Launch of the Social Justice and Native Title Report 2015

Launch of the Social Justice and Native Title Report 2015

Australian Human Rights Commission

Friday 4 December 2015

 

Acknowledgements

Thank you Gillian for your kind introduction and thank you, Yvonne, for your Welcome to Country.

Today I acknowledge the Gadigal people of the Eora Nation the Traditional Owners of the land on which we are gathered, and where the offices of the Australian Human Rights Commission are situated. On behalf of the Commission we thank the Gadigal people for hosting us as guests on their country.

The law that establishes the Commission gives us a number of statutory responsibilities – one of them is the drafting of the Reports we’re launching today. We honour the Gadigal people, and all Indigenous Australians by doing our utmost to shine a light on the human rights of our people each year and to report on native title developments. This is an important part of our work, but we are also focused on practical and long-term solutions to the human rights issues facing people in Australia, and building greater understanding and respect for human rights in our community.

Today, I pay my respects to Gadigal Elders who have gone before us, those who are here today and importantly, those who are yet to come. I am really pleased to see so many young people here today – you are the achievers, advocates, leaders and Elders of the future and I welcome you warmly here today.

My people are the Gangulu of the Dawson Valley in Central Queensland and I bring greeting and salutation from my Elders.

Please let me also acknowledge the President of the Commission, Professor Gillian Triggs, my fellow Commissioners, Susan Ryan, Age and Disability Commissioner, Tim Wilson, Human Rights Commissioner, co-chairs of the National Congress of Australia’s First Peoples, Jackie Huggins and Rod Little, Geoff Scott CEO of the National Congress of Australia’s First Peoples, Chairperson and CEO of the First Peoples Disability Network of Australia (FPDN) Gayle Rankin and Damian Griffis, National Native Title Tribunal Member Dr Valerie Cooms, Rosalind Croucher, President of the Australian Law Reform Commission, Warren Mundine, Chair, Prime Minister’s Indigenous Advisory Council, Bobbi Campbell, First Assistant Secretary A/g, Indigenous Health Division at the Australian Department of Health, Professor Shane Houston, Deputy Vice-Chancellor (Indigenous Strategy and Services) University of Sydney, Justin Mohammed, CEO, Reconciliation Australia, Janine Mohamed, CEO, Congress of Aboriginal and Torres Strait Islander Nurses and Midwives, Richard Weston, CEO, Healing Foundation, Kevin Smith, CEO, Queensland South Native Title Services, Members of the Close the Gap Campaign, Members of the Change the Record Campaign, Aboriginal and Torres Strait Islander students and teachers across NSW attending the bi-annual Aboriginal Studies Conference present here today and tuning in via webcast.

I also want to pay my respects to a fighter for Indigenous rights in Australia who has recently passed away. Brian Wyatt was a fierce advocate across many issues such as land rights and native title, racism, our place in the economy and our rightful place as the first peoples of Australia.

We will miss you and I will miss you Brian.

Finally, I pay my respects and gratitude to the staff at the Commission whose hard work brought this Report to life. Kirsten Gray, Emily Collett, Susan Nicolson, Darren Dick, Andrew Gargett, Jack Regester, Roxanne Moore, Amber Roberts, Ally Campbell, Loki Ball, Siobhan Tierney, the Commission’s Legal and Investigation and Conciliation sections, I thank you all for your skill, professionalism and commitment to the work we do.

One final and special thanks today goes to Phoenix Briscoe, whose beautiful face is on the cover of our Report. 

Ladies and gentlemen thank you for joining us here today to launch our 2015 Social Justice and Native Title Report.

We proudly continue the tradition of our Reports providing a platform for some of the most pressing issues faced by our peoples. This year I am very pleased to have made disability in Aboriginal and Torres Strait Islander communities and the situation of our children in out of home care the focus of this Report.

I will come back to those matters later, but I would like to mention a number of other important issues that impacted us in the period from 1 July 2014 to 30 June 2015.

I begin by reflecting on events surrounding one of our most accomplished sports people and strongest human rights advocates. Respected leader, anti-racism campaigner, award winning footballer and former Australian of the Year Adam Goodes was subjected to some of the most spiteful racial vilification this country has seen.

