Chapter 1: How far have we come? Looking back on 20 years of the Social Justice Commissioner role

1.1 Introduction

This year marks 20 years since the establishment of the Aboriginal and Torres Strait Islander Social Justice Commissioner (Social Justice Commissioner) role under the Australian Human Rights Commission Act 1986 (Cth).

When I first started in this position I was asked if any of the previous Commissioners had left any words or notes of advice. I answered them ‘no, but they all left very big shoes to fill’. So it is with some trepidation and a big dose of humility that I have continued the work of this office, knowing that the bar has been set pretty high.

 

In the state of flux that marks Aboriginal and Torres Strait Islander affairs, Social Justice Commissioners have been unwavering in their consistent commitment to our communities. They have provided fearless leadership, advocacy and vision, established partnerships and ensured accountability of governments to our communities. There is no doubt that their hard work has cemented the role of the Social Justice Commissioner in the Aboriginal and Torres Strait Islander human rights and policy landscape whilst their considered approach has established a high level of credibility for this position.

This chapter reflects on the journey toward the realisation of our human rights as Aboriginal and Torres Strait Islander peoples in the last 20 years and I take this opportunity to honour the guiding role that the previous Social Justice Commissioners have taken in this journey.

This is not an exhaustive review of this period. Rather it is a snapshot of the developments and contributions of Social Justice Commissioners in the key areas of:

• stolen Generations
• government approaches to Aboriginal and Torres Strait Islander affairs
• Constitutional recognition
• family violence and violence against women
• health equality
• criminal justice issues
• education
• the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).

All of these issues are still as relevant today as they were 20 years ago. We have seen improvements in some areas but sadly, little measurable improvement has occurred in others. Often the more things have changed, the more they have stayed the same.

1.2 Looking back on 20 years of the Social Justice Commissioner

(a) Creation of the Social Justice Commissioner role

The Australian Government created the role of the Social Justice Commissioner in 1992 in response to the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the National Inquiry into Racist Violence.^[1]

 

This was a time when non-Indigenous Australia seemed to be waking up to its Aboriginal and Torres Strait Islander history. The Mabo judgement had just been handed down by the High Court,^[4] the Native Title Act 1993 (Cth) (Native Title Act) was being negotiated,^[5] Prime Minister Paul Keating gave the famous Redfern address,^[6] and it was the early and optimistic days of the Aboriginal and Torres Strait Islander Commission (ATSIC).

Professor Mick Dodson was appointed to the Social Justice Commissioner role on 22 January 1993. From his involvement as Counsel assisting the RCIADIC and with a solid background as a legal advocate, he was uniquely qualified to take up the position. However, it was not a position that he took lightly. From the beginning, he negotiated the complexity of the position:

I am acutely conscious that to be identified as an ‘Aboriginal leader’ and appointed by the Commonwealth to a position of influence may be viewed by some Aboriginal and Torres Strait Islanders as being co-opted by government.^[7]

Professor Dodson explained this tension in its historical context:

It is a measure of the experience of indigenous Australians, as the subjects not only of harsh government policies but also (more insidiously) well-intentioned paternalistic government policies, that there continues a deep distrust of governmental policies and appointees.^[8]

Professor Dodson was very clear that the way through these challenges was by consulting with Aboriginal and Torres Strait Islander communities and acknowledging:

to my country men and women...it is not appropriate that my views should be substituted for their own direct voices or that I can presume to speak for any person’s particular traditional country.^[9]

This commitment from Professor Dodson represents the very consultative, engaging and open leadership style that Social Justice Commissioners have provided over the years.

Despite the changes that have occurred over the past 20 years, the way the first Social Justice Report explains social justice and human rights for Aboriginal and Torres Strait Islander peoples is just as relevant today. Professor Dodson argued:

Social justice must always be considered from a perspective which is grounded in the daily lives of indigenous Australians. Social justice is what faces you when you get up in the morning. It is awakening in a house with an adequate water supply, cooking facilities and sanitation. It is about the ability to nourish your children and send them to a school where their education not only equips them for employment but reinforces their knowledge and appreciation of their cultural inheritance. It is the prospect of genuine employment and good health: a life of choices and opportunity, free from discrimination.

This is not an ideal. It is the commonplace experience for most Australians. The primary task of my Commission is to monitor the gap between the life experience of indigenous and non-indigenous Australians, to ensure that certain absolute minimum standards are achieved and then exceeded, to make equality an experience and not an ideal.^[10]

As we reflect on some of the key events of the past 20 years, I believe you can see this guiding vision in all the work undertaken by the Social Justice Commissioners.

(b) Stolen Generations

(i) Bringing Them Home Report

In 1995, Professor Mick Dodson, together with Sir Ronald Wilson, President of the Human Rights and Equal Opportunity Commission,^[11] commenced the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. Over three years, with a total of 777 people and organisations providing evidence or a submission,^[12] the Inquiry traversed testimonies of grief, loss, tenacity and resilience. These hearings culminated in the Bringing Them Home Report (the Report) in 1997.^[13]

The Report estimated that between one in three and one in ten Aboriginal and Torres Strait Islander children were removed from their families between 1910 and 1970.^[14] The severity of the damage is described in the Report:

Indigenous families and communities have endured gross violations of their human rights. These violations continue to affect Indigenous people’s daily lives. They were an act of genocide, aimed at wiping out Indigenous families, communities and cultures, vital to the precious and inalienable heritage of Australia.^[15]

The Report also considered the contemporary forms of forced separation through the child protection and juvenile justice systems.

The impact of this Inquiry cannot be underestimated in ‘validating the stories of generations of Indigenous people who until now have carried the burden of one of Australia’s greatest tragedies.’^[16] It was the first step in acknowledging the terrible violations of our human rights, and healing for both the Stolen Generations and the nation as a whole.

(ii) Achieving justice for the Stolen Generations

Following the release of the Report and its 54 recommendations, momentum to deliver justice to the Stolen Generations began to build. While it is not within the scope of this chapter to evaluate the implementation of all of these recommendations, I will focus on Recommendation 3 as it provided a framework for achieving justice based on international principles:^[17]

That, for the purposes of responding to the effects of forcible removals, ‘compensation’ be widely defined to mean ‘reparation’; ... Reparation should consist of;

1. acknowledgment and apology,
2. guarantees against repetition,
3. measures of restitution,
4. measures of rehabilitation, and
5. monetary compensation.^[18]

It is encouraging to see that in the 16 years since the Report was released, some of these principles have been put into practice. However, there are still glaring omissions, especially in relation to monetary compensation.

Acknowledgement and apology

One of the landmark moments in our recent history was the national apology delivered by then Prime Minister Kevin Rudd as a bipartisan act of Parliament on 13 February 2008. Although all the States and Territories provided formal apologies in their Parliaments between 1997 and 2001, the significance of a national apology ran deep.

I believe the apology has become one of those defining moments in a nation’s history where people remember where they were and who they were with at that time. The emotion was palpable, people had travelled from all parts of the country to be in Canberra because it was an event in history that non-Indigenous Australians shared as well. It was a true act of reconciliation.

Dr Tom Calma AO, the Social Justice Commissioner at that time, was present for the apology and had the honour of addressing Parliament on that day. His remarks sum up the impact on the nation:

By acknowledging and paying respect, Parliament has now laid the foundations for healing to take place and for a reconciled Australia in which everyone belongs.   

For today is not just about the Stolen Generations – it is about every Australian. 

Today’s actions enable every single one of us to move forward together – with joint aspirations and a national story that contains a shared past and future.^[19]

Guarantees against repetition

Key actions to prevent another Stolen Generation have included the establishment of the Indigenous Child Placement Principles, provision of community education about the impacts of the Stolen Generation and incorporation of the Convention on the Prevention and Punishment of the Crime of Genocide^[20] into Australian law.^[21] These measures have all contributed to a greater awareness of the practices that led to the Stolen Generations. Governments across Australia have all adopted child protection policies that recognise the importance of connection to family and culture.

Many of the recommendations in the Bringing Them Home Report were aimed at improving the way the child protection system operates for our Aboriginal and Torres Strait Islander children to guarantee against repetition. Like so many areas of policy endeavor in Aboriginal and Torres Strait Islander affairs, there has been a lot of effort but the indicators suggest that outcomes have remained the same: see Text Box 1.3.

 

There is no denying the complexity of the issues at play with Aboriginal and Torres Strait Islander children. It has been argued that the recommendations of the Report have created a culture of inaction where child protection authorities are reluctant to remove children from family and culture because we have seen the damage that removing children creates in our communities.^[24] I think this is very simplistic way of looking at a complex issue.

The ‘best interests’ of the child should always be a primary consideration.^[25] However, the well-being of the child or young person is always going to be strengthened by providing real support to struggling families at the earliest possible point. It seems to me and a coalition of advocates led by the Secretariat of National Aboriginal and Islander Child Care (SNAICC)^[26] that this is something we urgently need to do better.^[27]

Measures of restitution

Restitution is about returning something to its rightful owner. In this context, we have seen continued funding of family tracing and reunion services through the Link Up service,^[28] and the protection of historical records. Restitution measures also include the provision of cultural and language centres to keep culture alive, especially where it was disrupted by removal.

Measures of rehabilitation

The social and emotional well-being needs of Stolen Generations’ members and their families have been well documented. Since the Report, we have seen the development and resourcing of a range of therapeutic programs with varied degrees of support and success.

We know that the hurt runs deep in our communities and that holistic healing is needed. The Social Justice Report 2008 specifically recommended an Aboriginal and Torres Strait Islander controlled healing body to implement a coordinated national Indigenous Healing Framework.^[29]

The establishment of the Healing Foundation in 2009 was a significant step in the right direction. It is an independent Aboriginal and Torres Strait Islander organisation that, through community-based healing initiatives, addresses the legacy of colonisation, forced removals and other past government policies. These programs range from establishing local healing centres, holding men’s and women’s gatherings, traditional healing and cultural renewal, to developing resources to heal trauma, loss and grief. The Healing Foundation also conducts training and education, evaluation and research. Since its establishment the Healing Foundation has funded 90 projects aimed at helping our communities to heal.^[30]

I am pleased to see that the 2013 Budget included an amount of $26.4 million over four years to continue the important work of the Healing Foundation.^[31]

Monetary compensation

Tasmania is still the only state that has provided a compensation scheme to members of the Stolen Generations and their families.

The Tasmanian scheme was set up under the Stolen Generations of Aboriginal Children Act 2006 (Tas). Applications were open for six months from the commencement of the Act on 15 January 2007 and a total of 151 claims were received, of which 106 were eligible for payment. Some 84 members of the Stolen Generations received $58 333.33 each and 22 descendants either $5 000 or $4 000 each depending on how many people were within the particular family group.^[32]

Members of the Stolen Generations have been able to make claims in compensation schemes for former wards of state who suffered institutional abuse in Tasmania (2003), Western Australia (2007), Queensland (2007) and South Australia (2009).^[33] While this is a welcome development, generalised redress schemes stop short of acknowledging the specific harm done to the Stolen Generations.

