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Reconciliation - Where to Now?

Aboriginal Aboriginal and Torres Strait Islander Social Justice

Reconciliation - Where to

Perth and Broome Launches
of the Social Justice Report 2001 and Native Title Report 2001

Speech delivered by Dr William
Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner
Human Rights and Equal Opportunity Commission
1 July 2002 (Perth) and 4 July 2002 (Broome)

Acknowledgement of
traditional owners and those present.

On 14 May 2002 the
Attorney-General tabled the Social Justice Report 2001, my annual
review of the exercise of human rights by Indigenous Australians, and
the Native Title Report 2001, my annual review of native title
developments, in federal Parliament.

I am holding this
launch this evening, and others across the nation over the next few weeks,
to bring issues of human rights significance raised by my reports to the
attention of Indigenous and other interested communities and organisations.
In the absence of an adequate response from government to a process of
such national significance as reconciliation it is important that people
such as yourselves continue to ponder and pursue solutions to the question
of 'where to now?' for achieving equity and social justice for Indigenous
people in Australia.

In both my reports
I found cause to express serious concerns about the nation's progress
in achieving the exercise of Indigenous rights. The Social Justice
highlights the ongoing failure to address Indigenous overrepresentation
in the criminal justice system ten years on from the Royal Commission
into Aboriginal Deaths in Custody. In particular, it focuses on the human
rights implications of mandatory sentencing laws and diversionary schemes
for juveniles in Western Australia and the Northern Territory.

It also examines
significant policy issues that have emerged in regard to the use of mutual
obligation and welfare reform policies to address Indigenous disadvantage,
and new initiatives for governance and capacity-building in Indigenous

The Native Title
expresses concern at the administration of the right to negotiate
provisions by tribunals and governments; as well as at the inequitable
funding levels within the native title system which disadvantage native
title representative bodies in the process. It also explores the capacity
for framework agreements to be better utilised to elaborate standards
for the co-existence of interests in land.

In releasing my reports
this year the issue of reconciliation, and the lack of national leadership
and commitment shown by the federal government to furthering this process,
has provided a focal point for evaluating the exercise and the enjoyment
of human rights by Indigenous Australians.

To date, there has
been no formal, comprehensive public response by the federal government
to the reconciliation documents handed to the government at Corroboree
in May 2000 or the recommendations of the Council for Aboriginal Reconciliation's
final report of December 2000. This is despite the passage of eighteen
months since CAR's final report and of over two years since the documents
of reconciliation were released.

The timing of my
latest reports in itself provides further cause for reflection on the
nation's failure to make significant inroads on the reconciliation process.

The year 2001 marked
the tenth anniversary of the final report of the Royal Commission into
Aboriginal Deaths in Custody. We have also recently celebrated the tenth
anniversary of the Mabo decision which rejected terra nullius
and recognised the continued existence of native title. It is also the
fifth anniversary of the Bringing them home report. Indigenous
affairs seem to have become a series of anniversaries - operating as an
annual reminder of the unfulfilled promises and commitments of governments.

The reports of the
Royal Commission marked a turning point in the recognition of the wrongs
of the past, and did so unreservedly. They also provided great optimism
that serious attention would be devoted to overcoming the systemic, structural
discrimination that Indigenous people face in Australian society as a
result of colonialism.

But while some genuine
efforts to this end have been made in the decade since the Royal Commission
and continue to be made today, Indigenous people have continued to die
in custody at high rates and the average rate of Indigenous people in
corrections representation has in fact worsened - rather than improved.

The number of Indigenous
prisoners has increased at an average rate of 8% per year since 1991,
compared with an increase in the non-Indigenous prisoner population of
3% per year on average. In 1999 the number of Indigenous prisoners made
up 20% of the total prisoner population - that compares to 14% in 1991.
That a group that constitutes 2% of the total population provides 20%
of the country's prisoners is shocking.

Indigenous juveniles
remain grossly over-represented in juvenile corrections. In 2000, Indigenous
juveniles were in juvenile corrections at a rate 15.5 times more than
the non-Indigenous rate, compared to 13 times in 1993. Since 1997, Indigenous
juveniles in corrections have consistently made up approximately 42% of
the total juvenile detention population.

