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Aboriginal Aboriginal and Torres Strait Islander Social Justice

Reconciliation - Where
to Now?: Melbourne Launch

Speech delivered by Dr W Jonas
AM, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Human Rights and Equal Opportunity Commission, 24 June 2002.

- Wurundjuree people; 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
forum in Melbourne 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 the 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 almost eighteen
months since CAR's final report and of nearly 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. This year will be 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 seems 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 compared to 14% in 1991. That
a group that constitutes just over 2% of the total population provides
20% of the country's prisoners is shocking.

The rate of imprisonment
of Indigenous prisoners increased to a national average almost 14 times
the rate of non-Indigenous prisoners in 1999. Statistics for 2000 and
2001 have worsened - with the Indigenous rate of imprisonment 14.9 times
the non-Indigenous rate on a national basis for the June 2001 Quarter.

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.

We should also 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 instead 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

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.

The government often
presents its commitment to practical reconciliation and reducing Indigenous
disadvantage through the much-touted 'record' additional spending on Indigenous-specific
programmes in Budgets 2001 and 2002. Last year the government announced
a commitment of $2.39 billion to Indigenous-specific spending; this year
it made a commitment of $2.5 billion. However most of the additional funding
provided in 2002 was a flow-on from the $327 million in initiatives over
4 years announced with Budget 2001.

While increases to
funding and new initiatives are welcome, the definition of Indigenous-specific
is extremely broad and includes all expenditure that in some way relates
to Indigenous people. Some of the expenditure identified as Indigenous-specific
is also clearly detrimental to Indigenous people's advancement, such as
funding to oppose native title applications or to litigate against members
of the stolen generations in the Cubillo-Gunner case.

programs are also not in a position to replicate the level of services
and expertise provided by mainstream programs. The focus of Indigenous
spending needs to be outcomes-based. While the additional Indigenous-specific
spending in the last two Budgets offers some small gains in areas such
as housing and infrastructure, CDEP and community capacity-building, it
does not move beyond the current status quo of managing rather than overcoming
Indigenous disadvantage.

For example, Budget
2001's release of $75 million over 4 years for housing ands infrastructure
falls far short of the estimated deficit of $3 billion in this area. Of
the $86 million spending on native title, $17.4 million will go to assist
organisations representing native title claimants and a priority claims
litigation program. However, the majority of funds will go to the National
Native Title Tribunal and the Federal Court and will support those opposing
native title claims as well as native title claimants.

The government also
allocated $11 million funding for Indigenous-specific family violence
projects over a four-year period. Yet despite the intense media attention
given to the subject of violence in Indigenous communities over the past
year and the government's use of this issue as a political football to
reinforce its call for a practical reconciliation, there were no increases
to funding for projects and services in this crucial area in this year's

Instead we hear through
the Senate Estimates process that the government underspent $4.3 million
under the Office for the Status of Women's program for domestic violence,
while ATSIC spent $4.9 million on Indigenous family violence issues and
claimed that they could easily have spent the extra $4.3 million on programs
to improve community safety for Indigenous women and children.

These issues surrounding
the federal Indigenous-specific spending indicate a need to develop a
more fundamental and far-reaching understanding of social justice and
equity in addressing Indigenous disadvantage. It is simply not enough
to suggest, as in the past year, that the rights agenda is over by splintering
the focus on Indigenous affairs and shifting attention from one topical
issue to another, whether it be violence or substance abuse or petrol
sniffing in Indigenous communities.

Such an approach
indicates a failure to move beyond the policy paradigm of throwing palliatives
in the form of quick-fix, short-term solutions at the urgent problems
experienced by Indigenous people an approach which often serves only to
manage and even perpetuate enduring cycles of disadvantage, at the expense
of resourcing more holistic and far-reaching solutions.

The short-sightedness
of the government's "practical" approach to addressing Indigenous
disadvantage is also evident in its application of mutual obligation policies
to welfare dependency. Research by ACOSS indicates that the punitive practice
of 'breaching' places a greater burden on disadvantaged jobseekers, with
national breach rates from June 1997 to March 1998 consistently higher
amongst Indigenous identifiers.

The mutual obligation
approach over-stretches itself in its application to Indigenous welfare
reform by assuming that the intensity and scale of personal and social
problems, wrongly attributed to welfare dependency, can be addressed through
mechanisms which both enable, and ultimately compel, individuals to engage
with the formal economy.

But unless the underlying
factors contributing to Indigenous poverty and inequality are acknowledged
and adequately addressed, then urging self-reliance for Indigenous people
in many contexts will be at best fanciful.

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.

The Native Title
Report also examines the capacity for framework agreements to provide
a vehicle for importing human rights standards into the native title process
in the face of the failure of the native legal system to guarantee this.
Framework agreements could be better utilised to elaborate standards for
the co-existence of interests in land, and in doing so, provide greater
certainty and stability, and present a viable option for commercial entities
wanting to do business with Aboriginal people.

An important focus
of this year's Native Title Report is the distinction between two
sorts of rights. Those that are enjoyed by every Australian, including
Aboriginal people, commonly referred to as citizenship rights; and those
that are inherent to Indigenous people only. Native title belongs to this
latter category.

When an opportunity
arose in 1992 to recognise inherent rights through native title it was
immediately encased in a legal armature that gave it no room to deliver
real outcomes. Its capacity to provide economic opportunities for Indigenous
people, to provide equal respect for Indigenous culture and to provide
governance structures for Aboriginal communities has been severely limited
through the Native Title Act and the common law.

Critics of the rights
agenda often imply that when Indigenous people gained citizenship rights
in 1967 that this agenda was fully implemented - and that a rights approach
has failed Indigenous people and should be abandoned. But that is incorrect.
Citizenship rights came 170 years late. Indigenous rights, ones that recognise
Aboriginal people for what they are, and have the capacity to change their
dire living circumstances, have never been embraced as a way forward.

What has fundamentally
been lacking before and since 1967 is a rights culture that respects Indigenous
people and provides them with the opportunity to participate on an equal
footing in Australian society. The refusal to tolerate the discriminatory
practices of exclusion from welfare, education and participation in the
mainstream society and economy any longer was merely the first step on
the road to a culture of rights and respect for Indigenous people. It
is disingenuous to suggest otherwise.

What is required
is that an effective, democratic partnership be negotiated with Aboriginal
people, that they be given the full enjoyment of their inherent rights
through native title and that Indigenous disadvantage be addressed with
the full participation of those affected.

The lack of progress
in addressing the concerns of the Royal Commission offers us a stark reminder
of what is at stake in this country with reconciliation.

It is for these reasons
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. As a society
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 28 June 2002