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

Australian Human Rights Commission
Sydney
Friday 30 November 2012

It is with respect and gratitude that I acknowledge that we sit on the lands of the Gadigal peoples of the Eora Nation. Thank you to Michael for your generous welcome to country for us all here in attendance today.

I also acknowledge our invited guests and dignitaries who have joined us today, in particular, Gillian Triggs, the President of the Australian Human Rights Commission who has kindly agreed to emcee for us here today; and Geoff Scott, CEO of the New South Wales Aboriginal Land Council.

You will hear more from Geoff shortly.

I acknowledge my fellow Commissioner Susan Ryan, Commissioner for Age Discrimination, Claire Mallinson, Shane Duffy, Eddie Cubillo, Lindon Coombes, Tim Gartrell, Craig Dukes, Bob Davis, James Christian, Marcia Ella-Duncan, Clarke Scott, Damian Griffis, Jan Wright, Professor Vlado Perkovic and Lyn Brodie.

Finally I acknowledge all my Aboriginal and Torres Strait Islander and non-Indigenous brothers and sisters and we thank you for joining with us today to launch my third set of Social Justice and Native Title Reports.

Acknowledging country is especially significant today because the theme of this year’s Reports is governance for Aboriginal and Torres Strait Islander peoples.

By acknowledging the traditional owners of the lands on which we meet and live and work we pay tribute to their responsibility to care for our lands and for all those who come here. This is all part of our Aboriginal and Torres Strait Islander governance.

It derives directly from our culture. Our traditional and contemporary laws and customs dictate this; it is one way of us asserting our distinct identities as Aboriginal and Torres Strait Islander peoples; and it establishes who has authority over particular areas and over particular issues, like, as I said earlier, ensuring that people who come onto our lands are safe and looked after.

I am excited because this is the 20^th Social Justice Report and this year also marks 20 years since the High Court of Australia handed down the historic Mabo decision, acknowledging our lawful place as the First Peoples of Australia and creating the unique form of land recognition set out in the Native Title Act.

As Gillian has already noted, the Social Justice Commissioner is required to table in the federal Parliament annually a Social Justice Report that examines the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples nationally.

I also produce a Report as a requirement under the Native Title Act which gives a human rights perspective on native title issues and other issues related to our lands, territories and resources. While not a requirement of the Native Title Act it has been the usual practice for the Native Title Report to be also tabled in the federal Parliament.

You may recall when I started in this role I identified a number of priorities for my term as the Social Justice Commissioner. They included the improvement of relationships:

• between Aboriginal and Torres Strait Islander people and the broader Australian community and government
• between Aboriginal and Torres Strait Islander peoples in our own communities.

It is my belief that in order to have good governance, you also need to have productive relationships across these areas.

I also committed to using the Declaration on the Rights of Indigenous Peoples to guide the work I do during my term. Because recognising and respecting the rights articulated in the Declaration will enhance relationships between governments and Aboriginal and Torres Strait Islander peoples based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.

Since commencing in this role, I have focused on some fairly critical issues that relate to improving these relationships.

In my 2010 reports, I focused on the relationships between Aboriginal and Torres Strait Islander peoples, the Australian Government, and the broader Australian community. I talked extensively about the need to recognise Aboriginal and Torres Strait Islander peoples as the First Australians in our nations Constitution. I expect this issue will be a constant part of all my Reports during my term.

This week has seen two significant events unfold. On Tuesday, the Government moved to establish a Joint Select Committee on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples.

On Wednesday, they introduced the Aboriginal and Torres Strait Islander Peoples Recognition Bill. This Bill, firstly, recognises that Aboriginal and Torres Strait Islander Peoples were the first inhabitants of Australia and secondly, commits the Parliament to a referendum to provide this recognition within our Constitution.

I support the Bill because it keeps this issue at the forefront of the political discourse until a referendum is held and it gives the Parliament the opportunity to demonstrate the multi-party support that will be so vital in securing a successful referendum.

I congratulate Minister Macklin for developing this Bill and I call on all parties to work over the Christmas break to find a way to send a clear message to the Australian people of their commitment, by ensuring this Bill has the unanimous support of both Houses and that it is passed during the early sittings of Parliament next year.

In 2010, I also looked at the efforts of a small community in Australia’s far north west, Fitzroy Crossing, where Aboriginal people are making hard decisions about the governance arrangements in their communities to address significant issues like alcohol abuse and foetal alcohol spectrum disorder, the present and future well-being of their community members, and how governments work with them to achieve their goals.

