Launch of the Social Justice Report 2003 and Native Title Report 2003

An agenda for change - Launch of the Social Justice Report 2003 and Native Title Report 2003

Speech delivered by Darren Dick on behalf of Dr William Jonas AM

Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

Tandanya, Adelaide, 25 March 2004

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Acknowledgement of traditional owners (Garner people); thanks for the welcome to country.

I am speaking on behalf of Dr William Jonas, the Aboriginal and Torres Strait Islander Social Justice Commissioner. Dr Jonas is unable to be here today, with doctors having advised him he is not able to fly at this time due to a recurring illness. Dr Jonas sends his apologies and has asked that I deliver this speech on his behalf. He has asked me to express to you his appreciation for attending today and to thank Parry Agius and Lowitja O'Donoghue for agreeing to speak at this launch.

The Social Justice Report 2003 and the Native Title Report 2003 are Dr Jonas' fifth set of reports as Social Justice Commissioner. They were tabled in the federal Parliament on Wednesday 10th March 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.

As Dr Jonas stated at the Sydney launch of the reports on Friday 12th March, these 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. As Dr Jonas has said, 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.

As this year's reports were being prepared, a number of questions occupied the minds of Dr Jonas and the Social Justice Unit: 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, responding to petrol sniffing on the AP Lands and responding to 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 report makes a number of recommendations relating largely to these COAG initiatives to ensure that the preliminary results achieved are able to be sustainable and contribute to long term improvements in the situation of 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.

The report shows that on many indicators of well-being, there is a growing disparity between Indigenous and non-Indigenous people - for example in relation to life expectancy and death rates, as well as rates of low-birth weight babies, income levels, contact with criminal justice and care and protection 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.

As Dr Jonas has noted, 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.

The report also notes significant problems in the approach of governments to pressing, intransigent issues. 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. The report particularly expresses 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 Dr Jonas agrees.

In relation to petrol sniffing, the report expresses significant concerns at the lack of a national focus and long term funding for addressing this issue. The report notes that petrol sniffing is not treated with any level of priority in national drug strategies and focus on it usually requires a crisis situation to be revealed in the media, which usually results in short term government action until the attention dies down and sniffing is again marginalised. Time and again, the situation on the AP Lands has demonstrated the destructiveness of this issue and the report identifies an urgent need for continuous national level commitment to address petrol sniffing. The report focuses specifically, however, on the responsiveness of governments, and most particularly the South Australian government, to the petrol sniffing issues on the AP Lands.

Overall, the Social Justice Report finds that the 'prompt, forthright, properly planned, properly funded action' that the State Coroner called for in the coronial inquests into petrol sniffing on the AP Lands has not been forthcoming from the South Australian government. The report acknowledges that there has been some movement in the right direction - and that there have definitely been some positive developments in the past year - but overall it has not been enough and it has not been fast enough.

In light of developments on the AP lands in the past fortnight, Commissioner Jonas particularly wanted to emphasise today the following findings of the review of progress on the AP Lands in the Social Justice Report.

First, the report expresses significant concern at what it terms 'the bureaucratic inertia' in addressing petrol sniffing on the AP Lands. The sheer number of inter-departmental and inter-governmental forums for dealing with issues such as petrol sniffing on the AP Lands reads like a nightmare from a Kafka novel.

The report acknowledges the potential of properly focused inter-governmental and inter-departmental processes - and in particular the potential of the COAG whole of government trial on the AP Lands to operate as a 'circuit breaker' to the fractured nature of service delivery to communities on the lands.

