Presentation to FaHCSIA (NSW/ACT) staff
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission
Eora Meeting Room
Level 9, 280 Elizabeth Street, Sydney
11 April 2011
Introduction and acknowledgement of Country
It is with respect and gratitude I acknowledge that we sit on the lands of the Gadigal peoples of the Eora Nation.
My people are the Ghangulu from the Dawson Valley in Central Queensland.
On behalf of my Elders I salute Gadigal Elders, both past and present, for their continued struggle for country and culture here in the place where our colonisation began.
I also acknowledge my Aboriginal and Torres Strait Islander brothers and sisters here today.
And I would like to acknowledge Christine Bruce, Acting NSW State Manager for FaHCSIA; James Christian, Director General of Aboriginal Affairs NSW and NSW State Coordinator General for Remote Service Delivery; and my friend and colleague Brian Stacey, who was the NSW State Manager, and all present.
I was pleased to receive an invitation to speak to you today. Many of you will be aware, that despite the media and political attention on Aboriginal people and communities in remote areas of the Northern Territory, almost 30% of the nations’ Indigenous people live in NSW. I am constantly reminding people that I now live in the biggest Indigenous community in Australia here in Sydney.
In my travels around Australia as Aboriginal and Torres Strait Islander Social Justice Commissioner, I have met with Aboriginal and Torres Strait Islander communities in remote, regional and urban settings. I have heard many stories and witnessed many things in Aboriginal and Torres Strait Islander communities that are heartbreaking and disturbing – particularly given that we live in one of the richest, successful democracies in the world. It is simply unacceptable that Australia’s first peoples are the most vulnerable of our healthy, prosperous nation. And I don’t need to take up your time reminding you of the statistics of which we are all only too well aware.
But...I have also been humbled by the many stories of resilience and hope. I have witnessed Aboriginal and Torres Strait Islander communities working hard to raise the bar and not accept the status quo. I have also met with many non-Indigenous people and organisations, including those working in government, who are behind us all the way – people who want to walk with us and work with us to improve the life chances for Aboriginal and Torres Strait Islander peoples across Australia.
When I took on the position of Aboriginal and Torres Strait Islander Social Justice Commissioner just over 12 months ago, I decided to focus on issues that are foundational to an agenda of hope. An agenda which aims to unleash the potential of Indigenous Australians, maximise the capabilities of each and every Indigenous Australian, and tackle the root causes of Indigenous health and social inequality.
I believe that at the core of this agenda of hope are people and their relationships.
I believe that:
- we need to develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and the rest of the Australia.
- we need to develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and all levels of government, and
- we need to develop stronger and deeper relationships between ourselves as Aboriginal and Torres Strait Islander peoples.
Today I want to touch on each of these with a particular focus on my priority of building stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and all levels of government, and I hope to challenge all of you in the process.
I believe we have a positive starting point for working towards this priority. The Australian Government has indicated, most poignantly through the National Apology that it seeks in good faith to re-set the relationship with Aboriginal and Torres Strait Islander peoples based on partnership and mutual respect. This desire of Government to re-set the relationship has been reiterated on many occasions.
UN Declaration on Rights of Indigenous Peoples
But we need a framework, a lens through which to approach this re-setting of relationships.
It is my belief that human rights provide such a framework. Human rights provide governments’ with a set of minimum legal standards which if applied equally to all people establish a framework for a society to foster dignity and equality of all citizens.
Here in Australia we have available to us one of the most important documents that sets out our human rights as Indigenous peoples – the United Nations Declaration on the Rights of Indigenous Peoples.
The Declaration reaffirms that Indigenous peoples are entitled to all human rights recognised in international law without discrimination.
I believe it is the Declaration that will provide the necessary guidance to government to develop new narratives, practices, philosophies and opportunities. The Declaration is about creating new relationships between Indigenous peoples and government based on partnership, mutual respect and honesty.
It is the Declaration that provides us with a roadmap to resetting the relationship between Aboriginal and Torres Strait Islander peoples and the Governments of Australia.
Again, we have a good starting point in relation to the Declaration. The Australian Government formally endorsed it in 2009.
