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Social Justice and Aboriginal and Torres Strait Islander peoples access to services (2010)

Aboriginal Aboriginal and Torres Strait Islander Social Justice

Social Justice and Aboriginal and Torres Strait Islander
peoples access to services

QCOSS Regional Conference: Building a Better
Future—themed around improving service delivery for regional and remote

Mr Mick Gooda,
Aboriginal and Torres Strait Islander Social
Justice Commissioner

12 August 2010

Good morning distinguished guests, colleagues and friends.

I would like to start today by acknowledging the Gimuy Walubara Yidinji
people on whose land we are on today and pay my respect to your elders both past
and present. Thank you to Seith for your welcome to country. I pay my respects
as a Gangulu man from Central Queensland.

As some of you may be aware, I recently attended the third session of the
Expert Mechanism on the Rights of Indigenous People (EMRIP), held in Geneva at
the United Nations headquarters. The EMRIP meetings provide an opportunity for
Governments, Experts, and Indigenous peoples from around the world to discuss
matters that are common and relevant to Indigenous peoples globally. It is
interesting that even though we are a developed nation, our issues are not very
different to other countries that are considered to be extremely poor and
impoverished. And within each of those countries are Indigenous peoples who also
struggle with the same challenges that we have here in Australia. These
challenges include access to and the co-ordination of services to Indigenous
people in urban, regional and remote settings.

Today’s conference is about access to services and social justice. And
at the heart of access to services is about the principle of equality –
which in my mind means giving all Australians, regardless of background or race,
the opportunity to realise the fullest potential for their lives.

For Aboriginal and Torres Strait Islander people, this means achieving
self-determination. But what might self-determination in Australia look like?

By definition the right to self-determination is ‘an ongoing process of
choice for the achievement of human security and fulfilment of human
needs’. Realising the right to self-determination results in ‘the
freedom of indigenous peoples to live well, and to live according to our values
and beliefs’.[1] The right to
self-determination enables the debate on Indigenous wellbeing to be taken beyond
the discussion of just jobs and employment, to an understanding of our social
and political participation, our right to culture and our spiritual well-being.
That is to have development, but with our culture and identity.

Our wellbeing is ensured through the protection of rights to tangible and
intangible cultural practices. Our spiritual well-being is contingent upon an
intergenerational continuation of cultural knowledges and

Kerry Arabena, the Co-Chair of the National Congress of Australia’s
First Peoples
has commented, the challenge of 'being Indigenous' is a
crucial issue for Aboriginal and Torres Strait Islander people today. Who we
are, and how we live, is framed by artificial, state-created identities that
resist and minimise the recognition that is provided to our cultures, our
history, our capacities to contribute and our on-going connection to the land
and sea.
It therefore becomes clear that in order for indigenous peoples to
enjoy the right of self-determination we must be able to effectively participate
in matters that affect our lives.

Much of the failure of service delivery to Aboriginal and Torres Strait
Islander people and our communities, and the lack of sustainable outcomes, is a
direct result of the failure to effectively engage with Indigenous people - and
of the failure to invest in building the capacity of Indigenous communities to
participate in processes that would enable us to realise our fullest potential.

I would like to talk with you today about a number of social justice or human
rights principles, that, if put into action, would significantly increase
Aboriginal and Torres Strait Islander people’s access to services. I will
also talk about some important steps that we need to take as a nation to get

The first principle, as I have already touched on briefly, is the right to
participate in decision-making; the second is the principle of free, prior, and
informed consent; and the third is a ‘duty to consult’.

The right to participate in decision-making

Effective Indigenous participation in decision making has been confirmed as
essential to ensuring non-discriminatory treatment and equality before the law, and it recognises the cultural distinctiveness and diversity of
Indigenous peoples. Obviously, in order to reset the relationship between
Aboriginal and Torres Strait Islander peoples and the Australian Government -
our participation will be crucial.

However, a critical step required to achieve a significant improvement in the
lives of Indigenous peoples is for governments and service providers to
recognise, endorse, and treat Aboriginal and Torres Strait Islander people as
substantive players and major stakeholders in the development, design,
implementation, monitoring and evaluation of all policies, programs and
legislation that impacts on our health and wellbeing.

My aim is to encourage governments to empower us 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. Let me explain.

Historically we know that social policy directed to Aboriginal and Torres
Strait Islander people has been paternalistic at best – and 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 onwards,
there is still a perception - and a practice - that reinforces the view that
governments hold the solution to the so-called ‘Aboriginal problem’.

The Northern Territory Intervention is a clear example of governments
determining that they hold the solution to our problems.

