's Response
to CAR's Final Report is certainly not representative of the content of
CAR's recommendations: it responds to only one of the Council's six final
recommendations, and it outright rejects one of its four, integrated national
strategies.

The following 'practical
reconciliation' themes are commonly reiterated in the Government's Response
to the CAR documents:

• A minimalist
  response to the symbolic issues raised in the reconciliation documents;
• A perception that
  self-determination is divisive;
• An emphasis on
  perceived areas of agreement at the expense of continuing debate on
  other areas; and
• A misrepresentation
  of progress towards meeting the goals of practical reconciliation.

A minimalist
response to symbolic issues

The recommendations
concerning 'symbolic' issues, including those often publicly identified
with a rights agenda such as the enactment of legislation for a treaty
process or constitutional recognition of Indigenous Australian's rights,
receive scant treatment in the Government's response to CAR's final report.

While the Government's
support for processes to acknowledge the special place of Indigenous peoples
in the life and history of Australia in Commonwealth ceremonies and for
a referendum to repeal section 25 of the Constitution are welcome initiatives,
the Government Response to CAR lacks commitment and direction to making
reconciliation a reality into the future.

These elements are
evident in the government's refusal to pursue legislation that would enshrine
the principles in the CAR documents (Recommendation 2); to affirm the
Australian Declaration Towards Reconciliation (Recommendation 4); and
to enact legislation to support a treaty or agreement process to address
the unresolved issues of reconciliation (Recommendation 6).

While the Government
has challenged Indigenous requests for a treaty by arguing that it does
not enjoy widespread community support, public opinion is not the sole
determining factor in the liberal democratic process:

There are periods
in Australian history prior to the 1967 referendum when basic citizenship
rights for Indigenous people may not have received widespread community
support but this does mean that some of the dehumanising treatment experienced
by Indigenous people or the failure of past governments to protect their
basic rights was in any way supportable. The recognition of Indigenous
inherent rights deserves national leadership within the reconciliation
process including legal protection where appropriate.

The perceived
divisiveness of self-determination

Related to the Government's
continuing refusal to countenance recognition and protection of Indigenous
people's inherent rights is its commitment to perpetuating the misconception
that Indigenous self-determination will necessarily be divisive as it
'carries the implication of a separate Indigenous state or states.' As
explained in chapter 2, self-determination does not constitute such a
threat to national unity as it does not amount to a right of secession.

An emphasis on
perceived areas of agreement

While the Government's
response to CAR is quick to suggest that there is significant conflict
between the Indigenous and non-Indigenous communities, it does not annotate
or provide any comprehensive analysis of the polls it claims substantiate
these areas of disagreement. By contrast, a poll conducted by Issues Deliberation
Australia (IDA) - 'Australia Deliberates on Reconciliation' on 16-18 February
2001 found significant changes in perceptions and increases in knowledge
among non-Indigenous Australian participants as a result of this debate.

The government's
emphasis on finding ground also supports a tendency to prioritise its
own agendas at the expense of those of Indigenous people. While overcoming
Indigenous disadvantage is the only major point of agreement between the
government and Indigenous leaders in regard to reconciliation, it does
not follow that there is common assent to a practical reconciliation approach.

This is a continuation
of a pattern in the government's 'take it or leave it approach' to reconciliation
which implies that Indigenous people are dependent on the benevolence
of government rather than the establishment of an equal partnership
in developing the terms of debate in regard to reconciliation and Indigenous
policy.

Misrepresenting
progress towards practical reconciliation

The Government's
response to the CAR documents also list significant achievements of practical
reconciliation across a range of socio-economic indicators. This list
of 'progress' does not admit to the continuing gravity of Indigenous disadvantage
as indicated by recent Census data and a range of other reports. Close
examination of the gains from reconciliation for Indigenous people listed
in Government's response to CAR against these latest findings suggest
that the government is not providing a very clear delineation of outcomes
for Indigenous people but a somewhat limited and even misleading view.

Again, the absence
of a long term commitment to overcoming Indigenous disadvantage, with
short, medium and long term targets, masks the distinct lack of progress
in addressing Indigenous disadvantage within a practical reconciliation
approach. There is a continual need for Indigenous organisations to unravel
the statements of the Government so that it can be held accountable for
the real lack of achievement.

Conclusion

There are two features
to the government's practical reconciliation approach that are of particular
concern:

• It marginalises
  Indigenous people from having any role in setting the priorities or
  agenda for Indigenous affairs, even under the rubric of 'partnership
  and agreement-making'.
• The efforts of
  the Government have been directed towards the goal of cementing this
  reductive approach into place, including at the inter-governmental level
  with the consequence that the limited processes for accountability are
  not directed to those issues which the Government does not agree with.

Chapter
4: Measuring Indigenous disadvantage

A significant development
in the past year has been the development of a Draft framework for reporting
on Indigenous disadvantage to be implemented across all Australian governments
by the Council of Australian Governments (COAG). The draft framework has
been developed by the Steering Committee for the Review of Commonwealth/State
Service Provision. This chapter considers the implications of the draft
reporting framework and assesses the adequacy of this approach when compared
to relevant international human rights and development standards.

A human rights approach to
addressing Indigenous disadvantage

Aborigines and Torres
Strait Islanders are significantly disadvantaged in contemporary Australian
society. This disadvantage represents a failure to provide in full measure
the human rights to which Australian Indigenous people are entitled.

Australia has ratified
the International Covenant on Economic, Social and Cultural Rights (ICESCR)
and is consequently bound to implement its provisions. A number of the
provisions of ICESCR are directly relevant to the disadvantage suffered
by Indigenous Australians, including rights to an adequate standard of
living, including in housing and infrastructure; the right to the enjoyment
of the highest attainable standards of physical and mental health; and
an adequate standard of education.

Article 2 (1) of
ICESCR requires a State party to the Convention to undertake 'to take
steps,…to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized
in the present Covenant by all appropriate means…'

While this obligation
'to take steps' means that the full realization of relevant rights may
be achieved progressively, the taking of such steps cannot be delayed,
and further, those steps should be deliberate, concrete and targeted as
clearly as possible towards meeting the obligations recognized in the
Covenant. An integral part of the obligations assumed by States in ratifying
the Covenant is to develop strategies, identify indicators and determine
benchmarks.

The Social
Justice Report 2000 identified five integrated requirements that
need to be met to comply with these human rights obligations when seeking
to redress Indigenous disadvantage and to provide sufficient government
accountability. The five requirements are:

• Making an unqualified
  national commitment to redressing Indigenous disadvantage;
• Facilitating the
  collection of sufficient data to support decision-making and reporting,
  and developing appropriate mechanisms for the independent monitoring
  and evaluation of progress towards redressing Indigenous disadvantage;
• Adopting appropriate
  benchmarks to redress Indigenous disadvantage, negotiated with Indigenous
  peoples, state and territory governments and other service delivery
  agencies, with clear timeframes for achievement of both longer term
  and short-term goals;
• Providing national
  leadership to facilitate increased coordination between governments,
  reduced duplication and overlap between services; and
• ensuring the full
  participation of Indigenous organizations and communities in the design
  and delivery of services.

