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"Reconciliation:
whose rights, whose responsibilities?"

The Sir Wallace
Kyle Oration, University of Western Australia delivered by Dr W Jonas
AM, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Human Rights and Equal Opportunity Commission, 25 October 2000.

I would like to acknowledge
the Wajuk people, on whose traditional country we meet today.

I am honoured to
present this distinguished lecture, which has been established as a tribute
to the contribution of Sir Wallace Kyle to Western Australian society.

Given the enormous
contribution made by Sir Wallace to the Western Australian community,
it is quite appropriate that the theme of this lecture series is the motto
of Rotary - 'service about self'. It is a theme that exemplifies the role
that Rotary strives to play in the community by aiming to provide humanitarian
service; set the highest ethical standards in all vocations; and help
build peace and goodwill across the world.

I cannot imagine
a topic of greater significance to the meaning of community in Australia,
or more deserving of 'service above self', than the reconciliation process.
There can be no challenge greater; no issue more important than the achievement
of reconciliation between Indigenous and non-Indigenous Australians, and
that is what I am going to talk about today.

Reconciliation goes
to the very core of our national identity - of what it means to be an
Australian. It challenges the very basis of our society. As I asked in
May this year, upon the handing over of the Australian Declaration
Towards Reconciliation to the people of Australia:

Will we, 'as a
nation, take this opportunity to challenge the fundamental contradiction
that lies at the heart of our society? For on the one hand we are a
nation that prides itself as a defender of human rights and as a model
democracy. Yet on the other hand we are a nation built on the exploitation
and dispossession of Aborigines and Torres Strait Islanders.' [1]

This is the challenge
of reconciliation. Today I am going to pose the following question, which
draws out many of the issues relating to reconciliation: my question is
simply, 'Reconciliation: Whose rights, whose responsibilities?'

We have had a formal
process of reconciliation in this country for the past ten years. When
the Council for Aboriginal Reconciliation was established in 1991, the
objective of the Council was described in the 2nd reading speech of the
Minister for Aboriginal Affairs as 'the transformation of Aboriginal and
non-Aboriginal relations in this country'. It is trite to comment that
such a relationship cannot be transformed unilaterally - it requires the
participation and agreement of all people who are joined in the relationship,
as members of Australian society.

We often hear from
politicians that for reconciliation to be lasting it must live in the
'hearts and minds' of all Australians. No doubt this is true. But I place
the success of the reconciliation process at a higher level. For it to
be truly meaningful and lasting it must involve the full recognition and
protection of the rights of all Australians - including those of Indigenous
peoples.

The simple answer
to the question 'whose rights, whose responsibilities' is that it is the
rights of all Australians and the responsibilities of all Australians
that are at issue in the reconciliation process.

What I intend to
do over the next 45 minutes or so, is to explain the importance of the
full recognition of and respect for the human rights of Indigenous peoples
for the reconciliation process to be meaningful and lasting. I will then
consider the issue of responsibility.

So, why is there
a need for the rights of Indigenous people to be fully recognised today?

As the preamble of
the Universal Declaration of Human Rights states, 'recognition of the
inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace'.
Article 1 goes on to state that 'All human beings are born free and equal
in dignity and rights.' The treatment of Indigenous people throughout
Australia's history has not respected these basic principles of humanity.

Australia has been
colonised, and indeed has flourished on the back of, the foundational
myth of the racial inferiority of Indigenous peoples. This myth has been
expressed in a variety of ways - most notably through the doctrine of
terra nullius or 'land belonging to no one'. This doctrine held that Indigenous
people were so primitive and 'low in the scale of social organization
that their usages and conceptions of rights and duties (were) not to be
reconciled with the institutions or legal ideas of civilised society.'
[2] The assertion of our 'primitive' nature was the
basis of our dispossession.

Since that time,
this assumption of racial inferiority of Indigenous people has manifested
in other forms - such as paternalistic policies of assimilation, and the
devastating practices of forcibly removing Aboriginal and Torres Strait
Islander children from their families. Forcible removal policies had at
their core the belief that Indigenous culture was inferior to that of
the mainstream society, and that the best interests of so called 'part-Aboriginal'
children would be served by their removal from their families and separation
from their Indigenous identity.