Perhaps most worrying
of all is the rise in imprisonment of Indigenous women since the Royal
Commission. The total number of Indigenous female prisoners on a national
basis increased by 262% between 1991 and 1999, and their rate of imprisonment
nearly doubled during this period. At the end of the June 2001 quarter,
Indigenous women were incarcerated at a rate 21 times that of non-Indigenous

But in 2001, ten
years on from the Royal Commission, these deteriorating circumstances
hardly raised a murmur of discontent yet alone outrage among the broader
community. The sense of urgency and commitment to addressing Indigenous
over-representation in criminal justice processes has slowly dissipated.
The facts about Indigenous people in custody now either go unnoticed,
or perhaps even worse in the age of reconciliation, are simply accepted
and not challenged.

The situation is
worst here in Western Australia. And the Social Justice Report
provides a detailed look at two aspects of the system here, largely as
it relates to Indigenous juveniles. This is through examining laws which
impose mandatory minimum terms of imprisonment and the operation of the
system of juvenile diversion from custody.

I have often condemned
mandatory sentencing laws, and a recent report by the now defunct Aboriginal
Justice Committee provides damning evidence of the discriminatory and
arbitrary nature of these laws in Western Australia. So I will only say
this about these laws:

Suggestions by the
current WA government that these laws only target the most serious
offenders and are justifiable on that basis are incorrect and disingenuous.
They do not. Statistics show that serious offenders are sentenced to terms
greater than the mandatory minimum through the proper and appropriate
operation of judicial discretion. The laws are irrelevant for such offenders.
Instead, they impact on the lesser end of the scale and there are examples
of great injustice and disproportionate sentencing that have resulted

Mandatory sentencing
must go. WA cannot be seen as a progressive state while these laws continue
to operate.

These laws are combined,
even more tragically in my opinion, with poorly constructed options for
diversion of juveniles from the formal criminal justice system. The system
of Juvenile Justice Teams in WA is examined in detail in the Social
Justice Report
where they are assessed against human rights standards.

While diversion has
existed in WA for a decade, it is extremely outmoded and does not meet
the needs of Indigenous communities. The primary aim of diversion is to
slow down the rate of entry into the formal criminal justice system and
to reduce the likelihood of Indigenous juveniles being labeled repeat
offenders. The current system is not equipped to meet this task. It also
perhaps the worst scheme currently in operation in Australia.

Concerns identified
in the report about diversion include:

  • The high rate
    of referral to diversion at the Court rather than police stage, indicating
    that diversion is happening later that it should;
  • The lack of legislation
    guiding the operation of diversion and the treatment of police rules
    as 'guidelines' rather than binding instruments;
  • A significant
    net-widening effect with Indigenous juveniles being increasingly caught
    in the web of the criminal system while non-Indigenous juveniles are
    able to access diversion at a greater rate;
  • Unacceptably
    poor monitoring mechanisms, including at the court level with lack of
    adequate recording of ethnicity of offenders; and
  • The lack of legal
    safeguards for suspected offenders at the diversionary stage.

I am also concerned
that the scheme is culturally inappropriate, inaccessible to Indigenous
communities - and this is particularly the case outside of Perth where
programs are virtually non-existent - and provides no meaningful role
in design and implementation for Indigenous communities.

I have accordingly
made recommendations to the WA government to remedy this situation, which
include legislative reform, consultation and negotiation with Indigenous
communities, regionalisation of programs and services and improved monitoring
and data collection.

I urge you to maintain
pressure on the Attorney-General to ensure that this reform agenda is
considered and implemented.

While I applaud positive
developments in WA like the Statement of Commitment and establishment
of an Indigenous Affairs Advisory Committee last October, these things
seem very empty commitments while they stand next to a criminal justice
system, that is so intrusive and destructive of Aboriginal peoples lives
in this State.

Do not become reconciled
with this situation because it is an extraordinary one of such magnitude
that true reconciliation cannot realistically be achieved while it remains
the status quo.

In my Native Title
Report I have found cause to express further concern at the failure of
the Native Title Act to deliver lasting outcomes for Indigenous
peoples. Ten years on from the landmark Mabo decision, the native
title process has become a travesty of the justice it was meant to deliver
to Indigenous Australians.