There is much work to be done to change the government perception of
Aboriginal and Torres Strait Islander people. This view of us as troubled,
dysfunctional and helpless people is very deep-seated in public sector
bureaucracies. The former Premier of WA, Carmen Lawrence said the following
about ‘learned helplessness’ at a conference in 2008 (and I

...when people repeatedly experience unpleasant events over which they have
no control, they will not only experience trauma, but will come to act as if
they believe that it is not possible to exercise control over any situation and
that whatever they do is largely futile. As a result, they will be passive even
in the face of harmful or damaging circumstances which it is actually
possible to change

Coming to accept that others control your life, and that nothing you can do
will really make much difference is already a crippling combination of
attitudes. Add to it the well known effect of the “self fulfilling
prophecy” and you have a recipe for the social disorder evident in varying
degrees in many Indigenous

Policy that comes from a deficit model can become a self fulfilling prophesy
as Dr Lawrence tells us. A strengths-based model to social problems however,
develops policy from a different perspective. This perspective holds the belief
that young people, families and communities ‘have strengths, resources and
the ability to recover from adversities.’ The strengths-based approach
involves the direct participation of the subjects of policy in the policy making

Strengths based approaches

During my term as Commissioner I hope to advocate for government approaches
to policy and service delivery that are predicated on the assumption that
Aboriginal and Torres Strait Islander people have strengths and resources for
our own empowerment. I will be advocating a strengths-based approach to policy
development and implementation as it affects Aboriginal and Torres Strait
Islander people and that recognises and supports our cultures and identities.

A strengths-based approach to working with Aboriginal and Torres Strait
Islander people is a human rights approach. This approach is about finding ways
in which individuals, family units and communities can build on their
capabilities. Let me quote here:

The [strengths-based] approach focuses on what is working well, and uses
informed strategies to support the growth of organisations and
individuals...Strengths based methodologies do not ignore problems; instead they
shift the frame of reference to define the

The United Nations Declaration on the Rights of Indigenous Peoples sets out principles and standards that are about guaranteeing our full, free and
effective participation in all aspects of public life, and our right to
participate in government

In a human rights context, an essential requirement for our
self-determination is that it corresponds to choice; which means our
participation and control in policies and processes that affect us. The
Declaration 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

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 passive,
troubled people, unable to help ourselves and ultimately subject to the
intervening hand of government. Consider the following quote:

If we think we are fragile and broken, we will live a fragile, broken life.
If we believe we are strong and wise, we will live with enthusiasm and courage.
The way we name ourselves, colours the way we live. Who we are is in our own
We must be careful how we name ourselves.

- Wayne Muller

The process of effective participation must ensure that decisions reflect the
aspirations and worldviews of the indigenous peoples affected, and are made in
accordance with free, prior and informed consent. Free, prior and informed
consent is the second principle that I would like to talk about with you

The principle of free, prior, and informed consent

The Declaration elaborates on the process of participation with reference to
the principle of free, prior and informed
consent.[6] 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.

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 19 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.

When applying the principle of free, prior, and informed consent the
following criteria should be met:

  • that there be no coercion or manipulation used to gain consent

  • consent by governments or third parties must be sought well in advance of
    commencing an activity or implementing legislation that affects the rights of
    Indigenous peoples

  • full and legally accurate disclosure of information relating to the proposal
    must be provided in a form that is understandable and accessible for communities
    and affected peoples

  • communities and affected peoples have meaningful participation in all
    aspects of assessment, planning, implementation, monitoring and closure of a

  • communities and affected peoples are able to secure the services of
    advisers, including legal counsel of their choice and have adequate time to make

  • consent applies to changes to a proposal - this will renew the requirement
    for free, prior, and informed consent

  • consent includes the right to withhold consent and say no to a proposal.

The absence of the effective participation by Aboriginal people in
the Northern Territory, including the opportunity to give their free, prior and
informed consent in the development of the Northern Territory Intervention has
been raised as a concern internationally. The Special Rapporteur on the
situation on the rights and fundamental freedoms of indigenous people, Professor
James Anaya, commented on the Intervention in his Country Report on Australia,
that the lack of appropriate consultation, negotiation, and the application of
free, prior, and informed consent, has been clearly demonstrated as a clear
violation of human rights

An objective human rights appraisal of the Northern Territory Emergency
Response (NTER) measures indicates significant concerns, even in light of the
recent reinstatement of the Racial Discrimination Act 1975 (Cth). The
Northern Territory Intervention serves as an example of the removal of
indigenous people’s voices in the decision-making process. The Australian
Government sanctioned independent review of the NTER found that:

The single most valuable resource the NTER has lacked from its inception is
the positive, willing participation of the people it was intended to help. The
most essential element in moving forward is for government to re-engage with the
Aboriginal people of the Northern

The duty to consult

This leads me to the third principle – the duty to consult.

