Recognising opportunities for all of us: a rights approach

Bringing it all together conference

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

Hotel Grand Chancellor
Gold Coast

26 May 2011

---

With respect and gratitude I acknowledge that we sit on the lands of the Kombumerri People of the Bundjalung 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 salute Kombumerri Elders, both past and present, for their continued struggle for country and culture here in the place where our colonisation began.

I also acknowledge my Aboriginal and Torres Strait Islander brothers and sisters here today, and all of you attending this inaugural forum.
I was pleased to receive an invitation to speak to you today. I’m sure I don’t need to tell you that access to education is an important determinant of health and wellbeing. It is linked to poverty, unemployment, poor housing and less access to health services.^[1] And I’m sure many of you are aware that in relation to education and employment, Aboriginal and Torres Strait Islander peoples fair the worst.^[2]

And so bringing people together - from government, training organisations, industry, TAFE; as well as students – is an important way to look at improving education opportunities, training pathways and the transition from school to work for Aboriginal and Torres Strait Island peoples in Queensland.

And what better time to bring people together than the day before National Reconciliation Week commences.

Tomorrow, the 27^th of May - the start of reconciliation week - is a significant date and one to be celebrated. It marks the anniversary of Australia’s most successful referendum and a defining event in our nation’s history. The 1967 Referendum saw over 90 per cent of Australians vote to give the Commonwealth the power to make laws for Aboriginal and Torres Strait Islander peoples and recognise them in the national census.
But while we should celebrate the success of the 1967 Rederendum tomorrow, we should also pause to commemorate another day of great significance today - National Sorry Day.

On 26th May 1997 the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander children from their families was tabled in Federal Parliament.

The Bringing Them Home Report, undertaken by my predecessor Professor Mick Dodson, revealed the extent of forced removal policies, and the devastating effects of these policies in terms of spiritual, emotional and physical trauma. It also revealed the trans-generational impact and damaging effects that these forced child removals continue to have on the Indigenous families and communities today.

And so, as we come together today, let us honour the Stolen Generations alongside thousands of Australians from all walks of life participating in memorial services, commemorative meetings, survival celebrations and community gatherings.

It is with these two days in mind that I address you today. Remembering the pains of the past and the continuing impact on us today, while celebrating the successes borne from our struggle such as on that landmark day where so many Australians showed their innate decency nearly 44 years ago today.

First 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 last year I 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.

Education is critical to this agenda – unleashing potential, building capabilities and in the process tackling inequality, is what education is meant to do!

And so, I would like to focus on education, and the importance of building stronger, deeper relationships where our unique position as the First Peoples of this nation is recognised by government and all Australians.

Human Rights and education

But we need a framework, a lens through which to approach this agenda, this re-setting of relationships.

It is my belief that human rights provide such a framework. 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.

So what is the situation for Aboriginal and Torres Strait Islander peoples in relation to education and employment?

To give you a snapshot of the education gap between Aboriginal and Torres Strait Islander and non-Indigenous Australians:^[3]

• 75% of Year 3-7 Aboriginal and Torres Strait Islander students met the national minimum standards for literacy and numeracy whereas 95% of non-Indigenous students were at or above the minimum standards
• Aboriginal and Torres Strait Islander retention rate for Year 7-12 was 47% compared to 79% for non-Indigenous students
• 40% of Aboriginal and Torres Strait Islander people and 61% of non-Indigenous people had a non-school qualification

And, unsurprisingly, given the difference in education attainment...

• Labour force participation for us is around 14% lower than non-Indigenous people
• Nearly half of the lowest income quintile are Indigenous whereas we only represent 2.5% of the population

So, it is education - school and non-school (vocational education and training and tertiary studies) that is at the heart of moving into employment and in turn creating life opportunities.

And it is the realisation of the right to education that must be at the heart of the solution.

Education must be available, accessible, acceptable and adaptable.^[4]

Australia is a signatory to legally binding human rights 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.^[5]

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.^[6]

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.^[7]

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.^[8]

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.^[9]

It also says that:

Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. ^[10]

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

In reflecting upon my personal journey, I can see the importance of grounding our approaches in human rights.

So, let me now turn to the domestic implementation of our right to education today.