But, some have questioned whether Australia is obliged to implement the Declaration.
Article 42 says that:
...States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.
...and Article 43 states that:
The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.
Legal debates aside, what a monumental show of bad faith it would be for the Australian Government, having endorsed the Declaration – a document which not a single country in the world opposes – to not implement it.
I want to see the full implementation of the spirit and intent of the United Nations Declaration on the Rights of Indigenous People in all laws, policies and programs in Australia. Of particular importance are the core principles in the Declaration such as the right to participate in decisions about our lives; self determination; and free, prior and informed consent.
These principles should inform the practice of government in working with Aboriginal and Torres Strait Islander communities. This requires the Australian Government working with Aboriginal and Torres Strait Islander peoples to develop a coordinated approach to achieving the ends of the Declaration. Through this, the spirit and intent of the Declaration can be realised.
Indigenous rights and interests should also be placed at the centre of Australian nationhood and embedded in the institutional fabric of the country.
I firmly believe the time is right, here and now for the Australian people to formally recognise the special and unique place Aboriginal and Torres Strait Islander peoples hold in our nation, in our Constitution.
That is why I welcome the commitments of Labor, the Coalition and the Greens, to a referendum to facilitate such recognition.
There’s also been a great level of support from the Independents since the 2010 Federal Election so, in all likelihood, there’ll be a referendum within the next three years.
The prospect of this referendum will provide us all with a great opportunity to reframe and reset our relationship as a nation, and to establish new relationships that open our hearts and minds to new possibilities.
But to those who doubt the importance of what amounts to a form of words, I say this.
This process will give this generation of Australians the opportunity to say ‘yes’ - an opportunity to demonstrate goodwill and innate decency, just like 90% of Australians did in 1967.
In real terms this means we need between 12-13 million voters on our side.
Yes, there will be debates, speeches, opinion pieces in the press, people prowling the parliamentary corridors, Constitutional lawyers at 10 paces, yay and nay sayers, documentaries, panel discussions, arguments at dinner parties, barbecues and in front bars – all of these things.
And it’s precisely all of these things that will build awareness, focus minds and hearts and help move us all forward as a nation.
By finally and formally settling and affirming the place of Aboriginal and Torres Strait Islander peoples in our nation, all of us grow in stature.
I am pleased to have been appointed as an ex-officio member to the Expert Panel on Constitutional Recognition of Indigenous Australians. The Panel is tasked with leading broad consultations throughout 2011, providing options on the form of the constitutional amendment and guidance on the information needed for public discussion, culminating in a report and recommendations to Government by December 2011.
During the next two years, I commit myself to working closely with our political leaders and, more importantly, the people of Australia to achieve a successful referendum, both as part of the Expert Panel, and in my capacity as Aboriginal and Torres Strait Islander Social Justice Commissioner.
This will be a long hard journey. But it’s the journey that will mark our maturity as a nation, not just the destination - as important as it might be.
But this referendum is not just about Aboriginal and Torres Strait Islander peoples.
It’s not about looking back.
It’s about looking forward and moving forward as one, united nation.
So in order to get to this destination, we have much to do.
But this is the type of exercise that builds the healthy relationships necessary for an agenda of hope.
Relationships that are built on understanding, dialogue, tolerance, acceptance, respect, trust and reciprocated affection. Not intolerance, a lack of acceptance, a lack of dialogue, mistrust and a lack of respect and understanding.
Educating the Australian people about our nation’s history will be necessary if we are to build relationships based on these principles.
The benefit of raising people’s awareness to the reality of others around them was evidenced when Kevin Rudd gave the National Apology in February 2008.
On that day there was a palpable sense of us coming together as a nation for the first time. Indigenous and non-indigenous Australians sat together, held each other and cried together. The nation took a great leap forward together.
We now have an opportunity to reinvigorate that momentum with the upcoming referendum.
This opportunity has the potential to:
- Improve the lives of Aboriginal and Torres Strait Islander peoples, specifically by addressing the history of exclusion of our peoples in the life of our nation and increasing our self worth as citizens within Australia.
- Entrench the protection of human rights for all Australians within the Constitution.
And as a result,
- Ensure a solid foundation upon which to build a reconciled nation.
