Start Stronger, Live Longer, National Aboriginal Health Symposium

Start Stronger, Live Longer, National Aboriginal Health
Symposium

Kulunga Research Network

Mick Gooda

Aboriginal and Torres Strait Islander Social
Justice Commissioner

UWA, University Club, Perth

8 June 2010

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I would like to begin by acknowledging the Nyoongar people, the traditional
owners of the land we are meeting on today. I pay my respects to their elders
past and present. I thank you Kim Collard for your warm welcome.

I am of the Ghangulu from the Dawson Valley in Central Queensland and when I
speak to my Elders, they ask me to pass on their greetings to the traditional
owners of the land I visit for their continued fight for their country and their
culture.

Perth is very special to me with my youngest daughter being born here and my
oldest daughter now studying law here at this University. I therefore want to
thank the Nyoongar for allowing my two daughters, strong Ghangulu women, to grow
on their country.

Please also allow me to acknowledge Prof Fiona Stanley of
the Telethon Institute of Child Health Research and Mr Sam Walsh from Rio Tinto
and my close friend and colleague Mr Glenn Pearson.

For those who may not know me, my name is Mick Gooda and I began my 5-year
term as Aboriginal and Torres Strait Islander Social Justice Commissioner in
February this year.

My position is one of six within the Australian Human Rights Commission which
has existed in its current form since 1986. The other Commissioners and their
responsibilities are:

• The
  Hon. Catherine Branson QC
  
  President and Human Rights
  Commissioner
• Graeme
  Innes AM
  
  Race Discrimination Commissioner and Disability Discrimination
  Commissioner
• Elizabeth
  Broderick
  
  Sex Discrimination Commissioner and Commissioner responsible
  for Age Discrimination
  

We are the peak human rights body in Australia. We are a federal
government agency established by Act of Parliament but effectively independent
from the government.

The Commission is mandated to conduct four core activities:

• Conciliate complaints under discrimination acts.
• In relation to court cases: to act both as an expert adviser to the courts
  and, in some cases, we have the power to intervene in cases with clear human
  rights dimensions.
• Awareness raising and community education; and
• Finally a monitoring role – keeping track of legislation and current
  issues with a human rights dimension.
  

As Aboriginal and Torres Strait Islander Social Justice
Commissioner, I report to Parliament once a year with my Social Justice Report
which addresses the human rights of Indigenous Australians. I also provide a
Native Title Report which looks at native title issues. I also:

• review the impact of laws and policies on Indigenous peoples
• report on Indigenous social justice and native title issues; and
• promote an Indigenous perspective on issues.
• monitor the enjoyment and exercise of human rights for Indigenous
  Australians

I am appointed by the Governor General not a Minister.
Whilst this may seem a subtle distinction it is a very important distinction,
because I am accountable to Parliament and as a consequence I enjoy independence
from the political process. My duty is to fulfil the role as it is defined in
the Australian Human Rights and the Native Title Acts and report to Parliament,
not to the Government, not to a Minister and certainly not to a Departmental
Head.

I have worked in Indigenous affairs for all of my professional life and when
I was first approached about this position as Commissioner I was hesitant at
first because I didn’t see myself as a human rights activist. But as one
of my closest colleagues pointed out, you can’t work on Aboriginal issues
without being a human rights activist, working in Indigenous affairs means that
you are working with human rights day in and day out.

All the issues being dealt with in Indigenous affairs; effective engagement,
poverty, education, health, protection of culture and languages, incarceration
rates, protection of women and children, all of these issues are human rights
issues.

Rights are universal and indivisible

Since commencing in this position some four months ago I have had to get my
head around the language of Human Rights and two things that confronted me
almost immediately were the concepts of the universality and the indivisibility
of human rights.

The Social Justice Report 2006 described this point as thus:

In simple terms universality means that (rights) apply to everyone,
everywhere, equally and regardless of circumstance – they are intended to
reflect the essence of humanity. They are the standards of treatment that all
individuals and groups, irrespective of their racial or ethnic origins, should
receive for the simple reason that we are all members of the human family. They
are not contingent upon any factor or characteristic being met – you do
not have to ‘earn’ rights or have to be ‘deserving’ for
them to be protected.

