Social Justice and Native Title Report 2015

Executive Summary

I am delighted to present my sixth Social Justice and Native Title Report 2015 as Aboriginal and Torres Strait Islander Social Justice Commissioner.

I am required to report every year to Parliament on the exercise and enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples. This also includes reporting on the operation of the Native Title Act 1993 (Cth) and its effect on the exercise and enjoyment of our rights to land, territories and resources.

In 2015, I have again met these responsibilities through the creation of the combined Social Justice and Native Title Report 2015 which covers significant human rights issues that have taken place during the reporting period of 1 July 2014 to 30 June 2015.

Chapter 1: The need for better engagement – Year in review

In this chapter, I have provided an overview of the key issues and developments that have affected Aboriginal and Torres Strait Islander peoples in the enjoyment and exercise of their human rights.

Discussion in this chapter takes place around:

• the continued impact of the Indigenous Advancement Strategy and machinery of government changes
• announcements regarding remote communities
• the introduction and impact of paperless arrest powers in the Northern Territory
• progress towards achieving constitutional recognition.

I am particularly concerned about the continued lack of meaningful engagement with Aboriginal and Torres Strait Islander peoples across these key policy areas.

I also report on a number of other developments that have occurred during the reporting period, namely:

• Close the Gap
• Indigenous participation at international fora (see Appendix 2)
• complaints received by the Australian Human Rights Commission from Aboriginal and Torres Strait Islander peoples during the last year (see Appendix 3).

Chapter 2: Welfare

In this chapter, I explore a number of developments that have taken place during the last year in relation to Aboriginal and Torres Strait Islander peoples and welfare.

Most notably these include:

• announcements made regarding the Forrest Review: Creating Parity report (the Forrest Review) in relation to a trial of the Healthy Welfare Card and the introduction of the Work for the Dole scheme in remote areas
• announcements made by the Australian Government to boost Indigenous employment such as through the Australian Public Service, the Indigenous Procurement Policy and the Employment Parity Initiative.

I welcome the Australian Government’s commitment to addressing the disparity in employment outcomes between Indigenous and non-Indigenous Australians. However, from a human rights perspective, I am concerned about the disproportionate impact the Healthy Welfare Card and Work for the Dole scheme may have on Aboriginal and Torres Strait Islander peoples.

Both of these initiatives are in their early stages of implementation and have started without meaningful and comprehensive engagement with Aboriginal and Torres Strait Islander peoples. I hope that this situation changes as these schemes progress and that human rights considerations are appropriately taken into account.

Chapter 3: Native Title – Year in review

In this chapter, I provide a snapshot of the significant issues that have arisen in native title and consider the impact of these events on Aboriginal and Torres Strait Islander peoples.

There have been a number of important federal processes that have occurred during the last year in relation to native title, namely:

• the release of Our North, Our Future: White Paper on Developing Northern Australia
• the Council of Australian Government’s Investigation into Indigenous land administration and use
• the Australian Law Reform Commission report Connection to Country: Review of the Native Title Act 1993.

These reviews have occurred amidst the backdrop of discussions held with Aboriginal and Torres Strait Islander peoples about the need for a ‘new conversation’ regarding how our rights are realized in relation to land and native title rights. This dialogue mainly occurred via the Broome Roundtable on Indigenous property rights, which explored various challenges, impediments and opportunities in relation to the Indigenous Estate.

I also report on other significant developments in this space over the past year, including:

• Akiba v Commonwealth [2013] HCA 33
• Barkindji Traditional Owners v Attorney General of New South Wales [2015] FCA 604
• changes to cultural heritage laws in Western Australia
• the Coniston massacre
• the Noongar settlement
• statistics regarding native title determinations, agreements and ILUAs.

Chapter 4: Disability

This chapter looks at the extent to which Aboriginal and Torres Strait Islander people experience disability and how their human rights in relation to this important issue are affected.

I also explore the state of national disability policy and services in Australia, including the experience of our mob in relation to the:

• National Disability Strategy
• National Disability Insurance Scheme (NDIS)
• National Disability Insurance Agency (NDIA)
• NDIS trials.

Aboriginal and Torres Strait Islander people with a disability often describe being ‘doubly disadvantaged’ and feeling invisible in existing support and service delivery systems.

This chapter aims to highlight the often overlooked nature of this area, the experience of Aboriginal and Torres Strait Islander people with disability and how existing structures are meeting the rights and needs of our communities.

Chapter 5: Caring for our children

This chapter looks at one of the most pressing human rights issues facing Aboriginal and Torres Strait Islander peoples today, the overrepresentation of our children and young people in the child protection system.

In this chapter I will explore:

• the main reasons for removal
• the continued importance of the Bringing Them Home Report recommendations
• the nature of existing policy frameworks
• the nature of investment in child welfare services
• the need for a healing and trauma informed approach.

Importantly, I have identified the need for a number of reforms to take place in this space, particularly around more meaningful engagement with Aboriginal and Torres Strait Islander agencies and the importance of long-term funding.

I also highlight the advantages posed by enhancing oversight structures in this area such as through the creation of child welfare targets, dedicated Aboriginal and Torres Strait Islander Children’s Commissioners and a National Institute of Excellence in Indigenous Child Welfare.

A renewed approach to addressing this challenge that is conducted in a meaningful way with our communities and has our culture at their heart is key to seeing change in this area.