HREOC Social Justice Report 2002: Introduction

Social Justice Report 2002

Chapter
1: Introduction

This year's Report
discusses a large number of initiatives currently underway or in development
at the federal, state and territory levels in relation to policy making
in Aboriginal and Torres Strait Islander Affairs. It notes for example
the following positive developments in Indigenous policy:

• The commitment
  of governments at all levels to partnerships with Indigenous people,
  including through statements of commitment to negotiate service delivery
  arrangements with Indigenous organisations and commitments to negotiating
  justice agreements;

• The commitment
  of the federal Government to principles for the equitable provision
  of services to Indigenous people as part of a broad-ranging response
  to the Commonwealth Grants Commission's Report on Indigenous funding;

• Recognition by
  governments of the central importance of capacity building of Indigenous
  communities and of supporting and developing Indigenous governance structures;

• The commitment
  of the Council of Australian Governments to processes for addressing
  Indigenous disadvantage, including the establishment of a framework
  for reporting on Indigenous disadvantage, the formulation of action
  plans at the inter-governmental level in specific areas and a trial
  in ten communities of a whole-of-government approach to service delivery;
  and

• Support of the
  federal Government at the international level to the effective operation
  of the newly created United Nations Permanent Forum on Indigenous Issues.

Overall, however,
the Report evidences that the past year has been another difficult one
for Indigenous people in this country. In trying to provide a snapshot
of the status of Indigenous policy making and achievements by governments
over the past year, it is difficult to see any consistent forward trend.
There have been marginal improvements in some statistical indicators,
but deterioration in others. The policy approaches of governments are
ultimately full of inconsistencies, ad hoc developments, and commitments
that not only remain unmet but which are not adequately supported by institutional
developments.

The framework for
Indigenous policy making at the federal level has also become an ever-reductive
one, constantly becoming more limiting and constraining of Indigenous
peoples' aspirations. This has occurred through three significant High
Court decisions which have destroyed the capacity for native title to
be anything more than a marginal influence and through the continued rejection
by the federal Government of anything that does not meet its expectations
for 'practical' reconciliation.

There have been two
particularly worrying trends that have been confirmed over the past year
at the federal level. The first is a continuation of the antagonistic
and adversarial approach to Indigenous policy by the Government. Substantial
bi-partisan support for reconciliation and directions in Indigenous policy
has been undermined by the limited focus of the Government. Those areas
on which there is common ground are relatively few - and basically relate
to agreement on the need to overcome Indigenous disadvantage - and there
is even less agreement on what are the best ways to address such issues.

The second worrying
trend is what has effectively been the relegation of Indigenous issues
to a second tier issue for the Government. While reconciliation was a
priority for the second term of the Government, it does not even rate
a mention in recent announcements of the Government's strategic long term
vision for Australian society. Indigenous issues are not treated as a
national priority, and there are no public commitments to timeframes for
achieving results in areas on which there is substantial agreement - such
as Indigenous disadvantage.

At the state and
territory levels, there is much goodwill being expressed with extensive
commitments to partnerships with Indigenous people. These partnerships
remain works in progress and it is unfortunate that they have not yet
been accompanied by the necessary institutional support or action.

In Queensland, for
example, the Queensland Government continues to implement its ambitious
program under the Ten Year Partnership, including through the development
of the regional Cape York Partnership and significant changes to liquor
canteen management. At the same time, little progress is being made in
relation to proposals for regional autonomy in the Torres Strait and progress
in addressing one of the headline commitments under the Ten Year Partnerships
- halving Indigenous over-representation in corrections within the decade
- is getting worse rather than better. Similarly, against the backdrop
of the partnerships approach the Government has failed to enter into good
faith negotiations with Indigenous people to settle a longstanding injustice
in relation to the control of wages and savings under the protection acts
over the past century.

In New South Wales,
the Government has entered into a Justice Agreement committing it to reduce
Indigenous over-representation in custody and to work in partnership with
Indigenous communities to develop a Justice Plan to underpin criminal
justice issues. It has also overseen the introduction and rapid development
of circle sentencing. At the same time, Indigenous people continue to
be the silent victims of election sloganeering aimed to prove who is toughest
on crime. Amendments to bail provisions introduced during the past year,
for example, are expected to have a significant negative impact on Indigenous
people in the criminal justice system.

In Western Australia,
rates of Indigenous over-representation in custody are steadily declining.
This is likely to continue with proposed changes to laws removing sentences
under 12 months duration. At the same time, mandatory sentencing remains
and there has been little action to address serious concerns about the
operation of juvenile diversionary schemes raised in the Social Justice
Report 2001 and other reviews. Similar examples can be provided for
each state and territory.

The one true highlight
of the past year, however, has been the demonstration through a range
of processes that Indigenous people are not going to sit back and wait
for governments to solve the various problems faced in communities. Indigenous
communities across the country are demonstrating that they are not passive
victims but distinct peoples fighting hard for the survival and recognition
of their cultural distinctiveness.