Unfortunately, the
remnants of such assumptions continue today. It exists in recently reported
comments by federal politicians that Indigenous people remain disadvantaged
because they did not invent the wheel; and that they are disinclined towards
education and would prefer to go hunting.

It also manifests
in the continuing debate over the stolen generations. While there is generally
an acknowledgement of the harm caused by these policies, a significant
feature of current debate is the assertion that the intention of the policy
makers (and those implementing the policies) at the time was 'beneficial'
or 'benign'.

The result is that
attention has been directed to the bona fides of policy makers of the
time, by asking 'did policy makers of the day believe that they were acting
in the best interests of Indigenous children?' Policy makers of the time
were, of course, operating wholly within the then existing cultural
norms, which gave expression to the perceived racial inferiority of Indigenous
people. The crucial inquiry, therefore, is correctly stated as whether
removal policies were premised on a series of assumptions about the cultural
inferiority of Indigenous people which predetermined that the best interests
of the child, and of the wider society, would best be served by removing
the child from their family, community and culture.

The current debate
about forcible removal policies has meant that we have been unable to
transcend a dialogue that is grounded in the morally wrong beliefs and
assumptions that underpinned society at the time the policies were in
place. It amounts to a continuation of the cultural assumptions of the
past.

The current relationship
of Indigenous and non-Indigenous Australians is built on these 'false
assumptions'. As social research conducted for the Council for Aboriginal
Reconciliation notes:

Many Aboriginal
and Torres Strait Islander people live day after day with the awareness
that they are a dispossessed people. It is shown to them in the racist
way in which they perceive they are treated by many non-Indigenous people
in a wide variety of circumstances, in the material poverty of their
lives and the lives of their extended families and their general communities,
and in the way they are discriminated against in employment, in the
way they are housed and in their lack of access to health and education
services as good as those available to non-Indigenous people.

For many, the sense
of dispossession is reinforced by their own experience of being forcibly
taken from their families, or by the stories that hear from their families
of killings and other sufferings inflicted on them by those they call
the invaders or the colonists.

Individuals within
Indigenous community, as might be expected, have reacted in many ways
to this sense of dispossession. Some have brushed it aside and got on
with their lives. Some have been deeply wounded, and have fought a difficult
fight to overcome its effects on them. Some have been permanently damaged.
None has escaped untouched, except perhaps individuals who have buried
their Aboriginality: yet the fact of denial of part of their heritage
itself may be seen as a price they have paid. [3]

It is also reflected
in the institutions of society, which reflect the cultures and values
of the mainstream. As the Canadian Royal Commission into Aboriginal Peoples
put it, 'in this way, the colonization of Aboriginal nations has become
an institutionalised reality. [4]

I want to now pause
for a moment to consider the 'populist' counter -viewpoint to what I have
said already. This view suggests that the past is over and has nothing
to do with the present. It is reflected in views that the current generation
of Australians should not be required to accept responsibility for events
of the past, or the more extreme argument that 'blaming' the past is a
way for Indigenous people to avoid accepting taking responsibility for
their own destiny.

I commented on this
view of the past in my Social Justice Report 1999 as failing to
recognise the broader, systemic nature of Indigenous disadvantage in this
country and operating to absent the government from its position of responsibility.
Deborah Bird Rose has also critiqued this view of the past as a manipulation
of concepts of time, by attempting to create a disjuncture between the
past and the present, which is designed to evade responsibility. She says:

Whether idealistic
or complacent, the idea of disjunction can be deployed to evade responsibility.
The logic is to declare the present disjunctive with the past, and then
assert that all the unpleasant and demanding social facts of today really
belong in the past, or to declare that the present is about to be transcended
and that we will soon live in a period that is disjunctive with our
'now'. This practice of 'now'; deflects us away from the present. It
allows us to turn our backs on current social facts of pain, damage,
destruction and despair that exist in the present through our own agency,
but that we will only acknowledge as our past.