As we are all aware, Governments, service providers, independent consultants
have all done extensive consultations with Aboriginal people and others about
the effectiveness and acceptability of the Intervention on the lives of
Aboriginal people in the Northern Territory.

However, I am concerned that there is a limited understanding of what
consultation should look like and until this issue is resolved, we will continue
to see policies such as the Intervention imposed on Aboriginal and Torres Strait
Islander people as a solution to our problems.

Again, I draw on the expertise of Professor Anaya, the Special Rapporteur on
the situation on the rights and fundamental freedoms of indigenous peoples, who
emphasises that the participatory aspect of the right to self-determination
entails an engagement and interaction by indigenous peoples with the larger
societal structures of the countries in which they live. In this regard he
emphasised a Government’s duty to consult indigenous peoples on matters
that affect them.[9] As a matter of
fact, the General Assembly of the United Nations concludes that the absence of
meaningful consultations with the indigenous communities about matters that
concern them constitutes a denial of their cultural rights under article 27 of
the International Covenant on Civil and Political Rights. [10]

The duty to consult is firmly grounded in international human rights law,
namely the United Nations Declaration on the Rights of Indigenous Peoples, ILO
Convention No. 169, the International Convention on the Elimination of All Forms
of Racial Discrimination, the International Covenant on Civil and Political
Rights and the American Convention on Human Rights.

These treaties and mechanisms provide guidance to the practical nature of
consultations with Indigenous peoples, including that they are to be held in
good faith, with the objective of achieving agreement or consent between the

It is on this basis, that I would argue that policy making processes based on
consultation alone do not satisfy the principles of equality, equity and
effective participation required under international law. Built on this duty to
consult is a requirement to go beyond mere provision of information. To achieve
agreement and consent requires effective negotiation.

Consultation in a practical sense must be extended to reflect a requirement
to effectively negotiate.

Governments, particularly in Australia interpret their obligation to consult
with Indigenous people, as 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.

The Australian Government fulfils its duty to consult through various
mechanisms such as Senate Committees, reviews of policies and practices and
evaluations. But 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. Unfortunately, this has been a recurring theme in Aboriginal
affairs, and recent consultation processes conducted around the Northern
Territory Intervention and native title provide clear evidence of the outcomes
of Government consultations.

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 the process that delivers minimal improvement.

So there is work to be done to make changes to the ways that governments
engage and work with Aboriginal and Torres Strait Islander people.

The principles I have discussed with you today are integral to ensuring
engagement and interaction by indigenous peoples with our nation’s larger
societal structures, laws and frameworks. As most of us here today are well
aware, our current national societal frameworks do not protect Aboriginal and
Torres Strait Islander peoples from being treated less equally to other

I believe there are two specific priorities for our nation that would go some
way to resolving this.

Constitutional Reform

The first priority is Constitutional Reform.

Besides the fact that Aboriginal peoples and Torres Strait Islanders are not
recognised as first nation’s people within our founding documents - our
Constitution - did you know that nearly all Commonwealth countries have
entrenched equality and non-discrimination clauses in their Constitutions,
including Canada, Fiji, India, Malaysia, New Zealand, Republic of South Africa
and the United Kingdom?

The fact that we don’t have entrenched protections for
non-discrimination in our Constitution – even though we have them in
ordinary statute laws - has meant that our Government can suspend the Racial
Discrimination Act. Federal governments have used this power in 1998, in
relation to amendments made to the Native Title Act, and again in 2007 in
relation to the Northern Territory Emergency Response legislation. Both times
the direct impacts were on Aboriginal and Torres Strait Islander peoples.

Currently, our Constitution contains provisions that give the Commonwealth
Government the power to make laws that specifically target a racial group. As
you will know, those powers were used in the recent Northern Territory
Intervention – an Intervention that was exclusively targeted to Aboriginal
people in remote Northern Territory communities. The sections of the
Constitution, section 51 xxvi, commonly called the ‘Races Power’;
and section 122, commonly called the ‘Territories Power’ made the
Intervention possible. But of course these are not powers that the Government
would have used in other contexts. Imagine the Government putting up signs
outside of Canberra (also a territory for the purposes of the Territories Power)
proclaiming that it is illegal to bring pornography into the Capital city (also
known as the porn capital of Australia). Imagine the shame – imagine the
furore about rights?

