Effective engagement: The tonic for a reconciled nation

University of Sydney
Reconciliation Week
Public Lecture

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

30 May 2011

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Acknowledgements

It is with honour and gratitude that I begin by paying my respects to the Gadigal people of the Eora Nation, the traditional owners of the land where we gather today. I pay my respects to your elders past and present, to the ancestors and to those who have come before us.

I am of the Gangulu from the Dawson Valley in Central Queensland and when I speak to my Elders, they ask me to pass on my salutations to the traditional owners of the land I visit in their continued fight for their country and their culture.

Can I also acknowledge Professor Michael Spence, your Vice Chancellor, and thank you Michael for inviting me to speak here tonight.

Finally, I must acknowledge my countryman Professor Shane Houston. His appointment here as Deputy Vice Chancellor is the first of it's kind in Australia for an Aboriginal person and, Professor Houston you do the Gangulu nation and indeed all Indigenous people in Australia proud.

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It my pleasure to be here tonight to speak during Reconciliation Week. Last week, the 27^th of May, the start of reconciliation week, is a significant date and one to be celebrated. It marks the anniversary of Australia’s most successful referendum and a defining moment in our nation’s history. In 1967 over 90 per cent of Australians vote to give the Commonwealth the power to make laws for Aboriginal and Torres Strait Islander peoples and recognise them in the national census.

My address here tonight is titled Effective engagement: the tonic for a reconciled nation. I have chosen this because I truly believe unless we can come together as Indigenous and non-Indigenous Australians and truly hear each other, truly understand each other and truly respect each other, reconciliation will remain ever elusive.

If I may, I want to talk about three key areas that can advance the reconciliation agenda.

My main focus will be on the need to take concrete action on the United Nations Declaration on the Rights of Indigenous Peoples and how it can improve relationships between Aboriginal and Torres Strait Islander peoples and governments.

I also want to discuss the importance of developing stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and the broader Australian population.

Finally, I want to draw your attention to the nation-building and reconciliation opportunity that is upon us, the move to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution.

As I have already stated, the consistent theme of this address is effective engagement, that is, the metaphorical sitting down together under a tree, on an equal ground, and planning a future for all of us.

In February 2010, I began my five year term as Aboriginal and Torres Strait Islander Social Justice Commissioner.

In the following months I travelled around Australia, meeting with remote, regional and urban communities.

I heard many stories and witnessed many things that are heartbreaking and disturbing, particularly given that we live in one of the richest, successful liberal democracies in the world. It is simply unacceptable that Australia’s first peoples are the most vulnerable of this healthy, prosperous nation.

Indeed, I believe we need to ask the question: can we ever be truly reconciled while Aboriginal and Torres Strait Islander peoples continue to live in such relative disadvantage and continue to remain on the margins of our society?

But we need to have a framework or a lens through which to address disadvantage and advance reconciliation. It is my belief that human rights provide such a framework.

I further believe that reconciliation and human rights are intimately linked. At its core, human rights standards recognise that all people are ‘born free and equal in dignity and rights’.^[1] If different people are not free and equal they cannot truly reconcile.

Human rights are useful because they provide governments’ and the people a set of minimum legal standards which if applied to all people establishes a framework for a society to foster dignity and equality whilst celebrating difference.

All of the challenges confronting Aboriginal and Torres Strait Islander communities; effective engagement, poverty, education, health, protection of culture and languages, incarceration rates, protection of women and children, are all human rights issues.

Help is on hand however. In relation to Aboriginal and Torres Strait Islander peoples and human rights, we have a document that offers the ideal framework for a reconciled nation. This document is the United Nations Declaration on the Rights of Indigenous Peoples.

In 2007, the governments of the world, through the General Assembly overwhelmingly adopted the Declaration. At that time Australia, along with Canada, New Zealand and the United States were the only States to vote against the Declaration. Fortunately, the have all have since reversed their position and now have given formal endorsement to it.

Australia changed its position on 3 April 2009. In doing so Minister Jenny Macklin said:

Today, Australia changes its position. Today, Australia gives our support to the Declaration. We do this in the spirit of re-setting the relationship between Indigenous and non-Indigenous Australians and building trust... The Declaration gives us new impetus to work together in trust and good faith to advance human rights and close the gap between Indigenous and non-Indigenous Australians.^[2]

Again there it is. That link between reconciliation, effective engagement and human rights.