In the Courts, Trevorrow^[34] still stands as Australia’s only successful Stolen Generation litigation. Incomplete government documentation stands as a barrier to successful litigation in this area as do access to justice issues including the cost of litigation. Bruce Trevorrow was removed from his family at 13 months of age when he went to hospital for treatment of gastroenteritis. Mr Trevorrow was awarded $525 000 in compensation. Sadly, he died only one year after the payment was awarded, reinforcing how critical it is that governments act now before members of the Stolen Generation get older and pass away. Despite an appeal by the South Australian Government, the original decision was upheld.^[35]

Trevorrow demonstrates that redress for some members of the Stolen Generations is possible through the court system. However, other cases have proven protracted, expensive and have potentially played a role in revisiting the trauma of removal.^[36] Given this, a system of ex gratia payments for common experiences suffered by members of the Stolen Generations would provide a ‘swifter, more appropriate and less damaging alternative to court processes.’^[37]

I believe that the Australian Government should prioritise compensation for the Stolen Generations. The Commission has previously recommended that the Australian Government, through the Council of Australian Governments (COAG), should engage with State and Territory governments to develop a nationally consistent approach with joint funding mechanisms in the provision of financial redress for the Stolen Generations.

The failure to adequately compensate Aboriginal and Torres Strait Islander peoples ‘who were removed from their families and communities remains a significant human rights issue in Australia’.^[38]

Former Senator Trish Crossin, a longtime advocate of compensation for the Stolen Generations, notes that there are only around 380 surviving members of the Stolen Generation alive in the Northern Territory today.^[39] It is crucial that the Government acts before it is too late.

(c) Shifting government approaches to Aboriginal and Torres Strait Islander affairs

The past 20 years has seen many changes to the administration of Aboriginal and Torres Strait Islander affairs. In fact, I think it is fair to say that one of the few constants over this period has been change itself. This uncertainty and constant churn has, in my view, hindered the progress we could have made in the past 20 years.

However, as a counter balance to this ongoing change, I believe the other constant has been the advocacy of Social Justice Commissioners to make sense of these changes and their impact on the human rights of Aboriginal and Torres Strait Islander peoples.

This section will tell the story of some of the major, primarily federal-level, policy shifts.

(i) Aboriginal and Torres Strait Islander Commission

ATSIC was established in 1990^[40] and hailed by some as a ‘revolution’^[41] in Aboriginal and Torres Strait Islander affairs. As a consequence, it attracted great controversy and took two years to come to fruition. At the time the legislation to establish ATSIC was passed, it was the second most amended piece of legislation to pass the Parliament since Federation.^[42] The Coalition opposed the legislation and there were misconceptions around how this version of self-determination would work. For instance some thought that ATSIC was a sort of ‘black parliament’^[43] that would threaten Australia’s sovereignty.

ATSIC was made up of an elected ‘arm’ and an administrative ‘arm’. This enabled ATSIC to function as both a peak representative body and a program delivery organisation. All Aboriginal and Torres Strait Islander people on the Australian electoral roll were eligible to vote in ATSIC elections.

The elected arm was based on 35 Regional Councils and the Torres Strait Regional Authority (TSRA), with Aboriginal and Torres Strait Islander people eligible to vote for councillors on these Regional Councils.^[44] The Regional Councils were grouped into 16 zones plus the TSRA, each electing a Commissioner to the ATSIC Board.^[45] The Minister for Indigenous Affairs appointed the Chair of the ATSIC Board until 1999 after which time the Chair was elected by the Board.^[46]

The administrative arm of ATSIC was responsible for service delivery in key areas of economic and social development through programs such as the Community Development Employment Project (CDEP), and the Community Housing and Infrastructure Program (CHIP). ATSIC received annual funding of around $1 billion.^[47] As well as service delivery, ATSIC was an advocate for the advancement of Aboriginal and Torres Strait Islander rights nationally and internationally.

(ii) Abolition of ATSIC

In 2004, a series of coincidental events began the demise of ATSIC. A Government review of ATSIC was underway and its Board was dogged by a number of controversies involving the personal conduct of a minority of Commissioners. There was a range of internal governance failings, a relatively new Leader of the Opposition who was, in my view, in search of a distraction, and finally a Prime Minister whose antipathy toward the organisation was already well known.^[48]

The then Opposition Leader, Mark Latham was the first to announce his intention to abolish ATSIC; a decision that was quickly supported by then Prime Minister, John Howard. Legislation supporting this decision was passed through Parliament in 2005.^[49]

Over the years, much has been said and written about the demise of ATSIC and as the last Chief Executive Officer of ATSIC, I too have my own views. However, what I want to focus on here is the role that the then Social Justice Commissioner, Dr Bill Jonas assumed by filling some of void left by the abolition of ATSIC.

Despite acknowledging that ATSIC faced some governance and accountability challenges, Dr Jonas was strident in his criticism of its abolition. He argued that that the Australian Government was ‘scapegoating’ ATSIC for the Government’s own failures. He made important points about funding and service delivery:

The vast majority of ATSIC’s funding has been quarantined for particular programme responsibilities, with limited ability to address a range of key issues facing Indigenous peoples. ATSIC is now being blamed for the lack of progress by government in addressing issues for which it has no programme responsibility.^[50]

Dr Jonas was also critical of the Government’s ‘intolerance to advice or analysis that is critical of their own approach’.^[51]

The regional structures of ATSIC, Regional Councils, facilitated local decision-making. This important way for communities to organise and make their voices heard was completely lost in the abolition of ATSIC.

Significantly, without ATSIC there was no clear national representative voice of Aboriginal and Torres Strait Islander peoples. The role of the Social Justice Commissioner became the sole remaining national Aboriginal and Torres Strait Islander statutory advocacy role in a position to engage with Government.

(iii) ‘New arrangements’

The changes to Aboriginal and Torres Strait Islander affairs announced by the Government in 2004 became known as the ‘new arrangements for the administration of Indigenous affairs’. This was a complex set of reforms, which apart from the abolition of ATSIC included:

• Transferring responsibility for the delivery of all Aboriginal and Torres Strait Islander specific programs to mainstream government departments.
• The adoption of whole-of-government approaches, with a greater emphasis on regional service delivery.
• The establishment of new structures; the Office of Indigenous Policy Coordination (OIPC) to coordinate policy nationally and Indigenous Coordination Centres (ICCs) at the regional level.
• A process of negotiating agreements at the local and regional level through Shared Responsibility Agreements (SRAs) and Regional Partnership Agreements (RPAs).^[52]

Change of any description breeds uncertainty, but when significant changes such as the abolition of ATSIC and the ‘new arrangements’ took place, it was inevitable that it was accompanied by a fair degree of distrust.

The sheer scope and pace of change was also a major challenge for our communities as well as for government bureaucrats, with Dr Calma remarking:

I received a lot of feedback that reports provide excellent documentation on what the new arrangements actually are, and this is being used by a number of public servants as a ‘bible’. This is good. But is also reflects one of the most basic problems of the new arrangements – a lack of information delivered down to the local level for both bureaucrats who are supposed to be implementing the new approach and most crucially for communities.^[53]

Both Dr Calma and Dr Jonas applied a human rights-based approach to the ‘new arrangements’, highlighting particular concerns about the lack of engagement with Aboriginal and Torres Strait Islander peoples.

The ‘new arrangements’ brought into sharp relief the importance of the principle of free, prior and informed consent to effective policy. For instance, Shared Responsibility Agreements (SRAs) were agreements between government and Aboriginal and Torres Strait Islander communities or groups to provide a discretionary benefit in return for community obligations. These discretionary benefits took the form of extra services, capital or infrastructure over and above essential services or basic entitlements.^[54]

SRAs were a controversial aspect of the new arrangements, with suspicion by some communities about the underlying concept of mutual obligations where communities were required to do something in exchange for a benefit, rather than receive it on the basis of a general citizenship right or entitlement.^[55] Questions were also raised about whether communities were in a position to exercise their free, prior and informed consent in relation to the agreements and whether it impacted on the exercise of self-determination.^[56] These concerns intensified when some of the SRAs came to light: Text Box 1.4 discusses the Mulan SRA.

While the Mulan SRA raised concerns^[58] and was more complex than portrayed in the media, it was inevitably used as a partisan device. All sides of politics used this SRA as an opportunity to push their own agendas for Aboriginal and Torres Strait Islander affairs. In this environment, the following analysis provided by Dr Calma was invaluable because it adopted a human rights approach:

My conclusions on these issues may surprise some people. In particular, I find that if properly done, Shared Responsibility Agreements can provide a useful tool for realising the human rights of Indigenous peoples. When I say ‘properly done,’ I mean that the process through which agreements are struck is on the basis of free, prior and informed consent; and is supportive of Indigenous communities and builds their capacity to engage with government. For agreements to be ‘properly done’ they must not make the delivery of basic human rights subject to conditions, nor impose conditions on Indigenous peoples that are not applied to other citizens.^[59]

Dr Calma continued to monitor the ‘new arrangements’ in an attempt to keep the Government accountable. By 2006, these arrangements had been considered in the past four Social Justice Reports. This ‘continuity of focus’^[60] in Social Justice Reports was one of the only systematic attempts to track the implementation of the new arrangements. Dr Calma was forthright in his assessment:

After four years...it is clear that there are significant problems with...Indigenous affairs at the federal level. Primarily this is due to an ‘implementation gap’ between the rhetoric of government and its actual activities.^[61]

This ‘implementation gap’ applied strongly to the area of Aboriginal and Torres Strait Islander participation and representative structures with a disappointing lack of progress on regional representative arrangements. According to Dr Calma, the ‘absence of a framework for Indigenous representation at all levels of decision-making undermines and contradicts the aims of the new arrangements.’^[62]

(iv) Northern Territory Emergency Response

On 21 June 2007, the policy landscape shifted once again with the announcement of the Northern Territory Emergency Response (NTER). Then Prime Minister John Howard and Indigenous Affairs Minister Mal Brough announced the measures^[63] as a response to the Northern Territory Board of Inquiry Report into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle: Little Children are Sacred.^[64] The legislation was passed rapidly and with no consultation with the effected communities. This was despite the Report’s first recommendation saying, in part, that ‘governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities’.^[65]

The legislation underpinning the NTER was enacted on 17 August 2007.^[66] Initially, the measures applied to 73 communities and the legislation had a five year sunset clause.

These measures included:

• compulsory welfare quarantining
• compulsory alcohol restrictions
• the compulsory acquisition of land
• changes to the permit system to enter Aboriginal land
• the removal of customary law and cultural practice as a mitigating factor in bail or sentencing
• licensing of stores in prescribed areas
• banning of pornography in prescribed areas.^[67]

Initially there was also to be compulsory health checks of all children under 16 years old, but this strategy was abandoned following strong protests from medical practitioners.