The underlying text to this Chapter is that when Aboriginal and Torres Strait Islander peoples take control supported appropriately by Government we have more sustainable and effective outcomes.

In my 2011 reports, I focused on relationships within Aboriginal and Torres Strait Islander communities. I particularly talked about lateral violence. I looked at the reasons for it and the destructive impact it has. As I argued in the 2011 reports, this kind of behaviour diminishes the capacity of our families, communities and organisations to run our own lives.

Unfortunately, since that report we have seen numerous instances of third party provoked lateral violence play out on the front pages of our newspapers and on television. And while this has been challenging for us to watch, the upside is that Aboriginal and Torres Strait Islander people are now confidently calling each other on lateral violence and identifying it when it occurs. We are also standing up to those who are outside our families and communities perpetuating lateral violence.

In that report I also recognised the role that governments can play in diminishing the governance capacity in our communities and creating the conditions for lateral violence to flourish. For example, through legislative and regulatory frameworks that require organisational structures which do not reflect our decision-making processes.

In a curious circularity lateral violence diminishes our governance capacity and our diminished governance capacity provides the breeding grounds for lateral violence.

Unsurprisingly, improving our internal governance structures and processes as well as those of the broader governance environment is one way of reducing lateral violence and conflict within our communities.

The National Centre for First Nations Governance in Canada affirms that:

At the heart of the concept of governance is the creation of effective, accountable and legitimate systems and processes where citizens articulate their interests, exercise their rights and responsibilities and reconcile their differences.^[1]

I want to use these reports as an impetus to reframe the discussions around our right to self-determination and the role governance can and should play in the exercise of that fundamental right.

But let’s be clear, good, effective governance for Aboriginal and Torres Strait Islander peoples’ needs to start with us, with our people, and with our communities. In other words, good community governance where everyone within a collective, young people, old people, men and women have a voice and are heard is central to the exercise of self-determination.

Both the Social Justice and Native Title Reports 2012 consider what constitutes ‘effective Indigenous governance’ in Aboriginal and Torres Strait Islander communities and how governments can enable and support this.

The evidence on the importance of these two aspects of governance as it relates to Aboriginal and Torres Strait Islander peoples is extensive and clear. It is only through having control over our own lives that the ‘practical’ aims of both Aboriginal and Torres Strait Islander peoples and governments will be sustainably achieved.

What this suggests is that there needs to be a new relationship between Aboriginal and Torres Strait Islander peoples and government. A relationship built on recognition of our unique position as First Peoples.

A critical point in this relationship must be that no amount of money or resources can compensate for relationships which disempower Aboriginal and Torres Strait Islander people.

There will need to be negotiations on a different basis to those which currently occur – there will need to be genuine partnerships forged with genuine power-sharing arrangements.

As such, I argue that a framework that facilitates effective, legitimate and culturally relevant governance for Aboriginal and Torres Strait Islander peoples and our communities must be underpinned by key human rights principles as set out in the Declaration on the Rights of Indigenous Peoples. These include:

• self-determination – which is about us being able to decide our own economic, social, cultural and political futures.

• participation in decisions that affect us based on free, prior and informed consent and good faith – this means that Aboriginal and Torres Strait Islander peoples must be respected and treated as key stakeholders in developing, designing, implementing, monitoring and evaluating all policies and legislation that has an effect on our well-being.

• respect for and protection of culture – we have a right to maintain, protect and practice our cultural traditions and cultural heritage; and this includes protecting our integrity as distinct peoples, our cultural values, intellectual property, and our languages.

• equality and non-discrimination – this means that we should be able to govern ourselves without discrimination from individuals, governments and/or external stakeholders.

The Declaration when viewed through the lens of its key rights and principles can be an instrument to build relationships. It should form the foundation of a new relationship of respect and engagement between governments and Aboriginal and Torres Strait Islander peoples.

Similarly, a framework that includes these human rights principles must be reflected across three components of community governance, organisational governance and the governance of governments. These components reflect those outlined in the Australian Government’s recently released draft National Indigenous Governance and Leadership Framework. In the reports, I have outlined what I believe these components should look like.

Community governance is where we decide what we want to achieve and how we organise ourselves to achieve it. It is grounded in our culture allowing us to determine who can speak when, for whom, to whom and about what on behalf of a community.

Having effective community governance provides a solid foundation for our organisational governance. It enables our organisations to achieve what we have identified as our priorities and development aspirations. To be effective, our organisations must be seen as legitimate by both our communities and governments. They should guide governments in their actions and responses to progressing our communities’ priorities and development aspirations.

