Social Justice Report 2003: Speech by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner.
An Agenda for Change. Launch of the Social Justice Report 2003 and Native Title Report 2003.
Speech by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner.
Museum of Sydney, 12 March 2004
I would like to begin by acknowledging the
Gadigal people of the Eora nation. I would also like to thank Alan Madden
for his welcome to country.
As this is the first public speech I have
made in Sydney since the events at Redfern several weeks ago, I would
also like to begin today by paying my respects to the family of TJ Hickey
and to express my condolences for your loss. I would also like to acknowledge
the elders of the Redfern community for the strength and the dignity that
you have displayed in dealing with these tragic events and their aftermath.
It should not take the death of a young
boy to show the rest of the community the adversity and neglect which
characterises so many Aboriginal lives. And it certainly should not take
the death of a young boy to highlight the strength and resilience of Aboriginal
communities.
Thank you for joining me here today to launch
the Social Justice Report 2003 and the Native Title Report 2003.
These are my fifth set of reports as Social Justice Commissioner. They
were tabled in the federal Parliament on Wednesday by the federal Attorney-General.
They report on the progress of governments in recognising and protecting
the human rights of Aborigines and Torres Strait Islanders.
They are difficult reports - both to write,
and for government and the public to digest. This is because of the detailed
policy analysis which is undertaken in the reports, and because of the
standards against which the reports assess government activity - namely,
human rights standards.
As the reports demonstrate, year in and
year out, human rights standards are standards for government accountability.
Are governments meeting their human rights obligations to all sectors
of society? Are they progressing to eliminate disparities or discrimination
in a targeted manner, within the shortest timeframe possible? Do government
policies and programs promote equality of opportunity so that all people
- regardless of race, colour or some other characteristic - are able to
fully realise their potential as human beings? Is human dignity, the birthright
of all Australians, reflected in the day to day realities of people's
lives?
These are some of the weighty and difficult
issues that are raised by human rights standards and which are addressed
in these reports. They not only challenge governments to strive for continuous
improvement.
They also scrutinise our 'collective soul'
as a nation. They seek to identify how well as a society we respect the
dignity and humanity of some of our number, the most vulnerable among
us, and of a very special part of our society - the first peoples of this
nation.
This year's social justice and native title
reports present both the positive developments and the problems
that remain to be addressed. I am proud to present them to you today.
As this year's reports were being prepared,
a number of questions occupied the minds of my staff: such as, when we
look at the approaches of governments and their priorities, what is working
well? What is not? Where are we making progress? Where are we going backwards?
And ultimately, what needs to be done?
The Social Justice Report approaches
these questions in three ways. First, it provides an overview of key developments
in relation to Indigenous well-being and socio-economic status based on
recent data. Second, it approaches these questions thematically by examining
progress in relation to the themes of accountability of governments; participation
of Indigenous peoples; moving beyond welfare dependency; and reconciliation.
Third, it examines government performance in relation to two deeply problematic
issues - namely, petrol sniffing and family violence in Indigenous communities.
The report identifies a number of recent
positive developments. The report particularly notes progress in implementing
COAG's commitments to reconciliation, such as the finalisation and release
of the first report of national indicators for overcoming Indigenous disadvantage
and progress in the COAG whole of government community trial sites, as
well as recent initiatives in all states and territories regarding family
violence issues. The report also notes that there is a lot of talk from
governments about the need to change the way that they interact with and
provide services to Indigenous peoples.
Processes for moving towards such change
are, however, still in the preliminary stage and results are yet to be
achieved. The way in which the government deals with issues such as ATSIC
reform, support for capacity development in Indigenous communities, and
corporate governance reform of Indigenous organisations will be critical
in turning this talk into results for Indigenous peoples.