Dr Calma welcomed the announcements to protect the rights of Aboriginal and Torres Strait Islander women and children, but was critical of the lack of connection between Australia’s human rights obligations and some aspects of the NTER, especially the suspension of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act):

This was of great concern to me as I have always maintained that human rights are universal and indivisible. This means that human rights apply to everyone, everywhere, everyday and that different types of rights have equal importance. Good policy always upholds human rights.^[68]

Dr Calma also voiced concerns about consistency with the ‘new arrangements’ in which the Government had invested so much, saying:

One of the things that I was immediately struck by the announcement of the government these past weeks was the similarity between them and the government’s announcements in 2004 to abolish ATSIC and introduce the new arrangements. The announcement of the abolition of ATSIC was clearly made on the run. The commitments made at the time were sweeping in their scope. What my reports have shown is that to date the government still hasn’t been able to bed down a system that can deliver these commitments.^[69]

A fundamental concern was also the lack of consultation and engagement with Aboriginal communities in the Northern Territory. Dr Calma reported on the deep feelings of disengagement and division in the affected communities which became linked with an unhealthy discourse that stifled debate, ‘framed in such a way that you are either with us or against us,’^[70] or in other words, if you don’t support us you must support the abuse of children.

As well as a broad coalition of people and organisations across Australia noting similar concerns and the United Nations also highlighting the human rights shortcomings of the NTER,^[71] Dr Calma was singled out for sustained personal attacks in the media about his approach.^[72] Again, I commend Dr Calma for taking a principled stand for our human rights and maintaining the integrity of this position, particularly where we are tasked with monitoring and promoting the enjoyment and exercise of human rights of Aboriginal and Torres Strait Islander Australians.^[73]

(v) Closing the Gap

In 2008, the Council of Australian Governments (COAG) agreed to a partnership to achieve targets in Closing the Gap in Indigenous Disadvantage. These targets were expressed in the National Indigenous Reform Agreement and are outlined in Text Box 1.5 together with the underpinning ‘building blocks’ that support their achievement.

The work of the Close the Gap Campaign for Indigenous health equality was very influential in the development of the Closing the Gap agenda. I discuss this in further detail later in this chapter.

 

Closing the Gap has now become a central strategy in Aboriginal and Torres Strait Islander affairs. I discuss it further in relation to health equality in this chapter and consider future directions in chapter 3.

(vi) A new national representative body

The Closing the Gap Framework offered a shift in how governments would work together but without a national representative body, it was unclear how governments would work with Aboriginal and Torres Strait Islander peoples to meet the targets.

In December 2008, Minister Macklin tasked Dr Calma with chairing an Independent Steering Committee to research models for a new national representative body, consult with communities and make recommendations. A report was released in November 2009^[75] setting out recommendations for a model of a representative body that has now evolved into the National Congress of Australia First Peoples (Congress).

Again, I believe the respect for Dr Calma’s leadership was a key factor in bringing people together. Questions of governance and representation are inevitably political and given the history of ATSIC, it was a great achievement to come to a clear resolution.

Congress was incorporated in 2010. I wrote extensively about Congress in the Social Justice Report 2012,^[76] and consider steps to secure our national voice in chapter 3.

(vii) Changes to the Northern Territory Emergency Response

Against this background of the reform, the NTER largely continued following the change of Government at the 2007 election. However, the Government initiated a review in 2008.

An independent Review Board, led by Peter Yu, was appointed in June 2008 and completed their report in October 2008.^[77] This report noted some positive progress from the NTER; for example an increased police presence, measures to reduce alcohol-related violence, and an improvement in the quality and availability of housing, health and education. However, it also noted that some measures had not succeeded because the NTER failed to engage with the very people for which it was intended.^[78]

The suggestions for improvement made by the Review Board echoed the recommendations made by Dr Calma in the Social Justice Report 2007.^[79] The three overarching recommendations made by the Review Board were that:

• The Australian and Northern Territory Governments recognise as a matter of urgent national significance the continuing need to address the unacceptably high level of disadvantage and social dislocation being experienced by Aboriginal Australians living in remote communities throughout the Northern Territory.
• In addressing these needs, both the Australian and Northern Territory Governments acknowledge the requirement to reset their relationship with Aboriginal people based on genuine consultation, engagement and partnership.
• Government actions affecting Aboriginal communities must respect Australia’s human rights obligations and conform to the Racial Discrimination Act.^[80]

The Australian Government provided an initial response in October 2008 that agreed with these main recommendations and outlined the intention to continue the ‘stabilisation’ phase of the NTER for 12 months before transitioning to a long term development phase.^[81] Following consultation with Indigenous communities in the Northern Territory, the Australian Government released its policy statement on the proposed redesign of the NTER measures.^[82]

In essence, the core elements of the NTER remained in place^[83] although there was a focus on redesigning the NTER measures so they were ‘more clearly special measures or non-discriminatory within the terms’ of the Racial Discrimination Act.^[84]

In 2010, the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth) repealed the provisions which had suspended the operation of the Racial Discrimination Act in relation to the NTER.^[85] The Commission welcomed these amendments but noted some concerns as the legislation ‘authorised the continuation of some measures that had a discriminatory and negative impact upon the rights of Aboriginal and Torres Strait Islander peoples.’^[86]

(viii) Stronger Futures

As the NTER legislation approached its expiry in 2012, the Australian Government conducted a six week consultation process on the development of the legislation to take its place. This process was extremely disappointing given there had been consistent calls for meaningful and effective consultation with Aboriginal and Torres Strait Islander peoples as the proposed legislation would have wide-ranging impacts on communities. In my view, the six week consultation period did not do justice to the issues in question given their complexity and their potential impacts on communities.

Nonetheless, based on these consultations the Government introduced three Bills, which passed through Parliament on 29 June 2012.^[87] I will refer to these collectively as the Stronger Futures legislation. Text Box 1.6 summarises the features of the Stronger Futures legislation.

 

Stronger Futures has provided ten-year funding commitments and while I welcomed the long term investment that this provides, I echo the key message that Social Justice Commissioners have been making for the past 20 years: work must be done in consultation and in partnership with our communities, and it must be in accordance with our human rights.^[100]

At the time the legislation passed, I harboured concerns about the legitimacy of the characterisation of some of the Stronger Futures measures as special measures.^[101] I also had concerns about the potential for other measures, such as the School Enrolment and Attendance Measure (SEAM), to be indirectly discriminatory in their application. Then Race Discrimination Commissioner, Dr Helen Szoke and I stressed that the way these measures were implemented would determine whether or not they were compatible with obligations not to discriminate on the basis of race.^[102]

The Parliamentary Joint Committee on Human Rights (JCHR) produced an examination of the Stronger Futures legislation in June 2013. Its report raised concerns about the lack of evidence to support the assertion that certain measures are not racially discriminatory. In relation to the Government’s assertion that alcohol measures were a special measure, the JCHR did not ‘consider that the measures are appropriately classified as special measures within the meaning of ICERD [International Convention on the Elimination of All Forms of Racial Discrimination].’^[103] However, the report suggested that the implementation of alcohol management plans could create evidence to justify such classification.

The JCHR found SEAM would have an impact predominantly on Aboriginal communities and therefore might constitute racial discrimination as defined by ICERD.^[104] It also found that SEAM involved a limitation of a number of other rights.^[105] Consequently the JCHR suggested that SEAM ‘must be justified as a proportionate measure based on objective and reasonable criteria’ adopted to achieve the ‘legitimate goal’ of promoting the right of education of Aboriginal children in the Northern Territory.^[106] The JCHR further suggested that it is the responsibility of the Government to clearly demonstrate SEAM is justified based on ‘reliable empirical evidence, that the measures are having a significant impact on reducing low school attendance’.^[107] I am concerned that the Government is yet to produce the necessary evidence to satisfy these considerations.^[108]

I am of the view that the way to establish legitimacy and ensure the effectiveness of these measures is through meaningful engagement with Aboriginal and Torres Strait Islander communities respecting the right to free, prior and informed consent.

The Stronger Futures legislation is in force until 2022.^[109] The challenge for the next ten years is its implementation. Again, I have argued that a human rights framework as articulated in the Declaration should guide this work. I will discuss this in more detail in chapter 4.

(d) Constitutional recognition

The fact that the Constitution of Australia contains sections that anticipate discrimination on the basis of race and fails to recognise Aboriginal and Torres Strait Islander peoples remains a stain on our nation. As the most recent uses of these provisions relate to Aboriginal and Torres Strait Islander peoples, Social Justice Commissioners have consistently campaigned strongly to redress this injustice.

• (i) A history of campaigning

Social Justice Commissioners have continued to build on the proud history of campaigning and community advocacy for constitutional recognition of Aboriginal and Torres Strait Islander peoples. A groundswell of public support, generated by grassroots advocacy, was a key factor in the success of the 1967 referendum. Despite the positive outcomes of this referendum, there remained unfinished business. Text Box 1.7 considers the importance of the 1967 referendum.

 

The Social Justice Report 1995 explored the value of constitutional change and possible options for reform.^[111] Professor Dodson explained the need for constitutional reform stemming from the original drafting process:

In 1901, the ‘founding fathers’, white, male and bearded, saw no reason to place the rights of Indigenous peoples on the Constitutional agenda. They totally excluded Indigenous peoples from the process of forming the Constitution.^[112]

He also identified that ‘recognition will have great benefits over time in changing non-Indigenous social attitudes towards Aboriginal peoples and Torres Strait Islanders.’^[113]

The Social Justice Report 2008 explored the potential for constitutional reform in the changed political context after the 2007 election, and suggested options for the substance and process of reform.^[114] In this Report, Dr Calma identified the need for constitutional change as ‘unfinished business.’ ^[115] He stated that constitutional reform:

...is about ensuring that our founding document sets out ambitions and expectations for all Australians that reflect a modern, twenty first century Australia by providing a legal foundation for reconciliation, where human rights are respected at all levels of government...Without constitutional change, Aboriginal and Torres Strait Islander peoples will continue to be vulnerable to the enactment of racially discriminatory laws in Australia. No other reform to our legal system can address this fundamental problem.^[116]

In my first Social Justice Report in 2010 I picked up the issue again, identifying the critical factors necessary for a successful referendum. I considered the existing inadequacies of provisions in the Constitution and traced the history of the campaign for reform. I also outlined the benefits that constitutional recognition would bring to Aboriginal and Torres Strait Islander peoples, and to the nation as a whole.^[117]

Constitutional recognition, to my way of thinking, is for all Australians:

Australians have a rare opportunity to stand together as one people, united in recognition of the contribution of Aboriginal and Torres Strait Islander peoples to this land and this nation, in the past, the present and into the future. What is at stake is an inclusive national identity and a path towards a truly reconciled nation.^[118]

This history of campaigning by Social Justice Commissioners also included submissions, lobbying and involvement in other processes and inquiries.

The most recent example of this work was my involvement as an ex-officio member of the Expert Panel on Constitutional Recognition of Indigenous Australians (Expert Panel).

In December 2010, then Prime Minister Gillard appointed the Expert Panel with a mandate to explore how the Constitution could be changed to recognise Aboriginal and Torres Strait Islander peoples. The Panel consisted of Members of Parliament, legal experts, and Aboriginal and Torres Strait Islander and non-Indigenous community leaders.^[119]

Between May and October 2011, the Expert Panel conducted 250 public consultations across Australia, heard from over 4 000 people and received over 3 500 submissions. The Expert Panel visited many Aboriginal and Torres Strait Islander communities, holding consultations based on a discussion paper that was translated into 15 Indigenous languages.^[120]

The Expert Panel was a significant and genuine attempt to gain a wide range of authoritative views on the need for constitutional recognition. I hope that we look back at the work of the Expert Panel as one of the defining moments that garnered support for a successful referendum to provide this recognition.