However, it also suggests that the intergovernmental approach to addressing problems on the AP Lands has become increasingly bureaucratic, impeding the possibility of responding effectively to substance misuse issues. These processes need to start delivering more streamlined services to Indigenous communities rather than retarding such service delivery on the AP Lands. HREOC identified a great level of frustration from Anangu people at the lack of action on this issue over the past year.
There is significant concern that the discrete focus on petrol sniffing is potentially being obscured by the level of bureaucracy. There is concern that petrol sniffing is being submerged within a sea of other significant issues and is not receiving the focused attention called for by the Coronial Inquest and by communities on the AP Lands.
Second, and related to the dramas of the past fortnight, the report expresses concern at the inappropriate way that these inter-governmental processes seek to involve Anangu communities in addressing issues relating to petrol sniffing. In the name of 'streamlining' of processes, there has been limited involvement of community controlled organisations on the AP Lands - organisations such as Nganampa Health Council and NPY Women's Council that have a long history in dealing with these issues.

The report notes that this has shifted the focus away from Anangu and how they do business and has not built on the corporate knowledge and established networks that these community organisations have with the Anangu. Ultimately, the reliance on bodies such as the AP Executive to address petrol sniffing problems sets them up to fail. It reflects a misconception that the AP Executive is the peak body in all matters on the AP Lands and over-stretches the community acceptance and expertise of that agency in addressing this particular issue.

As a review commissioned by the South Australian government in 2002, conducted by John Tregenza, perhaps prophetically notes ' it is... essential that any consultation and discussion of issues with Anangu representatives from the Lands must include representatives from all the Anangu community -controlled organisations, and not just from AP Council and/or AP Services. Failure to include all the stakeholders in the consultative, planning and decision-making processes will only ensure the long term failure of regional programs and projects' (see p129 of report).

In watching developments in recent weeks, Commissioner Jonas has been concerned at the scape-goating of the AP Council by the South Australian government for the significant problems in the way that it - that is the government - has gone about addressing petrol sniffing issues over the past year.

The third issue raised by the report is the concern that the emphasis on the COAG trial and processes for community ownership of the petrol sniffing issue, 'obscures the bigger picture' that exists in relation to the AP Lands. This is the historic and ongoing lack of adequate and appropriate service delivery and funding to the AP Lands and the lack of government accountability for poor performance in delivering services.

Notwithstanding recent announcements of funding to address petrol sniffing issues on the lands ($12million over 4 years from the SA government) and a positive response to the increased police presence on the AP Lands, it remains clear that there are continued pressures being placed on agencies such as the Police to make up for the lack of other services being available on the AP Lands. Overall responsibility for this lies with the South Australian government and no one else.

I now turn to the Native Title Report. In previous native title reports, Commissioner Jonas has 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 economic and social development outcomes for Indigenous people. 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. The Report explains how development:

• Must be driven by a local agenda;
• Must build on the existing capacities of the claimant group;
• Must allow ongoing learning and adaptation within the group;
• Requires long term investments; and
• Must be integrated at all levels.

The Report also assesses the adequacy of the current approaches of governments to native title negotiations on the basis of whether they contribute to the economic and social development of the group. While some states, such as South Australia, are taking a broad policy approach, many see native title as only a legal claim which needs to be settled one way or another.

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.

While many governments recognise the need to address economic and social development in Indigenous communities they rarely consider native title as a tool to achieve this. Native title negotiations are isolated from these broader policy objectives. This exclusion of native title from the broader policy arena not only limits governments' approach to native title negotiations, it also limits the ability of these broader policies to achieve their objective; that of changing 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 ALRM approach to the statewide framework agreement- 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. As Dr Jonas stated at the Sydney launch of these reports:

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.

He continued:

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.

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. The report argues 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. The report provides options for achieving this. The report also argues that ATSIC must 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. As Commissioner Jonas has stated:

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. 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.

As Dr Jonas has stated: 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.

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 the Social Justice Report notes, 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.

The Social Justice Report supports 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. The Native Title Report outlines 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.

As Dr Jonas stated at the Sydney launch of these reports: What these reports do is outline 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.

The reports both look forward to improved conditions for Indigenous peoples. They outline an agenda for change. And it is on that note that on behalf of Commissioner Jonas
we present to you the Social Justice Report and Native Title Report for 2003.

Thank you.