Integrating human rights standards
with development goals and poverty eradication

In recent years the
United Nations has begun to integrate human rights principles into the
whole of the Organisation's work, including the overarching development
goal of poverty eradication.

The United Nations
Development Program's Human Development Report 2000 emphasises
the mutually reinforcing relationship between human rights and human development,
and highlights the need for innovative thinking, strategic planning and
cultivating new partnerships in integrating human rights considerations
into program formulation and implementation.

The Report examines
the importance of statistical indicators as powerful tools in the struggle
for human rights. While statistics alone cannot measure the full dimension
of rights, they can allow human rights to be more concretely relied upon
in designing and evaluating policy. The UNDP has provided a framework
for what the statistics should measure so that they adequately assess
progress in the realization of human rights. They suggest that statistics
must address the following three perspectives, simultaneously:

• An average
  perspective: What is the overall progress in the country, and how
  has it changed over time?
• A deprivation
  perspective:
  Who are the most deprived groups in society, disaggregated by income;
  gender; region; rural or remote location; ethnic group; or education
  level. How have the most deprived groups progressed over time?
• An inequality
  perspective: Measuring the disparity between various groups in society,
  and whether these disparities have widened or narrowed over time.

Benchmarking is a
useful tool for measuring whether adequate progress is being made in realising
rights. Targets may not all be achievable immediately - they may be subject
to progressive realization. States should identify appropriate indicators,
in relation to which they should set ambitious but achievable benchmarks
(ie intermediate targets) corresponding to each ultimate target, so that
the rate of progress can be monitored and, if progress is slow, corrective
action taken. Thus, indicators measure progress towards both intermediate
and ultimate targets.

Setting benchmarks
enables government and other parties to reach agreement about what rate
of progress would be adequate. The stronger is the basis of national dialogue,
the more national commitment there will be to the benchmark. The need
for debate and widely available public information is clear. If benchmarks
are to be a tool of accountability, not just the rhetoric of empty promises,
they must be, according to UNDP:

• Specific, time
  bound and verifiable;
• Set with the participation
  of the people whose rights are affected, to agree on what is an adequate
  rate of progress and to prevent the target from being set too low;
• Reassessed independently
  at their target date, with accountability for performance.

In 2002, this Report
was supplemented by the release by the Office of the UN High Commissioner
on Human Rights and the UNDP of Draft Guidelines on Poverty Alleviation.
The objective of the guidelines is to provide practitioners involved in
the design and implementation of poverty reduction strategies with operational
guidelines for the adoption of a human rights based approach. The purpose
is to focus on providing guidelines for the use of States that are integrating
human rights into their poverty reduction strategies.

The guidelines state
that policies and institutions for poverty reduction should be based explicitly
on the norms and values set out in the international law of human rights,
and that the human rights approach to poverty reduction is essentially
about empowerment. The most fundamental way in which empowerment occurs
is through the introduction of the concept of rights itself. Poverty reduction
then becomes more than charity, more than a moral obligation - it becomes
a legal obligation.

The guidelines in
effect synthesise, develop and systematise the various approaches that
have grown up in different agencies and in various reports and documents.
The guidelines state that, in sum, a human rights approach has the potential
to advance the goals of poverty alleviation in a variety of ways:

a) By urging speedy
adoption of a poverty reduction strategy, underpinned by human rights
as a matter of legal obligation;

b) By broadening
the scope of poverty reduction strategies so as to address the structures
of discrimination that generate and sustain poverty;

c) By urging the
expansion of civil and political rights, which can play a crucial instrumental
role in advancing the cause of poverty reduction;

d) By confirming
that economic, social and cultural rights are binding international
human rights, not just programmatic aspirations;

e) By adding legitimacy
to the demand for ensuring meaningful participation of the poor in decision-making
processes;

f) By cautioning
against retrogression and non-fulfilment of minimum core obligations
in the name of making trade-offs; and

g) By creating
and strengthening the institutions through which policy-makers can be
held accountable for their actions.

Relevant international
norms, the views of the treaty monitoring committees, and developments
in UN bodies in integrating human rights and poverty alleviation, are
crucial elements in addressing Indigenous disadvantage in Australia.

The Council of Australian
Governments framework for addressing Indigenous disadvantage

In April 2002, the
Council of Australian Governments (COAG) decided to commission the Steering
Committee for the Review of Commonwealth/State Service Provision (SCRCSSP)
to produce a regular report against key indicators of Indigenous disadvantage.
The key task of the report will be to identify indicators that are of
relevance to all governments and Indigenous stakeholders and that can
demonstrate the impact of program and policy interventions'.

The Committee's draft
framework has three logically related priority outcomes. They are:

• safe, healthy
  and supportive family environments with strong communities and cultural
  identity;
• positive child
  development and prevention of violence, crime and self harm; and
• improved wealth
  creation and economic sustainability for individuals, families and communities.

The framework then
has a two tier set of indicators. These encompass 'headline indicators'
of the higher order outcomes, and a second tier or 'strategic areas for
policy' action. These emphasise the possible need for joint action within
and across governments.

Eight strategic areas
for action have been identified. For each of these strategic areas, a
few key indicators ('strategic change indicators') have been developed
with their potential sensitivity to government policies and programs in
mind. These strategic change indicators are not intended to be comprehensive
- it is not possible to incorporate into the framework all of the factors
that influence outcomes for Indigenous people. The strategic areas for
action have been chosen on the evidence that action in these areas is
likely to have a significant, lasting impact in reducing Indigenous disadvantage.
The 8 areas, and the rationale for their choice, are briefly described
below:

1. Early child
development and growth (prenatal to age 3)

Early child development can have significant effects on physical
and mental health in childhood and adulthood, growth, language development
and later educational attainment.

2. Early school
engagement and performance

Early school engagement is important for establishing a foundation
for educational achievement, retention in secondary schooling, opportunities
in employment and minimising contact with the justice system later in
life.

3. Positive
adolescence and transition to adulthood

Participation in school and vocational education; and community,
cultural and recreational activities, encourages self-esteem and a more
positive basis for employment. Such participation also assists in avoiding
contact with the justice system.

4. Breaking
the substance abuse cycle

Abuse of alcohol and other substances affects later physical and
mental health, family and community relationships and contact with the
justice system. Tobacco use is the greatest single contributor to poor
health outcomes.