Sport has always been a metaphor for our struggles. From tennis to hockey, track and field, boxing, basketball and golf – this list of sports where Aboriginal and Torres Strait Islanders have reached great heights goes on. And the football field is no exception – our men women have taken to the field in all codes with great success. This year in the AFL and NRL grand finals, Cyril Rioli and Jonathan Thurston, both proud Aboriginal men, won the Norm Smith and Clive Churchill medals respectively for best on ground.

And who can forget Kyah Simon scoring the goal that knocked Brazil out of the Women’s World Cup earlier this year.

But it remains a great shame of this nation, that this success is not always celebrated the way it should be. In the great tradition of men like Charlie Perkins, Michael Long and Nicki Winmar, Adam spoke up against racism on the field. In an exercise of leadership in his area of expertise, he proudly expressed his cultural identity in his workplace - the football field and refused to be subject to racist abuse on the job!

I reflected on Adam’s example this year when I was honoured to be invited to present the Charles Perkins Oration. I was recalling my memories of working with Charlie, and it cheered me up to think about what he would have said to both supporters and detractors. Charlie, like Adam, was the constant target of all kinds of abuse for the simple reason of calling out unfairness, advocating for our mob and not taking a backward step in both his sporting and professional life. But he never let it stop him and, he had some pretty strong words for anyone who wouldn’t see reason.

Adam, for giving us that great hope and inspiration, I take this opportunity pay my respects to your incredible sporting ability and humility, as a campaigner against racism, and an advocate for Constitutional Recognition and Reconciliation.

As I reviewed other significant events of the past year, I looked through the lens of meaningful and respectful engagement with Aboriginal and Torres Strait Islander peoples. These events included:

• the impact of the Indigenous Advancement Strategy funding round on our organisations

• the proposed closure of our communities in Western Australia

• the introduction of so-called ‘paperless arrest’ powers in the Northern Territory that have disproportionately affected our people, and

• the drift on the matter of constitutional recognition.

I asked the question: What would these issues have looked like if there had been ‘real’ engagement in the development of these policies?

Perhaps if government had just included us in the decision making process, a lot of the problems, anger and uncertainty that arose over the past year could have been avoided, and the time and energy we had to put into fighting to have our voices heard, could have been better directed towards getting on with the work of improving outcomes for our people.

The cumulative effect of these, and other developments throughout the year has been enormous confusion, stress and poor outcomes for our communities.

This effect was certainly front and centre in the upheaval and uncertainty felt by our people as they came to terms with the impact of the introduction of the Indigenous Advancement Strategy (or IAS) and significant budget cuts.

I had hoped that despite the tumultuous origins of the IAS it might result in much needed flexibility in the delivery of frontline services in our communities. Unfortunately, these hopes have not materialized and a review of the IAS is currently underway. I remain hopeful however, that if the review can prioritise ‘real’ engagement it may yet present more optimistic outcomes. 

An area where we have seen positive change is the progress made recognizing the rights of First Peoples with a disability. I would like to acknowledge that yesterday we celebrated the International Day of People with Disability, and I extend my thanks to Gayle and Damian for coming to speak with us today.

For too long, Aboriginal and Torres Strait Islander people with disability have been overlooked, despite the fact that our mob experience disability at nearly twice the rate of non-Indigenous Australians. It has taken an enormous amount of dedicated advocacy by people like Gayle and Damian to get the issues confronted by our people with disability, their families, carers and communities on the agenda of policy makers.

However, as you will read in our Report, the National Disability Insurance Scheme is now in the process of being rolled out.

Those of you who have followed my time in this position will know I have constantly and consistently agitated for a proper respectful relationship between Governments and our peoples, communities and organisations. I now say this to the leaders of the NDIS:

As the National Disability Insurance Scheme offers a completely new way of doing business, I implore you to build a respectful relationship with our people with disability. You now have a unique opportunity in front of you to engage with our communities’ right from the beginning of the Scheme and ensure the rights and aspirations of our people with disability are recognised and they receive the services to which they are so entitled.

In this year’s Report we also highlight the overrepresentation of our children and young people in out-of home care.

Several years ago I was asked to write the foreword to a book on child development and took an approach to this task from an innocence perspective. To paraphrase, I wrote our duty as adults was to protect the innocence of children for as long as possible, because once lost, all the gold and money in the world can never bring innocence back.