Government’s role therefore is to support and enable the empowerment of Aboriginal and Torres Strait Islander peoples, our communities and our organisations. They can only do this by firstly removing the barriers to effective governance and supporting our organisations. This means that they also must:

• recognise that empowerment is vital to us achieving our goals
• ensure that government processes support strong community and organisational governance
• respect and support our decision-making processes

and

• reform funding and reporting processes to reduce the unnecessary red-tape that currently binds and restricts us from achieving our goals.

In this year’s reports I discuss a number of pertinent examples where Aboriginal and Torres Strait Islander peoples have been disempowered and the governance capacity of our communities and organisations completely crippled by government bureaucracy.

The local government reforms and the Intervention which occurred coincidentally at the same time dismantled the governance arrangements within local Northern Territory communities. These events centralised power and control over people’s daily lives to both the Federal Government through the Intervention; and to the Northern Territory Government through the creation of super shires. While the distinction between the differing levels of government involved is clear to those of us who navigate the system daily, for those living on the ground in those NT communities, it was perceived naturally as one assault on their communities.

It is these sorts of circumstances that need to be reviewed and reformed in line with the governance framework I have outlined today.

Unfortunately, we spend much of our time focusing on the negative aspects of our development as Indigenous peoples. I think we should also celebrate the fact that our people are actually defying the odds and in some areas where we are given the opportunity to take control, we are getting great results.

So, while we have much work to do to improve governance arrangements within our communities - we can also draw on many of the positive examples of effective governance that already exist within our local to national communities. For example:

• the Four Pillar Knowledge Vision that informs community governance concerning the Yawuru people in Broome to manage their native title outcomes.
• the Breakfast Minyma and the work of the Warburton Women in providing breakfasts to their children as a way of improving school attendance. This project has grown to address other community issues such as educating the young community women in life skills, and the creation of employment opportunities through catering community events.
• the Walpiri Youth Development Aboriginal Corporation (WYDAC) located at Yuendemu which started as the Mt Theo Petrol Sniffing Outstation Program. This program has grown to provide other support services including youth development and leadership, counselling, running the community pool and a mechanics workshop; as well as supporting three other Walpiri communities to run similar programs.

and

• the National Health Leadership Forum which has developed across the life of the Close the Gap Health Equality Campaign.

In this year’s Native Title Report I pay particular attention to the factors that enable Prescribed Body Corporate’s to effectively govern lands, territories and resources on behalf of native title holders.

And as we all know, these types of developments don’t happen overnight. Many of these projects are the result of years of research about effective governance and hard work by communities trying and testing their governance mechanisms. So I would like to acknowledge the many people who have worked in this space over many years.

Before I finish today, I would also like to give you a snapshot of the other issues addressed in this year’s reports, many of which are also directly relevant to governance.

As with previous reports, I provide a year in review looking at both the social justice and native title issues and advancements, and this year we have seen a lot of activity.

For example, at the international level:

We have had Aboriginal and Torres Strait Islander peoples representing and advocating our rights at a number of international human rights forums including:

• the Expert Mechanism on the Rights of Indigenous Peoples
• the Permanent Forum on Indigenous Issues
• RIO+20
• meetings of the World Intellectual Property Organisation
• and we had the Special Rapporteur on violence against women visit Australia on a study tour focused on violence against Indigenous women.

At the national level:

• we saw the establishment of the new Parliamentary Joint Committee on Human Rights of which our first Aboriginal Federal MP, Mr Ken Wyatt is the Deputy Chair.

• we have also continued to work on progressing constitutional reform to recognise Aboriginal and Torres Strait Islander Peoples as Australia’s First Peoples. You Me Unity have established a Reference Group as well as an NGO Steering Group to help to move this process forward and they have facilitated grant processes to assist our community organisations to raise awareness on this important issue in our preparations for a referendum in the coming years.

• we saw the launch of the Indigenous Economic Development Strategy (2011-2018) and the commencement of the Carbon Farming Initiative.

• and in relation to native title, institutional reforms occurred changing the roles of the Federal Court of Australia and the National Native Title Tribunal, and the Attorney-General announced further reforms to the operation of the native title system. While they do not reverse the significant burden on Aboriginal and Torres Strait Islander peoples to prove our connection to our lands, territories and resources, they do aim to clarify the requirements for good faith in negotiations; and they aim to allow parties to form agreements about historical extinguishment in parks and reserves.

And at a more local/state level we saw the commencement of the Stronger Futures in the Northern Territory and this is something that I will continue to monitor during the next two years of my term.

I review each of these issues in this year’s reports.