The Declaration contains the ‘minimum standards for the survival, dignity and well-being of the indigenous peoples of the world’.^[3]

It reaffirms that Indigenous people are entitled to all human rights recognised in international law without discrimination. But it also acknowledges that, without recognising the collective rights of Indigenous peoples and ensuring protection of our cultures, Indigenous people can never be truly free and equal.

I believe the Declaration provides the necessary guidance to government in the development of new narratives, practices, philosophies and opportunities.

I agree with Minister Macklin, the Declaration gives us ‘new impetus’ to work together. This is because the Declaration is about creating new relationships based on partnership, mutual respect and honesty.

The Declaration that provides us with a roadmap to reconciliation.

But, some have questioned whether Australia is obliged to implement the Declaration. Some who have led us to believe that it is an instrument of division have questioned if it would be beneficial to implement it at all.

Yet preambular paragraph 18, affirms that the General Assembly of the United Nations is:

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance the harmonious and cooperative relations between the State and indigenous peoples

This is a primary task if we are to achieve reconciliation.

Meanwhile others have tried to dismiss it on the basis it is not legally binding.

Yet, article 38 says that:

States, in consultation with Indigenous peoples, shall take appropriate measures, including legislative measures, to achieve the ends of the Declaration.

And article 42 says that:

...States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Furthermore, the Declaration does not contain any new rights. Rather, in one document it contains existing human rights standards enshrined in international law and interprets them as they apply to Indigenous peoples. Clearly there are strong legal as well as moral arguments for the implementation of the Declaration.^[4]

Legal debates aside, what a monumental show of bad faith it would be for the Australian Government, having endorsed the Declaration – a document which not a single country in the world opposes – to not commit to its implementation.

However, since Australia’s formal endorsement over two years ago progress has been slow.

It is my view that there is a lack of understanding about what implementation looks like and this is impeding action. Now is the time to start serious thinking and serious planning to turn fine words into action.

We need to build the capacity of Aboriginal and Torres Strait Islander communities, of governments and any other relevant players on how to engage with and give full effect to the Declaration.

These groups need to familiarise themselves with the Declaration.

I think we can use the learning’s from other areas of the human rights sphere to help us with this

Of particular importance are the core principles in the Declaration such as the right to participate in decisions about our lives; self-determination; free, prior and informed consent and non-discrimination.

We need to use these principles as a guide for us and should inform the practices of government in working with Aboriginal and Torres Strait Islander communities.

To ground this in reality, it has to be understood that the relationship between governments and Aboriginal and Torres Strait Islander peoples has been badly damaged by the consistent imposition of policies and legislation that are designed and implemented with the objective of co-dependency and control - rather than our independence to determine our own destinies.

To do this, governments should seek to empower us through effective participation to be the agents of our own change. We are an important part of the solution to our life situations.

The establishment of the National Congress of Australia’s First Peoples, which is about to have its first sitting next week here in Sydney, goes some way to developing a national mechanism for engagement with Aboriginal and Torres Strait Islander peoples.

Beyond the Congress, it is essential that governments develop an effective framework for engagement with Aboriginal and Torres Strait Islander peoples in order to generate positive relationships.

A framework for engagement needs to be mandated across all government departments developing and implementing policies and programs that affect Aboriginal and Torres Strait Islander peoples. Crucially, the framework must be based on the key principles and objectives of the Declaration.

I don’t underestimate the challenge that effective participation, grounded in the Declaration poses for governments. It requires a true re-setting of the way governments have conducted business with us, and related to us, in the past. And changing the way governments do things can sometimes be akin to a big ship trying to turn around.

However, the Declaration provides us guidance on how to undertake this necessary reform through the principle of free, prior and informed consent.^[5]

Free, prior, and informed consent is a universally recognised right to give - or not give - our consent before certain actions affecting us can occur.

In speaking to people in government, I often detect anxiety about what free, prior and informed consent means, particularly in relation to a right of veto. But the right to free, prior and informed consent, as Kenneth Deer, a First Nations leader from Canada, puts it:

...is not automatically a veto, since our human rights exist relative to the rights of others. Nor is there any reference to a veto in the Declaration. Free, prior and informed consent is a means of participating on an equal footing in decisions that affect us.^[6]

Free, prior and informed consent recognises Indigenous peoples’ inherent and existing rights and respects our legitimate authority to require that third parties enter into an equal and respectful relationship with us, based on the principle of informed consent’.