5. Functional
and resilient families and communities

Functional and resilient families and communities influence the
physical and mental health of adults and children and contact with the
justice system. Problems in families and communities can lead to breaks
in schooling and education, disrupted social relationships and social
alienation.

6. Building
on the strength of Indigenous culture

A strong Indigenous culture provides a foundation for strong families
and communities, economic development, self-determination and community
resilience, reduced youth alienation and reduced self-harm and suicide.

7. Functioning
environmental health systems

Clean water, adequate sewerage, housing and other essential infrastructure
are important to physical well being and health, nutrition and physical
development of children.

8. Economic
participation

Having a job or being involved in a business activity not only
leads to improved incomes for families and communities (which has a
positive influence on health, education of children, etc) it also enhances
self-esteem and reduces social alienation.

The lack of data,
or inability to collect them, can explain why some otherwise desirable
indicators are not included. However, where data are not currently (or
only partly) available, but the indicator is important enough, an indicator
may still be included as an incentive to improve data quality.

Incorporating human rights
into benchmarking reconciliation

The previous section
provides an outline of a significant range of measures that are relevant
to benchmarking reconciliation in an international and domestic context.
This material was the basis of discussion over two days at the workshop
that I convened on 28-29 November 2002.

The workshop proceeded
with an overview of the issues discussed above, and particularly with
an overview of the Draft framework for reporting on Indigenous disadvantage
prepared by the Steering Committee for the Review of Commonwealth/State
Service Provision (SCRCSSP). The participants then considered the following
issues over the course of the workshop:

• Indigenous
  participation in benchmarking. How
  to ensure adequate Indigenous participation in the setting and monitoring
  of benchmarks and indicators;
• Australia's
  obligations to progressively realize economic, social and cultural rights.
  How to
  ensure that Australia's human rights obligations to progressively realise
  the equal enjoyment of economic, social and cultural rights are reflected
  in monitoring frameworks and are being met.
• Statistics.
  How to ensure that statistical collection is adequate to support the
  measuring of Indigenous disadvantage and the monitoring of progress
  for its progressive realization.
• Building Indigenous
  community capacity and governance. How to ensure that the objective
  of community capacity building and strengthening and supporting Indigenous
  governance is integrally linked to processes for addressing Indigenous
  disadvantage.
• The draft indicative
  framework for measuring Indigenous disadvantage, as prepared by the
  Steering Committee. In
  light of the previous discussion, an opportunity was provided to discuss
  the detail of the proposed indicative framework.

The Workshop raised
a number of serious concerns from a human rights perspective about the
current development of indicators and benchmarks in respect of Indigenous
disadvantage.

First, the current
draft framework for reporting on Indigenous disadvantage appears to have
been developed with little reference to human rights standards, to Australia's
international obligations, or to relevant international experience. Perhaps
reflecting an emphasis on 'practical reconciliation', the Draft framework
consequently fails to develop a series of indicators of Indigenous socio-economic
disadvantage within a rights framework. Specific reference should particularly
be made to the Draft Guidelines on Poverty Alleviation developed by the
UNDP and the UN Office of the High Commissioner for Human Rights.

Second, serious concerns
were also expressed about the failure of the proposed indicators to adequately
reflect Indigenous governance and capacity-building objectives. These
matters require urgent attention before the Draft framework is approved
by COAG. Given the apparent commitment to these issues by the federal
Government, this is a test of the extent to which it is actually prepared
to negotiate and enter into partnerships with Indigenous communities.

Third, the present
failure of the indicators to reflect traditional and subsistence economic
activity and production is a major concern. It is likely to skew results
against remote and outstation communities. Urgent attention needs to be
given to the literature and research on these matters, and subsistence
production and activity needs to be accommodated in the indicators.

Fourth, the draft
framework intends to provide a reporting tool on a national basis. However,
it needs also to be able to be disaggregated to a sufficient level to
provide meaningful and realistic results as a guide to policy review and
formulation. The ability to disaggregate results on a regional basis would
appear to be a high priority (perhaps by ATSIC region).

Fifth, considerable
concern was evident at the Workshop about the level and nature of consultation
to date with Indigenous representatives, organizations and communities
about the Draft framework, including the tight deadlines prevailing and
whether the consultation has been wide and/or representative enough. There
is the possibility that the Draft framework, rather than being perceived
as a positive tool for partnership between governments and Indigenous
peoples, will be met with suspicion and distrust, and seen as yet another
government contrivance thrust upon Indigenous society.

Conclusion

Ultimately, the
Steering Committee's framework must be acknowledged as a significant development.
It is in fact the only positive form of monitoring and evaluation that
the Government has provided for practical reconciliation. The overarching
concern however is that if constructed and too narrowly focused on practical
reconciliation, to the exclusion of other important factors it could be
co-opted as a political tool for reinforcing and legitimizing what is
ultimately a limited approach to Indigenous issues.

Care must be taken,
however, to ensure that the Steering Committee framework is not seen as
a panacea or as intended to fulfill the monitoring role across the full
range of issues. In my view, the greatest deficiency in this process
is not the draft indicative framework per se but the fact that
it currently exists in isolation from any other form of performance monitoring,
particularly on identifying progress on important goals such as capacity
building and governance reform, as well as identifying the unmet need
and accordingly whether policy approaches are moving forward or in fact
regressing.

The Steering Committee's
framework is a significant institutional development in measuring progress
for Indigenous peoples. When assessed from the perspective of human rights
standards and recent international developments integrating strategies
for poverty eradication and development, it can be seen that it is a partial
measure and needs to be built on with other processes and analysis.

Chapter
5: Indigenous women and corrections - A Landscape of Risk

This chapter provides
a broad overview of issues that Indigenous women face in criminal justice
processes. Due to the general dearth of research and statistics it is
necessarily broad in its focus, and points to areas requiring follow
up action and further investigation. Despite these limitations, what
is clear is that there is a crisis in the level and type of contact
of Indigenous women with correctional systems in Australia. There is
insufficient attention devoted to their circumstances when in custody
and insufficient attention to the environmental factors which contribute
to their being in custody at all. Indigenous women indeed live in 'a
landscape of risk' and suffer at the crossroads of race and gender.

Indigenous women
are currently incarcerated at a rate higher than any other group in Australia.
While Indigenous men face unacceptably high rates of incarceration, the
rate for Indigenous women is significantly higher and is rising at a faster
rate. The rising rate of over-representation of Indigenous women occurs
in the context of intolerably high levels of family violence, over-policing
for selected offences, ill-health, unemployment and poverty. Studies of
Indigenous women in prison reveal experiences of life in a society fraught
with danger from violence. The consequences to the community of the removal
of Indigenous women are significant and potentially expose children to
risk of neglect, abuse, hunger and homelessness. Indigenous women also
serve comparatively shorter sentences, suggesting a general failure to
employ the principle of imprisonment as a last resort. Once imprisoned,
recidivism statistics also indicate that Indigenous women are at greater
risk of returning to gaol.