We must grasp this opportunity to reset the relationship between Aboriginal and Torres Strait Islander peoples and the rest of Australia.
Relationships between Aboriginal and Torres Strait Islander peoples and all levels of government
And so, while the prospect of this referendum will provide us all with a great opportunity to reframe and reset our relationship as a nation, we must also develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and all levels of government in our dealings with each other.
Again, the United Nations Declaration on the Rights of Indigenous Peoples should be at the centre of such relationships.
But let’s be honest, there is a long way to go for the relationship between governments and Aboriginal and Torres Strait Islander peoples to get to where it should be.
To put it bluntly, the relationship between governments and Aboriginal and Torres Strait Islander peoples has been badly damaged by the consistent imposition of policies and legislation that are designed and implemented with the objective of co-dependency and control - rather than independence and ensuring that we have the ability to determine our own destinies.
The intervention is the most recent example of this. And it’s going to take a lot of work to overcome the hurt and to fix the relationships that have broken down as a result.
I need only to point to Article 2 about our rights to equality and to live free from discrimination and Article 3 about our right to self determination, to show where these approaches have moved away from the critical lens of the Declaration.
On the back of a history of failed policies to address the disadvantage and challenges faced by Aboriginal and Torres Strait Islander peoples, we must change the way we do business. We have the right to be involved in decisions that affect us.
Effective participation in decision making
Our effective participation in decision making that effects us has been confirmed as essential to ensuring non-discriminatory treatment and equality before the law, and recognises the cultural distinctiveness and diversity of Indigenous peoples.
Our effective participation in decision making that affects us will be crucial to resetting the relationship between Aboriginal and Torres Strait Islander peoples and the Australian Government.
Governments should seek to empower us through effective participation to be the agents of our own change. We are an important part of the solution to our life situations and the role of government and service providers is to assist us to be self determining in this process.
I don’t underestimate the challenge that effective participation, grounded in the rights set down in the UN Declaration on the Rights of Indigenous Peoples poses for governments. It is a true re-setting of the way governments have conducted business with us, and related to us, in the past. And I’m sure I don’t need to tell you that changing the way government does things can sometimes be a big ship to turn around.
Historically we know that social policy directed to Aboriginal and Torres Strait Islander people has been paternalistic at best – and in my view it continues along that vein. I know this from direct experience. My mother was raised on the Woorabinda mission. The mission movement in Australia was about treating Aboriginal and Torres Strait Islander people as property of the state. The perception of us was that we were a problem to be solved by governments. Now, while we have seen some changes to social policies since the 1970s, there is still a perception - and a practice - that reinforces the view that governments hold the solution to the so-called ‘Aboriginal problem’.
As I’ve said, the Northern Territory Intervention is a clear example of governments determining that they hold the solution to our problems.
This runs counter to the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples which sets out a role for governments to engage Aboriginal and Torres Strait Islander people in policy making processes.
Article 23 of the Declaration tells us this:
Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.
So the human rights perspective is all about giving us control over our lives wherever possible. It is about drawing from our strengths and letting us participate in processes that will affect our lives in positive ways.
It is the antithesis of the Northern Territory Intervention that cast us as helpless and hopeless people, unable to help ourselves and ultimately subject to the intervening hand of government.
The Declaration elaborates on the process of participation with reference to the principle of free, prior and informed consent. Free, prior, and informed consent is a universally recognised right to give - or not give - our free, prior and informed consent before certain actions affecting us can occur.
In speaking to people in government, I often detect anxiety about what free, prior and informed consent means, particularly in relation to a veto right. But the right to free, prior and informed consent is, as Kenneth Deer puts it:
...not automatically a veto, since our human rights exist relative to the rights of others. Nor is there any reference to a veto in the Declaration. Free, prior and informed consent is a means of participating on an equal footing in decisions that affect us.
Free, prior and informed consent recognises indigenous peoples’ inherent and existing rights and respects our legitimate authority to require that third parties enter into an equal and respectful relationship with us, based on the principle of informed consent’.
