Searching for justice,
the challenges ahead

Paper delivered at Searching
for justice: A conference of Community Legal Centres in New South Wales
on Thursday 29 June 2000 by Dr William Jonas AM, Aboriginal and Torres
Strait Islander Social Justice Commissioner

I would like to acknowledge
the Eora people, the traditional owners and custodians of the land where
we are meeting today.

Just over a month
ago I wrote an opinion piece on reconciliation that was published in The
Australian newspaper. That article was published on the eve of Corroborree
2000 and the handing over to the people of Australia of the declaration
towards reconciliation by the Council for Aboriginal Reconciliation. In
that article, I posed the following question:

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 internationally as a defender
of human rights and as a model democracy. Yet on the other hand we
are a nation that has not faced the consequences of being built on
the exploitation and dispossession of Aborigines and Torres Strait
Islander peoples.

To me, this question
encapsulates the fundamental challenge in the search for justice in Australia.
It requires acknowledgement of the wrongs of the past, as well as the
fact that much of the present disadvantage of Indigenous Australians is
historically derived. It also requires that the human rights of Indigenous
people in Australia be fully respected and recognised. Until we address
these issues, and resolve this contradiction, we will be - as the Governor
General has previously stated - 'a diminished nation'

In the time available
to me, I am going to briefly refer to the following issues that illustrate
different aspects of the search for social justice for Indigenous Australians,
namely: Indigenous disadvantage; native title and the stolen generations.

Last week, the Australian
Institute of Health and Welfare released its biannual report on the health
status of Australians. The report contains numerous statistics that highlight
the gross levels of disadvantage in health status experienced by Indigenous
Australians. My predecessor once commented that people tend to develop
a kind of 'industrial deafness' when they here such figures. They are
met with predictable expectation.

I will quote to you
just one figure - a very well known one - from that report. The Institute
of Health and Welfare notes that Indigenous people have a life expectancy
approximately 20 years lower than non-Indigenous Australians.

Let us reflect on
this figure for a moment.

As the Institute
notes in their report, 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.

If social justice
is to become a reality in Australian society then we must redress the
disadvantage faced by Indigenous people that is reflected by statistics
such as this.

This is not to say
that the provision of social justice is about solely redressing disadvantage.
I would put the imperative for redressing this disadvantage at a higher
level - it is a matter of entitlement, and of human rights. Social justice
is not primarily a matter of the relief of suffering. It is the matter
of the fulfilment of a responsibility.'[1]

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.

I will mention just
one human rights standard that is central to the discussion today. It
is the principle of equality before the law. This principle 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 ...[2]

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.'[3]
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.[4]

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.[5]

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'.[6]

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.[7]

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.[8]

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. The current government, through amendments to the Native Title
Act in 1998, has stripped away much protection of native title and made
it more vulnerable to impairment or extinguishment. In March 1999 the
Committee on the Elimination of Racial Discrimination (herein CERD) reached
the conclusion that the native title amendments are discriminatory. The
CERD Committee called for the government to reopen negotiations with Indigenous
people to find a solution that is non-discriminatory and acceptable to
Indigenous people.

Yesterday, the Joint
Parliamentary Committee on Native Title released a report that considers
the findings of the CERD Committee. The majority report, of government
members of the Committee, rejects the findings of the CERD Committee that
the amended Native Title Act is discriminatory, on the basis of a misconceived
understanding of Australia's obligations under the racial discrimination
convention. In essence, the Parliamentary Committee interpreted Australia's
obligations as requiring that the legislation achieves a balance between
all the parties with an interest in native title. This overlooks the obligation
under CERD to protect Indigenous interests in land to the same extent
that non-Indigenous interests are protected.

It is regrettable
that a government that has been a party to an international treaty for
over 25 years does not fully comprehend its' obligations under that treaty.
Overcoming this lack of understanding is a significant challenge on the
road to justice in Australia.

A further, significant
impediment to the achievement of social justice remains the attitude of
the government to the stolen generations. Earlier this week the Human
Rights Commission's submission to the Senate legal and Constitutional
Committee's stolen generations inquiry was released. The submission is
now available on the Human Rights Commission website

In that submission
I argue that the government's response to the Bringing them home
report has been inadequate and inappropriate. There are two aspects of
that response that I will briefly mention. First, the government has not
accepted the human rights basis of the findings of the report. In particular,
it does not acknowledge that international principles dictate that there
be reparation for gross violations of human rights, and does not accept
that forcible removal policies amount to a violation of human rights.
Second, in taking the stance that they have, the government is acting
contrary to a world wide trend. Other nations, including Canada, Norway,
Denmark, New Zealand and South Africa, have accepted the validity of the
principles of reparation, and of the need to acknowledge the past and
apologise for harm caused.

So if we return to
the question that I posed at the beginning of this presentation: will
we challenge the fundamental contradiction at the heart of our nation.
The issues that I've briefly discussed today indicate that there is a
long way to go and that the challenge is a large one. But importantly,
I don't think that it is insurmountable. Ultimately, the messages that
I have left you with today are simple ones. And there are many people
in Australia who are committed to them. The reconciliation walks over
the past month in Sydney, Brisbane, Canberra and Adelaide demonstrate
this. And, as many Aboriginal people before me have said: we are still
here, and we aren't going away. The sooner the broader Australian community
accepts this, and recognises the validity of our cultures and systems
the better.

____________________________________

[1] Aboriginal and Torres
Strait Island Social Justice Commissioner, Social Justice Report 1993, HREOC 1993, p6.

Last
updated 1 December 2001