As an embodiment
of social relations, the native title system places Indigenous interests
at a lower level than non-Indigenous interests, every time. As an embodiment
of economic relations, the native title system removes Indigenous people's
effective control over their only asset: exclusive rights to land and
sea country. And as an embodiment of political relations, native title
fails to recognise traditional decision-making structures.

Of particular concern
is the administration of the right to negotiate provisions by tribunals
and governments: in the past year some governments have failed to accord
to native title parties their right to negotiate on lands where the status
of native title is as yet uncertain. Some governments have avoided the
operation of the right to negotiate by implementing their own regimes
permitted by the Native Title Act which undermine the right to negotiate.

In fact, the increasingly
technical approach to native title has had the effect of reducing the
necessity to negotiate with native title parties over developments on
lands potentially subject to native title. These actions breach international
human rights standards.

There also continues
to be inequitable funding levels within the native title system which
disadvantage the native title representative bodies who advocate for claimants
in the process. Critical factors relating to the functions of native title
representative bodies are not reflected in funding levels. This under-funding
limits the options available to Indigenous people in protecting their
native title rights.

We must remember
that the Council for Aboriginal Reconciliation's Australian Declaration
towards Reconciliation and the Roadmap to Reconciliation
were the
result of a ten year process partly instigated by the Royal Commission,
the National Report of which identified reconciliation as 'an essential
commitment on all sides if change is to be genuine and long term'. The
reconciliation process was implemented as an initiative of government,
not of Indigenous people themselves, and one to which Indigenous people
responded and acted in good faith.

But now we face a
deplorable situation in which not only has the federal government failed
to respond adequately or comprehensively to CAR's recommendations, they
have quite deliberately sought to shut down debate and avoid any engagement
about them by stating that they are committed to practical reconciliation.

There is limited
material available which explicitly identifies the government's views
on the recommendations in anything more than a general sense. We know
generally that they are committed to 'practical reconciliation' but not
specifically their response to the Council's documents or the Social
Justice Report.

In pursuing this
approach, the government has responded to only one of the six recommendations
of CAR's final report - through the limited focus of COAG's framework
for addressing disadvantage. They have ignored the broader-based agenda
for reconciliation put forward by CAR that recognised the necessary interrelatedness
of symbolic and practical measures to Indigenous people's self-determination.

There is a danger
that the reconciliation walks from 2000 will be the high watermark of
support for reconciliation, as national attention slowly dissipates. Vital
to the success of the reconciliation process would be a more active leadership
role by the Commonwealth in order to prevent a repeat of the mistakes
of the past, especially in regard to ensuring adequate accountability,
transparency, effective monitoring and long term planning.

The impoverished
notion of practical reconciliation will not in and of itself lead to meaningful
reconciliation between Indigenous and non-Indigenous peoples. It is simply
not enough to assert that what is needed is for Indigenous people to assimilate
to mainstream society or that reconciliation will be the product of a
country that is relaxed and comfortable with itself.

Now, as I said before
the lack of progress in addressing the concerns of the Royal Commission
into Deaths in Custody offers us a stark reminder of what is at stake
in this country with reconciliation.

It is for many of
the reasons already outlined that I am calling for a Senate inquiry into
the reconciliation process and in particular into the documents produced
by the Council for Aboriginal Reconciliation and the recommendations of
the Social Justice Report 2000. This inquiry would examine the adequacy
of the Federal government's response to each of these recommendations.
It would also consider the processes by which by which government agencies
have reviewed their policies and programs against the documents of reconciliation,
as well as the adequacy of targets and benchmarks adopted and monitoring
and evaluation mechanisms.

At the end of a ten
year, multi-million dollar process of such pivotal importance to the development
of Australian society as reconciliation, it would be reasonable to expect
a formal response so that all members of the Australian community are
clear as to the level of commitment provided by the government. I believe
that we cannot afford to look back in 10 years' time on the reconciliation
process with the same regrets we now do on the Royal Commission into Aboriginal
Deaths in Custody.

Thank you.

updated 11 July 2002