For example, when
politicians discuss the suffering by Aboriginal people today as a result
of past policies of separating families, they assert that our responsibilities
do not extend to the people of today because the wrongs exist only in
the past. In declaring the past to be disjunctive, we declare it to
be something finished and unchangeable, and therefore outside our responsibility.
[5]

Such denialism, she
warns, can amount to:

a facile manipulation
of responsibility, which I refer to as 'tunnel vision': what we deplore
is held to be almost already in the past, and what we desire is held
to be almost already achieved ... visions of the future enable us to sidestep
present responsibility while understanding ourselves in an imaginary
state of future achievement ... [6]

Such an imaginary
state of achievement is most clearly shattered by reference to the levels
of Indigenous disadvantage in Australian society. One commentator, in
deference to the comments of Benjamin Disraeli on the existence of 'two
nations in one' in Victorian England - namely, the rich and the poor -
has described Australia as 'three nations in one': the rich, the non-Indigenous
poor and Indigenous Australia. I am sure that I don't need to familiarise
you with the figures of disadvantage across indicators of health and well-being,
education, employment, housing, contact with the criminal justice system
and so forth. I will repeat just one statistic. At the beginning of the
twenty first century, Indigenous life expectancy is approximately 20 years
lower than non-Indigenous Australians.

Let us reflect on
this figure for a moment.

As the Australian
Institute of Health and Welfare notes, this means that the life expectancy
of Indigenous Australians is presently the same as that experienced by
the non-Indigenous community in the year 1900. At the turn of the twenty-first
century Indigenous people have yet to reach a standard that existed for
the rest of Australia at the beginning of the twentieth century.

This disadvantage
is historically derived. It is the result of dispossession. Of exclusion
from mainstream society - it is often forgotten that Indigenous people
were excluded from mainstream services until the late 1960s in many instances.
As the Centre for Aboriginal Economic Policy have noted, this has created
'a significant legacy of inequality in areas such as education, health,
housing and infrastructure'. This has been combined with the effects of
recent inclusion: having left Indigenous people in a position unable to
compete on equal terms, many Indigenous people have become trapped in
poverty through reliance on welfare.

It is also the result
of inter-generational poverty - with low income preventing the accumulation
of capital and investment by most Indigenous people, carrying poverty
forward to the next generation. And it is also reflected in the demographic
characteristics of the Indigenous population, which is similar to that
of a third world society. The result of this is that the Indigenous population
is 'kinked' with an extremely young age structure - the median age for
the Indigenous population is 20 years compared to 33 years for the non-Indigenous
population. This creates the significant impact that in the next 10-20
years a vast number of Indigenous youth will enter employment age, leaving
the very real risk that Indigenous unemployment - already at levels 4-5
times that of the non-Indigenous population - will dramatically increase.
[7]

So how do we go about
redressing this situation?

There are two key
aspects of the past that must be overcome for a renewed relationship,
based on true equality and partnership, to be forged in the future. These
are redressing the power imbalance that currently exists in Australian
society, including through redressing Indigenous disadvantage; and respecting
Indigenous cultures, values and traditions. Human rights principles provide
us with guidance in how we go about transforming this situation.

Indigenous people,
as with every other member of Australian society, should expect no less
than the full recognition of and respect for their human rights. Human
rights standards constitute minimum acceptable standards of behaviour
that Australia has committed itself to observe by signing these treaties
or to which Australia is bound through our participation as 'good citizens'
in the broader international community.

Importantly, in relation
to redressing Indigenous disadvantage - for example - human rights standards
makes it explicit that this is not merely something that is desirable,
but is a matter of obligation in order to guarantee a free and equal society.

Two human rights
standard are central to the discussion today - first, the principle of
equality before the law; and second - self-determination and standards
of effective participation.

The principle of
equality before the law is expressed in the Convention on the Elimination
of All Forms of Racial Discrimination as follows:

States Parties
undertake to prohibit and eliminate racial discrimination in all its
forms and to guarantee the right of everyone, without distinction as
to race, colour, or national or ethnic origin, to equality before the
law ... [8]

The meaning of this
principle is well established in international law.

