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Aboriginal and Torres Strait Islander Social Justice

Speech TITLE: The role and function of the Human rights and Equal Opportunity Commission and the Commissioners

TOM CALMA

Host: Aboriginal Legal Service (NSW/ACT) Limited

Date: 1 August 2007

Time: 12.10pm

Venue: Citigate Sebel Hotel, 28 Albion St, Surry Hills

SLIDE 1

I’d like to begin by acknowledging the Gadigal people of the Eora Nation on whose land we are today and pay my respects to their elders. I’d like to thank the organisers for inviting me to speak, and I would like to acknowledge you, the Aboriginal field staff. You have an important role and I pay tribute to you and your work.

What I plan to do with this presentation is to talk briefly about the role of the Human Rights and Equal Opportunity Commission (or HREOC as I refer to it) and explain my role as well as some of the projects that are part of my work.

SLIDE 2

So, let me start by giving a brief description of HREOC.

As you may know HREOC is a national, independent, statutory body established under the Human Rights and Equal Opportunity Commission Act 1986. It has a President and five Commissioners. HREOC’s enabling legislation confers specific human rights protection and promotion functions. In broad terms, these functions are addressed under four areas of action:

  • Human rights education and promotion
  • Inquiring into discrimination and human rights complaints
  • Human rights monitoring
  • Policy development and legislative reform

I have a dual role at HREOC as the Aboriginal and Torres Strait Islander Social Justice Commissioner and the National Race Discrimination Commissioner. As the Aboriginal and Torres Strait Islander Social Justice Commissioner my functions are to monitor the enjoyment and exercise of human rights for Indigenous Australians including human rights as they relate to native title. Under the HREOC Act and the Native Title Act, 1993 (Cth), I am required to produce annual Social Justice and Native Title Reports. These reports are tabled in Parliament.

SLIDE 3

My most recent Social Justice Report 2006 focuses on new ‘whole-of-government’ arrangements in Indigenous affairs. 

The report documents the broad government commitments to overcoming Indigenous disadvantage. My analysis shows that many of the government commitments are not being met because of a lack of strategic focus detailing how the difficult and important jobs are to be done.

I reported that the most significant problem with the government’s approach is the lack of capacity for engagement and participation of Indigenous peoples.  This manifests as a lack of connection between the local and regional level, up to the state and national level. This also means that there is a disconnection between the making of policy and its implementation.

SLIDE 4

My Native Title Report 2006 focuses on economic development activity on Indigenous-owned land. It contains findings from a national survey of Indigenous land owners about their capacity to realise their aspirations for their land and to understand and engage in agreement- making for economic development. It also contains five case studies describing various economic projects and initiatives on communally-owned Indigenous land. Both reports are on the web and I commend them to you.

In addition to the reports I engage in a wide range of other human rights public education activity. This includes delivering speeches such as this one today. I am also regularly involved in drafting media releases on matters affecting Indigenous Australians, drafting newspaper opinion pieces, journal articles, and making radio and television appearances. As part of my work I also hold consultations with a range of peak bodies, community groups, NGOs, parliamentarians, business and industry groups, academics and government officers on human rights matters as they impact on Indigenous Australians. 

Social Justice Commissioners are also able to initiate national inquiries such as the National Inquiry into the Separation of Aboriginal and Torres Strait Children from their Families which resulted in the Bringing Them Home report. National Inquiries are very resource intensive, and require time, money and careful planning. They are possible when HREOC has the money to resource them. I have to be mindful that I have other statutory obligations such as my native title and social justice reports. Ideally I would like to be engaged in inquiries, and this may be possible in the future.

SLIDE 5

I also undertake international work to progress the rights of Indigenous peoples. Internationally I am involved in the Permanent Forum - an advisory body to the UN Economic and Social Council with a mandate to provide expert advice on indigenous issues to the Council and the wider United Nations system. As you probably know the Permanent Forum has been working towards the adoption of the Declaration on the Rights of Indigenous Peoples. The Declaration was approved by the new Human Rights Council in June 2006 and it will be debated and voted upon in the United Nations General Assembly later in 2007.

I also carry out my functions by providing submissions to parliamentary committees. For example, recently I provided four submissions to the Federal Attorney General on the proposed amendments to the Native Title system as well as a submission to a Senate Legislation Community Affairs Committee on the amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In 2006 I represented HREOC at the Senate Legal and Constitutional Affairs Committee inquiry into the Crimes Amendment (Bail and Sentencing) Bill 2006.