The Expert Panel’s report was presented to the Prime Minister in January 2012 and it lays out sound, well considered recommendations to present to the Australian people at a referendum. The recommendations should provide the foundation for any proposal taken to the people.

Significantly, cross-party support for constitutional recognition of Aboriginal and Torres Strait Islander peoples has been achieved.

Considering this achievement, many people consider that progress to reform the Constitution has been too slow. However, there are a couple of key advances that demonstrate real progress towards a referendum.

• (ii) Beyond the Expert Panel

The passing of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) by Parliament was an important first step towards the main goal of constitutional reform. As then Prime Minister Gillard stated:

...no gesture speaks more deeply to the healing of our nation’s fabric than amending our nation’s founding charter, so I commend this bill to the House as a deed of reconciliation in its own right, and as a sign of good faith for the referendum to come.^[121]

The then Opposition Leader Tony Abbott supported the Prime Minister’s message:

I honour the millions of Indigenous people, living and dead, who have loved this country yet maintained their identity and who now ask only that their existence be recognised and their contributions be acknowledged.^[122]

Another important mechanism for progressing constitutional recognition has been the establishment of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in November 2012. The Committee operates with the mandate to ‘work to build a secure strong multi-partisan Parliamentary consensus around the timing, specific content and wording of referendum proposals for Indigenous constitutional recognition’.^[123] It produced its first report on the Inquiry into the Aboriginal and Torres Strait Islander Peoples Recognition Bill in January 2013.^[124]

The progress report, delivered by the Committee in June 2013, provided clear direction on the steps and timeframes required to ensure that momentum towards a referendum is maintained and built upon following the September 2013 election.^[125] It was pleasing to note that the report again clearly demonstrated cross-party commitment to constitutional recognition.

The report also provided a strong endorsement of the work and recommendations of the Expert Panel, stating that ‘the work of the Expert Panel provides a solid foundation for the process of constitutional reform’.^[126]

Consistent with the recommendations of the Expert Panel, the Committee also committed to ‘consult further with Aboriginal and Torres Strait Islander peoples and their representative organisations to ascertain their views’ if a proposal other than that of the Expert Panel is being considered.^[127] The continued engagement of Aboriginal and Torres Strait Islander peoples is crucial to ensure any proposal is meaningful and supported by us as First Peoples.

• (iii) Public education campaign

In examining the previous attempts to change the Constitution, and their successes and failures, we cannot underestimate the importance of public education. We need to bring people along with us if constitutional recognition is to be successful.

An education campaign began in July 2012 to raise public awareness of the need to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. The campaign builds on the continued advocacy since the successful referendum in 1967, which itself launched from the platform created by the 1967 Yes Campaign. The campaign, which can be seen as a vital element of this advocacy, is called Recognise and is supported by Reconciliation Australia with funding from the Australian Government.^[128]

I joined with many high profile Australians including Michael Long, Aden Ridgeway, Lowitja O’Donoghue, Mick Dodson, Marcia Langton, Jason Glanville and Tim Costello, along with then Minister for Families, Community Services and Indigenous Affairs Jenny Macklin and now Prime Minister Tony Abbott, to begin the ‘Journey of Recognition’ in Melbourne on 26 May 2013. The Journey is travelling around the country talking about the importance of constitutional recognition. This is just one of a number of community advocacy measures that are building momentum towards a referendum.

By the end of September 2013, almost 152 000 people pledged their support for constitutional recognition of Aboriginal and Torres Strait Islander peoples according to the Recognise website.^[129] This show of commitment is a strong display of public support for constitutional reform and engagement with the campaign.
Polling has also shown that 81% of eligible voters support the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.^[130] Recent polling also indicated strong support for a key recommendation of the Expert Panel which is the inclusion of a clause which would prohibit discrimination on the basis of race.^[131]

This support is promising and I consider the next steps needed to achieve constitutional recognition in chapter 3.

(e) Health equality

Addressing the unacceptable gap in health and life expectancy equality between Aboriginal and Torres Strait Islander people and the broader Australian public has been a priority of successive Social Justice Commissioners.^[132] The life expectancy gap remains a major challenge for the nation:

In 2005–07, life expectancy for Aboriginal and Torres Strait Islander peoples was estimated to be 11.5 years lower than that of the non-Indigenous population for males (67.2 compared with 78.7 years) and 9.7 years lower for females (72.9 compared with 82.6 years).^[133]

I am proud of the contribution that Social Justice Commissioners have made to drive action and reform to address this concern. The ground-breaking Social Justice Report 2005 set out a human rights-based approach to Aboriginal and Torres Strait Islander health equality. In the Report, Dr Calma called on the ‘governments of Australia to commit to achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander people within 25 years.’^[134]

The crux of the call was that governments have an obligation to ensure that Aboriginal and Torres Strait Islander peoples have an equal opportunity to be as healthy as the broader Australian population. This human rights based-approach also required governments to develop a comprehensive long-term plan of action and to set timeframes and benchmarks to measure progress in achieving health equality.

I continue to advocate for health equality in my role as Co-Chair of the Close the Gap Campaign.

(i) Close the Gap: A campaign for health equality

Following the release of the Social Justice Report 2005, under the leadership of Dr Calma, key stakeholders in Aboriginal and Torres Strait Islander health began meeting to:

• achieve a common understanding of a strategy to health equality for Aboriginal and Torres Strait Islander Australians (the Social Justice Report 2005 outlined the proposed strategy)
• commit to working together to achieve Aboriginal and Torres Strait Islander health equality within 25 years.^[135]

These meetings led to the formation of a coalition called the Close the Gap Campaign that united to push for health equality. Members of this Coalition then formed a Steering Committee to drive the Campaign.

In April 2007, Patrons Catherine Freeman and Ian Thorpe launched the Campaign. Coinciding with the launch, the Campaign published an open letter to all Australian governments in the media calling for health equality.

At the same time the public was invited to sign the Close the Gap Pledge.^[136] Over the years this has resulted in over 188 000 Australians committing their support with this year’s annual National Close the Gap Day involving more than 140 000 people, and a dedicated Close the Gap National Rugby League Round.

The Campaign has engaged with a broad range of stakeholders. As founding Chair of the Campaign, Dr Calma played a key role in bringing the various health bodies, Indigenous and non-Indigenous, to the table to form the Campaign. Since its inception it has also been strongly bipartisan and closely engaged with all sides of politics.

(ii) National Indigenous Health Equality Summit

In March 2008, the Campaign hosted the National Indigenous Health Equality Summit in Canberra. The Summit produced two key outcomes: the National Indigenous Health Equality Targets and the Statement of Intent and was one of the formative events in building support.

The National Indigenous Health Equality Targets^[137] set out the consensus view from Campaign members and Aboriginal and Torres Strait Islander health experts on what needs to be done to achieve health equality by 2030. These targets still have as much relevance now and should inform the development of a national implementation plan for the National Aboriginal and Torres Strait Islander Health Plan 2013–2023 (Health Plan).^[138]

The Statement of Intent was signed by all major federal parties at the summit and has subsequently been signed by most States and Territories and committed parties to working together to achieve health equality by 2030. It also set out the blueprint to achieve this goal which includes the development of a long-term plan of action in partnership with Aboriginal and Torres Strait Islander peoples and their representatives.

Both Dr Calma and myself as Social Justice Commissioners and the Campaign Chairs^[139] have used the Statement of Intent as key pillars in our advocacy. The Social Justice Report 2008 provided a detailed review of the impact of the early years of the Campaign and updates have been provided in subsequent reports.^[140]

(iii) Reforming Aboriginal and Torres Strait Islander health policy

In 2007, having indicated support for Close the Gap approach, the Australian Government adopted the Closing the Gap policy platform.^[141] This resulted in a number of positive reforms including:

• In December 2007, COAG adopted a target to achieve Aboriginal and Torres Strait Islander life expectancy equality within a generation. This was supported by a target to halve the mortality rate of under-five year old Aboriginal and Torres Strait Islander children within ten years. By mid-2009, a total of six COAG ‘closing the gap’ targets had been announced.^[142]
• In 2009, the National Partnership Agreement (NPA) on Closing the Gap in Indigenous Health Outcomes with a focus on chronic disease and the NPA on Indigenous Early Childhood Development with a focus on child and maternal health were signed.^[143]

The Closing the Gap reforms have also increased transparency and public accountability. This is consistent with the Campaign’s advocacy and a human rights-based approach as it enables progress to be tracked over time. Of particular importance is the Prime Minister’s annual report and address to Parliament on progress towards achieving the Closing the Gap targets. The Campaign produces an annual ‘Shadow Report’ coinciding with the Prime Minister’s report. It has become a welcome tradition that the Prime Minister meets with Campaign representatives and exchanges reports on the day that the Prime Minister’s report is tabled in Parliament.

(iv) National Health Leadership Forum

In August 2011, the National Health Leadership Forum (NHLF) was established within Congress. The NHLF is comprised of the Aboriginal and Torres Strait Islander health peak bodies on the Campaign Steering Committee and was established to partner with the Australian Government in the development, implementation and monitoring of national health policy including a plan of action. I set out the NHLF as a case study in the Social Justice Report 2012 as an example of effective governance at the national level.^[144]

(v) National Aboriginal and Torres Strait Islander Health Plan 2013–2023

Following the formation of the NHLF, then Health Minister Nicola Roxon and the Minister for Indigenous Health Warren Snowdon announced a process for the development of a Health Plan.^[145] The NHLF worked in partnership with the Australian Government in the development of the Health Plan which was finalised in July this year.^[146]

The Close the Gap Campaign welcomed the Health Plan as a crucial step towards closing the gap in health equality.^[147] It is pleasing that the Health Plan:

• has an overarching goal of closing the life expectancy gap by 2030
• adopts a human rights-based approach and addresses racism at both the individual and systemic levels
• adopts a holistic definition of health including recognition of the impacts of past policies and the ongoing cycle of trauma on the health of Aboriginal and Torres Strait Islander people and the role of healing
• recognises the central role of culture and social and emotional wellbeing to the physical and mental health of Aboriginal and Torres Strait Islander people
• is comprehensive and addresses the wide range of social and cultural determinants of health inequality
• includes a commitment to develop targets and benchmarks to measure progress.^[148]

However, to be effective this plan of action must be implemented in partnership with Aboriginal and Torres Strait Islander peoples and their representative organisations.^[149] I consider actions for the future in chapter 3.

(f) Criminal justice issues

Given that the RCIADIC was part of the impetus for the creation of the Social Justice Commissioner role, it is not surprising that criminal justice issues have been a significant focus over the last 20 years. Unfortunately, the statistics over time have grown worse: see Text Box 1.8.

 

Social Justice Commissioners have been actively involved in trying to explain why our people make up the majority of Australia’s prison populations and how we can remedy this. Some of this has been in response to particular policies, such as mandatory detention, whilst other work has considered the particular needs of groups such as women and offenders with cognitive impairments and/or mental health issues. And of course, there is the issue of general disadvantage facing our people as a result of colonisation and subsequent trauma.