The essential feature
of the principle of equality is the understanding that the 'promotion
of equality does not necessitate the rejection of difference.' [9]
In his now classic statement of this, Judge Tanaka of the International
Court of Justice explained this concept as follows:

The principle of
equality before the law does not mean the absolute equality, namely
the equal treatment of men without regard to individual, concrete circumstances,
but it means the relative equality, namely the principle to treat equally
what are equally and unequally what are unequal ... To treat unequal matters
differently according to their inequality is not only permitted but
required. [10]

There are two approaches
to equality contrasted in this passage. The first is often referred to
as the substantive equality model, or the provision of equality in fact.
This is the approach adopted by Judge Tanaka. This approach takes into
account 'individual, concrete circumstances.' It acknowledges that racially
specific aspects of discrimination such as socio-economic disadvantage,
historical subordination and a failure to recognise cultural difference,
must be taken into account in order to redress inequality in fact. [11]

It is an approach
that acknowledges, in the words of the International Council on Human
Rights Policy, that 'neither the formal declaration of equality nor the
formal prohibition of racism or racial discrimination will by themselves
eradicate racism, any more than the prohibition of other crimes leads
to universal lawful behaviour.' [12]

Such an approach
acknowledges, for example, that Indigenous people are disadvantaged in
Australian society. In order to achieve equality in fact or in reality,
this approach permits differential treatment of Indigenous people in order
to redress this disadvantage. For only when this disadvantage is addressed
will Indigenous people be equal in society.

The alternative approach
- often referred to as formal equality - relies on the notion that all
people should be treated identically regardless of their differing circumstances.

As Dr Michael Wooldridge,
the Minister for Health and Aged Care, has stated in relation to the delivery
of health services to Indigenous Australians:

This is, of course,
a false view of justice that offers those people who are disadvantaged
nothing. Justice does not mean treating everyone the same ...

Justice means giving
people their due. A fair go means giving people what is their due and
Aboriginal people are justly entitled to health care that addresses
their needs ...

All we are doing
is catching up and to characterise Aboriginal people as somehow privileged
is false and misleading. To rectify injustice is not to discriminate
but is simply to 'set right'. [13]

In adopting a substantive
equality or equality in fact approach, international law indicates that
there are two types of differential treatment that are 'legitimate' and
therefore not discriminatory. These are firstly, actions that constitute
'special measures' and secondly, those which recognise and protect the
distinct cultural characteristics of minority groups.

Special measures
recognise that the present enjoyment of human rights is determined by
the extent to which they have been recognised and protected in the past.
Where there has been on-going and systematic discrimination against a
particular group, whether it be on the basis of the race, or sex, or religion,
for example, there needs to be a period whereby such a group is given
a chance to catch up. Otherwise mere formal equality of treatment will
result in further entrenchment of the discrimination which such a group
has inherited.

By definition, special
measures are differential treatment specifically designed to provide targeted
assistance to particular disadvantaged groups. Special measures are deliberately
designed to differentiate between those who have been historically disadvantaged
by discrimination and those who have not.

It is very ironic
that many of the attacks that are made on the level of services for Indigenous
people are based on a 'false view of justice.' It is argued, for example,
that special programs for Aborigines should be abolished because everyone
should be treated equally. Of course, such programs often constitute special
measures that have been developed precisely because Indigenous people
are not equal and have been the subject of discrimination for too long.

It remains a challenge
for governments, and bodies such as the Human Rights Commission, to explain
the legitimacy of taking steps (or special measures) to redress Indigenous
disadvantage.

The case for the
withdrawal of special measures is when they have done the job which they
were established to do. This is when the cycle of discrimination is broken
and the target group is no longer in need of special treatment. However,
there is certainly no evidence that Indigenous Australians no longer suffer
the effects of past discrimination.

As I said earlier
the second type of treatment that is consistent with the principle of
equality and is therefore not discriminatory is action that recognises
the distinct cultural identity of a minority group. An example of this
is native title.

The High Court in
Mabo uncovered the discriminatory practices against Indigenous
Australians that were veiled by the legal fiction of terra nullius.
As Justice Brennan stated in that case:

It would be a curious
doctrine to propound today that, when the benefit of the common law
was first extended to Her Majesty's indigenous subjects in the Antipodes,
its first fruits were to strip them of their right to occupy their ancestral
lands. Yet the supposedly barbarian nature of indigenous people provided
the common law of England with the justification for denying them their
traditional rights and interests in land. [14]

The recognition of
native title by the High Court in 1992 was a recognition that law did
govern Aboriginal societies when sovereignty was acquired by the British
in 1788. In deciding whether to recognise that Indigenous law, the Court
considered that it was no longer necessary to find that the Indigenous
relationship to land bore a resemblance to those already known to the
common law. In fact to require as such would be discriminatory. As Justice
Brennan continued:

The theory that the
indigenous inhabitants of a 'settled' colony had no proprietary interest
in the land thus depended on a discriminatory denigration of indigenous
inhabitants, their social organisation and customs. As the basis of the
theory is false in fact and unacceptable in our society, there is a choice
of legal principal to be made in the present case. This Court can either
apply the existing authorities and proceed to inquire whether the Meriam
people are higher 'in the scale of social organisation' than Australian
Aborigines whose claims were 'utterly disregarded' by existing authorities
or the Court can overrule the existing authorities, discarding the distinction
between inhabited colonies that were terra nullius and those which were
not. [15]

The choice in Mabo
was thus between perpetuating discrimination of the past or in recognising
the cultural identity of Indigenous Australians. The Court, consistent
with the principle of equality as it exists in international law, chose
the latter.

As Justice Peter
Gray has noted, Mabo 'made this nation officially a legally pluralist
one. The common law now recognises, and gives effect to, indigenous law
with respect to land tenure, and possibly, with respect to other aspects
of life and death as well.' [16] In this way, the
Mabo decision - through providing recognition to the validity of
Indigenous cultures and law - stands as a turning point in the relationship
of Indigenous and non-Indigenous Australians by rejecting the foundational
myth of Australia's settlement.

Unfortunately, legislative
amendments and clarification in subsequent judicial decisions have greatly
diminished the potential of native title since Mabo. The quest
for certainty has limited it's transformative potential by more easily
finding extinguishment of native title. But this by no means provides
a finalisation of these issues. As Justice Peter Gray notes, the process
of native title recognition is:

in truth, (an)
inquiry ... as to whether the non-Indigenous legal system has withdrawn
its recognition of those entitlements, because of its creation of interests,
or recognition of activities incompatible with the continuing existence
of indigenous entitlements. The entitlements continue to exist in Indigenous
law, despite any 'extinguishment' or 'impairment'. [17]

Mabo identified
the existence of a grave injustice, even if native title has since developed
in ways that may ultimately prove incapable of providing appropriate redress.

The second set of
human rights standards that are relevant to reconciliation are those of
self-determination and effective participation. There are grave misunderstandings
in Australian society about the scope of self-determination. It is viewed
as a threat to our national cohesiveness and as the basis of Indigenous
secession.

These concerns reflect
a poor understanding of the meaning and application of the principle of
self-determination. Article 1 of the International Covenant on Civil and
Political Rights, and the International Covenant on Economic, Social and
Cultural Rights, set out the scope of the right of self-determination.
Australia is a party to both of these treaties. Article 1 provides that
all peoples have a right to self-determination, and by virtue of that
right may 'freely determine their political status and freely pursue their
economic, social and cultural development'. In accordance with this right,
'All peoples may, for their own ends, freely dispose of their natural
wealth and resources' and there is an obligation on the State that under
no circumstances will they deprive a people 'of its own means of subsistence'.

Erica Irene-Daes,
until recently the Chairperson of the United Nations Working Group on
Indigenous Populations, explains the implications of the right to self-determination
particularly well. Ms Daes prepared a commentary on the Draft Declaration
on the Rights of Indigenous People in 1994, which Indigenous groups participating
in the Working Group still consider to form the basis of Indigenous people's
understanding of self-determination, and the basis for negotiation with
governments about the recognition of Indigenous people's right to self-determination
in the United Nations.

Ms Daes explains
self-determination as follows:

Once an independent
State has been established and recognized, its constituent peoples must
try to express their aspirations through the national political system,
and not through the creation of new States. This requirement continues
unless the national political system becomes so exclusive and non-democratic
that it no longer can be said to be "representing the whole people"...
Continued government representivity and accountability is therefore
a condition for enduring enjoyment of the right of self-determination,
and for continued application of the territorial integrity and national
unity principles ...