This principle applies not only to administrative acts and decisions, and the exploitation of our resources and lands, but also to the legislative process itself. Article 19 of the Declaration states that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.^[7]

What this means is that consultation in a practical sense must be extended to reflect a requirement to effectively negotiate.

Too often governments in Australia interpret their obligation to consult with Indigenous people more like a duty to tell us what has been developed on our behalf, and what eventually will be imposed upon us. Rather than involving us in developing solutions that will best address our issues, and our priorities.

Given that governments still seem mystified by consultation, let me illustrate some features of a meaningful and effective consultation process drawing on the spirit and intent of the Declaration:

• The objective of the consultations should be to obtain the consent or agreement of the Aboriginal and Torres Strait Islander peoples affected by a proposed measure.

• Consultation processes should be products of consensus.

• And should be in the nature of negotiations.

• Consultations need to begin early and should, where necessary, be ongoing to enable meaningful participation in all stages of policy and program design, implementation and evaluation.

• Aboriginal and Torres Strait Islander peoples must have access to financial, technical and other assistance.

• Aboriginal and Torres Strait Islander peoples must not be pressured into making a decision.

• Adequate timeframes should be built into consultation processes.

• Consultation processes should be coordinated across government departments. This will assist to ease the burden upon Aboriginal and Torres Strait Islander peoples of responding to multiple discussion papers and reform proposals.

• Consultation processes need to reach the affected communities.

• Consultation processes need to respect representative and decision-making structures.

• Governments must provide all relevant information and do so in an accessible way.

The relationships needed to underpin this type of consultation will take time to develop. They will also require people with the appropriate skills and cultural competency to work with Aboriginal and Torres Strait Islander peoples and communities, and where necessary, the development of targeted education and training programs to build these skills and competencies.

But this type transformation is necessary to address our disadvantage, improve our relationships with governments and progress reconciliation.

The reconciliation agenda, clearly also requires improvement to the relationships between Aboriginal and Torres Strait Islander peoples and the broader Australian community.

When the National Apology to Australia’s Indigenous peoples was made in February 2008, I believed Australia was ready for a new, stronger, deeper relationship with its first peoples.

On that day there was a palpable sense of us coming together as a nation. Indigenous and non-indigenous Australians sat together, held each other and cried together. The nation took a great leap forward together.

However, since that time we seem to have lost our way a little bit. It is my view that if we are to improve the relationships between Indigenous and non-Indigenous Australia we must build understanding of each other.

This requires us to disregard preconceptions.

The elephant in the room in this debate is racism. It must be addressed. Despite Australian’s being justifiably proud that theirs is the land of the ‘fair go’, racism unfortunately remains common.

Recent surveys conducted among 12 000 people, found that approximately 90% of respondents consider that racial prejudice is still a problem in Australia.^[8] The Australian Reconciliation Barometer shows that 93% of Aboriginal and Torres Strait participants and 71% of non-Indigenous participants feel there are high levels of prejudice between the two groups.^[9]

Until this is confronted we cannot reconcile as a nation. Consequently, as a nation we must have a zero tolerance for racism in all its forms. Surely, it undermines our sense of fair go.

At its core reconciliation must be about recognising and embracing difference with mutual respect.

Human rights standards are useful here as they place people at the centre of any activity.

Of particular relevance here is preambular paragraph 2 of the Declaration which recognises Indigenous peoples rights to be different. Now what this means in practice is that it is not the responsibility for Aboriginal and Torres Strait Islander peoples to assimilate into the mainstream. Rather, it is a responsibility on all of us, black or white, governments and private citizens to be inclusive and accommodate difference.

To do this we need develop ways of engaging Aboriginal and Torres Strait islander views and perspectives into mainstream Australia.

We are currently presented with an opportunity for nation-building and reconciliation through the moves to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution.

I firmly believe this is the right time, right here and now for the Australian people to formally recognise in our Constitution, the special and unique place Aboriginal and Torres Strait Islander peoples hold in our nation.

Constitutional recognition of Aboriginal and Torres Strait Islander peoples can be the vehicle to increasing and improving our:

• self worth

• resilience

• our relationship with the broader Australian community

• our relationship with governments.

All of these things can lead us towards the goal of a reconciled nation.

That is why I welcome the commitments of Labor, the Coalition and the Greens, to a referendum to facilitate such recognition.

There’s also been a great level of support from the Independents since the 2010 Federal Election so, in all likelihood, there’ll be a referendum within the next couple of years.

