Social Justice Report 2000: Chapter 1: Introduction
Social Justice Report 2000
Chapter 1: Introduction
The past year has
been one of great contrasts. On the one hand, we have experienced the
apparent harmony and healing of the walk across the Sydney Harbour Bridge
and similar walks in other states and on the other hand, the national
outpourings of grief and anger at the death of a 15-year-old boy in custody
in Don Dale Detention Centre in Darwin in February. During the year there
has been the introduction of new programs such as the Indigenous Literacy
and Numeracy Strategy, the Indigenous Employment Strategy and the establishment
of an Indigenous Leadership Program in conjunction with the Australian
Institute of Aboriginal and Torres Strait Islander Studies. Alongside
this has been the refusal to overturn mandatory sentencing laws in the
Northern Territory and Western Australia, and the hostile reaction to
the expression of views by various United Nations human rights treaty
committees under routine reporting mechanisms.
The year has seen
the acceptance by most state and territory Parliaments of the Council
for Aboriginal Reconciliation's Australian Declaration Towards Reconciliation
and Roadmap towards Reconciliation, and the establishment of collaborative
partnerships between ATSIC and state governments. But it has witnessed
too the government's submission to a Senate inquiry stating that there
is no stolen generation and the refusal to offer an official government
apology or to establish alternatives to litigation to provide redress
to people affected by forcible removal policies. The year has also moved
between the unifying experience of the Sydney Olympic games and the continued
high levels of Indigenous over-representation and deaths in custody -
some ten years after the Royal Commission into Aboriginal Deaths in Custody
was in operation.
Policy debate has
also shifted between calls (similar to those in the late 1970's and late
1980's) for the negotiation of a treaty with Indigenous peoples on the
one hand, and 'practical reconciliation' on the other.
The defining feature
of the past year has been the focus on reconciliation. This year has been
the one in which the Council for Aboriginal Reconciliation was required
to put to the Australian people its views on what actions are required
to achieve the Council's vision of 'a united Australia which respects
this land of ours; values the Aboriginal and Torres Strait Islander heritage;
and provides justice and equity for all'. The Council had reached the
stage where it was required to prepare the nation for the next stage of
the road towards reconciliation.
But as we reach this
crucial stage in relations between Indigenous and non-Indigenous Australians,
reconciliation has come to mean different things to different people.
Reconciliation has been described as a 'people's movement' and something
that, to be successful, must affect the 'hearts and minds' of all Australians.
It is seen as having reached a level of community support that it is now
unstoppable. For the government it is also a term that means practical
measures to achieve practical improvements in the livelihoods of Indigenous
peoples -an outlook that is more about giving Aboriginal people 'a leg
up' than challenging the imbalances in power in society. For many Indigenous
people it has been seen as yet another opportunity - like the Social Justice
Package or the Makarrata or national land rights proposals - for a durable
resolution to the ongoing consequences of the taking of these lands and
waters since 1788.
Ultimately, these
differing views of what reconciliation involves have a common point of
departure: the appropriate role of human rights to the reconciliation
process.
Many of the divisions
that have emerged over the past year - from the refusal to overturn mandatory
sentencing, the response to forcible removal policies, the reaction to
the United Nations human rights treaty committees and the calls for the
negotiation of a treaty - have involved attempts by the federal government
to downplay the significance of human rights. The government has gone
out of its way to emphasise, for example, that in responding to the mandatory
sentencing laws of the Northern Territory by providing that government
with an additional $20 million over four years for the development of
diversionary programs and an interpreter service, it has not acted because
of concerns about human rights.
There has been a
worrying trend to de-legitimise a human rights discourse, and to promote
a view of democracy as majority rule. But democracy is much more than
government in accordance with the wishes of the majority. It also requires
compliance with the rule of law, and with principles of basic fairness
and equality. It also entails the notion of responsible government - that
government is there to protect the freedom of all sectors of society,
including the vulnerable and those not in the majority. As Thomas Fleiner
notes 'Democracy and freedom are Siamese twins. The one cannot exist without
the other'. [1] Human rights are an essential bedrock
on which democracy must be built.
These are the weighty
issues that are considered in this report. It is based on the theme of
reconciliation and how to achieve it.
One cannot underestimate
the enormously difficult nature of the challenge that reconciliation raises
for Australia as a nation. As Peter Russell notes:
Aboriginal Reconciliation is a distinctive Australian endeavour.