When we see Aboriginal and Torres Strait Islander children are approximately nine times more likely to be in out-of-home care than non-Indigenous children too many are losing their innocence too early.

Keeping our children safe from harm should always be our first priority. But the very high numbers of our kids who are being removed from their families and communities suggests that greater efforts are needed to break this cycle, including investment in Aboriginal and Islander Child Care Agencies, developing targets, and prioritising community-led healing and trauma informed approaches to protect our children.

The importance of our peoples taking a leading role in addressing these issues cannot be overstated. The United Nations Declaration on the Rights of Indigenous Peoples recognises our right to be included in decisions that affect us.

The Declaration should guide the development of all policies, legislation and programs that concern Aboriginal and Torres Strait Islander peoples. Its key principles of:

• self-determination
• participation in decision making, underpinned by free, prior and informed consent and good faith
• non-discrimination and equality, and
• respect for and protection of culture

provide guidance on how to fully realise the human rights of our peoples.

As many of you may already know, last month Australia appeared before the United Nations Human Rights Council for its second Universal Periodic Review. This process provides UN member states with the opportunity to assess the human rights records of other nations, providing an important opportunity for creating a dialogue between nations about human rights.

I travelled to Geneva as part of the Commission’s delegation for Australia’s Universal Periodic Review process. For those people out there who question the value of international engagement for us, I urge you to take some comfort in knowing that of the 103 countries that spoke for one minute and five seconds at the UPR, some 70 of those used their precious time to mention issues about the rights of Aboriginal and Torres Strait Islander peoples.

The Universal Periodic Review highlights the value of dialogue in promoting and protecting human rights, and as it matures, the UPR presents one of the most effective UN mechanism to keep Australia to account. 

In this year’s Report I also consider the Australian Government’s response to The Forrest Review, its recommendations on Indigenous employment, training and in particular the introduction of trials of the Healthy Welfare Card.

There is little supporting evidence that Healthy Welfare Card could result in real benefits for disadvantaged communities and it is very likely it will have a disproportionate and negative impact on our peoples.

We cannot successfully address social disadvantage through measures that diminish our ability to enjoy our human rights.

This year I was asked to Chair the Queensland Stolen Wages Reparation Taskforce which is charged distributing $21million as a gesture of reparation and reconciliation for one of the most ruthless breaches of our human rights, the stealing of wages and social security payments from our people up until 1971.

Like many Aboriginal and Torres Strait Islander people across the country, our people in Queensland had their wages stolen from them and used by the Government for a host of public purposes – usually quite unrelated to the people who earned the money in the first place.

Successive Queensland governments have grappled with how to repay that money and make restitution for the harms done by those policies.

At the same time the Taskforce was going about its work, we saw a debate in our National Parliament around a new mechanism to again control Aboriginal people money - the so called Healthy Welfare Card I mentioned earlier.

The current trend towards management of Aboriginal people’s and Torres Strait Islanders’ incomes is worrying on two fronts. Firstly, while there’s no doubt that many disadvantaged Aboriginal people would like support, the evidence whether income management provides this support is mixed to say the least. And secondly, any possible benefits must be weighed against the sense of disempowerment people report, the stigma they feel and punitive perceptions this plants into the Australian psyche about our people.

The Healthy Welfare Card is not exactly identical to income management, but it imposes restrictions on the ways people can spend their money and will almost certainly impact disproportionately on Aboriginal and Torres Strait Islander people.

It is also not identical to the regimes that stole our peoples’ wages and social security payments, but with those regimes still fresh in our collective memories it is no wonder that this card concept reopens old wounds and forces many of our people to revisit that past trauma.

And even though these so called trials are being rolled out in Ceduna, South Australia and around Kununurra in the East Kimberley of Western Australia as I said in my 2010 National Press Club address about the Northern Territory Intervention:

I believe that Aboriginal and Torres Strait Islander peoples always feel a solidarity, a sense of belonging to each other, that is strengthened when some of us are being denied the rights that all other Australians enjoy.  The Emergency Response therefore, with its suspension of the Racial Discrimination Act made us all feel as if we were all subject to its effects regardless of where we all actually live.

And I also believe that the impact of these new welfare policies will resonate for our people around the country.

