NSW Teachers Federation Council Meeting

Mick Gooda

Aboriginal and Torres Strait Islander Social
Justice Commissioner

Australian Human Rights Commission

Surry Hills

Saturday 20 November 2010

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With respect and gratitude I acknowledge that we sit on the lands of the
Gadigal peoples of the Eora Nation, and I thank the Traditional Owners for
allowing us to do so.

My people are the Ghangulu from the Dawson Valley in Central Queensland.

On behalf of my Elders I also salute your Elders, both past and present, for
their continued struggle for their country and their culture here in the place
where our colonisation began.

I also acknowledge the NSW Teachers Federation
and thank you for inviting me to address your Council Meeting.

Firstly, let me congratulate the NSW Teachers Federation on your efforts to
ensure that Aboriginal and Torres Strait Islander people have access to
education and also your commitment to a 25 year Action Plan for education in
NSW.

Before I get to talking about my thoughts about education, let me tell you a
bit about my role.

The Office of the Social Justice Commissioner is a statutory position that is
appointed by the Attorney General.

This role was established in response to the recommendations of the Royal
Commission into Aboriginal Deaths in Custody and also has specific functions
outlined in the Native Title Act 1993 (Cth).

Briefly, I’m required to provide to the Australian Parliament an annual
Social Justice Report and I also provide a report on Native Title. I’m
also required to:

• review the impact of laws and policies with regard to Indigenous
  peoples

• promote an Indigenous perspective on issues and

• monitor the enjoyment and exercise of human rights of Indigenous
  Australians

In a real sense, I’m handed these general
directions and it’s up to me to sort out my priorities in terms of how I
do what the legislation requires of me.

I assumed this position in February 2010 and I recently announced my
priorities for my five year term which ends in January 2015.

As Social Justice Commissioner I have only six staff, so I quickly realised
that it would be unrealistic to pick even one of the myriad of challenges facing
Aboriginal and Torres Strait Islander peoples - housing, health, education etc -
and expect to fix it by 2015.

I believe that fixing these issues will require the intergenerational
commitment of the whole nation.

We will need to shift our focus to those issues that are foundational to an
agenda of hope.

An agenda that tackles the root causes of Indigenous health and social
inequality.

An agenda which at its core, aims to unleash the potential of Indigenous
Australians.

An agenda that maximises the capabilities of each and every Indigenous
Australian.

Where Indigenous rights and interests are at the centre of Australian
nationhood and embedded in the institutional fabric of the country.

Human rights are not just abstract concepts that exist in documents such as
treaties, conventions and declarations alone.

And we are advised to remember this: human rights only become meaningful when
they are able to be exercised.

Bishop Desmond Tutu once said ‘I am not interested in picking up crumbs
of compassion thrown from the table of someone who considers himself my
master. I want the full menu of
rights’.^[1] 

So I would
argue that human rights provide governments’ with a set of minimum legal
standards which if applied equally to all people establish a framework for a
society to foster dignity and equality of all citizens.

The human right to education is enshrined in international human rights law,
specifically the International Convention on Economic, Social, and Cultural
Rights (ICESCR) and the Convention on the Rights of the Child.

Education must be available, accessible, acceptable and
adaptable.^[2]

Australia is a signatory to these legally binding conventions, and as such
has obligations to implement them at the domestic or country level.

Article 13 of the ICESCR gives us guidance about the right to education. It
states that parties to the Convention recognise the right of everyone to
education and that:

• education shall be directed to the full development of the human personality
  and the sense of its dignity and shall strengthen the respect for human rights
  and fundamental freedoms.

• education shall enable all persons to participate effectively in a free
  society, promote understanding, tolerance and friendship among all nations and
  all racial, ethnic or religious groups.