(i) Mandatory sentencing

Over the past 20 years, opposition to mandatory sentencing laws has been a key area of advocacy for Social Justice Commissioners because the application of these laws has a disproportionate impact on Aboriginal and Torres Strait Islander peoples.

When we place mandatory sentencing in the social context of Aboriginal and Torres Strait Islander offenders, we see for example:

Aboriginal juveniles appearing in court are significantly more likely to have a previous offending history and are more likely to be among those with extensive offending histories than are non-Aboriginal people. Thus mandatory sentencing regimes, although they appear to be racially neutral, are foreseeably discriminatory in their impact.^[155]

Mandatory sentencing was first introduced in Western Australia in 1996 and the Northern Territory in 1997.^[156]

The Northern Territory laws required a Court to impose a period of at least 14 days imprisonment for an offender guilty of a property offence.^[157] In Western Australia, if a person was a repeat offender at the time of committing a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months imprisonment or detention.^[158]

These laws were sharply critiqued by then Social Justice Commissioner, Dr Jonas who referred to them as the ‘antithesis of social justice’.^[159] Serious concerns were raised by a number of United Nations human rights treaty bodies about the compatibility of the laws with Australia’s human rights obligations.^[160] The human impact of these laws helped turn the tide of public opinion. For instance, as shown in Text Box 1.9 below, there were numerous examples of disproportionate sentencing of Aboriginal people in the Northern Territory.

 

In 2001, the Northern Territory mandatory sentencing laws for property offences were repealed.^[162]

Looking back, researchers have been able to show that appearances before the Northern Territory courts that led to imprisonment were 50% higher during the period of mandatory sentencing, compared with the period immediately after the repeal of the legislation.^[163] In terms of the impact on crime, property crime actually increased during the mandatory sentencing regime and then decreased once it was repealed.^[164]

Mandatory sentencing regimes are still in place in Western Australia. In fact, the Western Australian Government has promised to expand mandatory sentencing terms to 15 years for some offences and double home burglary minimum terms to two years for all offenders over the age of 16 years.^[165]

The Northern Territory introduced new mandatory sentencing laws in 2008^[166] and has further extended the mandatory sentencing regime to a range of violent offences in 2013.^[167]

I am extremely disappointed that despite powerful legal, moral, economic and human rights arguments, some Australian jurisdictions still resort to mandatory sentencing 20 years after the RCIADIC stated that imprisonment should be a measure of last resort. In my view, mandatory sentencing results in harsh, unfair sentences and does not increase community safety.

(ii) Women in corrections

The rate of Aboriginal and Torres Strait Islander women in custody has grown more quickly than any other demographic group during the past 20 years. Between 2000 and 2010 alone there has been a 59% increase in Aboriginal and Torres Strait Islander female imprisonment, compared to a 35% increase for Aboriginal and Torres Strait Islander males. Aboriginal and Torres Strait Islander women are 21.5 times more likely to be imprisoned than their non-Indigenous counterparts.^[168]

It is not just these alarming statistics but the significant needs and disadvantage of Aboriginal and Torres Strait Islander women in custody that have driven a human rights approach to this issue. Research in the Social Justice Reports in 2002 and 2004 highlighted the strong links between victimisation and offending, with one study finding 67% of Aboriginal women in custody in Western Australia had experienced abuse as an adult or child.^[169]

This group of women faces a very high level of homelessness, mental health treatment needs and consequent requirement for holistic post-release support services.^[170] With 80% of Aboriginal and Torres Strait Islander women in Western Australia having children,^[171] the need for support extends across the generations to try and rebuild strong families which can help break the cycle of offending.

There have been some welcome developments in the past 20 years. As an example, we now have women and child units in some prisons; however, these initiatives are the exception rather than the rule.

Regardless, this sort of intervention is at the wrong end of the spectrum – we need more support services in order to prevent offending in the first place.

(iii) People with disabilities

One of the strengths of the Social Justice Commissioner’s role is the ability to advocate for the most vulnerable. Aboriginal and Torres Strait Islander people with cognitive impairment,^[172] psychosocial disability, hearing impairment or other disability in the criminal justice system are by any measure some of the most vulnerable people in our community.

Research has shown that Aboriginal and Torres Strait Islander young people with a cognitive impairment have earlier contact with police and progress more quickly to custody from this contact, compared to the non-Indigenous group.^[173]

Dr Calma produced a research report on the needs of this group of Aboriginal and Torres Strait Islander young people and made a number of recommendations around better practice in 2008,^[174] which built on earlier work of the Commission in 2005.^[175]

Together with the Disability Discrimination Commissioner, Graeme Innes, I have continued to advocate on these issues. In some Australian jurisdictions,^[176] when people with cognitive impairment are found to be unfit to plead to criminal charges, they become subject to mental health legislation. The result for some Aboriginal and Torres Strait Islander people with cognitive impairment has been indefinite detention.

The Social Justice Report 2012 highlighted the cases of Marlon Noble and Christopher Leo.^[177] Both of these men have been held in indefinite detention, although Marlon Noble, having already served over ten years of imprisonment, was released with strict conditions in 2011 following a sustained campaign for this freedom. Sadly these are not the only instances. Recent research has noted that there are 20 Aboriginal and Torres Strait Islander people being held indefinitely in the Northern Territory and Western Australia.^[178]

This indefinite detention of people with cognitive impairment is on the extreme end of the spectrum of barriers to access for justice for Aboriginal and Torres Strait Islander people with disabilities. More broadly we are seeing a criminalisation of care, where the criminal justice system is being used in the absence of adequate health and disability support services. For instance, National Aboriginal and Torres Strait Islander Legal Services (NATSILS) have reported:

an increased use of Apprehended Violence Orders being used to control behavioural issues by schools, care workers and parents, rather than referring people displaying difficult behaviours to more appropriate health and welfare services because they are unavailable.^[179]

If treatment and services are not available, situations quickly escalate and can lead to criminal justice interventions.

This year, I have been involved in assisting with Commissioner Innes’ work on access to justice for people with disability who need communication supports or who have complex and multiple support needs.^[180] I have attended public meetings in Sydney, Perth, Port Hedland and Roebourne. A report on this work will be released in 2014.

(iv) Justice reinvestment

Justice reinvestment is a criminal justice policy approach that diverts a portion of the funds from imprisonment to local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested into services that address the underlying causes of crime in these communities.

Dr Calma was one of the first proponents of justice reinvestment in Australia, introducing the concept in the Social Justice Report 2009.^[181] Since 2009, justice reinvestment has been the subject of recommendations in a number of reports.^[182]

Most recently, the Senate Legal and Constitutional Affairs References Committee Inquiry into the value of a justice reinvestment approach to criminal justice in Australia made recommendations that the Australian Government should support justice reinvestment trials.^[183]

Justice reinvestment has been the subject of strong community advocacy. Along with high profile community members including NSW Governor Professor Marie Bashir, I have been a ‘Champion’ for the Justice Reinvestment Campaign for Aboriginal Young People in NSW.^[184] Campaigns are also underway in Victoria, Western Australia, Queensland and the ACT.^[185] NATSILS and Congress are leading the work at the national level.

At the community level, we are seeing some really exciting work about what justice reinvestment could look like in Australia. The Bourke community in far western NSW has invited me to work with them around justice reinvestment. I’ve visited twice this year and had some fantastic discussions about some of the challenges they are facing in terms of crime and imprisonment. I anticipate this work will be fully explored in next year’s Social Justice and Native Title Report.

(g) Family violence

Perhaps more than any other issue, family violence in Aboriginal and Torres Strait Islander communities has sparked controversy and outrage. And with good reason – the levels of family violence in our communities are unacceptable.

Over the past 20 years, volumes have been written on the subject, with shocking findings in major inquiries in every jurisdiction in the country.^[186] Social Justice Commissioners have added their voices to the chorus of condemnation but more importantly, they have contributed thoughtful research on the complexities of this issue.

The Social Justice Report 2003 looked at the incidence, dynamics and government action on family violence.^[187] This report was written at a time when ATSIC still existed and was working to address family violence at a national as well as regional level.

Dr Calma brought together research and consultation to develop a human rights-based approach to addressing family violence and abuse: see Text Box 1.10.

 

These challenges articulate the holistic, human rights based-approach that is still needed to guide work in this area.

(i) Key Government initiatives

In 2003, then Prime Minister John Howard hosted a national roundtable on family violence. Consequently, COAG agreed to a National Framework for Preventing Family Violence and Child Abuse in Indigenous Communities in June 2004, which formed the beginning of bilateral agreements. COAG recommitted to this framework in 2006 and announced additional funding for a range of measures.^[189]

The release of the Little Children are Sacred Report in 2007 proved to be a game changer, leading to the introduction of the NTER, which has been discussed in section 1.2(c) above.

Efforts to address family violence and abuse have also been bolstered with the National Plan to Reduce Violence Against Women and their Children^[190] in 2011 and the National Framework for Protecting Australia’s Children 2009–2020.^[191] While these policies are not Indigenous specific, they have a significant focus on Aboriginal and Torres Strait Islander peoples. Early reporting on the implementation of these plans has been promising, although I note that we are yet to see any formal evaluation of their impact.

(ii) Access to justice

The specific legal needs of Aboriginal and Torres Strait Islander victims of family violence and abuse have been well documented over the past 20 years, but sadly, they are still poorly met.

Family Violence Prevention Legal Services (FVPLS) have been the main provider in this area. Despite the critical work that these services do in supporting victims, there are only 14 FVPLS in Australia covering 31 regional and remote areas.^[192] The funding guidelines restrict services in urban areas. As noted by the Congress, this is:

a major concern...given that 33% of Aboriginal and Torres Strait Islander people now live in capital cities. The policy of limiting the program to rural and remote locations fails to recognise many of the barriers that Aboriginal women face with trying to access mainstream services providers and FVLPS experience numerous cases where women who live in rural and remote locations relocate to urban areas for safety.^[193]

Additionally, I am told many women and children feel they are unable to access Aboriginal and Torres Strait Islander Legal Services (ATSILS) due to conflicts arising from these services taking on the representation of alleged offenders. In most cases, it will be the offender rather than the victim who is eligible for legal aid through ATSILS. This is because when a criminal charge is laid, most often it is the offender who will come to the attention of the ATSILS first and become a client of the service. The ATSILS are then unable to offer assistance to the victim.^[194]

(iii) Telling positive stories about addressing family violence and abuse

One of the things missing in the rush to implement the NTER was a consideration of the positive actions of Aboriginal and Torres Strait Islander communities to address family violence and abuse themselves. In the Social Justice Report 2007, Dr Calma provided 19 diverse case studies in the areas of:

• Community education and community development
• Healing
• Alcohol management
• Men’s groups
• Family support and child protection
• Safe Houses
• Offender Programs.^[195]

This shows a depth of capacity, commitment and tenacity in our communities and challenges the stereotype of our people as passive victims unable to deal with problems.