Well, as we know, anti-pornography signs were set up outside the 73
communities that continue to be under the shadow of the Northern Territory
Intervention. So it is of great concern to me that under the highest law of this
land, our Constitution, the Government can make rulings that affect some people
- but not all - and with dubious benefit for the people subject to those

There are significant defects in our Constitution that have significant
impacts on the quality of life for Aboriginal and Torres Strait Islander people
in Australia. I believe that the time is now right for our nation to begin a
conversation about making these wrongs right so that all Australian’s are
able to enjoy their human rights.

As the Aboriginal and Torres Strait Islander Social Justice Commissioner, I
am eager to see a process – a campaign – to achieve constitutional
reform that recognises the important place of Aboriginal peoples and Torres
Strait Islanders in our nation and guarantees non-discrimination,

A constitutional reform process will need to consider many voices. I hope to
encourage momentum for a movement to bring all Australians into a discussion to
improve our Constitution.

The Declaration on the Rights of Indigenous Peoples

The second priority is to develop a National Implementation Strategy to
ensure the full implementation of the United Nations Declaration on the
Rights of Indigenous Peoples.

As an international instrument, the Declaration provides a blueprint for
Indigenous peoples and Governments around the world, based on the principles of
self-determination and participation, to respect the rights and roles of
Indigenous peoples within society. It is the instrument that contains the
minimum standards for the survival, dignity and well-being of indigenous peoples
all over the world.[11]

As you may know, it took over 20 years to develop – and was drafted by
governments and Indigenous peoples from across the globe. The rights outlined in
the Declaration address all aspects of our lives including our physical, mental,
social, economic, and cultural well-being.

When it was adopted in 2007, an overwhelming number of counties voted in
favour of it, with only four voting against its adoption. Australia was one of
the countries against it but we have since reversed that decision. In fact, the
Declaration received more support than any other UN instrument that has preceded
it. It is one of the most significant milestones in the protection of indigenous
human rights.

Despite some problematic decisions by this and successive Australian
Governments, the current Government has committed to resetting the relationship
between the Government and Aboriginal and Torres Strait Islander peoples. The
National Apology to the Stolen Generations and the establishment of the National
Congress of Australia’s First Peoples, has provided a solid foundation
upon which Aboriginal and Torres Strait Islander peoples can increase their
participation in decision-making and effective engagement in Australian society.

The Declaration has become increasingly prominent in Australia’s legal
and policy landscape, with references to the Declaration being made in
parliament, parliamentary committee reports, court decisions and in policies
developed by Indigenous NGOs.

Simply making a statement of support for the Declaration will not ensure the
protection and exercise of Indigenous people’s human rights.

The next step is for the government to work with Aboriginal and Torres Strait
Islander peoples to develop a national implementation strategy that is committed
to by all tiers and arms of government and ensures the full implementation of
the Declaration in Australia. A number of approaches have been made by
Indigenous Peoples Organisations of Australia, and the Australian Human Rights
Commission to encourage the government to work with us in this regard.

A national implementation strategy will also go towards achieving a central
tenant of the Declaration, namely the re-setting of relationships between
indigenous peoples and the broader community but more particularly governments.

The Declaration provides a framework to ensure that relationships are
effective, cooperative, and based on mutual respect. The Declaration in
affirming indigenous peoples collective rights to self-determination and the
right to participate in decision-making through the principle of free, prior and
informed consent, should be used to guide the development of institutional
structures, arrangements and processes needed for indigenous peoples to be able
to effectively engage in a relationship based on mutual respect. The General
Assembly commented that it is:

convinced that the recognition of the rights of indigenous peoples in this
Declaration will enhance the harmonious and cooperative relations between
[Governments] and indigenous

One of the best ways we can use the Declaration is simply by using the
language of rights contained in the Declaration when talking about issues in our
communities. Using the Declaration reminds governments at all levels of the
rights to which we are entitled. We can also use the Declaration in more formal
ways, including:

  • Guiding the development and strengthening of relationships with Government,
    the broader Australian community and within Aboriginal and Torres Strait
    Islander communities.

  • Guiding the development and implementation of Government policies and

  • Adopting the standards in the Declaration in policy statements or guidelines
    within our own organisations.

  • Using it in submissions to government.

  • Referring to it in lobbying those who represent us in all levels of
    government and to government employees.

  • Referring to it in court matters such as Native Title, heritage protection
    and hunting.

  • Using it in media campaigns.