On this view, self-determination
could only result in secession in extreme circumstances. As Ms Daes notes:

The concept of
"self-determination" has accordingly taken on a new meaning in the post-colonial
era. Ordinarily, it is the right of the citizens of an existing, independent
State to share power democratically. However, a State may sometimes
abuse this right of its citizens so grievously and irreparably that
the situation is tantamount to classic colonialism, and may have the
same legal consequences. The international community and the present
writer discourage secession as a remedy for the abuse of fundamental
rights, but, as recent events around the world demonstrate, secession
cannot be ruled out completely in all cases. The preferred course of
action, in every case except the most extreme ones, is to encourage
the State in question to share power democratically with all groups,
under a constitutional formula that guarantees that the Government is
"effectively representative". [18]

It is this issue
of ensuring the effective representation and participation of Indigenous
peoples that lies at the core of self-determination. As I have noted already,
Indigenous people have never been able to participate as equals in Australian
society. This is common to many other Indigenous peoples around the world.
As Erica-Irene Daes notes:

They did not have
an opportunity to participate in designing the modern constitutions
of the States in which they live, or to share, in any meaningful way,
in national decision-making. In some countries they have been excluded
by law or by force, but in many countries that they have been separated
by language, poverty, misery, and the prejudices of their non-indigenous
neighbours. Whatever the reason, indigenous peoples in most countries
have never been, and are not now, full partners in the political process
and lack others' ability to use democratic means to defend their fundamental
rights and freedoms.[19]

She argues that:

It would be inadmissible
and discriminatory to argue that these peoples do not have the right
to self-determination merely because they are indigenous. Such an argument
would imply not only that they do not have the right to secede, but
also that they do not have the right to demand full democratic partnership.

Self-determination,
properly understood, is about accepting that Indigenous people have a
right to demand full democratic partnership in Australian society. It
is thus about recognizing the appropriate place of Indigenous Australians
within Australian society. Such recognition creates responsibilities for
Indigenous and non-Indigenous people alike. For Indigenous people, it
creates a responsibility to try to reach agreement as to participation
in the State in good faith; and on the broader community to accommodate
the aspirations of Indigenous people into the fabric of society, including
through constitutional reform if necessary.

Having just introduced
the concept of responsibility, I will now make some further comments about
its relevance to human rights.

In my view there
has been a perhaps unfortunate development in debate about human rights
in recent years. This has been the way that the phrase 'human rights'
is barely uttered without the qualifier 'and responsibilities'. I say
it is an 'unfortunate development' not because I think that the concept
of responsibility is not relevant to human rights - as it is to all aspects
of human endeavour - but because it has in many ways acted as a distraction
from the central issue of human rights recognition and protection.

It distracts us for
the simple fact that all people - regardless of their race, sex or other
characteristics - are entitled to enjoy their human rights equally and
on a non-discriminatory basis. There are no qualifications on such enjoyment
of human rights.

The focus on responsibility
leaves us with an implication that people are perhaps only 'entitled'
to rights if they earn them. The danger of this is how you judge whether
someone is worthy or not. I have already discussed the existence, and
continuation today, of cultural assumptions about Indigenous people. Talk
about responsibility can act as code for a reinforcement of cultural biases
as the basis of not recognising rights.

It also focuses solely
on those who do not enjoy human rights - they are the people who must
be responsible if they are to be allowed to exercise their rights.

But this overlooks
a crucial factor in the recognition of rights, and the reconciliation
process- and that is the concept of governmental responsibility and the
notion of responsible democracy.

There are two aspects
to this which I will discuss today - first, the obligation on government
to recognise and protect the human rights of all Australians, and of those
within our shores. In this sense, responsible government does not mean
simply majoritarian rule. It creates an obligation - a responsibility
- to protect the most vulnerable in society, by ensuring that you protect
their human rights. This shouldn't be so scary to people - as one commentator
once noted, human rights merely protect 'the rock bottom of human existence'.

The second layer
of government responsibility is to explain this government obligation
regarding human rights to the general public. This must necessarily include
explaining why particular actions, programs or special measures are warranted,
or indeed required, in order to ensure full guarantees of human rights.
Higher expenditure of Indigenous health, for example, should be explained
as necessary in order to ensure that over time Indigenous people are not
discriminated against and are able to enjoy equal standards of health
to all other Australians. This stands in contradiction to views that such
spending amounts to 'special treatment'.

I want to conclude
my talk today, by discussing an event that happened in my hometown recently,
which I think offers some parallels to the reconciliation process.