While I think we have much to celebrate from the reporting this year, one not so positive issue that I would like to bring to people’s attention today is the indefinite detention of people with cognitive impairment in the criminal justice system the majority of whom are Aboriginal and Torres Strait Islander people.

While this issue has been on the radar of the Australian Human Rights Commission for a number of years, Marlon Noble’s case in WA brought my attention to this issue late last year.

Mr Noble was accused of sexual assault in 2001 but was deemed unfit to plead in 2003 because of his cognitive impairment. He was subsequently imprisoned in the same facilities as the general prison population for ten years without conviction or even trial.

The Director of Public Prosecutions reportedly said that if Mr Noble had been found guilty he would likely have spent less time in prison.

Mr Noble was released in January 2012 under strict conditions, the breach of which would likely see him locked up again.

Similarly, a young Aboriginal man with a cognitive impairment in Queensland has been imprisoned for 21 years in a psychiatric institution (without ever having been found guilty because he was unfit to plead).

Had he been convicted of the original offence, it is unlikely he would have been sentenced to more than six months (that is, had his disability not been identified).

I’m told that he currently has no prospects for release because there is no adequate community support. I’m also told that his behaviour continues to deteriorate partially because of the psychological impact of indefinite detention, and partially because he doesn’t receive any targeted clinical support for his impairment.

Sadly, I have been told of many similar cases and some of these stories have been told in my Social Justice Report.

We have been fortunate enough to work this year with the Aboriginal Disability Justice Campaign (ADJC) and I know that Patrick McGee of that campaign is here with us today. The ADJC has done some much needed research in this area and I encourage you all here today to have a look at their report, No End in Sight: The Imprisonment and Indefinite Detention of Indigenous Australians with a Cognitive Impairment when it is publically released.

This research has found that Aboriginal people with cognitive impairment are over-represented in criminal justice settings across Australia; they are often not diagnosed as having a cognitive impairment; and that data collection across almost all Australian jurisdictions on this issue is poor.

People with cognitive impairment (compared to the non-disabled population): Are more likely to come to the attention of police; are more likely to be charged; and are more likely to be imprisoned. They spend longer in custody than people without cognitive impairment; have far fewer opportunities in terms of program pathways when incarcerated; are less likely to be granted parole; and have substantially fewer options in terms of access to programs and treatments – including drug and alcohol support – both in prison, and in the community when released.

It is heartening that WA, Victoria and the Northern Territory are taking steps to begin to address this issue. But more will need to be done to ensure that stories like those of Marlon Noble and the others in my report do not become commonplace.

Our Disability Discrimination Commissioner, Graeme Innes and I are hoping to investigate this issue further in the coming months and probably years. At this point, we are trying to raise awareness of the issues whenever we can and will continue to work with the ADJC in this endeavour.

So once again, I thank you for coming today to help me to launch the 2012 Social Justice and Native Title Reports. I think they provide a comprehensive view of developments in the world of Aboriginal and Torres Strait Islander affairs, and hope that they can also assist our government, bureaucracy and policy makers in working with us to get the best possible policy and legislative frameworks in place that support our governance and advance our peoples and our communities.

In closing I must acknowledge the effort and care of our friends in the organisations and Departments that has helped us produce these Reports year in and year out. The people who work on the ground and at the policy level who join with us in trying to make the lives of our mob just a little bit better. They take the time out from their overworked daily lives to raise issues and more importantly tell their stories.

Susie Low from the Warlpiri Youth Development Aboriginal Corporation, Justin Mohammed and Jody Broun from the National Health Leadership Forum, Patrick McGee and Mindy Sitori from the Aboriginal Disability Justice Campaign, Pedro Stephen from the Torres Shire Council, Therese Postma, Minerals Council of Australia, Donald De Busch, Cape York NPM, David Claudie, Chuulangun Aboriginal Corporation, Eunice Yu the Kimberley Institute to name but a few.

Finally and fittingly I pay tribute to the Social Justice Team. It takes a special bunch of people to produce Reports of such quality each year. It takes people with tons of ability, dogged tenacity, boundless energy, microscopic attention to detail and endless pride in the quality of their work which drives them to double, triple and quadruple check every reference. People with whom I work who, at the same time makes me both proud and humble.

People like Katie Kiss, Ally Campbell, Louise Bygrave, Libby Gunn, Hannah Donnelly, Andy Gargett, Jack Regester, Nick Burrage, and Sarah Dillon.

Please join me in thanking Katie and her Team.

Thank You.

^[1] National Centre for First Nations Governance, Governance Best Practices Report (2009), p vii.