And the indivisibility of human rights means that all rights -
economic, social, cultural, civil and political rights – are of equal
importance. There is no hierarchy or priority for the protection or enjoyment of
rights. Similarly, this means that all rights are to be applied consistently
– you cannot claim to be performing an action in exercise of your
rights if it causes harm or breaches the rights of another
person.^[1]

Put simply, there is no hierarchy of human rights and all rights are
interconnected. For example people talk about the right to drink alcohol. I can
find no such right per se but I think people get this confused with the right to
equal access to goods and services. However, if in accessing the equal rights to
goods and services people do consume alcohol, in exercising this right they
should not compromise the rights of others, for example the right of Aboriginal
and Torres Strait Islander women and children to be safe and secure.

Immediately you can see that when we talk about rights there is also a
responsibility that is also attached that at the very least implies that by
exercising a particular right means you have a duty not to interfere with,
compromise or impede the rights of others, in this case and it is worth
repeating here, of Aboriginal and Torres Strait Islander women and children to
be safe and secure, and indeed the right to life.

I will return to this theme of responsibility later in this presentation.

I now want to discuss health from a human rights perspective.

Australians generally accept being healthy on face value. However, for
Aboriginal and Torres Strait Islanders this is not the case. Far from it,
Aboriginal and Torres Strait Islander people have a life expectancy between 10
and 17 years less than non-Indigenous Australians. Poor health outcomes are
decimating our communities across the length and breadth of Australia. It is an
uncontested fact to say that Aboriginal and Torres Strait Islander peoples do
not have the same health outcomes as non-Indigenous Australians. This is a human
rights issue.

Rights in action – the Closing the Gap campaign.

Addressing health from a human rights perspective is a clear example of how
practical rights can be. Framing health in the language of human rights can
create the necessary political momentum that leads to action. The Closing the
Gap campaign is a clear example of what I am talking about.

In 2005 my predecessor Tom Calma in his Social Justice Report called
on Australian governments to commit to achieving health and life expectation
equality between our people and non-Indigenous Australians within a generation.
This was based on our right to health and right to enjoy the same opportunities
to be as healthy as other
Australians.^[2]

That Report
characterised Indigenous health inequality as a major human rights issue, and
called for a human rights based approach to the Indigenous health gap.

And as a rights issue, Indigenous health inequality was largely framed as an
opportunity gap – that Indigenous peoples in Australia did not enjoy the
same opportunities to be as healthy as other Australians. That is, to see
doctors when they needed them, eat fresh food, live in healthy housing and so
on. And this is where human rights play such an important role in providing a
sound intellectual and legal foundation for an approach to Indigenous
health.

Article 12 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) recognises ‘the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health’.

The right to health is essentially the right to opportunities to be healthy:
it includes the enjoyment of a variety of facilities, goods, services and
conditions necessary for the realisation of the highest attainable standard of
health. It is not to be understood as a right to be healthy (which is
something that cannot be guaranteed solely by governments).

By Governments having the responsibility to provide opportunities to be
healthy implies people then hold a personal responsibility to access those
opportunities.

Aboriginal and Torres Strait Islanders are also citizens of this country and
we therefore have a human right to the same opportunities to be healthy as other
Australians.

This focus on ensuring equality of opportunity is reflected in the way the
right to health is understood, largely as set out in General Comment 14 of the
Committee on Economic, Social and Cultural Rights

Thus the right to health contains the following interrelated and essential
elements:

• Availability. Functioning public health and health-care
  facilities, goods and services, as well as programs, have to be available in
  sufficient quantity within a country.
  

• Acceptability. All health facilities, goods and services
  must be respectful of medical ethics as well as respectful of the culture of
  individuals, minorities, peoples and communities, sensitive to gender and
  life-cycle requirements, as well as being designed to respect confidentiality
  and improve the health status of those concerned.
  

• Accessibility. Health facilities, goods and services have to
  be accessible to everyone without discrimination. Accessibility has four
  overlapping dimensions:
  

  • Non-discrimination: health facilities, goods and services must be
    accessible to all, especially the most vulnerable or marginalised sections of
    the population, in law and in fact, without discrimination.
    