When Sydney hosted
the Olympics, a truly amazing thing happened. People in Sydney appeared
to be genuinely happy. People were talking to each other in the streets.
In the very tall building where I work people were talking to each other
in the lifts - and that is unheard of! There were planned and spontaneous
parties and events taking place across the city and there seemed to be
a general feeling that all was well with the world. At the games events
the crowds cheered loudest for the Australian competitors, of course,
but the performances of other people were also normally recognised and
acknowledged.

I have to admit that
I was very nervous, even resentful, about what I saw as the disruptiveness,
which would be caused, to personal and work activities by the Games. And
there were disruptiveness and inconvenience. But I think that the overall
feeling of goodwill more than compensated for this. And this situation
has prompted some thoughts for me in my role as a member of the Human
Rights and Equal Opportunity Commission.

The first thought
goes something like this: Australia has hosted a superb international
event and Australians did very well in the face of strong international
competition. Factors which helped make it a superb event included financial
and other resources, planning, government and private support, volunteers
and local and overseas competitors and spectators. And what this list
of things tells us is that these successful Olympic Games didn't "just
happen". They involved an enormous effort and part of that effort involved
building on the past and importing people and ideas and skills from overseas.
And this is indeed the case with all of our successful endeavours and
activities.

We would not have
developed an economy and our wealth in isolation from the rest of the
world. We could not have developed our political system of democracy in
isolation from the rest of the world. We could not have developed those
wonderful Olympics in isolation from the rest of the world. AND, part
of this relationship with the rest of the world involves one exchange
of ideas, which may include criticism of Australia. And, for better or
worse, this criticism helps us get things right. This is because constructive
criticism is healthy and, when we take it on board, constructive criticism
helps make us strong in every field of endeavour.

Consequently, I have
been extremely disappointed this year by Australia's reaction to criticisms
from three of the United Nations Treaty Committees. If ever there was
acknowledgement that we cannot develop as a country and a nation in isolation
it is through our acknowledgement of the United Nations and our becoming
a party to the various treaties. We agree, voluntarily, to abide by a
system of values, which we regard as being right for our citizens, and
we accept that on-going dialogue and international scrutiny help us to
do that. And, as with economies, and politics, and sport, we can expect
from time to time that these may be some criticism. We may not always
agree with the criticism but surely some of the knee-jerk reactions, some
of the shooting of the messengers, and some of the blaming of the processes
that we have seen this year are as parochial and as short-sighted as if
we neglected the rest of the world in terms of trade and sport.

For example, our
dollar is currently at historically low levels, especially against the
Russian dollar (11.42). One of the international explanations being given
for this, and it is an explanation based in constructive criticism, is
that Australia is regarded as being a backward economy because of our
failure to develop in the area of information technology. The explanation,
the criticism, may or may not be valid, but we ignore it at our peril.
How stupid it would be to say: "We don't like that criticism so we will
not trade with the rest of the world anymore" or "we don't like that criticism
so we demand that the entire international system of trade and foreign
exchange be altered." Similarly, when Sydney was awarded the Olympic Games
it agreed to abide by certain conditions, eg, of environmental friendliness
of the venues, and there were international criticisms of the venue development
from time to time over the last few years. How silly and short-sighted
it would have been if the New South Wales Government had said "We don't
like your criticisms so we don't want any International Olympic Officials
coming here and we may not even participate in the games."

Yet, this is precisely
what has happened with our attitude towards the treaty system and the
treat committees of the United Nations. After receiving constructive criticism
from the Committee for the Elimination of Racial Discrimination Australia
decided to review its position in relation to the treaty system, and then
after receiving similar constructive criticism from the Human Rights Committee,
three Ministers issued a joint statement in which they said that our reports
to the United Nations treaty committees would not be more economical and
selective; we will only agree to requests for the treaty committees to
visit Australia where there is a compelling reason to do so; we will reject
unwarranted requests from treaty committees to delay removal of unsuccessful
asylum seekers from Australia; and we will not sign or ratify the Optional
Protocol to the Convention on the Elimination of All Forms of Discrimination
Against Women.

This, along with
posturing statements such as threats to give the United Nations "a bloody
nose" reflect a novelty, and arrogance, and ultimately an isolationist
position which can only take Australia backwards in the eyes of the world
and in terms of our citizens rights. And this comes at a time when just
the reverse is so desperately needed. The need for such recognition of
rights in Australia has been the focus of my discussion today.