This principle applies not only to administrative acts and decisions, and the exploitation of our resources and lands, but also to the legislative process itself. Article 32 of the Declaration states that:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
What this means is that consultation in a practical sense must be extended to reflect a requirement to effectively negotiate.
Too often governments in Australia interpret their obligation to consult with Indigenous people more like a duty to tell us what has been developed on our behalf, and what eventually will be imposed upon us. Rather than involving us in developing solutions that will best address our issues, and our priorities.
More often than not, the contributions made by Aboriginal and Torres Strait Islander stakeholders are not included in the final outcome nor have they been involved in the design or the development of proposed policy in the first instance.
The capacity of our communities to engage in consultative processes has also been hindered by:
- inadequate resources to effectively participate in decision making processes as equals
- unreasonably short timeframes for responding to discussion papers and draft legislation that directly relate to the rights of Aboriginal peoples and Torres Strait Islanders
Consultation often occurs in an ad hoc manner and in many instances does not occur in communities most affected by the topics addressed. Nor is there a usual practice whereby the Government includes Aboriginal and Torres Strait Islander peoples in pre and post consultation processes where policies or draft legislation is being finalised.
The result of our non-participation in processes designed to deliver services to Aboriginal and Torres Strait Islander peoples on the ground, is our restricted access to appropriate services and facilities that are required to improve our standard of living, and a waste of people’s time and resources in a process that delivers minimal improvement.
In my 2010 Social Justice Report I highlighted the great work being done in the Fitzroy Valley in relation to Fetal Alchohol Spectrum Disorders, and the great benefit of the community effectively participating in initiatives. What is demonstrated in Fitzroy Valley is that:
Government agencies and service providers will be most effective if they develop service models in collaboration with local communities.
...positive change can occur when communities are agents of their own change.
Government would do well to take the lessons of the Fitzroy experience in developing national engagement strategies that filter down through processes such as COAG, and implemented at regional and local levels.
There is work to be done to make changes to the ways that governments engage and work with Aboriginal and Torres Strait Islander people.
So, what does effective participation of Aboriginal and Torres Strait Islander peoples in decision making look like?
Meaningful and effective consultation processes
Let me illustrate, by discussing some features of a meaningful and effective consultation process drawing on the spirit and intent of the UN Declaration on the Rights of Indigenous Peoples:
- The objective of the consultations should be to obtain the consent or agreement of the Aboriginal and Torres Strait Islander peoples affected by a proposed measure
- Consultation processes should be products of consensus.
- Consultations should be in the nature of negotiations.
- Consultations need to begin early and should, where necessary, be ongoing to enable meaningful participation in all stages of policy and program design, implementation and evaluation.
- Aboriginal and Torres Strait Islander peoples must have access to financial, technical and other assistance
- Aboriginal and Torres Strait Islander peoples must not be pressured into making a decision
- Adequate timeframes should be built into consultation processes
- Consultation processes should be coordinated across government departments. This will assist to ease the burden upon Aboriginal and Torres Strait Islander peoples of responding to multiple discussion papers and reform proposals.
- Consultation processes need to reach the affected communities
The relationships needed to underpin this type of consultation will take time to develop. They will also require people with the appropriate skills and cultural competency to work with Aboriginal and Torres Strait Islander peoples and communities, and where necessary, the development of targeted education and training programs to build these skills and competencies.
But, I challenge all of you involved in consultations with Aboriginal and Torres Strait Islander people, to test them against these principles, and to ensure that all your engagement with us places the UN Declaration on the Rights of Indigenous Peoples at its centre.
In practice, in applying the types of engagement I spoke of earlier, this means being aware of the environment you are working in and adapting your engagement processes to ensure the best outcome over causing more stress and conflict in the community, as is often the case.
Relationships between ourselves as Aboriginal and Torres Strait Islander peoples.
I will now turn briefly to the third relationship that is foundational to an agenda of hope, the relationships between ourselves as Aboriginal and Torres Strait Islander peoples: at the community, family, organisation and individual level.
The Declaration also deals with this. In fact it affirms our right to be different, giving recognition and respect to our cultural values and ways of doing things, and we as Aboriginal and Torres Strait Islander peoples should also be using the principles within the Declaration to guide our relationships with each other.