Given the negative stereotypes around Aboriginal and Torres Strait Islander men as violent perpetrators, it has also been important to recognise the strong stand many men have taken against violence. In particular, in July 2008 a summit on Indigenous men’s health in Alice Springs issued the Inteyerrkwe Statement:

We the Aboriginal males from Central Australia and our visitor brothers from around Australia gathered at Inteyerrkwe in July 2008 to develop strategies to ensure our future roles as husbands, grandfathers, fathers, uncles, nephews, brothers, grandsons, and sons in caring for our children in a safe family environment that will lead to a happier, longer life that reflects opportunities experienced by the wider community. We acknowledge and say sorry for the hurt, pain and suffering caused by Aboriginal males to our wives, to our children, to our mothers, to our grandmothers, to our granddaughters, to our aunties, to our nieces and to our sisters.^[196]

This statement is just one example of the positive contributions that men are making in this area.

I’ve carried this vision of telling positive stories into my term as well. After taking on the role of Social Justice Commissioner, one of my first visits was to Fitzroy Crossing. I saw the courageous steps that the communities of Fitzroy Valley had taken to address issues of alcohol abuse and its related harms including violence. I saw transformative change as a result of community-initiated alcohol restrictions. This was led by strong women such as June Oscar and Maureen and Emily Carter, and was supported by the cultural leadership of the communities through Kimberley Aboriginal Law and Culture Centre and some of the men of the Fitzroy Valley.

(h) Education

Education is a complex topic that could easily fill this entire report. Like previous Social Justice Commissioners, I am concerned about school attendance and access to quality education services. It has been pleasing to see education elevated through its inclusion into the Closing the Gap targets^[197] and given the attention it deserves as a mechanism for breaking the cycle of disadvantage in our communities.

However, past Social Justice Reports have primarily concentrated on access to bilingual education, remote education and the impact of the NTER on education. Concerns have been raised about the right to education for Aboriginal and Torres Strait Islander peoples – particularly through access to bilingual education – and the role that education should play in the preservation of our languages and culture.

• (i) Bilingual education

Bilingual education programs involve the teaching of Aboriginal and Torres Strait Islander children in traditional Aboriginal and Torres Strait Islander languages.^[198] Given that English might be the second, third or even fourth language for some children, primarily from remote communities, it makes sense to me that we start teaching these children in a way to which they can relate. Further, there is clear evidence that bilingual education is vital to children’s psychomotor, affective and cognitive development.^[199]

Bilingual education is an important means of maintaining and revitalising language and cultural traditions through the formal education system. It has been shown to be an appropriate model for the delivery of educational services and outcomes to Indigenous children.^[200]

Bilingual education had its beginning back in the Whitlam era. It began in the Northern Territory as a Federal Labor initiative in December 1972. By March 1973, the first Northern Territory bilingual education programs were being implemented.^[201]

The Northern Territory is the only place in Australia where there has been a formal Australian Government policy to implement bilingual education. In most of Australia’s other states and territories, implementation of language programs is left to the discretion of local school administrations and school principals.^[202]

In 1998, the Northern Territory Government announced that bilingual education programs in Aboriginal communities would be phased out. Reflecting concerns about this approach, Dr Jonas wrote in the Social Justice Report 1999 about the importance of bilingual education in relation to our rights to an education, appropriate recognition of cultural difference, and self-determination.^[203] The right to education means there must be proper recognition and attempts to incorporate cultural and linguistic traditions.^[204]

In an analysis of bilingual education programs, Dr Jonas considered the obligation of governments to realise the full enjoyment of the right to education.^[205] He also examined how realising this right is intrinsically linked to promoting a form of education that is accessible.^[206] Dr Jonas concluded that the removal of bilingual education programs does not meet the human rights obligation to ensure that education is accessible.^[207]

Bilingual education was further dismantled in 2008, with the Northern Territory Government implementing a policy that would mandate that the first four hours of school be conducted in English.^[208] Dr Calma reported in the Social Justice Report 2009 that:

The policy means language and culture activity is relegated to the last hour and a half of the school day... a time when quality learning is challenging. The four hours of English policy does not claim to abolish bilingual education, though there is no doubt that it will have that effect.^[209]

In 2012, the Framework for Learning English as an Additional Language replaced the policy of compulsory teaching in English. This policy has a focus on learning in English, while home/local languages can be used where appropriate.^[210] I welcome this more flexible approach but am concerned that any language programs need to be adequately resourced.

• (ii) The right to education under the NTER

In 2007, the announcement of the NTER included income management measures to ensure that children attended school. However, the income management scheme presupposed that children in the Northern Territory had access to ordinary educational opportunities.

At the time the number of school-aged children without access to primary and secondary education was ‘significant’.^[211] The combined Aboriginal Peak Organisations of the Northern Territory (APO NT) reported a severe shortage of educational services such as class rooms, teachers and preschool options.^[212]

Dr Calma emphasised the importance of providing children with incentives to learn and he argued that methods of teaching that resonate with Aboriginal and Torres Strait Islander students are preferable to measures that penalise parents.^[213]

• (iii) Remote Education

Aboriginal and Torres Strait Islander students in remote schools often experience significant educational disadvantage. Consequently, their English literacy and numeracy skills are at lower levels than those of other Australian students.^[214]

In 2008, Dr Calma highlighted large gaps in the provision of education services in remote Australia and encouraged governments to assess the availability of quality education services in remote Australia.^[215]

Remoteness limits access to educational services as well as other resources such as libraries and information technology. Road access may be limited during particular times of the year and during wet season periods, there may be no access for months on end.^[216]

Each school and each community is unique with its own strengths and challenges.^[217] In remote communities many of the resources and options we take for granted in urban communities simply don’t exist. Pre and post-school options are often limited or non-existent and there is likely to be limited employment in the region.^[218]

While I welcome the significant investment in preschool education through Closing the Gap, the gap in education outcomes between Aboriginal and Torres Strait Islander and non-Indigenous students is still confounding. For example, the National Indigenous Reform Agreement reported that there were no significant improvements in Indigenous numeracy in any year or jurisdiction between 2008 and 2012. The gap between Indigenous and non-Indigenous students widened further in Years 3, 5 and 7 between 2008 and 2012.^[219] However, the gap in literacy between Indigenous and non-Indigenous student showed a decline between 2008 and 2012 for Years 3, 5 and 7 but increased in Year 9.^[220]

Dr Calma advocated for a partnership between Aboriginal and Torres Strait Islander people and governments to improve education in remote Australia. Decisions about educational approaches and resources must be made at the community level and bureaucracies must be in a position to respond to requirements on a community-by-community basis.^[221]

• (iv) Aboriginal and Torres Strait Islander educators

The recruitment and retention of Aboriginal and Torres Strait Islander teaching staff is a significant challenge for education. While Aboriginal and Torres Strait Islander culture can be supported through appropriate curricula, Aboriginal and Torres Strait Islander staff are essential to our children engaging and participating in the education system.^[222]

While Aboriginal and Torres Strait Islander teachers represent the gold standard of education delivery, overall teacher shortages have meant that getting consistent teaching staff has been a challenge. This has impacted on regional and remote schools for decades and has had a disproportionately negative impact on Aboriginal and Torres Strait Islander students because shortages are more likely to be in remote locations.^[223]

There is an imperative for government and non-government education providers to act on recruitment and retention strategies for Aboriginal and Torres Strait Islander and non-Indigenous teachers in remote areas. Education providers should ensure they attract the best, brightest and most appropriate teachers to remote schools where the education challenges are greatest.^[224]

(v) Aboriginal and Torres Strait Islander human rights and the Australian Curriculum

Learning about our culture, languages and histories is not just for Aboriginal and Torres Strait Islander children and young people. Education can also be the first step towards greater understanding and reconciliation. The national Australian Curriculum provides significant opportunities for all children and young people to learn about Aboriginal Torres Strait Islander histories and cultures, and develop knowledge and understanding about the human rights of Aboriginal and Torres Strait Islander peoples.

The Commission has been engaged in the curriculum development process and has advocated for the inclusion of curriculum content that promotes and protects the rights of Aboriginal and Torres Strait Islander peoples. The Commission is also developing human rights education resources for teachers and students that are linked to the Australian Curriculum.

The Australian Curriculum also includes a Framework for Aboriginal and Torres Strait Islander Languages (Framework).^[225] The Framework provides a basis for all schools in Australia to support the teaching and learning of Aboriginal and Torres Strait Islander languages.

The Commission welcomes the Framework and its specific reference to the Declaration.^[226] However, I am concerned that it does not address issues such as the availability of financial resources to compensate relevant communities for developing, implementing or teaching local languages and the need for State and Territory governments to develop and implement supportive policies. These are consistent with issues raised by Dr Calma in the Social Justice Report 2009.^[227]

While there are still significant challenges in implementing the Framework, I am optimistic about the opportunities that it presents for all Australian students. Learning about our shared history, our cultures and our languages is one of the first steps in building strong relationships. I am a firm believer that the future starts with our children.

(i) Recognition of our human rights in the United Nations Declaration on the Rights of Indigenous Peoples

The connection between international human rights standards and the everyday challenges facing our people has been one of the unique contributions of Social Justice Commissioners. Having the office of Social Justice Commissioner sit within Australia’s National Human Rights Institution (NHRI) ensures that the position is ‘uniquely placed to operate as a bridge between the international human rights system and the on-the-ground reality experienced by indigenous peoples.’^[228] It also ensures that the Commission maintains a specific agenda on Indigenous rights at all times and has been described as ‘an exceptional model for advancing the recognition and protection of the rights of Indigenous peoples’.^[229]

Social Justice Commissioners have been heavily involved in the development of the Declaration over the last 20 years. More than two decades in the making, it is perhaps the most significant milestone for Indigenous rights at the international level.

(i) Drafting the Declaration

The Declaration had its genesis as far back as the 1960s but gained traction in the United Nations Economic and Social Council Working Group on Indigenous Populations (Working Group). The Working Group had a mandate to develop international standards concerning the rights of Indigenous peoples and in 1985, it began drafting the Declaration on the Rights of Indigenous Peoples.

During his term as Social Justice Commissioner, Professor Dodson attended the Working Group and reported on the progress of the draft Declaration. He outlined the challenges in the drafting of the Declaration in the Social Justice Report 1993:

From its inception the United Nations reflected the Western European values and perspectives of its founding Member States, which were predominantly colonial powers or States descended from them. Member States articulated respect for individual rights of citizens within their countries without regard for the distinctive position and cultures of the original inhabitants who were caught inside these imposed nation States.^[230]

While the challenges were great, the Working Group’s draft Declaration, as passed to the Sub-Commission on the Promotion and Protection of Human Rights, provided that Indigenous peoples have the right to self-determination, and used the same language as that contained in Article 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.^[231] The draft Declaration also had a heavy emphasis on the recognition of the collective rights as opposed to individual rights.

Text Box 1.11 outlines the major developments in the drafting the Declaration.