A statistical overview of
Indigenous women in corrections

a) Rates of incarceration
of Indigenous women: The number of Indigenous women incarcerated has
increased from 104 in 1991 to 370 Indigenous women in 2001. This represents
an increase of 255.8% over the decade. Similarly, rates of over-representation
of Indigenous women are higher than for Indigenous men. For the June 2002
quarter, Indigenous women were over-represented at 19.6 times the non-Indigenous
rate compared to Indigenous men at 15.2 times.

Other statistical
reports also tell us the following about Indigenous women in corrections:

• In New South
  Wales, Indigenous women represented 30 percent of the total female population
  in custody in October 2002 despite constituting only 2 percent of the
  female population of the state.
• In Queensland,
  the growth of Indigenous female offenders in Queensland secure and open
  custody over the five year period from 1994 -1999 was 204 per cent,
  compared with an increase of 173 per cent for all female offenders in
  Queensland over the same period. In February 2001, Indigenous women
  represented 28.2 per cent of the total female population in Queensland
  open and secure centres.
• In Victoria, of
  the 4886 prisoners received into Victorian prisons in the 2000-01 period,
  only 539 were women. Nevertheless, while female representation is low
  overall, Indigenous women are over-represented, constituting 8% of all
  female prisoners.
• In Western Australia,
  reception data shows that for the period 1 July 2001 to 30 June 2002,
  Aboriginal women represented 51.7 per cent of all women received into
  prison despite constituting 3.2 per cent of the female population of
  Western Australia.
• In the Northern
  Territory, Indigenous women constituted 57 percent of the total female
  prison population and 26 per cent of the female population of the Northern
  Territory.

b) Recidivism
rates among Indigenous women: National statistical data indicates
that nearly 3 in every 4 (76 percent) of all Indigenous prisoners had
been previously imprisoned. In New South Wales, 'almost 85% of Aboriginal
women in prison have previously been in custody compared with 71% of non-Aboriginal
women.' Recidivism rates for Indigenous compared to non-Indigenous women
are higher in all jurisdictions. For example, preliminary findings of
a Victorian study on the prison population found a rate of re-offending
of 71 percent among Indigenous women compared to a rate of 61 percent
average in 2000 among the female population.

c) Types of crime
committed by Indigenous women: Statistics on crimes committed by Indigenous
women indicate that there is a considerable degree of variation in criminal
behaviour across jurisdictions and within regions. There is also a steady
and significant increase in most categories of offences. Thus, there were
100% more Indigenous women in prison for homicide related offences in
2001 than 1994, 127% more for assault and related offences, 440% more
for robbery, and so on. The increases were reasonably comparable across
many offence categories, although of particular significance has been
the increase in imprisonment for robbery offences, which outstripped all
other changes.

Nationally, Indigenous
women comprise nearly 80% of all cases where women are detained in police
custody for public drunkenness. Similarly, by comparison to non-Indigenous
women, Indigenous women are more likely to be incarcerated for violence.
There has been a past general trend of low numbers of Indigenous people
imprisoned for drug offences. However, survey data from New South Wales
and Victoria indicate wide use of drugs including narcotics. A further
significant factor in the incarceration of Indigenous women is fine defaulting.

d) Over-policing:
A further concern about Indigenous women's contact with criminal justice
processes relates to the potential over-policing of Indigenous women.
For example, in New South Wales, the Select Committee into the Increase
in Prison Population found in 2001 that the most significant contributing
factor to increases in the rates of incarceration of Indigenous women
was the increase in the remand population. There was no evidence to suggest
that an in increase in actual crime accounted for the prison increase,
although increases in police activity and changes in judicial attitudes
to sentencing were also important.

e) Sentencing
patterns for Indigenous women: Indigenous women tend to receive shorter
sentences than non-Indigenous women. General rates of over-representation
tend to indicate that Indigenous women are not being provided with non-custodial
sentencing options. Shorter sentences also appear to be linked to high
rates of incarceration for public order offences.

f) Characteristics
of Indigenous women who are imprisoned: In general Indigenous women
in gaol are slightly younger than non-Indigenous women. There are no national
figures for Indigenous women prisoners with children, but a majority of
incarcerated women are mothers.

Indigenous women
also often enter custody with poor physical or mental health. Research
in Victoria has revealed that many women self harm soon after release
from prison. This includes drug overdose & other types of self harm.
In NSW in comparison to a non-Indigenous woman, an Aboriginal woman is:

• Four times more
  likely to be murdered;
• More than twice
  as likely to be the victim of sexual assault, or sexual assault against
  children;
• Four times more
  likely to be a victim of assault;
• Seven times more
  likely to be a victim of grievous bodily harm.

Accompanying these
factors is a strong argument that Aboriginal women receive poor responses
from police to complaints about violence and other disturbances. One reason
suggested for under-policing in relation to alleged assaults is a perception
that family violence is part of Aboriginal culture or a 'tribal norm.'
Another connected reason is the view that Aboriginal women are undeserving
of police protection. Recognition of the causes of violence is crucial
to developing solutions.

While there are
limits on the statistics that are available on Indigenous women in corrections,
there is sufficient data to indicate serious problems underlying Indigenous
women's contact with corrections. The reasons derive in part from a combination
of the ongoing impact of colonisation on the culture, laws and traditions
of Indigenous communities, poverty and other forms of socio-economic disadvantage.
This manifests in many ways including alcohol and drug use, homelessness
and violence. Research has identified a strong correlation between imprisonment
of Indigenous women and the experience of sexual assault and separation
from family. The impact of alcohol related crime, and increasingly in
some jurisdictions, drug related crime requires further investigation.

Poverty and disadvantage
are widely recognised indicators for offending behaviour. There is a correlation
between the highest rates of imprisonment of Indigenous people in the
most disadvantaged areas of New South Wales, although further research
is needed to confirm the links.