Referendums are the rare moments in time when we, the people, rather than our elected representatives, have the opportunity to direct the transformation of the nation and its identity.

The prospect of this referendum will provide us all with a great opportunity to reframe and reset our relationship as a nation, and to establish new relationships that open our hearts and minds to new possibilities.

Australia is home to the oldest living cultures in the world and this is something that each and every Australian should be proud of - and be proud to assert as part of our national identity.

There is currently no mention of Aboriginal or Torres Strait Islander peoples, or of the fact that the history of our country, as opposed to our nation, began many, many years before British colonisation.

The Attorney-General recently referred to the Constitution as ‘our nations Birth Certificate’. The current Chief Justice of the High Court of Australia has referred to it as ‘defining our legal universe’.

Our nation’s birth certificate should represent our full history, our diverse cultures, and the true spirit of our nation. It should reflect our complete genealogy – not just one part of the family tree.

This opportunity not only provides us with a chance to reconstruct our national identity through recognition – it will also allow us to remove the provisions within the body of the Constitution that permit, enable or anticipate racial discrimination – namely ss 25 and 51(xxvi).

I am not going to go into great detail on these issues today and to what the different ideas for reform will be. If you are interested there is a lot of information on this in the Expert Panel’s discussion paper and my publication titled Creating a nation for all of us (I’ve brought some copies with me).

However, this process will give this generation of Australians the opportunity to say ‘yes’ - an opportunity to demonstrate goodwill and innate decency, just like 90% of Australians did in 1967.

I made reference to the National Apology earlier, it was a reconciling moment. My predecessor Tom Calma described it as:

[A] day our leaders – across the political spectrum – have chosen dignity, hope and respect as the guiding principles for the relationship with our first nations’ peoples. Through one direct act, Parliament has acknowledged the existence and the impacts of the past policies and practices of forcibly removing Indigenous children from their families... By acknowledging and paying respect, Parliament has now laid the foundations for healing to take place and for a reconciled Australia in which everyone belongs.

The National Apology marked an opportunity for Parliament to acknowledge the past and build towards a reconciled future in Australia.

I believe the current opportunity for constitutional reform to recognise Aboriginal and Torres Strait Islander peoples as part of this nation, offers the Australian population the same opportunity.

Symbolic/Practical

As the debate around constitutional reform ramps up there will be more people saying that it is just a symbolic act when what we really need is practical action. I don’t believe that these are mutually exclusive- why can’t we have both?

Symbols are important for building-nations and for reconciliation. They are reminders of a collective past and guidance towards the future. They are things upon which practical actions should be built.
Larissa Behrendt clearly identifies the practical effect of symbols. She says:

Symbolic recognition that could alter the way Australians see their history will also affect their views on the kind of society they would like to become. It would alter the symbols and sentiments Australians use to express their identity and ideals. It would change the context in which debates about Indigenous issues and rights take place. It would alter the way the relationship between Indigenous and non-Indigenous Australia is conceptualised. These shifts will begin to permeate them. In this way, the long term effects of symbolic recognition could be quite substantial.^[10]

I think constitutional reform and the journey to get there can be just as powerful in recognising our place in this nation.

The journey for constitutional recognition has well and truly begun and builds on the fight for equality over many years.

We are now engaged in a process towards a referendum in two years’ time.

In order to achieve a successful referendum, we have much to do.

To be successful a referendum requires a double majority. The majority of people in the majority of States must vote yes.

In the Creating a nation for all of us, I looked at the history of referendums and drawing on the work of constitutional expert George Williams,^[11] identified some critical factors that are essential for success including:

• bipartisan political support – while we have it at the moment – it will be critical to maintain bipartisan support up until the referendum - and we know just how hard it is to get politicians to agree, especially if either side thinks there’s a possible wedge in there somewhere.
• popular ownership of the referendum process – Australian’s historically will not vote yes for a proposal that has been foisted upon them – each and every Australian has the right to participate in this conversation.
• popular education about the Constitution and the proposed reform.

In order to progress this dialogue and increase understanding, the Australian Government has established an Expert Panel to report to it on options for constitutional recognition of Indigenous peoples.

I am proud to be an ex officio member of the Expert Panel, and I will be urging the Panel to keep these factors at the front of our minds as we undertake the task given to us.

So over the next two years, there will be debates, speeches, opinion pieces in the press, bloggers responding to these articles, people prowling the parliamentary corridors, Constitutional lawyers at 10 paces, yea and nay sayers, documentaries, panel discussions, arguments at dinner parties, barbecues and in front bars – all of these things.