• primary education shall be compulsory and available free to all

• secondary education, including technical and vocational secondary education,
  shall be made generally available and accessible to all

• higher education shall be made equally accessible to all

• fundamental education shall be encouraged or intensified as far as possible
  for those who have not received or completed the whole period of their primary
  education

And

• the development of a system of schools at all levels shall be actively
  pursued, an adequate fellowship system shall be established, and the material
  conditions of teaching staff shall be continuously
  improved.^[3]

We also have
available to us in Australia one of the most important documents that sets out
our human rights as Indigenous peoples – and it is the United Nations
Declaration on the Rights of Indigenous
Peoples.^[4]

The Declaration is one of the most significant milestones in
the protection of indigenous human rights. It catalogues in one place the human
rights outlined in other binding international instruments as they apply to
indigenous peoples. In that sense it is sourced from binding international law
like the Convention on the Elimination of All Forms of Racial
Discrimination. The Declaration should inform how these obligations apply to
Indigenous peoples.^[5]

The Declaration on the Rights of Indigenous Peoples has this to say about our
right to education:

Indigenous individuals, particularly children, have the right to all levels
and forms of education of the State without
discrimination.^[6]

States shall, in conjunction with Indigenous peoples, take effective
measures, in order for Indigenous individuals, particularly children, including
those living outside their communities, to have access, when possible, to an
education in their own culture and provided in their own
language.^[7]

It also says that:

Indigenous peoples have the right to the dignity and diversity of their
cultures, traditions, histories and aspirations which shall be appropriately
reflected in education and public
information.^[8]

So as you can see,
the international human rights framework provides a strong practical basis for
achieving the highest possible attainable standard of Education.

Let me now turn to the domestic implementation of our right to education.

Public education is currently delivered through predominantly State
Government policy and this policy can be changed without even the scrutiny of
parliament.

This is why organisations such as the NSW Teachers Federation are absolutely
critical to ensuring the standard of education being delivered is of the highest
quality, and that you continue to lobby Governments for the rights of students,
particularly those most vulnerable in our communities.

While the Australian Government have recently finalised their National
Aboriginal and Torres Strait Islander Education Policy (AEP), access to
culturally appropriate education is often lost in the context of
‘mainstreaming’.

The focus on the maintenance and promotion of culture and identity are
compromised in the delivery of a one-size fits all approach to curriculum. We
know from experience that a one-size fits all approach will not achieve the same
results in different environments so it is essential that our education system
is tailored to meet the diversity of needs of our students.

We need to develop innovative approaches that more effectively meet the needs
of our Aboriginal and Torres Strait Islander students, their families and our
communities.

Again, the Declaration guides us. In the second preambular paragraph, the
General Assembly of the United Nations affirmed:

.... that indigenous peoples are equal to all other peoples, while
recognizing the right of all peoples to be different, to consider themselves
different, and to be respected as
such.^[9]

First of all this is a right that all people have. And while it might seem
innocuous at first glance, it actually imposes obligations on nation states and
their governments to design and implement systems, such as education, that cope
with difference. This means it is not up to the individuals and communities who
are different to navigate their way through the education system.

It should not be up to us to change who we are to fit into their system. The
system should be designed to accommodate us.

Some of the key factors that the
Australian Human Rights Commission has identified as essential components of an
equitable system of education for Indigenous peoples include:

• the involvement of Aboriginal and Torres Strait Islander people in
  educational decision-making

• equality of access to education services

• quality teachers – including through nurturing and supporting the
  development of an Indigenous workforce

• a focus on creating a ‘culture’ of acceptance of the importance
  of education.

These pre-conditions go a long way to providing for a
good learning environment. Developing processes to achieve these ends is the
beginning of the way forward.

While all of these preconditions are essential to fulfilling the right to
education, one that is also a key focus of the work you do is building the
capability of people to realise their potential and building this capability
means building our human capital.

Our teachers are the deliverers of our education system. If we have teachers
who are not equipped to work in an environment that deals with such a diverse
range of experience; to build on the strengths of their students including their
culture and identity; and to encourage and facilitate excellence; then we will
see more of the same.

Sub-standard literacy and numeracy achievement, poor retention rates, limited
opportunities for us to enter the workforce and limited opportunities for us to
improve our overall quality of life.