The hardest part of this proposal to accept is that yet again the treatment of our people will be different to mainstream Australia, and when told of the likely passage of this legislation I rhetorically questioned why are all the nasty policies around welfare always imposed on us first, why are our mob the subject of experiments dressed up in the benign language of trials and pilot projects. When I thought about it in the context of current and historical policies, I came to a conclusion that’s hard to avoid – successive Governments seem to have an ongoing fascination with controlling our lives. An approach which is in direct contravention to the human rights principles of self-determination and participation, and to my ongoing recommendation to governments to engage with us.  

In my work with Stolen Wages Taskforce in Queensland I’ve been listening again to the stories of our old people about some of the worst periods of control, and was prompted to revisit Dr Valerie Cooms’ PhD thesis titled “Free the Blacks and Smash the Act’.

Dr Cooms writes about the effect of the 1965 Aborigines and Torres Strait Islanders’ Affairs Act, a law passed in hers and my early life. The law represented a shift to a policy of assimilation, within an ongoing framework of control.  Dr Cooms describes the views of the politicians at the time, particularly Queensland Minister for Education and Aboriginal Affairs who argued that this Act was needed to maintain control over our people, adding that if the Queensland Government failed to maintain control over Aboriginal people, the Courts would have no alternative but to send us to jail. 

Whatever the method – the Act or the criminal justice - the Minister assured the public that the State had Aboriginal peoples firmly under its control. 

He justified the restrictive impact of the 1965 Act, arguing that there was always a ‘certain proportion’ of Aboriginal  people who by virtue of their ‘ability and circumstances’ needed to have their money and property managed by the Government or its agents.    

The language and policies of government from over fifty years ago, where the restrictions of fundamental human rights are framed as benevolent or benign activities is sadly familiar today. In 1966, the Director of the Queensland Department of Aboriginal and Islander Affairs, Patrick Killoran described the Act as ‘the most significant development in Queensland with regard to Aboriginal and Islander affairs’   that will ‘promote the well-being and further progressive development of all the aboriginal inhabitants of the State’.  

Dr Cooms sums up the Act and the way it was presented to the voters shows:

Again, the Queensland Government’s need to convince the public that in Queensland the ‘savages of the colonial world’ were under the absolute control of the sovereign power.

Of Killoran’s characterisation of the Act as a way to improve with the lives of Queensland’s Aboriginal and Torres Strait Islander peoples with the assimilation based Act she wrote: 

Clearly, Government bureaucrats were either overly optimistic or seriously misinformed.

Revisiting Dr Coom’s thesis reminded me of what I described in the 2014 Social Justice and Native Title Report as the circular nature of Aboriginal and Torres Strait Islander policy, but the work of the Taskforce has taught me of how we, as a country, have not recognised and learned from the failures of past policies and we keep going around in those circles.

As the saying goes, you can put lipstick on a pig but at the end of the day it is still a pig.

We need to learn from the lessons of the past, develop evidenced based policies that support human rights, and are based on real engagement with Aboriginal and Torres Strait Islander people.

One area where our people have taken the running is in the emergence of new conversations around the Indigenous Estate. 

It has been apparent for some time that Aboriginal and Torres Strait Islander peoples are frustrated with the existing native title and land rights systems, and the barriers that inhibit our enjoyment of our rights and interests in land, water and resources.

These barriers and the need for reform are addressed in part, by several government processes announced or completed during the reporting period and outlined in this report. They include the Council of Australian Governments (COAG) Investigation into Indigenous land administration and use, the Australian Law Reform Commission’s report on the Native Title Act, and the White Paper on Developing Northern Australia.

In May 2015, my colleague Human Rights Commissioner Tim Wilson, and I convened a Roundtable on Indigenous property rights in Broome. This Roundtable brought together a diverse group of Aboriginal and Torres Strait Islander people to discuss how we can overcome the obstacles, and leverage our property rights within the Indigenous Estate to further economic development opportunities for our communities. 

A number of key challenges that face Aboriginal and Torres Strait Islander people were explored, particularly when it comes to the full realization of our rights under various land rights and native title legislation. We considered the nature of the rights and interests in land, the specific barriers to economic development, access to the finances needed to undertake projects, ways to grow the specific business skills to support development, the long standing issue of compensation for extinguishment, and the international principle of the right to development.

On Monday next week, we will meet again and plan the next steps of this process. This will create a framework that will hopefully advance a new dialogue between government and Aboriginal and Torres Islander peoples about our traditional lands, a dialogue led by us that respects and values our knowledge and rights.