The report notes that these developments,
are also accompanied by some blunt realities about the rate of progress
currently being achieved. The release of Census data from 2001 shows that
the rate of progress in improving Indigenous well-being and reducing the
level of inequality experienced by Indigenous peoples compared to non-Indigenous
people is minimal. This is the case even on issues where there might have
been some marginal improvements in absolute terms. Take the following
example. I think that life expectancy is one of the most profound and
simple illustrations that we can use. Between 1997 and 2001, life expectancy
for Indigenous women declined to 62.8 years. The disparity between
Indigenous women and non-Indigenous women also increased to 19.6 years.
That is a generation.
The figures for Indigenous men tell a similar
story - a gap of nearly 21 years, with Indigenous
men expected to live to the age of 56. As we debate the problems of an
ageing population, Indigenous males are not expected to live to the age
at which they can access an age pension.
As the report shows, the story is the same
with most other indicators of well-being, with the growing disparity between
Indigenous and non-Indigenous people in rates of low-birth weight babies,
income levels and contact with criminal justice systems. There are only
marginal improvements in absolute terms for Indigenous people on other
indicators. Overall, there are very few indicators on which the gap between
Indigenous and non-Indigenous Australians has not widened in the past
five years.
Time and again, the government has emphasised
that the key focus of reconciliation should be on practical and effective
measures that address the legacy of profound economic and social disadvantage
that is experienced by many Indigenous Australians. 'True reconciliation',
they say, 'will not exist until Indigenous disadvantage has been eliminated'.
While I have problems with how reductive and limited this approach to
reconciliation is, it is crystal clear that the government is failing
on its own measure of success.
I express in the report my deep concern
that as a consequence of the growth in the Indigenous population the current
inequality will deteriorate even further. The report considers that the
absence of government accountability for service delivery against mutually
agreed targets is the most serious failing of practical reconciliation.
The report also notes significant problems
in the approach of governments to pressing, intransigent issues such as
petrol sniffing and family violence. In relation to family violence, the
report notes gaps in service delivery and an overall lack of consistency
in government approaches. This is despite a number of significant initiatives
by all governments in recent years. I particularly express concern at
the lack of access to justice and legal services for Indigenous women.
ATSIC has described Indigenous women as the most legally disadvantaged
citizens in Australia - an assessment with which I agree.
In relation to petrol sniffing, there are
significant concerns at the lack of a national focus and long term funding.
On the AP Lands of South Australia, in particular, bureaucratic inertia
is the consequence of complex inter-governmental processes. This is blocking
access to the services necessary to address the many and varied needs
related to sniffing. Progress in addressing this issue is simply too slow.
I turn now to native title. In previous
native title reports I have argued that the legal tests for establishing
native title denies Indigenous culture a place in contemporary Australian
society. Even if these tests are satisfied, native title is easily extinguishment
whenever it is found to be inconsistent with the enjoyment of non-Indigenous
rights to land. The lack of response by the federal government to this
situation means that discrimination is now entrenched in native title
law.
But native title is more than a legal process.
It is also a political process by which Indigenous peoples enter into
a relationship with the State on the basis of their identity as a traditional
owner group of an area of land. In many cases, this has been the first
opportunity for such a relationship. This presents an opportunity for
the government to direct its efforts towards achieving the critical goal
of transforming the economic and social conditions in which many Indigenous
peoples live.
The focus of this year's Native Title
Report is on native title as a vehicle for such economic and social
transformation rather than just as a vehicle for the recognition of legal
rights.
The report reflects on the role of native
title in achieving sustainable development. It asks the question 'what
would a government and a native title claimant group discuss if the agreed
aim of the native title process was the realisation of the claimant group's
right to sustainable development?' and 'How would native title negotiations
and agreement making be structured to achieve this goal?'
The report identifies the importance of
building the capacity of native title claimants to take control of the
development process. It also assesses the adequacy of the current approaches
of governments to native title negotiations on this basis. While some
states are taking a broad policy approach, on the whole native title is
seen only as a legal claim which needs to be settled.
Ultimately, the Native Title Report concludes that native title, based as it is on the inherent rights of
Indigenous people and their unique cultural identity, is an important
tool for economic and social development. It has the capacity to ensure
that government initiatives on economic and social development are filtered
through the aspirations and cultural values of Indigenous peoples. Without
this framework such initiatives are unlikely to succeed.