In urban areas in particular,
Indigenous-controlled education is rare – almost non-existent. While there
are some urban schools with concentrations of Indigenous students and Indigenous
teachers, the mainstream formal education curricula and culture prevail. School
curricula are set by state education bodies and formal educational milestones
are those set by state-endorsed curriculum programs.

For example, I understand that a key priority for Aboriginal people in NSW is
language revitalisation. While Indigenous languages studies have recently been
introduced into most state curricula, as yet, the vast majority of schools have
not offered Indigenous language programs and (perhaps) assume that there is
limited demand and limited expertise to deliver these programs.

It is the prevailing view of governments that formal education should teach
young people to operate in the mainstream. This means that Indigenous education
becomes an add-on to formal education processes rather than a key feature.

Key to a conducive learning environment and increasing the profile of
Indigenous education is ensuring that new staffing policies support the
development of local Indigenous teachers and support staff in all schools that
have Aboriginal and Torres Strait Islander students. We must also be able to
attract experienced teachers to difficult to staff schools.

So, creating a holistic education framework requires a commitment from those
at all levels of government, and all areas across the sector.

A human rights based approach to achieving the right to education provides
clear guidance and minimum standards, and these must be incorporated into our
national legal and policy frameworks to ensure that the standard of education is
of the highest quality and accountability mechanisms are built into the system.

Fundamental to this is the engagement of Aboriginal and Torres Strait
Islander people in the design and implementation of education so that it does
accommodate the diversity of need and difference across the sector.

Finally, at the local level, we need to ensure that our education workforce,
our teachers, are fully equipped with the understanding and knowledge of what
their client base, us, require to receive the highest quality service and
product.

The NSW Teachers Federation are to be congratulated on pursuing a 25 year
approach to Aboriginal Education in NSW with a vision to securing a way
forward.

You may be aware that early on in my term I publicly called for the
Australian Government to formally recognise Aboriginal and Torres Strait
Islander peoples and our rights in our Constitution.

I see in the Decisions from your Annual
Conference^[10], that the NSW
Teachers Federation has identified constitutional recognition as a key priority
in advancing education for Aboriginal and Torres Strait Islander Australians and
I totally agree with you.

The Constitution is the founding document of our nation and is the
pre-eminent source of law in our country.

However, in drafting the constitution, Aboriginal and Torres Strait Islander
people were noticeably absent. We were not afforded the right to participate in
discussions concerning the future of our nation. Nor were we afforded the right
to participate in the referendum that secured that future and would eventually
govern our position and place within the nation.

The only mention in the text of the Constitution was to exclude Aboriginal
and Torres Strait Islander peoples. The Constitution was silent in making
adequate provision for us, let alone in protecting our inherent rights as the
first peoples of this country.

Public commentary^[11] has
frequently argued that recognition in the Australian Constitution would be
symbolic only and would have no meaningful impact on Aboriginal and Torres
Strait Islander peoples lives.

It is my view that symbolic and practical actions are not mutually exclusive.
Actions that have real and lasting affect on a community have both symbolic and
practical elements. The power of symbols is that they can inspire action. This
in turn can result in positive practical effects that lead to an improved
quality of life for Aboriginal and Torres Strait Islander peoples.

Larissa Behrendt clearly identifies the practical affect 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.^[12]

I believe that recognition has the potential to:

• address a history of exclusion of Aboriginal and Torres Strait Islander
  peoples in the life of the nation

• improve the sense of self worth and social and emotional well-being for
  Aboriginal and Torres Strait Islander peoples both as individuals and
  communities

• create a societal change where there is respect for Aboriginal and Torres
  Strait Islander culture and identity

• change the context in which debates about the challenges faced by Aboriginal
  and Torres Strait Islander communities take place

And

• reset the relationships between Indigenous and non-Indigenous
  Australians.

I firmly believe the time is right, here and now for the Australian
people to formalise at least the recognition of the special and unique
place of Aboriginal and Torres Strait Islander people in our nation, in our
Constitution.