  • Physical accessibility: health facilities, goods and services must be
    within safe physical reach for all sections of the population, especially
    vulnerable or marginalised groups, such as Indigenous populations. Accessibility
    also implies that medical services and underlying determinants of health, such
    as safe and potable water and adequate sanitation facilities, are within safe
    physical reach, including in rural areas.
    

  • Economic accessibility (affordability): health facilities, goods and
    services must be affordable for all. Payment for health-care services, as well
    as services related to the underlying determinants of health, has to be based on
    the principle of equity, ensuring that these services, whether privately or
    publicly provided, are affordable for all, including socially disadvantaged
    groups.
    

  • Information accessibility: includes the right to seek, receive and
    impart information and ideas concerning health issues. However, accessibility of
    information should not impair the right to have personal health data
    treated with confidentiality.
    

• Quality. As well as being culturally acceptable, health
  facilities, goods and services must also be scientifically and medically
  appropriate and of good quality.
  

I am sure if the health system in country was designed around the
framework I have just outlined Aboriginal and Torres Strait Islander peoples
would be provided the same opportunities to be healthy as all other
Australians.

The right to health, like economic, social and cultural rights overall, also
includes guidelines as to how states are to ensure rights – like to health
– are respected in a context where, historically, they have not been.

Thus Governments have immediate obligations in relation to the right to
health. In particular, the obligation to take deliberate, concrete and targeted
steps towards the full realisation of the right to health - known as the
progressive realisation principle.

The Close the Gap Campaign is a great example how a human rights based
approach to a problem can influence Government policy. And how a rights agenda
leads to practical action designed to achieve practical outcomes. It is clearly
an indication of the practical power of human
rights.^[3]

Using the language of human rights can lead to change and
action

So what I am saying is the language of human rights can lead to real change
and action. Looking beyond the health arena, the Overcoming Disadvantage
Report of the Productivity Commissioner, outlines the range of disadvantage
confronting Aboriginal and Torres Strait Islander peoples and
communities.^[4] This disadvantage
carries across the entire gamut of socio-economic indicators. Each of these
indicia reveals an instance of the non-realisation of human rights.

This disadvantage cannot be divorced from human rights. I believe it will
only be by articulating these issues through the language of human rights that
we will see these issues practically
addressed.^[5] In this regard, human
rights can be viewed as the lobby group for the powerless and a clear policy
voice for the unheard.^[6] Logically
following on from this I believe that human rights standards represent the
best-practice guidelines for dealing with disadvantaged communities.

Declaration on the Rights of Indigenous Peoples

I suggest we have to look to the standards contained in the UN Declaration
on the Rights of Indigenous Peoples, the instrument that contains the
minimum standards for the survival, dignity and well-being of indigenous
peoples.^[7] And in essence these
standards are about creating better engagement between government and Indigenous
peoples

Although only a declaration and therefore aspirational, this instrument is the most significant milestone in the protection of indigenous human rights.
In one place it catalogues 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.^[8] The Declaration will be used
to inform how other binding human rights treaties, like the Convention on the
Elimination of All Forms of Racial Discrimination should apply to indigenous
peoples.^[9]

The Declaration is clearly a remedial instrument, designed to rectify a
history of failings when it comes to protecting indigenous peoples human rights.

The minimum standards for survival, dignity and well-being

Article 43 is a key provision in the Declaration, it states:

The rights recognized herein constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the world.

It is easy to miss the significance of this statement. However, when it is
remembered that the Declaration was overwhelmingly adopted in the General
Assembly of the United Nations, its importance becomes clear. The General
Assembly is the home of Nation-States and their governments, not of academics
nor human rights experts. So it was the governments of the world who stood up
together in adopting this Declaration and said the rights in the Declaration are
a road map not only for more equitable outcomes for indigenous peoples but for
their very ‘survival, dignity and well-being’.