And this brings me
to my second Olympic thought. I said before that people in Sydney appeared
to be happy and getting on well together. Indigenous and non-Indigenous
Australians, and visitors of many races from many countries enjoyed, TOGETHER,
the Olympics and associated festivities. Which raises the question will
this last? Will this seeming racial harmony continue? Will there be reason
for the celebrations by all Australians to endure. Well, I'm afraid I
have to say, and I know you will agree with me, that the answer to that
question is NO. How do we know this? Well, we have history, for one thing,
to teach us. After all, in 1956, Melbourne hosted what are still affectionately
known as the Friendly Games but, unfortunately, much of that friendliness
failed to continue after the games. The failure of the friendliness to
endure, the failure to achieve true racial harmony, and many of the problems
related to difference which we see today are the result of systemic racism
and social INJUSTICE which are so profound, deep and enduring that far
more than a four yearly fluting explanation can hope to overcome.

But we can hold up
the Olympic experience as an ideal for relations between Indigenous and
non-Indigenous people in this country. Wouldn't be wonderful if rather
than just celebrating the truly great success of athletes such as Cathy
Freeman, we could celebrate the achievements of Indigenous Australians
across all areas of civil society? This is not to say that the successes
are not there to be celebrated - clearly they are: just not in the numbers
that exist for the rest of society.

The Olympic experience,
from this perspective, can be seen as a utopian vision of a reconciled
Australian society.

We are not there
yet.

The basic underlying
framework to get there is the recognition and respect for the rights of
all Australians.

Concluding comment
/ sentence etc

Thankyou

---

1. 
   Jonas, W., 'Practical makes imperfect', The Australian, Thursday 25
   May 2000.
   
   
   
2. 
   In re Southern Rhodesia (60) (1919) AC 211, at p233-34, as quoted by
   Justice Brennan in Mabo v Queensland (No.2) (1992) 175 CLR 1.
   
   
   
3. Saulwick
   & Associates, and Muller & Associates, Research into issues related
   to a document of reconciliation - Report No.2: Indigenous qualitative
   research, Council for Aboriginal Reconciliation, Canberra, May 2000,
   www.reconciliation.org.au, p6.
   
   
   
4. Royal
   Commission into Aboriginal Peoples, Volume 1: Looking forward, looking
   back, Minister of Supply and Services, Ottawa 1996, pp607-08.
   
   
   
5. Rose,
   D.B, 'Hard times: An Australian study' in Neumann, K, Thomas, N, and
   Ericksen, H (Eds), op.cit, p7.
   
   
   
6. ibid.
   
   
   
7. See
   Hunter, B and Taylor, J, The job still ahead - Economic costs of continuing
   Indigenous employment disparity, CAEPR, ANU, Canberra 1998.
   
   
   
8. CERD,
   Article 5.
   
   
   
9. Acting
   Aboriginal and Torres Strait Islander Social Justice Commissioner, ibid.,
   p31.
   
   
   
10. South
    West Africa Case (Second Phase) {1966} Rep 6, pp303-304, 305.
    
    
    
11. Acting
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
    Title Report 1998, op.cit, pp31-32.
    
    
    
12. International
    Council on Human Rights Policy, The persistence and mutation of racism,
    Versoix, Switzerland 2000, p7.
    
    
    
13. The
    Hon. M Wooldridge, Minister for Health and Aged Care, Aboriginal health:
    The ethical challenges, op.cit., pp2-3.
    
    
    
14. Mabo
    (1992) 175 CLR 1, p39.
    
    
    
15. Ibid,
    p40.
    
    
    
16. Gray,
    P., 'Do the walls have ears? Indigenous title and the courts in Australia'
    (2000) 5 AILR 1, p1.
    
    
    
17. Gray,
    P., 'Do the walls have ears? Indigenous title and courts in Australia',
    op.cit., p1.
    
    
    
18. Daes,
    Erica-Irene, Discrimination against Indigenous people - Explanatory
    note concerning the draft declaration on the rights of Indigenous peoples,
    Un Doc E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, paras 20-21.
    
    
    
19. Ibid,
    para 24.

 

Last
updated 1 December 2001