During the federal election campaign, Labor, the Coalition and the Greens,
committed to a referendum to facilitate such recognition.

There’s also been a great level of support from the Independents since
the election, and with the Prime Minister’s announcement last week, in all
likelihood, there’ll be a referendum within the next three years.

The prospect of this referendum recognising Aboriginal and Torres Strait
Islander people in the Australian Constitution will provide us all with a great
opportunity to reframe and reset our relationship as a nation.

It’s been said to me that such an initiative – a referendum to
change the Constitution - will suck up a lot of oxygen and resources and perhaps
even goodwill. These resources and goodwill could be put to be better use
closing the gap between Indigenous and non-indigenous Australia.

Maybe that’s true.

Certainly, we can’t underestimate the immensity of such a challenge.
Because of the double majority needed - an overall majority yes vote, and a yes
vote from majority of people in a majority of the States - only eight out of 44
referenda have been passed in Australia’s history.

We also know that bipartisan support at the political level will be
absolutely essential and we know just how easy it is to get politicians to
agree, especially if either side reckons there’s a possible wedge in there
somewhere.

But to those who doubt the importance of what amounts to a form of words, I
say this.

This process will give this generation of Australians the opportunity to say
‘yes’ - an opportunity to demonstrate goodwill and innate decency,
just like 92% of Australians did in 1967.

In real terms this means we need between 12-13 million voters on our
side.

Yes, there will be debates, speeches, opinion pieces in the press, 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 that will build awareness, focus
minds and hearts and help move us all forward as a nation.

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.

With education being fundamental to our agenda of hope, I agree with and
commend you at the Teachers Federation, that amending our nations Constitution
to officially and legally acknowledge and respect the rights of Aboriginal and
Torres Strait Islander people, will go some way towards creating a national and
political environment were the purpose and function of formal education can be
achieved.^[13]

Once these foundations are secured, implementing the right to education will
require a consistent approach at the National and State and Territory level.

During the next three years, I commit myself to working closely with our
political leaders and, more importantly, the people of Australia to achieve a
successful referendum in 2013.

I look forward to working with you at the
Teachers Federation and to unleashing the potential of Indigenous Australians. I
look forward to achieving an Agenda of Hope.

Thank you.

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^[1] D Tutu, If there is only one
message of wisdom you could leave behind for humanity what would it be? ,
at: http://www.tutufoundation-usa.org/exhibitions.html (viewed 1 November 2010).

^[2] Committee on Economic, Social and Cultural Rights, General Comment No.13
– the Right to Education, UN Doc E/C.12/1999/10 (1999), para
6-7.

^[3] International
Convention on Economic, Social and Cultural Rights, Article
13.1.

^[4] United Nations
Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007).

^[5] See
Committee on the Elimination of Racial Discrimination, Concluding Observations
on the United States of America, UN Doc CERD/C/USA/CO/6 (2008), para 29. At http://www1.umn.edu/humanrts/CERDConcludingComments2008.pdf (viewed 20 January 2010).

^[6] United Nations Declaration on the Rights of Indigenous Peoples, Article
14.2.

^[7] United Nations
Declaration on the Rights of Indigenous Peoples, Article
14.3.

^[8] United Nations
Declaration on the Rights of Indigenous Peoples, Article
15.1.

^[9] United Nations
Declaration on the Rights of Indigenous Peoples, Preamble.

^[10] New South
Wales Teachers Federation, Annual Conference Decisions, Aboriginal Education
– 25 Year Approach: The Way Forward, 2010 Action Plan Kit, July
2010.



^[11] M Gooda,
‘Indigenous inclusion is good for our Constitution’, Sydney Morning
Herald, 9 July 2010, p13. At
http://www.smh.com.au/opinion/society-and-culture/indigenous-inclusion-…
(viewed 22 July 2010).

^[12] L
Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s
Future (2003), pp
144-145.

^[13] New South Wales
Teachers Federation, Annual Conference Decisions, Aboriginal Education
– 25 Year Approach: The Way Forward, 2010 Action Plan Kit, July
2010.