Its capacity to achieve this goal is, however,
hampered by a legal system that operates to restrict rather than maximise
such outcomes. It is also hampered by the failure of governments to build
a relationship with traditional owner groups in which sustainable development
is a shared goal.
The Report notes that a common theme of
native title policies is a willingness to negotiate rather than litigate.
Absent from most native title policies however is the identification of
the broader policy goals that native title negotiations are seeking to
achieve.
This gap in native title policies means
that native title negotiations have no consistent goals but change depending
on the circumstances of the case. It also means that there has been little
policy development at a State level around defining the elements of a
native title agreement or the processes of negotiation that may be required
to contribute to the sustainable development goals of the traditional
owner group.
The failure to coordinate the goals of native
title negotiations with the policies of governments to address Indigenous
economic and social development clearly isolates the native title negotiations
process from these broader policy objectives. But it also fundamentally
limits the ability of these broader policies to achieve their objective
of addressing the economic and social conditions of Indigenous people's
lives.
In focusing on the limitations of government
policies in this regard, the Native Title Report highlights the
outstanding need to revisit the native title system and its objectives.
The report also provides examples, both in Australia - such as the South
Australian government's statewide agreement making process - and abroad
for advancing native title as tool for economic and social development.
Something that both the Social Justice
Report and the Native Title Report make clear is that a continuation
of the current approaches to Indigenous policy - be it under the banner
of 'reconciliation' or 'native title' - is not going to result in sustainable,
long term improvements. Both reports identify key issues for an agenda
for change. In concluding today, I want to highlight some of the key aspects
that the reports identify as part of this agenda for change.
First, the Social Justice Report identifies as a critical problem the lack of sufficient government accountability
to Indigenous peoples for government policies.
In my view, one of the greatest perversions
of Indigenous policy in recent years has been the lack of accountability
of governments for service delivery to Indigenous peoples. Personally,
I am sick of hearing from the government about how they spend record amounts
of money on Indigenous affairs. I don't want to hear it anymore though.
I want to hear about what they are achieving with that money. And
I want to know when they envisage it will be that Indigenous people will
have equal life chances to other Australians and when the time will come
that there will be no need for such record expenditure.
I don't expect that the situation that Indigenous
people face will be able to change in the short term, but I do expect
governments to have an action plan for achieving equality of opportunity.
Action plans should set out what is an acceptable rate of progress towards
addressing Indigenous disadvantage within a short, medium and long term
context, and an evaluation of issues relating to the prioritisation, resourcing
and re-engineering of programs and services that will need to take place
to achieve this. And I also expect that governments will have in place
processes for negotiating with Indigenous peoples about setting the key
priorities as well as building the capacity of communities to be self-reliant.
The Social Justice Report notes the lack of such planning by all
Australian governments despite their commitments to do so through the
processes of the Council of Australian Governments.
A related issue is how governments will
build on the excellent work of the Steering Committee for Government Service
Provision through the development of their national reporting framework
on Indigenous disadvantage and their first report to COAG in November
last year. COAG are to be commended for agreeing to this strategic framework
for addressing disadvantage. It now remains to be seen how adequately
governments will integrate the objectives of this framework into their
policy approaches. It is certainly an issue that the Social Justice Commissioner's
office will be monitoring closely.
The second key issue identified in the reports
as part of an agenda for change is the role of ATSIC in providing a representative
voice to Indigenous peoples in policy making processes. I provide my support
to some aspects of the Review Team's recommendations and my opposition
to others in the Social Justice Report. Ultimately, I believe that
ATSIC needs to be strengthened at the national level, as well as at the
state and regional level.
ATSIC at the national level needs to utilise
its existing powers better and it also needs extra powers, particularly
to exercise a greater monitoring and evaluation role over mainstream government
service delivery and to set the broader policy objectives. I have provided
options in the report for achieving this.