It reflects an awareness of the extent to which the settler population
has denied Aboriginal and Torres Strait Islander participation in
Australian history. While the dispossession and domination of indigenous
peoples in the other English-settler countries (Canada, New Zealand
and the United States) - especially through the nineteenth century
- was not significantly less oppressive than in Australia, those countries
did not so systematically, in such bald legal and constitutional terms,
deny the indigenous peoples any recognition or rights. Australia's
settlers practices and believed in the purest form of terra nullius
with the consequence that their heirs, now moved by a less racist
and more liberal outlook, have the furthest to go, the widest chasm
to bridge, in finding a consensual way of sharing citizenship and
country with the first peoples of their land. That is the challenge
of reconciliation. [2]
This report argues
that the only way that this challenge will be met is by adopting an approach
that recognises and protects Indigenous people's human rights.
The report commences
with chapter 2, which answers the question 'what
is the relevance to reconciliation of human rights?' It sets out to address
a range of concerns that have been raised during the debate on reconciliation
about human rights. I address the issues of the relevance of recognising
the role of the past in explaining the current conditions and experiences
of Indigenous peoples; of why reconciliation does not amount to 'special
treatment' for Indigenous Australians; and explaining the two core human
rights bases of reconciliation - the need to recognise and embrace cultural
difference, and the meaning of self-determination.
Chapter
3 then examines how Australia is currently performing in recognising
and protecting Indigenous rights. It focuses on the dialogue between the
Commonwealth Government and the Committee on the Elimination of Racial
Discrimination in March 2000. This dialogue examined Australia's compliance
with our obligations under the International Convention on the Elimination
of All Forms of Racial Discrimination. The dialogue considered a range
of issues that must be addressed for reconciliation to be meaningful.
There has been a
great deal of misunderstanding about the nature of the dialogue between
the government and the Committee, and so I have explicitly chosen to reproduce
extensive excerpts from the dialogue in order to explain a range of issues
- such as why the Committee raised particular issues; the adequacy of
the Government's responses; and the cogency of the analysis by the Committee.
Overall, the purpose
of the dialogue with human rights committees is to assist Australia to
improve its compliance with the principles of the Convention. Chapter
4 of the report takes up this aim by identifying a series of crucial
commitments that government must make if it is to make reconciliation
a reality. These commitments range from matters concerning adequate data
collection and benchmarking of progress towards redressing Indigenous
disadvantage; to processes for strengthening Indigenous governance and
autonomy; to measures to ensure adequate protection of Indigenous people's
human rights within our federal system of government. Ultimately, these
commitments have been identified with the purposes of improving government
accountability and transparency for policy making, and facilitating greater
participation by Indigenous people in decisions that affect their daily
lives.
To this end I have
included a number of recommendations to the federal government. These
recommendations are intended to make governments commit to turning their
rhetoric about reconciliation into action and outcomes. For too long governments
at all levels have committed to overcoming Indigenous disadvantage, for
example, yet have not backed up this commitment with measures by which
to hold themselves accountable to the public.
Chapter
5 then considers the issue of reparations for gross violations of
human rights. This chapter focuses specifically on reparations for victims
of forcible removals policies and seeks to explain the international law
principle of reparations. It also provides models for reparations in other
countries. The concern that is raised is that the response to reparations
issues in Australia lags seriously behind the approaches adopted in other
countries, and does very little to resolve ongoing grave injustices.
The report then ends
with two appendices, the first appendix reproduces
my submissions to the various United Nations human rights committees from
earlier in the year. The second appendix reproduces
the concluding observations of the Committee on the Elimination of Racial
Discrimination.
Looking
ahead
With the winding
up of the Council for Aboriginal Reconciliation the responsibility for
maintaining the momentum of the reconciliation process has now spread
to governments, Reconciliation Australia, institutions such as the Human
Rights and Equal Opportunity Commission, and the general community. It
would be a tragedy to look back in ten years time and to observe that
we did not take this opportunity. Already as a nation we have let valuable
opportunities to improve relations between Indigenous people and the wider
community slip through our fingers too often.
From the perspective
of the Human Rights and Equal Opportunity Commission, we will continue
to support the reconciliation process. Activities to promote the achievement
of reconciliation will remain a high priority in my work program. Over
the next six months I shall develop a program for the Commission to commence
work on the many actions that the Council for Aboriginal Reconciliation
have recommended that we undertake.
In
particular, I note the Council's suggestion in section 10 of the Reconciliation
Bill 2000 that each year my Social Justice Report include consideration
of the national progress towards reconciliation from a human rights perspective.
My legislative functions allow me to take up this recommendation in absence
of the passage of the Reconciliation Bill 2000. Accordingly, I will consider
progress in addressing the human rights dimensions of reconciliation in
my report for 2001. This will inevitably include consideration of the
response of the federal government to the recommendations of this report.
Dr
William Jonas
Aboriginal and Torres Strait Islander
Social Justice Commissioner
1.
Fleiner, T, What are human rights?, The Federation Press, Sydney
1999, p36.
2. Russell, P, 'Corroboree 2000 - A national defining
event' (2000) 15 Arena Journal 25, p27.