Experiences of Indigenous
women in corrections

• Disruption
  to family life: One of the greatest impacts of imprisonment on Indigenous
  women is the disruption to the family life of children through taking
  mothers into custody. This impacts on the women, the children and the
  community who remain to take care of the children.
• Pregnancy:
  Pregnant women need prenatal support, support during labour and access
  to family and their baby after birth. Indigenous women in detention
  often present with compromised health. When these women give birth their
  children may require hospitalisation in intensive care units until they
  are stabilised. It is very important that the mothers of those babies
  are able to access their children to breastfeed where possible, bond
  and care for the baby.
• Provision of
  health care:
  Where women are treated in hospitals outside the correctional facility,
  it is important to prove a standard of care which meets requirements
  for privacy. Protocols between the correctional institution and hospital
  for dealing with inmates could prevent this experience for women. A
  secure area where women could be received and treated within the hospital
  may alleviate some of the problems.
• Visits with
  Family and Friends: Families are often not aware of the exact location
  of prisoners, or of conditions attached to visits. The need for liaison
  officers to reach communities with information about their incarcerated
  family members was stressed.
• Disruption
  to cultural responsibilities and dislocation from community:
  A recent survey of Aboriginal women incarcerated in Sydney gaols found
  that 73% felt they would have the support of their family and community
  on release, but 28% either felt that would not have this support or
  were not sure. An individual woman's sense of shame can be a powerful
  block to accessing vital support. In some instances women may also be
  facing payback and may not tell authorities about it, and may become
  itinerant as a result.
• Dislocation
  from Services:
  Indigenous women experience dislocation from services as a result of
  incarceration. This may be experienced as loss of housing and loss of
  medical or dental programs among others. Indigenous women in remote
  communities suffer particular dislocation from services.
• Housing:
  Chronic homelessness and the loss of accommodation due to incarceration
  creates one of the most urgent needs of Indigenous women post-release.
  Consultations with Indigenous women in Darwin indicated that a major
  issue faced by women incarcerated is the knowledge that they may lose
  their homes if rental payments are not maintained.

Addressing the needs of Indigenous
women in corrections

Election driven law
and order campaigns primed to drive up incarceration, a lack of government
action to implement the recommendations of the Royal Commission into Aboriginal
Deaths in Custody and lack of judicial activism to implement the recommendations
of the Royal Commission on non custodial sentences are some obvious and
ongoing causes of over representation.

Criminal conduct
by Indigenous women must be viewed as a symptom and offenders as the casualties
of colonisation. Links must be drawn and holistic models developed and
supported which address the connections between culture, drug use, alcohol
use, separation from family, violence, poverty, spiritual needs, housing,
health, boredom, race discrimination and gender discrimination.

Indigenous people
are constructing, reconstructing and participating in programs and models
for dealing with criminal justice issues. These include community policing,
night patrols, Community Justice Panels and Groups, circle sentencing,
and participation in courts such as the Nunga court (SA), Murri court
(Qld) and Koori court (Vic).

Programs have now
been developed and evaluated, particularly around family violence for
women, men and children, and Indigenous participation in drug court trials.
These indicate that it 'is very important to give responsibility back
to the community, through the case management, future planning and post
release programs and services. The community must also be properly supported
in these initiatives'.

Indigenous people
have looked to new models and in so doing, look to the past for answers.
One example is the development of restorative justice models to deal with
violent behaviour within communities. Restorative justice models engage
community, victim and offender. The victim's rights to safety and security
are paramount, and the participation of Indigenous Elders is essential.
This approach has been considered by the Indigenous Services Unit of New
South Wales Corrective Services with the view of developing a similar
initiative for Aboriginal women in New South Wales.

Indigenous women
are disadvantaged by the lack of services designed for them. This is an
example of intersectional discrimination. It is a consequence of a rights
and policy structure which identifies groups of needs and rights holders
such as women and Indigenous people, but fails to provide for the needs
of people who dwell at the intersection of these groups.

There should also
be recognition that community extends into gaols. Elders recognised this
long ago and have been visiting the large numbers of incarcerated Indigenous
people for many years. The many successful programs (such as CDEP) now
running in communities could be adapted for Indigenous women in gaol.
For many women, gaol is a time of reflection and a time where culturally
appropriate programs would be extremely beneficial.

By contrast, there
is an increasing understanding of the vulnerability of Indigenous women
to the impact of a lack of post-release resources. Evidence indicates
that women are at serious risk of self-harm and harm from others in the
period immediately after incarceration. It is important that rehabilitation
be undertaken in prison and continued on release. Rehabilitation is important
of itself, but it is also crucial in preventing recidivism.

Issues that pre- and post-release
programs should address include:

• Housing issues:
  Housing has been identified as the most important basic need of women
  leaving gaols. Some women may be able to access public housing, but
  this needs to be in place before their release date. Others may not
  be eligible due to previous problems with the department. These women
  need support with at least temporary accommodation until they are established
  and can attempt to access to private housing market. Transition accommodation
  is perhaps the most important service for women, especially if they
  have children.
• Dealing with
  Violence:
  Effective pre and post release programs should include community based,
  Indigenous specific programs to help women deal with the effects of
  violence and to help women develop alternative strategies for coping
  with violence in the future. People require protection from violent
  behaviour and alternative structures for prevention and punishment of
  violent behaviour which provide more than imprisonment with all its
  risks and consequences. Pre- and Post-release programs should include
  assistance for past injuries suffered by women, and strategies for dealing
  with these issues in the future. Where drug and alcohol use, associated
  with incidents of violence has become problematic programs should address
  these needs.
• Children and
  Families:
  Women need support to maintain contact with their children while they
  are incarcerated. Where that is not possible, they need to be provided
  with information as to the well being of their children. Women need
  support when they resume contact with their children. They need practical
  advice on how to deal with family court procedures and departments of
  community services.
• Kinship Obligations:
  Aboriginal women in custody are ever-conscious of the impact their absence
  has on the day to day lives of their families and children. This creates
  stress on them during the period of their custodial sentence, and creates
  additional stresses on them when they return home. Programs which are
  sensitive to the kinship obligations of Indigenous women and supportive
  of these roles are important. Indigenous women have identified help
  with family and community relationships as an issue they want help with.
  Some women may face another form of dispossession because of the impact
  of violent relationships on their lives. They may not be able to return
  to their home community, as a result of their own or other people's
  violence. In either scenario, women need support to re-enter potentially
  volatile situations. Pre- and post-release programs need to be sensitive
  to kinship obligations, and to support Indigenous women to work with
  their customary obligations and to positively re-integrate into the
  community in which they will live.
• Financial Issues,
  Employment, Education and Training:
  There is an absence of consistent data in relation to educational background
  of prisoners available. On the issue of employment and education programs
  within the prison Margaret Cameron of the Australian Institute of Criminology
  notes that 'no formal consideration has been given to the needs of ATSI
  women.' A recent survey of NSW women noted that 84% of the women said
  they would like to work on release.
• Access to health
  services:
  The high incidence of health problems among Aboriginal women is an indicator
  that pre and post release programs should target the health needs of
  Aboriginal women. The high incidence of deaths in custody attributable
  to natural causes indicates an urgent need for better health care while
  in custody, and better health care on release. There is also a specific
  need to address drug abuse among Indigenous women.

Chapter
6: International developments in the recognition of the rights of Indigenous
peoples

This chapter examines
the current status of the recognition of the human rights of Indigenous
peoples at the international level and in the processes of the United
Nations.