Text Box 1.11: A timeline of drafting the Declaration[232]
Year	Development
1971	The Sub-Commission on the Prevention of Discrimination and the Protection of Minorities appointed Martinez Cobo as Special Rapporteur to conduct a comprehensive study on discrimination against indigenous populations.
1982	The United Nations Economic and Social Council Working Group on Indigenous Populations was established.
1993	The Working Group completed the Draft Declaration and it began its passage to the Commission on Human Rights.
2004	At the tenth session of the inter-sessional working group of the Commission on Human Rights, a group of countries led by New Zealand and Norway introduced an amended text of the Draft Declaration for negotiation.
2005- 2006	The ‘Chairman’s Text’ formed the basis of negotiations at the eleventh session of the inter-sessional working group of the Commission on Human Rights in 2005 and 2006.
2006	The Draft Declaration was adopted by the Human Rights Council.
2007	The Declaration was adopted by the United Nations General Assembly.
2009	The Australian Government formally supported the Declaration.[233]

 

(ii) Indigenous participation

Indigenous participation was critical to the drafting of the Declaration so it was concerning when procedural issues potentially became a barrier for that participation. At the time, United Nations’ procedures dictated that the draft Declaration would pass through the Sub-Commission on the Promotion and Protection of Human Rights, then to the Commission on Human Rights and to the Economic and Social Council before it would be put to the General Assembly for adoption.^[234] Unlike the Working Group on Indigenous Populations, the Commission on Human Rights was a body comprised of States, which meant a greater role for States in the drafting of the Declaration. For many Indigenous peoples, this was seen as a major risk and there were strong views that Indigenous people needed to be present to represent our views and advocate our rights. Professor Dodson articulated those concerns in the Social Justice Report 1995:

For many Indigenous peoples, asking them to trust their governments to take over the drafting is asking them to trust the very people who murdered their people, sold-off their land and destroyed their environment.^[235]

To allay some of these concerns, the Commission on Human Rights adopted a resolution to set up the open-ended inter-sessional Working Group allowing for Indigenous organisations without Economic and Social Council status to participate in the Commission on Human Rights Working Group.^[236] The final resolution also authorised the Commission on Human Rights to elaborate a new draft Declaration taking into consideration the existing draft. Indigenous peoples feared that the existing draft, a product of 12 years of intensive negotiation with and among Indigenous peoples, would be cast to the side, and then States would proceed to develop a new declaration.^[237]

In 1995, Professor Dodson wrote about the strength of the Australian Government’s position both on supporting Indigenous peoples’ participation in the process and its overall support of the Draft Declaration and willingness to lobby other governments.^[238] He emphasised the need for the Australian Government to maintain its current position and not undermine the process and ‘sell-out’ when it came to the crunch.^[239]

(iii) Adoption of the Declaration

The draft Declaration was sent to the General Assembly for adoption in 2006. It was at this point in the negotiations that the Australian Government presented its objections to the draft Declaration in a joint statement with the governments of New Zealand and the United States of America. The objections related specifically to ‘concerns over provisions on self-determination, land and resources rights and the language giving indigenous peoples a right of veto over national legislation and State management of resources.’^[240] There were also concerns that the provisions on lands, territories and resources were particularly unworkable by requiring the ‘recognition of Indigenous rights to lands now lawfully owned by other citizens.’^[241]

Dr Calma rejected these concerns on the basis that they were not interpreting the Declaration according to the principles of good faith, respect for human rights and equality and non-discrimination.^[242] The Global Indigenous Peoples Caucus had played a persistent role in lobbying the States during the drafting process; they maintained that:

One of the most important outcomes has been that throughout all of our expressions, sometimes in our own languages, we have succeeded in educating the international community about the status, rights and lives of indigenous peoples in every corner of the world.^[243]

The Declaration was adopted in 2007. At the time of its passage, Australia was one of only four countries to vote against the Declaration in the General Assembly.^[244] This was despite the Australian Government stating prior to the 2007 federal election, that its official position would be to maintain its long-term policy of support for the Declaration.^[245]

Following its adoption by the United Nations General Assembly, Dr Calma advocated continuously on the need for the Australian Government to publicise their support for the Declaration and that further actions of support should include:

• a range of social and cultural steps to support the use of the Declaration as a standard within Australia
• using the Declaration as a tool to guide legal reform for Australian human rights protection mechanisms.^[246]

The Australian Government reversed its decision and formally gave its support for the Declaration in 2009.

(iv) Implementing the Declaration

I have said time and time again, the Declaration should be used as the overarching framework to guide the realisation of the rights of Aboriginal and Torres Strait Islander peoples and as the benchmark against which the actions of the Australian Government are assessed.^[247] Despite years of advocacy by former Social Justice Commissioners, it is time to breathe life into the Declaration and give full effect to the rights contained within it.

Australia has an opportunity to demonstrate international leadership by committing to a comprehensive plan for implementing the Declaration. Since my appointment in 2010, I have continually made recommendations to the Australian Government to work in partnership with Aboriginal and Torres Strait Islander peoples to develop a national strategy to ensure the full implementation of the Declaration.

I will further discuss the practical aspects of the implementing the Declaration including the development of a national implementation strategy in chapter 3.^[248]

1.3 Conclusion

In April 2013, I attended a Governance Summit convened by the APO NT in Tennant Creek at which men, women and young people from across the Territory came together to talk about the importance of governance within their communities and organisations.^[249] The key theme that I took away from the Summit was the need to learn from our past in order to create a strong future. I have set out to do something similar in this chapter, albeit in a modest way, by looking back over the past 20 years of the Social Justice Commissioners’ role.

I am pleased that there has been some progress. However, it is not across the board. We simply cannot be satisfied because our life chances do not equal those of the rest of the Australian population; we are not recognised in the Australian Constitution; and our human rights are not realised to the same extent as those of other Australians.

There is great deal we can learn by studying the progress reported in this chapter. I am struck by the constant churn of change and the consequences of not giving good programs the time and freedom from interference to make measurable impacts.

I also see three consistent themes: rights, relationships and responsibilities.

Many of the issues in this chapter have been about our rights not being met – whether this is through the examples of health inequality, discrimination in terms of our over-representation in the criminal justice system, or the failure of governments to recognise our right to self-determination.

Relationships underpin much of the positive change we have seen in this period. For instance, the apology helped heal the relationship between Aboriginal and Torres Strait Islander peoples and the broader Australian public. And I believe constitutional recognition will be the next step in strengthening this relationship.

Finally, responsibilities are what the Government must do to meet their obligations to ensure we achieve equity with the rest of the Australian population. But it is also about Aboriginal and Torres Strait Islander peoples taking responsibility. For example, looking at the NTER, the Government further disempowered Aboriginal people through its policies, rather than putting us in control and supporting us to take responsibility for the issues facing our communities.

These three themes – rights, relationships and responsibilities – will help us to define the way forward as I outline a roadmap for the future in chapter 3.