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

While the Australian Government last year finalised the 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.^[11]

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 the 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 and related services
• quality teachers and trainers – 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, another key focus must be building the capability of people to realise their potential and building this capability means building our human capital.

Teachers, trainers and staff working in education, training and employment services are the deliverers opportunities. If we have people 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 and clients 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, limit opportunities for us to enter the workforce and limit opportunities for us to improve our overall quality of life.

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, trainers and support staff that have Aboriginal and Torres Strait Islander students.

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

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

Constitutional recognition

Improving opportunities for Aboriginal and Torres Strait Islander peoples also requires Indigenous rights and interests to be placed at the centre of Australian nationhood and embedded in the institutional fabric of the country.

As I mentioned earlier, Australians came together around this goal in the 1967 Referendum and with the anniversary of that historic event upon us, I would like to turn to recognition of Aboriginal and Torres Strait Islander peoples in our Constitution.

The Australian 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^[12] 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.^[13]

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 formally recognise the special and unique place Aboriginal and Torres Strait Islander peoples hold in our nation, in our Constitution.
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.

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

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

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

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 90% 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, yay 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.

I am pleased to have been appointed as an ex-officio member to the Expert Panel on Constitutional Recognition of Indigenous Australians. The Panel is tasked with leading broad consultations throughout 2011, providing options on the form of the constitutional amendment and guidance on the information needed for public discussion, culminating in a report and recommendations to Government by December 2011.

The Panel has just last week released a Discussion Paper to start the national conversation about Aboriginal and Torres Strait Islander Constitutional Recognition and I encourage all of you here today to participate in this national conversation. Read the discussion paper, attend a consultation meeting, or write a letter or email make a written submission with the Expert Panel on constitutional recognition of Indigenous Australians.

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

But this referendum is not just about Aboriginal and Torres Strait Islander peoples.

It’s not about looking back.

It’s about looking forward and moving forward as one, united nation.

So in order to get to this destination, we have much to do.
But this is the type of exercise that builds the healthy relationships necessary for an agenda of hope.

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

Educating the Australian people about our nation’s history will be necessary if we are to build relationships based on these principles.

The benefit of raising people’s awareness to the reality of others around them was evidenced when Kevin Rudd gave the National Apology in February 2008.^[14]

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

It is this spirit that we must harness in all our dealings with each other – in working together to improve the life circumstances of this nations’ First Peoples.

Conclusion

To conclude, an agenda of hope can only be sustained when Aboriginal and Torres Strait Islander people are able to achieve our potential - able to realise our personal and collective capabilities.

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, training and employment being fundamental to our agenda of hope, to unleashing the potential of Indigenous Australians, I urge those of you who work in those crucial sectors and industries to do all you can to build healthy relationships that involve our effective participation in decision making about our lives. Relationships that recognise our rights and interests.

In taking these steps, we can move forward together towards maximising the capabilities and tackling the root causes of Indigenous disadvantage.

And as we reflect on the policies of the past on this Sorry Day you might ask yourselves what you can do to contribute to a truly reconciled nation.

And I have no doubt that doing so will help build understanding, dialogue, tolerance, acceptance, respect, and trust – principles that must be at the core of an agenda of hope.

An agenda that I’m sure all of you here today are willing to embrace.

Thank you.

---

^[1] Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander people: an overview, Australian Government 2011
^[2] Ibid
^[3] Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander people: an overview, Australian Government 2011
^[4] 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.
^[5] International Convention on Economic, Social and Cultural Rights, Article 13.1.
^[6] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007).
^[7] 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).
^[8] United Nations Declaration on the Rights of Indigenous Peoples, Article 14.2.
^[9] United Nations Declaration on the Rights of Indigenous Peoples, Article 14.3.
^[10] United Nations Declaration on the Rights of Indigenous Peoples, Article 21.1.
^[11] United Nations Declaration on the Rights of Indigenous Peoples, Preamble.
^[12] 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).
^[13] L Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003), pp 144-145.
^[14] Commonwealth, Parliamentary Debates (Apology to Australia’s Indigenous Peoples), House of Representatives, 13 February 2008, p172 (Kevin Rudd, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010).