Indigenous peoples in international
law - A history of exclusion

There are two main
aspects to Indigenous peoples' struggle for recognition at the international
level. The first concerns the participation of Indigenous peoples or put
differently, the struggle for recognition of our legitimate place at the
negotiating table. The second is the struggle for the recognition and
protection of Indigenous peoples' distinct rights in international law.

The two are inter-related
and cannot be separated. Indeed they have operated in tandem for the past
thirty years, with gains in participation at the international level influencing
the development of standards relating to Indigenous peoples. The struggle
for participation at the international level and the recognition of Indigenous
rights has at its core the same purpose. 'The goal of Indigenous Peoples
is to act and be treated as subjects - and not as objects - in international
law.'

Historically, Indigenous
peoples have been denied such involvement and protection in international
law. By the nineteenth and early twentieth century, international law
upheld a system dominated by predominately western, colonizing nations
that protected the integrity of the territorial gains made through colonization.
This approach has been reinforced through the structures and processes
of the League of Nations and its successor, the United Nations.

For Indigenous peoples,
the fact that international law is primarily determined by those who have
colonized their lands and subjugated them has operated as the primary
obstacle to the consideration of Indigenous issues at the international
level until into the 1970's and of any recognition of Indigenous peoples
as subjects at international law until into the 1980's. It clearly remains
the primary obstacle to the full realization of Indigenous human rights
at the international level today.

The basic United
Nations texts and treaties, for example, contain no specific or explicit
reference to Indigenous populations. Article 30 of the Convention on
the Rights of the Child today remains the sole human rights treaty
provision that specifically refers to Indigenous peoples. Up until the
1970's, Indigenous issues were generally considered as part of a broader
focus on human rights problems such as forced labour, slavery or through
a focus on the human rights situation in a particular country or region.
The one international agency that had devoted specific attention to Indigenous
peoples up to the 1970s was the International Labour Organisation (ILO).

The 1970's can generally
be seen as the turning point at which the international community began
to pay more intensive and sustained attention to the situation of Indigenous
peoples. In 1971, a study on racial discrimination submitted to the Sub-Commission
on the Prevention of Discrimination and the Protection of Minorities (the
Sub-Commission) included a recommendation that a specific study be conducted
on the situation of the problem of discrimination against Indigenous populations.
Such a study was authorised by the Economic and Social Council (ECOSOC)
of the United Nations in 1971 and was commenced by Jose R. Martinez Cobo
in 1972. The Cobo report, as it is commonly known, was prepared over the
next decade and was submitted to the Sub-Commission in 24 instalments
between 1981 and 1984 with its conclusions and final recommendations compiled
in a consolidated volume in 1987.

The 1970's also saw
the international mobilization of Indigenous peoples with the support
of non-government organisations (NGO's). In response to these calls and
the preliminary findings by Cobo, the Working Group on Indigenous Populations
(WGIP) was established at the United Nations in 1982 as a forum to specifically
address the issues of Indigenous peoples.

The Working Group on Indigenous
Populations - from exclusion to participation at the international level

The Working Group
on Indigenous Populations was established by the Economic and Social Council
(ECOSOC) of the United Nations in 1982. The Working Group comprises five
independent experts who are to implement the Working Group's twofold mandate.

First, they are required
to 'review developments pertaining to the promotion and protection of
the human rights and fundamental freedoms of Indigenous populations' and
accordingly to submit conclusions and recommendations to its parent body,
the Sub-Commission on the Prevention of Discrimination and the Protection
of Minorities (recently renamed the Sub-Commission on the Promotion and
Protection of Human Rights). Second, they are required to 'give special
attention to the evolution of standards concerning the rights of Indigenous
populations, taking into account both the similarities and the differences
in the situations and aspirations of Indigenous populations throughout
the world'.

The Working Group
was created at the lowest possible level of the United Nations. Its influence
over the first twenty years of activity, however, has far outstripped
its operational level within the United Nations.

The contribution
of the Working Group in shaping the consideration of Indigenous issues
at the United Nations has been most felt in three ways. First, its historic
- and ongoing - significance remains the opening up of international processes
to the participation of Indigenous peoples. The flexible processes for
participation of Indigenous organizations in the Working Group's deliberations
set a precedent which has been followed by some UN agencies and international
organizations.

Second, the Working
Group has been highly successful in influencing the agendas and advising
the various agencies of the UN on their approaches to Indigenous peoples.
Nearly every activity of the UN relating to Indigenous peoples since 1982
can be traced back to the Working Group's deliberations and recommendations
in some way. This achievement is not purely an historic one. It has an
ongoing dimension with the Working Group continuing to make an important
contribution to international developments and the evolution of standards.

Third, the Working
Group has fulfilled an enormously valuable standard setting role under
the second element of its mandate. At its eleventh session in July 1993
the Working Group agreed on a final text for the Declaration on the
Rights of Indigenous Peoples. While the draft Declaration has floundered
in negotiations in the Government controlled Working Group on the draft
Declaration, it has already been of great normative value. The consistent
elaboration of Indigenous peoples' claims, particularly in relation to
cultural identity, self-determination, informed consent and self-identification,
has influenced the policy approaches of international agencies such as
the World Bank, UNESCO, UNDP and World Health Organisation.

It was also a major
influence in the International Labour Organisation's decision to revise
ILO Convention 107 and develop ILO Convention 169, titled Convention
concerning Indigenous and tribal peoples in independent countries,
in 1989. United Nations Human rights treaty committees have also responded
to the advocacy of Indigenous peoples' rights through the processes of
the Working Group. Despite the completion of the draft Declaration, the
Working Group has yet to exhaust its standard setting function.

Commitments to developing
partnerships with Indigenous peoples - From Rio and Vienna to the International
Decade of the World's Indigenous people

By the early 1990s,
governments and the United Nations began to commit to developing partnerships
with Indigenous peoples at the international level. On 18 December 1990
the General Assembly of the United Nations proclaimed 1993 as the International
Year of the World's Indigenous People.

Around the same time,
the role of Indigenous peoples in addressing environmental and sustainable
development issues became increasingly recognized in a variety of international
processes. Indigenous issues and the importance of the participation of
Indigenous peoples were given prominent attention at the United Nations
Conference on Environment and Development held in Rio de Janeiro in 1992.
Since the Rio Summit a number of legal instruments on the environment
have been developed which are relevant to Indigenous peoples. These include
the United Nations Framework Convention on Climate Change, the Convention
to Combat Desertification, and the establishment of the United Nations
Forum on Forests. Perhaps most notably, the Convention on Biological Diversity
was adopted in Nairobi in 1992.