ATSIC must also be re-united as one organisation.
The ATSIC / ATSIS split is not sustainable and is counter-productive.
The government must act swiftly to reconstitute ATSIC, with appropriate
safeguards to protect against conflicts of interest. There must also be
an enhancement of the powers of ATSIC's regional councils as well as a
focus on building the capacity of Regional Councils so that their regional
planning processes can become a central feature of government service
delivery.
A third key feature identified in both the Social Justice Report and Native Title Report is whole of
government approaches. As noted, the Native Title Report reflects
on the appropriate role for native title in such whole-of-government approaches.
The Social Justice Report provides a detailed evaluation of progress
in the COAG whole of government trials since their inception. It identifies
a number of extremely positive developments in these sites. It also notes
challenges that will need to be addressed to ensure that the outcomes
of the trials can be more broadly applied to reform government approaches
to service delivery more generally.
A fourth, and related, feature identified
in both reports is the issue of resourcing. A constant feature of discussion
about whole of government approaches in recent years, and also in relation
to capacity building strategies, is that it is not about the money it
is about doing business differently. This is undoubtedly a key issue that
has to be addressed, but I am concerned at the lack of reality in this
debate.
The government knows, and has known for
some time, that current programs are not enough to address what it terms
the legacy of profound economic and social disadvantage faced by Indigenous
peoples. Recent research on the basic needs of Aboriginal people in Wadeye
- which is one of the COAG trial sites - has revealed enormous gaps in
service delivery coupled with a projected explosion in demand in that
community.
This is but one example of the reality faced
by Indigenous communities - decades of neglect have not been overcome
by the increased rates of expenditure by governments, particularly the
federal government, over the past decade. There needs to be a realistic
assessment of what the historic shortfall in service delivery and infrastructure
provision is in Indigenous communities and again, a targeted plan to address
this both within available resources and within people's lifetimes.
This year's Native Title Report also
notes the fundamental barrier that the lack of appropriate funding to
native title representative bodies and prescribed bodies corporate is
creating for the native title system as it currently operates - yet alone
for that system were it to be tied more broadly to the goals of sustainable
economic and social development.
The unreality of the government's approach
to funding needs to be discussed openly and without resentment towards
Indigenous peoples for the lack of achievement by governments. Again,
this is an issue of accountability.
The fifth key aspect identified in both
reports as part of an agenda for change is capacity development. This
and governance are popular concepts in Indigenous policy at the moment.
As I note in the Social Justice Report, however, while everyone
agrees on the need for capacity development there is not a consistent
understanding of what it is exactly. This renders commitments to it virtually
meaningless.
In the Social Justice Report I support
ATSIC's proposal of an integrated capacity development framework to be
endorsed by COAG with commitments in the long term to appropriate funding
and processes . In the Native Title Report I outline some of key
features of a capacity development approach to native title agreement
making which facilitates traditional owner groups to take control of their
own development agenda.
To conclude, let me return to where I began.
What I have outlined to you today are key concerns about approaches to
Indigenous policy in this country from a human rights perspective. They
are about guaranteeing and delivering upon human dignity. We must be frank
about the current rate of progress in delivering upon long held out commitments
of governments to provide Indigenous peoples with equal life chances.
We have a long way to go. There are a range
of recent positive developments which need to be built upon. And there
are substantial challenges that remain.
As I stated in my first Social Justice
Report in 1999, 'It is the role of the Social Justice Commissioner's
office to seek to ensure that human rights of Indigenous Australians are
recognised and fully realised in order that we may one day enjoy equally
the benefits of Australian society. Full and proper debates on these issues
are thus essential ... Unfortunately, the public debates on these issues
have often been divisive, pitting Australian against Australian; scape-goating
Indigenous people as somehow privileged and enjoying special treatment ...
The reality could not be further from the truth. It is my role and my
duty to pursue and report on this truth. Social justice demands no less'.
It is my pleasure to launch the Social
Justice Report and Native Title Report for 2003.
Thank you.