And it’s precisely all of these things, just like all the work leading up to the National Apology, that will build awareness, focus minds and hearts and help move us all forward as a nation.

It is essential that we engage the entire nation in this debate. To inform and educate them on the Constitution, and that by finally and formally settling and affirming the place of Aboriginal and Torres Strait Islander peoples in our nation, all of us grow in stature.

This will be a long hard journey. But it’s the journey that will mark our maturity as a nation, not just the destination - as important as it might be.

It’s not about looking back. It’s about looking forward and moving forward as a nation towards the goal of true reconciliation. So in order to get to this destination, we have much to do. But this is the type of exercise that builds the healthy relationships necessary for an agenda of hope.

Relationships that are built on understanding, dialogue, tolerance, acceptance, respect, trust and reciprocated affection. Not intolerance, a lack of acceptance, a lack of dialogue, mistrust and a lack of respect and understanding.

We must grasp this opportunity to reset the relationship between Aboriginal and Torres Strait Islander peoples and the rest of Australia.

Conclusion

As I said at the outset I believe effective engagement is the tonic for reconciliation.

I encourage all of you to read the available resources become familiar with and engage in the once in a generation opportunity for reconciliation that is this constitutional reform process.

I encourage you to be more inclusive, to put yourself in other people’s shoes and to listen to other voices.

And I encourage you to familiarise yourself with human rights standards, such as the Declaration, that recognises that all people are equal in dignity and rights.

Without us, the people, reconciliation is a pipedream.

After all, reconciliation is not about me, and it’s not about you, it’s about all of us and our shared vision for this land we all call home.

If I may, I want to end with a poem written by one of our fighters in the Struggle, Oodgeroo Nunukul, or as she is also known Kath Walker.

I am honoured to have known Oodgeroo in her later years and the poem I want to recite is one she wrote for her son, Dennis.

I think she captured the spirit of reconciliation of looking ahead rather than backward, indeed a woman before her time. Its called Son of Mine.

My son, your troubled eyes search mine

Puzzled and hurt by colour line

Your black skin as soft as velvet shine

What can I tell you son of mine

I could tell you of heartbreak, hatred blind

I could tell you of crimes that shame mankind

Of brutal wrong and deeds malign

Of rape and murder son of mine

But instead I will tell you of brave and fine

When lives of black and white entwine

And men in brotherhood combine

This I would tell you son of mine

Thanks you ladies and gentlemen.

 

 

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^[1] UN Population Division, Department of Economic and Social Affairs, Report Of The International Conference on Population and Development, UN Doc A/CONF.171/13 (1994), ch 2, Principle 1.
^[2] J Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples (Speech delivered at Parliament House, Canberra, 3 April 2009).
^[3] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 43.
^[4] For a discussion of the legal status of the Declaration, see P Joffe, ‘Canada’s Opposition to the UN Declaration: Legitimate Concerns or Ideological Bias?’ in J Hartley, P Joffe and J Preston (eds), Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action (2010) 70, pp 85–93; Permanent Forum on Indigenous Issues, Report on the eighth session, UN Doc E/C.19/2009/14 (2009), Annex, General Comment 1, paras 6-13.
^[5] The United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/RES/295 (2007), Articles 10, 11, 19, 28, 29, 32.
^[6] K Deer, ‘Reflections on the Development, Adoption, and Implementation of the UN Declaration on the Rights of Indigenous Peoples’ in Hartley, J (Ed.), Realising the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope and Action, (2010), 18, p 27.
^[7] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/RES/295 (2007), Article 32
^[8] K Dunn, A Kamp, W Shaw, J Forrest and Y Paradies ‘Indigenous Australians’ attitudes towards multiculturalism, cultural diversity, ‘race’ and racism’, Journal of Australian Indigenous Issues, forthcoming. See also Australian Human Rights Commission, Information concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (2010), paras 76-78. At http://www.humanrights.gov.au/legal/submissions/united_nations/ICERD2010.html (viewed 11 May 2011).
^[9] Reconciliation Australia, Australian Reconciliation Barometer: Comparing the attitudes of indigenous people and Australians overall (2010), p 9. At http://www.reconciliation.org.au/extras/file.php?id=1303&file=Australian+Reconciliation+Barometer+2010+-+full+report.pdf (viewed 11 May 2011).
^[10] L Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003), pp 144-145.
^[11] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), ch 7.