Indigenous peoples'
rights also received significant attention at the second World Conference
on Human Rights, which was held in Vienna in June 1993. In December 1993
the General Assembly acted upon the recommendation of the Vienna Conference
and proclaimed the International Decade of the World's Indigenous People.
The Decade is to run from 10 December 1994 to 9 December 2004 and the
theme of the Decade is 'Indigenous people: partnership in action'. The
General Assembly set the following five, inter-related objectives for
the International Decade, which are:

• The strengthening
  of international cooperation for the solution of problems faced by Indigenous
  people;
• The education
  of Indigenous and non-Indigenous societies concerning the situation,
  cultures, languages, rights and aspirations of Indigenous people;
• The promotion
  and protection of the rights of Indigenous people and their empowerment
  to make choices which enable them to retain their cultural identity;
• The implementation
  of recommendations pertaining to Indigenous people of all high-level
  international conferences; and
• The adoption of
  the draft United Nations declaration on the rights of Indigenous peoples
  and the further development of international standards for the protection
  and promotion of the human rights of Indigenous people.

The International
Decade provides a framework for the strengthening of activities relating
to Indigenous issues across the UN. It is a strong indication of the priority
which the international community states it attaches to addressing Indigenous
peoples' issues through international cooperation and to strengthening
the participation of Indigenous peoples at the international level in
issues that affect them.

Action at the international
level has, however, been slow in implementing these commitments and in
addressing the objectives of the Decade. The High Commissioner for Human
Rights noted in 1999 that there has been 'an evolution over the last five
years in the development of policy guidelines, programme activities, consultation
mechanisms, specific funding and staff resources being dedicated to Indigenous
peoples issues' in many United Nations agencies and that accordingly,
the objectives of the Decade were beginning to be met by a growing number
of UN agencies.

But there have also
been ongoing problems for implementation of the Decade flowing from 'the
limited human resources available and the lack of funding for the activities
themselves' and limited commitment from governments.

'You have a home at the United
Nations' - The creation of the Permanent Forum on Indigenous Issues

A major focus of
the Decade has been on the proposal to establish a permanent forum within
the United Nations to address the 'striking absence of a mechanism to
ensure regular exchange of information' and the participation of Indigenous
peoples. A number of high level reviews relating to the Decade have supported
the establishment of a permanent forum as a matter of priority and as
a main way of meeting the objectives of the International Decade.

The Permanent Forum
on Indigenous Issues was established by the Economic and Social Council
on 28 July 2000. Significantly, it was established as a subsidiary organ
of the Council. In practical terms, this places the Permanent Forum at
the highest level of the United Nations possible without amendment to
the UN Charter.

As an advisory body
to the Economic and Social Council, the Permanent Forum has a wide-ranging
role to discuss Indigenous issues that fall within the mandate of the
Council. This includes issues relating to economic and social development,
culture, the environment, education, health and human rights. Its function
is to:

a) Provide expert
advice and recommendations on Indigenous issues to the Council, as well
as to programmes, funds and agencies of the United Nations, through
the Council;

b) Raise awareness
and promote the integration and coordination of activities relating
to Indigenous issues within the United Nations system; and

c) Prepare and
disseminate information on Indigenous issues.

The Permanent Forum
is to report annually to the Council on its activities, at which time
it can make any recommendations on Indigenous issues. The Permanent Forum
met for its inaugural session in New York from 13-24 May 2002. At this
early stage there are four main factors about the Permanent Forum that
warrant comment in relation to the objectives of the International Decade.

First is to note
the sheer scope of the role of the Permanent Forum and its potential to
transform consideration of Indigenous issues at the international level.
The potential of the Permanent Forum is that it will be able to mobilise
the entire United Nations system to addressing the circumstances and issues
of Indigenous peoples the world over. It is ultimately a powerful monitoring
mechanism to hold these agencies accountable for their performance on
Indigenous issues.

The second feature
of the Permanent Forum is that it offers unprecedented scope for Indigenous
peoples to participate in the programming and policy directions of the
agencies of the United Nations.

The third feature
of the Permanent Forum is that it has the potential to mainstream the
Indigenous rights agenda within the United Nations system. Human rights
are but one of several mandated areas which the Permanent Forum is to
consider. Despite this, they have already begun to occupy a central position
in the considerations of the Forum. The difficulty which exists for the
Permanent Forum and the UN agencies at this time is that there is still
no universal set of principles setting out the rights of Indigenous peoples
which could be applied to the activities and programmes of all UN agencies.
At present, the extent to which UN agencies take account of Indigenous
rights varies enormously. The Permanent Forum joined the chorus of voices
calling for the swift adoption of the draft Declaration on the Rights
of Indigenous Peoples within the framework of the International Decade
to provide greater consistency in this regard.

The fourth feature
of the Permanent Forum is that the limitations of what it can achieve
will primarily be set by the human, technical and financial resources
which are made available to it. The issue of resourcing remains the primary
obstacle to the success of the Permanent Forum.

The Permanent Forum
has the potential to revolutionise the way that the United Nations engages
with Indigenous peoples and addresses their circumstances. It is clear,
however, that it is a massive undertaking that requires significant technical,
human and financial resourcing from the United Nations and governments
of the world. Such support has not been forthcoming to date. Until such
support is forthcoming it is not possible to argue that the Permanent
Forum implements several of the key objectives of the International Decade.

Recognising and protecting
the rights of Indigenous peoples - The Special Rapporteur, Durban and
the draft Declaration

Despite the extraordinary
variety of achievements in the recognition of Indigenous rights and the
participation of Indigenous peoples at the international level over the
past thirty years there remains a great distance to be travelled for international
law to provide full and non-discriminatory recognition of Indigenous peoples'
rights and for the objectives of the International Decade to be met.

Since 2000, there
have been three main processes which are related to these objectives of
the International Decade for the World's Indigenous People. They are the
establishment of a Special Rapporteur on Indigenous people by the Commission
on Human Rights; the Durban World Conference Against Racism; and the ongoing
negotiations on the draft Declaration on the Rights of Indigenous Peoples.

Concerned at the
lack of progress in adopting standards on Indigenous rights and the consequent
lack of specific protection of Indigenous peoples, the Commission on Human
Rights acted on 24 April 2001 to create the position of Special Rapporteur
on the situation of human rights and fundamental freedoms of Indigenous
people.

The establishment
of the Special Rapporteur joins the Permanent Forum as one of the most
important achievements of the International Decade. Like the Permanent
Forum, issues of resourcing will determine the scope of work that can
be undertaken by the Rapporteur and the extent to which the potential
of the Rapporteur's role is turned into a reality. The limitations of
the Special Rapporteur are demonstrated by the fact that he is currently
only funded to undertake two country visits each year.

The advances that
have been made during the course of the International Decade and the great
challenges that remain for Indigenous peoples are perfectly illustrated
by the consideration of Indigenous issues in the Durban Declaration and
Programme of Action of the World Conference Against Racism, Racial Discrimination,
Xenophobia and Related Intolerance. The World Conference was held in Durban
South Africa in August-September 2001. The documents of the World Conference
demonstrate the positive recognition that Indigenous issues have achieved
over the course of the International Decade. But they also reveal the
major limitations that remain in the treatment of Indigenous issues. Overall,
it cannot be said that the World Conference took advantage of what was
described in the preamble of the Durban Declaration as 'a unique opportunity
to consider the invaluable contribution of Indigenous peoples… to
our societies, as well as the challenges faced by them, including racism
and racial discrimination.'