However, structural barriers can often affect this balance and result in conflict with our communities.
It’s a well argued phenomenon around the world that oppressed people will eventually internalise this oppression and turn on each other.
The notion of ‘lateral violence’ - the name given to behaviours such as harassment, bullying and intimidation of those who may disagree with a particular stance or position someone else may be taking - says that this is often the result of disadvantage, discrimination and oppression and that it arises from working within a society that is not designed for our way of doing things.
Therefore, it is imperative that we create enabling and nurturing relationships within our communities that are so pivotal to the agenda of hope that I spoke of earlier.
Aboriginal and Torres Strait Islander people recognise that improving our own relationships is a real issue. And one we need to address.
For example, the work being done in places like Cairns and Yarrabah with the Family Wellbeing Empowerment Program - which is designed specifically to overcome community conflict through building support within families and communities - shows us that when given the right opportunities, people are prepared to challenge and defeat these behaviours.
Governments cannot and should not intervene to fix our internal relationships.
But governments can work with us and our communities as enablers and facilitators. And they can also work to remove existing structural and systemic impediments to healthy relationships within our communities.
This means that Governments have a responsibility to ensure that society's structures, laws and processes facilitate a full and open engagement with Aboriginal and Torres Strait Islander citizens.
Governments should develop legislation, policies and practices that will improve rather than burden the lives of Aboriginal and Torres Strait Islander peoples. Whether developed consciously or unconsciously, structures and processes that allow our people to be treated less equally than other Australians are simply unacceptable.
I encourage you all to look at the work that has been done in the Fitzroy Valley. It’s living proof that hard work and time can achieve effective community development. The Fitzroy Valley approach requires coordination, goodwill and mutual respect at the community and government levels. And progress like this doesn’t happen overnight. For the Fitzroy Valley, it’s been a 10 year journey.
To conclude, our agenda of hope can only be sustained when Aboriginal and Torres Strait Islander people are able to achieve our potential - able to realise our personal and collective capabilities.
I believe that at the core of this agenda are people and their relationships.
Relationships between Aboriginal and Torres Strait Islander peoples and the rest of the Australia,
Relationships between Aboriginal and Torres Strait Islander peoples and all levels of government, and
Relationships between ourselves as Aboriginal and Torres Strait Islander peoples.
Governments have an important role to play in developing stronger and deeper relationships in each of these areas.
Governments can reinvigorate the momentum created by the National Apology - ensuring that recognition of the unique place and rights of Aboriginal and Torres Strait Islander peoples in our Constitution has the best chance of success.
Governments in their everyday dealings with us, can build healthy relationships that involve our effective participation in decision making about our lives.
And, governments can work with us and our communities as enablers and facilitators and work to remove existing structural and systemic impediments to healthy relationships within our communities.
I’ll leave you with a few challenges for resetting relationships with us:
- Build relationships with us that have the Declaration placed at the centre, where our rights and interests are respected and recognised, and
- Build relationships where you walk and work with us, rather than do things to us.
In taking these steps, we can move forward together towards maximising the capabilities and tacking the root causes of Indigenous health and social inequality.
And I have no doubt that these steps will help build understanding, dialogue, tolerance, acceptance, respect, and trust – principles that must be at the core of an agenda of hope.
An agenda that Australian Governments and those working within them, must embrace if it is to be realised.
 Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 171 (The Hon Kevin Rudd MP, Prime Minister).
United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007).
 Commonwealth, Parliamentary Debates (Apology to Australia’s Indigenous Peoples), House of Representatives, 13 February 2008, p172 (Kevin Rudd, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010).
United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), Article 23
 The Declaration on the Rights of Indigenous Peoples, Articles 10, 11, 19, 28, 29, 32.
 K Deer, ‘Reflections on the Development, Adoption, and Implementation of the UN Declaration on the Rights of Indigenous Peoples’ in Hartley, J (Ed.), Realising the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope and Action, (2010), 18, p 27.
United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), Article 32
 Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda, 2010 Social Justice Report, Australian Human Rights Commission, viewed 28 March 2011: http://humanrights.gov.au/social_justice/sj_report/sjreport10/chap3.html
 Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda, above