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Aboriginal and Torres Strait Islander Social Justice

Reconciliation - Where to

Speech delivered
at the Darwin and Alice Springs launches of the Social Justice and Native
Title Reports by Dr William Jonas, August 2002

of traditional owners; those present.

Today's launch here
in Darwin / Alice Springs is part of a national program of launches that
I have been undertaking in recent weeks in order to bring issues of human
rights significance raised by my latest social justice and native title
reports to the attention of Indigenous and other interested communities
and organisations. So far, launches have been held in Melbourne, Perth,
Broome, Sydney, Adelaide and Brisbane.

At each of these
launches I have asked prominent leaders of Indigenous groups as well as
broader community groups to join me in launching the reports and to share
their views on the issues raised in them. So far I have been joined by
Professor Marcia Langton of the University of Melbourne and Monica Morgan
of the Yorta Yorta nation in Melbourne; Dennis Eggington of the Aboriginal
Legal Aid Service and Dr Harry Blagg of the Crime Research Centre in Perth;
Pat Dodson and Peter Yu in Broome; Senator Aden Ridgeway, Professor Larissa
Behrendt of UTS, Andrew McAllum the National President of ACOSS and Stuart
Starks of Australians for Native Title and Reconciliation in Sydney; Commissioner
Brian Butler of ATSIC, Professor Lowitja O'Donoghue and Fred Tanner of
the Aboriginal Legal Rights Movement in Adelaide; and Karen Walters of
the Queensland Anti-Discrimination Commission in Brisbane. I offer my
thanks and welcome to my guests for agreeing to speak at this launch:
in Darwin - Commissioner Kim Hill, ATSIC; Professor Mary-Ann Bin-Salik,
Northern Territory University, and Mr Norma Fry, Northern Land Council;
and in Alice Springs - Mr David Ross, Central Land Council and Commissioner
Alison Anderson, ATSIC.

I would also like
to thank you all for attending this launch. 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 'reconciliation - where
to now?' for achieving equity and social justice for Indigenous people
in Australia.

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.

In both my reports
I found cause to express serious concerns about the nation's progress
in recognising and respecting 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 moer than
eighteen months since CAR's final report and over two years since the
documents of reconciliation were released at Corroborree 2000.

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 commemorated 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. Indigenous people currently constitute 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.

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

This level of over-representation
for Indigenous women is worst here in New South Wales, where Indigenous
females are incarcerated at more than 26 times the non-Indigenous rate
at the end of the March 2002 quarter.

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. Most of this additional funding
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, to support non-claimant applications
or to litigate against members of the stolen generations in the Cubillo-Gunner

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.

The short-sightedness
of the government's "practical reconciliation" approach to addressing
Indigenous disadvantage is also evident in its application of mutual obligation
policies to welfare dependency. 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.

An important feature
of this year's Social Justice Report is my review of the first
year of operation of juvenile diversionary schemes here in the Northern
Territory. The schemes, you will recall, were introduced as a compromise
to keep mandatory sentencing. And I am delighted that the schemes now
exist without mandatory sentencing. The introduction of diversion combined
with the repeal of mandatory sentencing has restored dignity to the Northern
Territory criminal justice system.

The first twelve
months of operation of diversion have seen rapid progress. And early results
are encouraging and show that Indigenous youth are accessing the scheme
at an equitable rate to non-Indigenous youth.
However, in the report I have still identified some concerns. Some of
these may be due to the newness of the scheme, but others are more fundamental
and relate to the way the model was conceived and applied to the cultural
and socio-economic factors affecting Indigenous people in the Northern
In particular I am concerned about:

  • Limited community
    based diversionary programs for Indigenous people, due in part to poor
    infrastructure and service networks in many communities;
  • Program gaps in
    many under-resourced areas, for example the lack of accessible petrol
    sniffing programs in Central Australia;
  • The absence of
    guarantees of juveniles' rights to access legal representation, the
    presumption of innocence and right to silence; and
  • The absence of
    complaints and independent monitoring and review mechanisms for the

I am also concerned about the lack of specialised youth services in the
NT and that Indigenous involvement in the scheme remains piecemeal and
uncoordinated. For the scheme to succeed it requires more than Indigenous
communities being invited to take part in a diversionary system that has
already been established along non-Indigenous lines without adequate consultation
and partnership.

I call on the Northern Territory government to implement the recommendations
and also encourage every one here to consider the findings of the review
and to point out the recommendations to your local member and the Attorney-General
to ensure that they are taken into account in the policy formulation process.

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
mostly by the 1960's 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 all along 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, that is by granting citizenship rights,
was merely the first step on the road to a culture of rights and respect
for Indigenous people.

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.

As I have held similar
launches around the country I have been joined in the call for such an

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 23 August 2002