During my five year term as Social Justice Commissioner I hope to
work towards seeing an established framework to ensure the protection of
Aboriginal and Torres Strait Islander people’s human rights – and
the overarching element of this framework is the full implementation of the
Declaration. For those in the business of service provision to Aboriginal and
Torres Strait Islander peoples and their communities, I urge you to read the
Declaration and apply it in your work. It is an excellent guide.

A final point about the Declaration is that is does not just apply to
Governments and others working in Indigenous Affairs. Aboriginal and Torres
Strait Islander people also have a responsibility to ensure that the ends of the
Declaration are met.

In order to achieve this we need to be working on the relationships between
and across our own communities. There is much healing to be done. A significant
consequence of the history of forced removal, assimilation and dispossession,
has been problems with our relationships with each other and our sense of
identity – essential for our well-being.

We, Aboriginal and Torres Strait Islander people have fought hard to
regain our rights to our country, our culture, and our identities. We know
though, that in some places there is work to be done within our families, our
clan or language groups and our kinship communities.

We need to address issues such as family violence, suicide, high
incarceration rates and lateral violence, which includes bullying in communities
and bullying in community organisations.

Governments can provide support and funding for programs to address these
issues, but at the end of the day, only Aboriginal and Torres Strait Islander
peoples can resolve these issues.

Aboriginal and Torres Strait Islander people must be at the table developing
policies and laws about education, health, housing and public safety alongside
government representatives. And in the process of developing policies and laws,
a strengths-based approach encourages us to ask different questions. We will be
considering what has worked for us as people and what has led to positive
change. ‘If we ask what makes us effective, and if we build on our skills and our energies, we will do much better than asking
ourselves how we can correct our
weaknesses.’[13] This
strengths-based approach has been used widely around the world - in fact the
process has been used in United Nations forums. Ultimately it is about human
dignity. At the heart of it all - is our right as individuals and communities to
have power over our own lives. We must be the agents of our own change. In my
forthcoming Social Justice Report you will see a focus on re-setting or
recasting our relationships with governments in this vein – both at the
national level through constitutional reform, and at the local level
highlighting the positive work of the Fitzroy Crossing community in demanding
their right to self-determination to achieve their own pre-determined destinies.

In conclusion, the strongest foundation for achieving greater access to
social justice for Aboriginal and Torres Strait Islander peoples is to ensure
that all policies, programs and legislation are underpinned by:

  • our right to participate in decision-making that affects our lives;
  • our right to the principle of free, prior, and informed consent; and
  • your duty to consult and negotiate with us in this process.

I hope my insight assists you in the important work you are doing
across the country to assist us in increasing our access to services,
social justice and well-being.

Thank you.

[1] E Daes 'Striving for
self-determination for Indigenous peoples' in Y Kly and D Kly (eds), In
pursuit of the right to self-determination
(2000), p
[2] Grieves (2006:18-19) cited
in K Arabena, Indigenous Epistemology and Wellbeing: Universe referent
, AIATSIS Research Discussion Paper Number 22 ((2008), p 5.
[3] C Lawrence, Us and Them:
Breaking Down the Barriers
, Paper presented at Fulbright Conference: Healthy
People Prosperous Country, July 11,
[4] TAFE NSW, Promoting
Emerging Practice. Website. At: (Viewed 20 July 2010)
[5] J Anaya, Indigenous Peoples in International Law (2004).
[6] The Declaration on
the Rights of Indigenous Peoples
, Articles 10, 11, 19, 28, 29,
[7] J Anaya, Special Rapporteur
on the situation on the rights and fundamental freedoms of indigenous people, Promotion and Protection of all Human Rights, Civil, Political, Economic,
Social and Cultural Rights, including the Right to Development – Report of
the Special Rapporteur on the situation on the rights and fundamental freedoms
of indigenous people, The Situation of Indigenous Peoples in Australia,
Human Rights Council, Fifteenth session, A/HRC/15/, 4 March 2010, paragraph
[8] Northern Territory
Emergency Response Review Board, Report of the Northern Territory Review
, Attorney-General’s Department, Canberra (2008), pp 10-11. At (viewed 28 April 2010).
[9] UN
Doc: A/HRC/12/34
[10] Official
Records of the General Assembly, Fiftieth Session, Supplement No. 40 (A/50/40),
vol. II, annex X, sect. I, para.
[11]United Nations
Declaration on the Rights of Indigenous Peoples
, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007), article
[12]United Nations
Declaration on the Rights of Indigenous Peoples
, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007), preambular para
[13] Rufus Black, What is
a strengths based approach?
Background to HREOC 21, Conference Sydney