At two major conferences
during the year on Indigenous governance and the treaty process, it became
clear that Indigenous communities across the country know what they want
and are working towards building their capacity and striking agreements
with governments to implement it.

The highest profile
of these is the partnerships approach in Cape York. Of equal importance
and substance are the efforts of the ATSIC Murdi Paaki regional council,
the Torres Strait Regional Authority, the Ali Curung community or the
Mutitjulu community to name but four. There have been variable levels
of success through these and other processes to date. Each process faces
common barriers of building up local community expertise to be self-determining
and getting agreement from governments at all levels to enter into partnerships
with them and remove the controlling hand over their destinies.

When these developments
are viewed alongside the growth of initiatives such as the Australian
Indigenous Leadership Centre, I end the year full of optimism that Indigenous
people are slowly but surely moving towards achieving greater control
over their life circumstances.

There are two main
issues that run through this Report. The first is that it continually
seeks to give meaning and content to the words and symbols used by the
Government.

What, for example,
should we make of the Government's rejection of the concept of a treaty
when it is accompanied by a commitment to work in partnership and to make
agreements with Indigenous peoples? What do we make of the Government's
suggestion that the Council for Aboriginal Reconciliation's proposals
provide 'support' to the Government practical approach at the same time
that they reject the majority of their recommendations? And what does
a commitment to self-empowerment and self-management as the underlying
basis of Indigenous policy formulation mean when it is offered as an alternative
to the unacceptable principle of self-determination?

The Report continually
seeks to establish whether the Government's preference for certain words
and symbols is merely rhetorical and is consistent with the principles
that they symbolically reject, or whether it in fact amounts to a substantive
change of direction in Indigenous policy.

The second feature
of the Report is that given the minimal framework for Indigenous policy
being set by the federal Government, it deliberately seeks to place Indigenous
issues within a broader context. It reports not only on what is happening
at various levels of government, but on what is missing from the policy
framework. In particular, the Report highlights the differences between
self-determination and self-empowerment; practical reconciliation and
progressive realisation and a rights framework for addressing Indigenous
disadvantage; and by considering international developments in the recognition
of Indigenous rights. Each demonstrates the severely constrained approach
that has been adopted by the federal Government and hints at the potential
in a broader, rights-based approach.

Chapter 2 of the
Report - titled 'Self-determination: the freedom to live well' - examines
the core principles which underpin the federal Government's approach to
Indigenous affairs. Since 1998, the Government has openly rejected self-determination
as the basis of policy formulation and preferred concepts of self-empowerment
and self-management. This chapter provides an overview of international
developments on Indigenous self-determination. It then compares this to
the way the Government explains its policy approach in order to identify
its limitations and considers options for addressing these.

Chapter 3 - 'National
progress towards reconciliation in 2002 - an equitable partnership?' -
then provides a progress report on reconciliation over the past twelve
months. It notes developments at the inter-governmental level, the federal
Government's responses to the documents of the Council for Aboriginal
Reconciliation and the Report of the Commonwealth Grants Commission, and
the Government's agenda for reconciliation as set out in a number of speeches
and processes. Ultimately it questions the basis on which the Government
seeks to engage with Indigenous people, and the lack of equality in the
partnerships that it seeks to enter.

Chapter 4 - 'Measuring
Indigenous disadvantage' - then provides a detailed analysis of current
approaches and research on addressing Indigenous disadvantage. It draws
on significant international developments in countering poverty and economic
marginalisation, as well as international human rights standards. The
chapter also considers in depth the framework for measuring Indigenous
disadvantage that is currently being instituted at the inter-governmental
level. There are some clear contrasts between the limiting framework of
practical reconciliation and the more focused and accountable approach
based on international guidance and standards.

Chapter 5 - 'Indigenous
women and the criminal justice system - A landscape of risk' - then follows
up on an issue of great concern raised in the introduction of the Social
Justice Report 2001. It focuses on Indigenous women and their experiences
of contact with criminal justice processes. This chapter paints a disturbing
picture of the lack of support provided to Indigenous women in many areas
of society and its consequent impact through criminalisation. The lack
of attention to these issues by policy makers to date is a matter of great
shame. This review is preliminary by nature and will require further attention
in coming years.

Chapter 6 - 'International
developments in the recognition of the rights of Indigenous peoples' -
then places discussions of Indigenous policy within an international context.
It notes the extensive developments in the recognition of Indigenous rights
at the international level over the past thirty years. These are considered
within two main contexts - the current review taking place within the
United Nations of all the existing mechanisms at the UN dealing with Indigenous
issues; and the International Decade for the World's Indigenous Peoples
which is now in its final two years. This review illustrates how Australia
has moved towards the most conservative end of the spectrum in addressing
Indigenous rights, a factor which is reinforced in the domestic policy
approach.

The Report then concludes
with an appendix which summarises partnerships and agreements that have
been entered into between Indigenous people and state or territory governments
in recent years.

19
March 2003.