These are the kinds of conversations that need to take place to produce effective strategies for closing the gap between Indigenous and non-Indigenous Australians. 

My final reflection on this last year, is to share with you the pride I felt at being asked by the families of three of our legends to present the Rob Riley lecture in Perth, the Eddie Mabo Lecture at the National Native Title Conference in Port Douglas and as I mentioned earlier the Charles Perkins Oration in Sydney. This was at once both overwhelming and humbling.

I’ve talked today a lot about control, and the ways in which our rights are restricted. But in closing I want to focus on some of the inspiration I take from the experience of delivering those three lectures, and from the lives of these great Aboriginal and Torres Strait Islander men.

As I make these closing remarks I am thinking about the example of leadership they give to the young people here today, and to the not so young among us. 

When I was invited to give the Charles Perkins Oration in October this year, I was challenged to answer the question:

Whose voices shape reform: politicians or other people?

In answering the question I thought about my own memories of the life and times of Rob Riley, Eddie Mabo and Charlie Perkins, three men inextricably linked by both circumstance and nature. The circumstances were the beginnings from which they rose. They all had harsh upbringings having experienced the worst of the assimilationist era in this country when Rob and Charlie were taken from their mothers and put in awful places like Sister Kates in Perth and the Bungalow in Alice Springs.

If there was another circumstance that brought them together was the struggle for land rights.

Rob was at the forefront of the fight for land rights in Western Australia, particularly at Nookanbah and when the WA Government led the resistance to national land rights legislation.

In my tribute to Rob, I mentioned how losing that fight for national land rights lit the fires for what was to become the fight for native title leading to the High Court decision championed by Eddie. Charlie was there, sometimes at odds with other parts of the leadership, but nonetheless still fighting for the best deal that could be reaped from that High Court decision.

But it was also their nature that binds these warriors together, it is as if those harsh beginnings built the fires that steeled them for the future battles they would both endure and gave them the strength to thrive. Fierce, leader, warrior, fearless, sons, fathers, grandfathers and inspirations, never taking a backward step and never shying away from a fight for the underdog. These are my enduring thoughts when I hear those names.

So in the battle about who shapes reform the best I believe it is the activists like Charlie, Eddie and Rob who set the agenda, it is the activists who really listen to the voices of their people, and push the envelope particularly when it comes to the disenfranchised and the disempowered.

If not for Charlie arguing to the point of being suspended from his position, for us to participate in decisions that affect us, would some benevolent government have invited us in?

If not for Eddie’s dogged determination to pursue the right to his homeland on Mer in the Torres Straits would have some Government voluntarily overturned the myth of terra nullius.

And if not for Rob’s fierceness in raising the issues of racial tensions, police brutality and discrimination would we have ever heard of the Royal Commission into Aboriginal Deaths in Custody.

Adam Goodes story is still unfolding, and I am sure he will continue to set the bar high in the struggle against racism and promoting respectful relationships in our nation.  What we know today, is that he stood tall and proud despite public opposition and the half-hearted support from the AFL.

I‘ve talked about the men today, in the context of the lectures I have given this year, but there are so many women who have paved the way for positive change in the face of resistance. Strong women like June Oscar, Valerie Cooms who is here today, Jaqui Katona, Marcia Langton, Larissa Behrendt, Bonita and Gail Mabo and Gracelyn Smallwood to name a few – all of whom have felt the full force of opposition from the media, public and private institutions, industry and interests groups but they have remained staunch in their beliefs, have refused to be controlled and continue to express themselves as proud Aboriginal and Torres Strait Islander women. 

So today can we pay tribute to these men and women who have inspired me generation, and I hope will continue to inspire the generations to come. By speaking up they encourage us to do the same. They encourage us to speak up against discrimination, to tell our history, express our identity, and insist on a voice in Australia’s laws, policies, economy and cultural life.

They challenged the status quo of expected behaviour of our Aboriginal and Torres Strait Islander women and men of being seen and not heard. They have refused to be controlled.

As the Declaration on the Rights of Indigenous peoples puts it – these men and women encourage us to speak up for the ‘principles of justice, democracy, respect for human rights, non-discrimination and good faith.’

Friends, today I am proud to present to you all the Social Justice and Native Title Report 2015.