The key is re-setting the relationship

In following this road map, it is crucial to grasp another central tenant of
the Declaration, namely the importance of re-setting relationships between
indigenous peoples and the broader community but particularly governments. In
other words better engagement. The Declaration in affirming indigenous peoples
collective rights to self-determination and decision-making powers through the
principle of free, prior and informed consent, is not an instrument of division,
rather an instrument to create the institutional structures, arrangements and
process needed for indigenous peoples to be able to effectively engage in a
relationship with Governments based on mutual respect. Any doubt to this is made
clear in the preamble which states the General Assembly is:

Convinced that the recognition of the rights of indigenous peoples in this
Declaration will enhance the harmonious and cooperative relations between the
State and indigenous
peoples.^[10]

I believe that it is through a reform agenda borne out of and imbedded in the
normative standards of human rights that we can finally embrace a true and
genuine ‘mateship’ between Aboriginal and Torres Strait Islander
peoples and the broader Australian community. It is through agreement making as
guided by the Declaration that we can achieve true and lasting reconciliation in
Australia.

Now is the time for action on the Declaration

I believe that the current political climate, including the reversal of
Australia’s position on the Declaration and the commitment to a new
partnership, is converging with the normative developments in international
human rights law and it is the Declaration that will provide the guidance to
achieve government policy goals. The Australian Government has indicated, most
poignantly through the National Apology that it seeks in good faith a re-setting
of the relationship with Aboriginal and Torres Strait Islander peoples based on
partnership and mutual respect.^[11]

The next step for the Australian Government is to work with Aboriginal and
Torres Strait Islander peoples to develop a coordinated approach to achieving
the ends of the Declaration, as is required by article 38 of the Declaration.

I believe the time has now come, in the spirit of good faith and the
Australian Government’s stated commitment to re-setting the relationship
with Aboriginal and Torres Strait Islander peoples that we begin down the path
of the Declaration. We take our first steps on this human rights road map to
equality.

I want to conclude with the words of Dr Dalee Sambo Dorough who has recently
been appointed to United Nations Permanent Forum on Indigenous Issues, is an
indigenous woman from Alaska. She was heavily involved in drafting and
negotiating the Declaration. In a recent publication she eloquently sends out
the true message and practical power of the Declaration:

Imagine the indigenous world as it was, for a moment [before colonisation].
Then think of the conditions that indigenous peoples currently face:
encroachment, colonization, subjugation, exploitation, domination, leaving many
of us in disarray. Now read the Declaration through from beginning to the end
and dream of a world that “might someday
be”.^[12]

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^[1] T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2006, Human Rights and Equal Opportunity Commission, (2007), pp3-5. Emphasis
added.

^[2] See T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice Report
2005, Human Rights and Equal Opportunity Commission, (2005) ch
2.

^[3] See T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2008, Australian Human Rights Commission, (2009) ch
5.

^[4] Steering Committee for the
Review of Government Service Provision, Overcoming Indigenous Disadvantage:
Key Indicators 2009, Productivity Commission (2009). At http://www.pc.gov.au/gsp/ reports/indigenous/keyindicators2009 (viewed 27 April
2010).

^[5] See T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice Report
2008, Australian Human Rights Commission, (2009) ch
2.

^[6] B Saul, Towards an
Australian Bill of Rights: Why Politicians Have Too Much Power and Judges Too
Little, (Speech delivered at 2009 Annual Castan Centre Conference: The
Changing Human Rights Landscape, Melbourne, 17 July 2009. At http://www.law.monash.edu.au/castancentre/events/2009/conference-09.html (viewed 27 April 2010).

^[7] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295, UN Doc: A/61/L.67 (2007), article
43.

^[8] Permanent Forum on
Indigenous Issues, Report on the eighth session, UN Doc E/2009/43
(2009), Annex General Comment 1, paras
6-13.

^[9] 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).

^[10] United Nations
Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007), preambular para
18.

^[11] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 171
(The Hon Kevin Rudd MP, Prime
Minister).

^[12] D. Sambo Dorough,
‘The Significance of the Declaration on the Rights of Indigenous Peoples
and its Future Implementation’ in C Charters and R Stavenhagen, Making
the Declaration Work (International Working Group for Indigenous Affairs,
Denmark, 2009) 264, p 264. In this quote Dr. Sambo Dorough cites the work of M
Brown, The Dream Book: First Come First Dream (Hopscotch Press, Berkeley,
1950).