To give some context and shape to my work, I’d like to explain how and why HREOC made a submission on the amendments to the Crimes Act 1914 (Cth).

As you may know, in 2006 the Australian Government proposed changes to the Crimes Act 1914 (Cth) to remove consideration of ‘cultural background’ from the matters that a court is to take into account into sentencing and prevent ‘any form of customary law or cultural practice’ from being taken into account as a mitigating factor in sentencing or in the context of granting bail.

HREOC opposed these changes and made a written submission to the Senate Committee. As the Aboriginal and Torres Strait Islander Social Justice Commissioner along with the Director of Legal Services, I provided oral evidence to the committee to support HREOC’s written submission.

SLIDE 6

HREOC made the following points in its opposition to the Bill:

  • It was not based on, or supported by, evidenced research,
  • It did not address family violence in Indigenous communities,
  • ‘Cultural practice’ and ‘customary law’ are broad terms and are not defined,
  • It did not promote ‘equality before the law’,
  • Enjoyment of culture is a human right and Australia has prided itself on its cultural diversity: the Bill was contrary to those values,
  • It undermined important initiatives involving customary law, and
  • It was not necessary: culture is only a factor in sentencing and inappropriate sentences can be appealed.

While HREOC’s evidence to the Senate Committee Inquiry was extensively quoted in the Senate Committee Report, the wording of the Bill passed through the Senate substantially unchanged. This was unfortunate, but my role did not stop with the passage of the amendments.

Along with other HREOC representatives, I continue to carry out community awareness and community education about the changes to the Crimes Act 1914 (Cth). This includes raising the issue in speeches and initiating discussion in public forums. The aim is to ensure that Indigenous people and ethnic minorities are informed about the amendments and their potential impacts.

SLIDE 7

I am also involved in a number of human rights projects. One project is to develop a community legal education program that will train 15 Community Legal Educators for employment in Family Violence Prevention Legal Services across Australia. The Community Legal Educators will be trained to raise awareness of the relationship between Australian law, customary law and human rights in regional and remote Indigenous communities. The project implements the National Framework of Principles for preventing family violence and child abuse in Indigenous communities.

In conjunction with selected community organisations, HREOC staff will develop the education program. The Community Legal Educators will operate through a community development and partnership framework. They will be required to develop effective relationships with supporting services and key stakeholders. They will have the task of building the understanding and capacity of community leaders to address violence and sexual abuse.

Projects such as this one give me and my staff opportunity to work directly with communities and to take a mentoring and supporting role in promoting and educating about human rights. Projects such as this one allow me to take the human rights message to regions where people may not have easy access to the Internet and other human rights education materials. It gives me a platform to talk about social justice in areas where its meaning has great importance.

SLIDE 8

As you are probably aware, social justice is equality before the law for our people and protection from discriminatory treatment. In practice it is about the right to enjoy the same freedoms, services and supports as non-indigenous people. Social justice also means waking up in a house with running water and proper sanitation; offering one’s children an education that helps them develop their potential and respect their culture. Social justice means that Indigenous people have opportunities for satisfying employment and good health. Social justice also means recognising the distinctive rights that we Indigenous Australians hold as the original peoples of this land, including:

  • the right to a distinct status and culture, which helps maintain and strengthen the identity and spiritual and cultural practices of Indigenous communities;
  • the right to self-determination; and
  • the right to land, which provides the spiritual and cultural basis of Indigenous communities.

You can see why it is important to promote this message widely, and to discuss it in as many contexts as possible.

SLIDE 9

As I mentioned earlier, I am also the Race Discrimination Commissioner. In this role I monitor compliance with the Racial Discrimination Act 1975 or the RDA. The RDA gives effect to the International Convention on the Elimination of All Forms of Racial Discrimination. Its main objectives are to promote equality before the law for all persons and makes unlawful discrimination against people on the basis of their race, colour or ethnic origin. While the president of HREOC is the person who receives complaints under the RDA, I monitor the complaints under the RDA and take note of their nature and content. They inform and give particular focus and perspective to my policy and education work.

As I mentioned earlier, human rights education is HREOC’s core business. HREOC has a statutory function to promote understanding, awareness and public discussion of human rights in Australia.

SLIDE 10

HREOC promotes human rights through an extensive and accessible website which provides human rights education materials for individuals, students, teachers, employers, government and community groups. This includes curriculum-linked human rights education materials.  

All materials are available at www.humanrights.gov.au/education  Examples of the resources include:

Thank you.