The Durban World
Conference documents ultimately defer consideration of controversial issues
relating to the recognition of Indigenous rights to the annual sessions
of the inter-sessional, open-ended working group on the draft Declaration
on the Rights of Indigenous Peoples. This working group has made little
progress to date, having adopted just 2 of the 45 articles of the draft
Declaration in its first seven years.

The central issue
in the negotiations on the draft Declaration is the unwillingness of States
to accept that Indigenous peoples have an unqualified right to self-determination,
as set out in Article 3 of the draft Declaration. Australia has played
a vital role in this process, being one of the most vocal and oppositional
countries during the debates since 1997.

There is an increased
sense of urgency for States to adopt the draft Declaration within the
timeframe of the International Decade. There remain two, possibly three,
sessions of the working group for this to be achieved. At this point it
is difficult to see how this can be achieved when States are unwilling
to accept the text of Article 3 of the Declaration, which adopts common
Article 1 of the international covenants. It can only be hoped that the
oft-repeated commitment of States to work towards the finalisation of
the Declaration within the framework of the International Decade will
result in genuine engagement with the issues and with Indigenous peoples
rather than the outright, inflexible opposition that has characterised
debate in the first seven years of the working group.

Clarifying the complementary
roles of the various mechanisms addressing Indigenous issues within the
United Nations - emerging challenges

Despite the clearly
unsatisfactory progress in recognising Indigenous human rights through
the adoption of a universal declaration, it is quite possible that the
final years of the International Decade of the World's Indigenous People
could see the dismantling of some of the machinery now in place within
the United Nations for addressing Indigenous human rights issues. When
establishing the Permanent Forum the ECOSOC mandated a review of 'all
existing mechanisms, procedures and programmes within the United Nations
concerning Indigenous issues'. The Australian Government has made clear
that it will use this review to argue for the dismantling of the Working
Group on Indigenous Populations, on the basis of duplication with the
roles and functions of the Permanent Forum and Special Rapporteur.

No one would disagree
with the suggestion that all United Nations mechanisms should be efficient
and effective and that they should avoid duplication and overlap. The
Government's suggestion that there currently exists 'clear overlap' between
the various UN mechanisms dealing with Indigenous issues is, however,
contentious.

A comparison of the
mandates of the various existing mechanisms reveals that:

• the functions
  of the working group on the draft Declaration does not overlap with
  those of the other mechanisms;
• the Permanent
  Forum on Indigenous Issues has the potential to overlap with the functions
  of the other mechanisms in only a residual manner;
• on initial inspection,
  it would appear that there is some level of overlap in the roles of
  the WGIP and the Special Rapporteur on Indigenous issues. The roles
  of the two mechanisms are, however, quite distinct and contain significant
  differences.

Overall, there are
significant differences and distinct advantages to the roles of both the
Working Group and the Special Rapporteur. Both mechanisms are necessary
for the adequate protection of Indigenous rights at the international
level. The Australian government's suggestion that there is a 'clear overlap'
in functions does not withstand scrutiny.

In my view, there
are two significant reasons why the human rights mechanisms should not
be 'rationalised' by discontinuing the Working Group. Each indicates that
such a decision would be premature.

First, there is currently
a crisis in the UN human rights mechanisms dealing with Indigenous issues
because they are under-resourced. This under-resourcing is most notable
in relation to the Permanent Forum and Special Rapporteur. Put simply,
these mechanisms have not as yet been provided with sufficient resources
- human, technical and financial - to ensure that they can appropriately
acquit their mandates and be fully operational. It would be disingenuous
to abolish an established, functioning mechanism (like the WGIP) when
the mechanisms which theoretically would take its place do not have full
operational capacity (although I have argued that they in fact fulfill
a different role in any event).

Second, any perception
that the activities of the Working Group have stalled or run their course
has to be considered in light of the progress of governments in considering
the draft Declaration. Ideally, the Working Group would have a role as
an oversight or review mechanism on the implementation of the draft Declaration.
This is in fact the operational structure of the Working Group on Minorities,
established in 1995.

While the recent
activities of the Working Group on Indigenous Populations indicate that
it remains a vibrant mechanism and that it has not exhausted its standard
setting role, the example of the Minorities working group indicates the
potential for re-invigorating and strengthening further the protection
of Indigenous human rights at the international level through the Working
Group. The main obstacle to such strengthened protection is not any inherent
factor in the Working Group's structure or mandate, it is the tardiness
and inflexibility of States and their failure to finalise negotiations
and approve a draft Declaration on the Rights of Indigenous Peoples.

Conclusion and recommendations
- Meeting the objectives of the International Decade

At the time of writing,
there were still more than two years remaining in the International Decade
for the World's Indigenous People. There have been some significant achievements
in the Decade to date, most importantly the establishment of the Permanent
Forum on Indigenous Issues and the appointment of a Special Rapporteur
on the situation and fundamental freedoms of Indigenous people. These
mechanisms, however, continue to face serious issues relating to their
capacity and budget.

There remains much
work to be undertaken in order to meet the objectives of the International
Decade. Indigenous peoples remain greatly concerned at the overall lack
of achievement during the Decade to date and at the fragile status of
those measures that have been realised. It is noted that the Australian
government plays an active and vital role at the United Nations on issues
related to the protection and promotion of Indigenous human rights. For
this reason, and in accordance with my statutory obligations, I conclude
this chapter with the following recommendations to the federal Government.

Recommendations
on international Indigenous issues

That, in accordance
with the objectives of the International Decade of the World's Indigenous
People and the Programme of Activities for the International Decade, the
Federal Government:

1) Continue to
support the provision of adequate resourcing from the United Nation's
Regular Budget to the Permanent Forum on Indigenous Issues.

2) Contribute to
the Voluntary Fund for the Permanent Forum in order to fund, or partially
fund, at least one recommended activity from the Permanent Forum's first
report. The Aboriginal and Torres Strait Islander Commission should
match the contribution of the Government to the Voluntary Fund.

3) In recognition
of the importance of the Working Group's ongoing role in facilitating
the elaboration of standards on Indigenous human rights, support the
continued existence of the Working Group on Indigenous Populations and
seek to strengthen the mandate of the Working Group by providing it
with an oversight role on the Declaration on the Rights of Indigenous
Peoples once it is finalised by the Inter-sessional ad-hoc working group
of the Commission on Human Rights on the draft Declaration and approved
by the General Assembly.

 

19
March 2003.