---

^[1] Australian Human Rights Commission, Aboriginal and Torres Strait Islander Social Justice Commissioner. At http://humanrights.gov.au/social_justice/index.html (viewed 25 September 2013).
^[2] Royal Commission into Aboriginal Deaths in Custody, Final Report (1991), vol 1-5. At http://www.austlii.edu.au/au/other/IndigLRes/rciadic/ (viewed 25 September 2013).
^[3] Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (1991). At http://www.humanrights.gov.au/publications/racist-violence-1991 (viewed 25 September 2013).
^[4] Mabo v Queensland [No 2] (1992) 175 CLR 1.
^[5] Native Title Act 1993 (Cth).
^[6] P Keating, Redfern Speech: Year of the World’s Indigenous People (Speech delivered at Redfern, 10 December 1992). At http://antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf (viewed 25 September 2013).
^[7] M Dodson, Social Justice Report 1993, Human Rights and Equal Opportunity Commission (1993), p 3. At http://www.austlii.edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).
^[8] M Dodson, Social Justice Report 1993, Human Rights and Equal Opportunity Commission (1993), p 4. At http://www.austlii.edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).
^[9] M Dodson, Social Justice Report 1993, Human Rights and Equal Opportunity Commission (1993), p 4. At http://www.austlii.edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).
^[10] M Dodson, Social Justice Report 1993, Human Rights and Equal Opportunity Commission (1993), p 10. At http://www.austlii.edu.au/au/other/IndigLRes/1993/3/index.html (viewed 25 September 2013).
^[11] The Australian Human Rights Commission was formerly known as the Human Rights and Equal Opportunity Commission (1986–2009).
^[12]Human Rights and Equal Opportunity Commission, Community Guide (1997). At http://www.austlii.edu.au/au/other/IndigLRes/stolen_summary/2.html (viewed 25 September 2013).
^[13] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997). At http://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf (viewed 25 September 2013).
^[14] Human Rights and Equal Opportunity Commission, Community Guide (1997). At http://www.austlii.edu.au/au/other/IndigLRes/stolen_summary/2.html (viewed 25 September 2013).
^[15]Human Rights and Equal Opportunity Commission, Community Guide (1997). At http://www.austlii.edu.au/au/other/IndigLRes/stolen_summary/13.html (viewed 25 September 2013).
^[16] Human Rights and Equal Opportunity Commission, Community Guide (1997). At
http://www.austlii.edu.au/au/other/IndigLRes/stolen_summary/13.htm (viewed 25 September 2013).
^[17] The principles referred to in the Bringing Them Home Report were a revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Theo van Boven: Human Rights and Equal Opportunity Commission, Bringing Them Home: Report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997), app 8. At http://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf (viewed 25 September 2013). The principles have been further developed and now adopted by the United Nations General Assembly: Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Resolution 60/147, UN Doc A/RES/60/147 (2005). At http://www.un.org/Docs/journal/asp/ws.asp?m=A/RES/60/147 (viewed 25 September 2013).
^[18] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997), p 245. At http://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf (viewed 25 September 2013).
^[19] T Calma, Let the Healing Begin: Response to government to the apology to the Stolen Generations (Speech delivered at the Members Hall, Parliament House, Canberra, 13 February 2008). At http://www.humanrights.gov.au/news/speeches/response-government-national-apology-stolen-generations (viewed 25 September 2013).
^[20] Convention on the Prevention and Punishment of the Crime of Genocide, 1948. At http://treaties.un.org/ (viewed 1 October 2013).
^[21] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2008), p 158. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[22] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997). At http://www.gwb.com.au/gwb/news/sorry/stolen46.html (viewed 25 September 2013).
^[23] Australian Institute of Health and Welfare, Child Protection 2011-2012 (2013), p 32. At http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129542752 (viewed 25 September 2013).
^[24] For example, see M Devine, ‘Why little Kiesha had no hope from the start’, Sunday Herald Sun, 21 July 2013.
^[25] Convention on the Rights of the Child, 1989, art 3. At http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (viewed 1 October 2013).
^[26] Secretariat of National Aboriginal and Islander Child Care (SNAICC) is a peak body that represents Aboriginal and Torres Strait Islander child care and child protection organisations. SNAICC is a key advocate for improving Aboriginal and Torres Strait Islander child protection outcomes.
^[27] SNAICC, National Initiative to address the over-representation of Aboriginal and Torres Strait Islander children and young people in the child protection system. At http://www.snaicc.org.au/policy-advocacy/dsp-default-e.cfm?loadref=279 (viewed 25 September 2013).
^[28] The Link Up program provides a national network of 11 Link Up Services supporting and assisting Indigenous people affected by past removal policies to trace their genealogy and family history and potentially reunite with their families.
^[29] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2008), p 197. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[30] Healing Foundation, Funding. At http://healingfoundation.org.au/funding/ (viewed 25 September 2013).
^[31] R Weston, NACCHO health news:Healing Foundation welcomes $26.4 million funding announcement (Media Release 23 May 2013). At http://nacchocommunique.com/2013/05/23/naccho-health-newshealing-founda… (viewed 4 November 2013).
^[32] Office of the Stolen Generations Assessor, Stolen Generations of Aboriginal Children Act – Report of the Stolen Generations Assessor, Department of Premier and Cabinet (2008), p 2. At http://www.dpac.tas.gov.au/__data/assets/pdf_file/0004/53770/Stolen_Generations_Assessor_final_report.pdf (viewed 3 October 2013).
^[33] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), pp 161-165. At http://www.humanrights.gov.au/publications/chapter-4-beyond-apology-agenda-healing-social-justice-report-2008 (viewed 3 October 2013).
^[34] Trevorrow v South Australia (No 5) (2007) 98 SASR 136.
^[35] South Australia v Trevorrow-Lampard (2010) 106 SASR 331.
^[36] Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Stolen Generation Compensation Bill 2008 (9 April 2008), para 13. At https://www.humanrights.gov.au/inquiry-stolen-generation-compensation-bill-2008 (viewed 25 September 2013).
^[37] Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Stolen Generation Compensation Bill 2008 (9 April 2008), para 15. At https://www.humanrights.gov.au/inquiry-stolen-generation-compensation-bill-2008 (viewed 25 September 2013).
^[38] Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Stolen Generation Compensation Bill 2008 (9 April 2008), para 2. At https://www.humanrights.gov.au/inquiry-stolen-generation-compensation-bill-2008 (viewed 25 September 2013).
^[39] Commonwealth of Australia, Parliamentary Debates, Senate, 6 February 2013, p 367 (Senator Trish Crossin). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fcd49be4a-f16b-4de0-b0f2-bf0168a14644%2F0293%22 (viewed 25 September 2013).
^[40] The date of assent of the ATSIC Act was 27 November 1989 and ATSIC opened its doors on 5 March 1990.
^[41] T Rowse, ‘The Revolution in Aboriginal Affairs’ (1990) 9 (3) Australian Society, pp 151-158.
^[42] A Pratt, Make or Break? A Background to the ATSIC Changes and the ATSIC Review, Parliament of Australia (2003). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03cib29 (viewed 25 September 2013).
^[43] A Pratt, Make or Break? A Background to the ATSIC Changes and the ATSIC Review, Parliament of Australia (2003). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03cib29 (viewed 25 September 2013).
^[44] A map of the ATSIC regions can be found at: http://pandora.nla.gov.au/pan/41033/20060106-0000/ATSIC/about_atsic/Regional_Councils/map.html.
^[45] A Pratt, Make or Break? A Background to the ATSIC Changes and the ATSIC Review, Parliament of Australia (2003). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03cib29 (viewed 25 September 2013).
^[46] A Pratt, Make or Break? A Background to the ATSIC Changes and the ATSIC Review, Parliament of Australia (2003). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03cib29 (viewed 25 September 2013).
^[47] A Pratt, Make or Break? A Background to the ATSIC Changes and the ATSIC Review, Parliament of Australia (2003). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03cib29 (viewed 25 September 2013).
^[48]J Hannaford, J Huggins and B Collins, In the Hands of the Regions: A new ATSIC, Canberra, The Review Panel (2003).
^[49] Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth).
^[50] W Jonas, ‘Statement on ATSIC: Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner’ (Media Release 16 April 2004). At http://www.humanrights.gov.au/news/media-releases/statement-atsic (viewed 25 September 2013).
^[51] W Jonas, ‘Statement on ATSIC: Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner’ (Media Release 16 April 2004). At http://www.humanrights.gov.au/news/media-releases/statement-atsic (viewed 25 September 2013).
^[52] W Jonas, Social Justice Report 2004, Human Rights and Equal Opportunity Commission (2005), ch 3. At http://www.humanrights.gov.au/publications/social-justice-report-2004 (viewed 17 October 2013).
^[53] T Calma, Launch of the Social Justice Report 2005 and Native Title Report 2005 (Speech delivered at Launch of the Social Justice and Native Title Reports 2005, Museum of Sydney, 31 March 2006). At http://www.humanrights.gov.au/news/speeches/site-navigation-30 (viewed 25 September 2013).
^[54] T Calma, Social Justice Report 2005, Human Rights and Equal Opportunity Commission (2005), p 147. At http://www.humanrights.gov.au/publications/social-justice-report-2005-home (viewed 25 September 2013).
^[55] K Collard, H D’Antoine, B Henry, G Mooney, D Eggington and C Martin, ‘“Mutual” obligation in Indigenous health: can shared responsibility agreements be truly mutual?’ (2005) 182 (10) Medical Journal of Australia, pp 502-504. At https://www.mja.com.au/journal/2005/182/10/mutual-obligation-indigenous-health-can-shared-responsibility-agreements-be (viewed 25 September 2013).
^[56] R McCausland, Briefing Paper No 1: Shared Responsibility Agreements, Jumbunna Indigenous House of Learning Research Unit (2005). At http://www.jumbunna.uts.edu.au/pdfs/Shared_Responsibility_Agreements_Briefing1.pdf (viewed 3 October 2013).
^[57] Australian Government, Mulan ‘Economic Strength and Healthy Kids’ Shared Responsibility Agreement. At http://www.atns.net.au/agreement.asp?EntityID=3012 (viewed 25 September 2013).
^[58] For example, I Anderson, ‘Mutual obligation, shared responsibility agreements and indigenous health strategy’ (2006) 3 (10) Australia and New Zealand Health Policy. At http://www.anzhealthpolicy.com/content/3/1/10#B38 (viewed 25 September 2013).
^[59] T Calma, Launch of the Social Justice Report 2005 and Native Title Report 2005 (Speech delivered at Launch of the Social Justice and Native Title Reports 2005, Museum of Sydney, 31 March 2006). At http://www.humanrights.gov.au/news/speeches/site-navigation-30 (viewed 25 September 2013).
^[60] T Calma, Social Justice Report 2006, Human Rights and Equal Opportunity Commission (2006), p 1. At http://www.humanrights.gov.au/publications/social-justice-report-2006-report-contents (viewed 25 September 2013).
^[61] T Calma, Social Justice Report 2006, Human Rights and Equal Opportunity Commission (2006), p 15. At http://www.humanrights.gov.au/publications/social-justice-report-2006-report-contents (viewed 25 September 2013).
^[62] T Calma, Launch of the Social Justice Report 2005 and Native Title Report 2005 (Speech delivered at Launch of the Social Justice and Native Title Reports 2005, Museum of Sydney, 31 March 2006). At http://www.humanrights.gov.au/news/speeches/site-navigation-30 (viewed 25 September 2013).
^[63] M Brough, ‘National emergency response to protect children in the NT’ (Media Release, 21 June 2007).
^[64] National Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle Little Children are Sacred (2007). At http://www.inquirysaac.nt.gov.au/pdf/bipacsa_final_report.pdf (viewed 25 September 2013).
^[65] National Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle Little Children are Sacred (2007), Recommendation 1. At http://www.inquirysaac.nt.gov.au/pdf/bipacsa_final_report.pdf (viewed 25 September 2013).
^[66] Northern Territory National Emergency Response Act 2007 (Cth), Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth), Appropriation (Northern Territory National Emergency Response Act (No 1) 2007–2008 (Cth), Appropriation (Northern Territory National Emergency Response) Act (No 2) 2007–2008 (Cth).
^[67] For a more comprehensive list of the NTER measures, see T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007), p 199. At http://www.humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).
^[68] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2009), p 2. At http://www.humanrights.gov.au/publications/social-justice-report-2009 (viewed 25 September 2013).
^[69] T Calma, ‘Continuity and change through the new arrangements – Lessons for addressing the crisis of child sexual abuse in the Northern Territory’ (Speech delivered at the launch of the Social Justice Report and Native Title Report 2006, 3 July 2007, Sydney). At https://www.humanrights.gov.au/news/speeches/site-navigation-12 (viewed 25 September 2013).
^[70] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2010), p 1. At http://www.humanrights.gov.au/publications/social-justice-report-2009 (viewed 25 September 2013).
^[71] Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under article 9 of the convention: Concluding observations of the Committee on the Elimination of Racial Discrimination – Australia, UN Doc CERD/C/AUS/CO/15-17 (2010). At http://www.un.org/Docs/journal/asp/ws.asp?m=CERD/C/AUS/CO/15-17 (viewed 25 September 2013).
^[72] G Ring, ‘The Oz attacks Tom Calma’ New Matilda, 20 February 2008. At https://newmatilda.com/2008/02/20/oz-attacks-tom-calma (viewed 25 September 2013).
^[73] Australian Human Rights Commission Act 1986 (Cth), s 46C(1).
^[74] Council of Australian Governments, National Indigenous Reform Agreement (2008). At http://www.federalfinancialrelations.gov.au/content/national_agreements.aspx (viewed 25 September 2013).
^[75] Steering Committee for the creation of a new National Representative Body, Our Future in Our Hands, Australian Human Rights Commission (2009). At http://www.humanrights.gov.au/publications/our-future-our-hands-2009 (viewed 25 September 2013).
^[76] M Gooda, Social Justice Report 2012, Australian Human Rights Commission (2012), pp 183-199. At http://www.humanrights.gov.au/publications/social-justice-report-2012 (viewed 25 September 2013).
^[77] Northern Territory Emergency Review Board, Northern Territory Emergency Response: Report of the NTER Review Board, Commonwealth of Australia (2008). At http://www.nterreview.gov.au/report.htm (viewed 25 September 2013).
^[78] Northern Territory Emergency Review Board, Northern Territory Emergency Response: Report of the NTER Review Board, Commonwealth of Australia (2008), pp 9-11. At http://www.nterreview.gov.au/report.htm (viewed 25 September 2013).
^[79] T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007). At http://www.humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).
^[80] Northern Territory Emergency Review Board, Northern Territory Emergency Response: Report of the NTER Review Board, Commonwealth of Australia (2008), p 12. At http://www.nterreview.gov.au/report.htm (viewed 25 September 2013).
^[81] Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Compulsory income management to continue as key NTER measure’ (Media Release, 23 October 2008). At http://www.formerministers.dss.gov.au/14874/response-to-the-nter-review/ (viewed 9 October 2013).
^[82] Australian Government, Policy Statement : Landmark Reform to the Welfare System, Reinstatement of the Racial Discrimination Act and Strengthening of the Northern Territory Emergency Response, Department of Families, Housing, Community Services and Indigenous Affairs (2009), p 10. At http://www.fahcsia.gov.au/our-responsibilities/indigenous-australians/publications-articles/closing-the-gap-in-the-northern-territory-including-northern-territory-emergency-response/policy-statement-landmark-reform-to-the-welfare-system-reinstatement-of-the-racial-discrimination (viewed 25 September 2013).
^[83] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth), outline.
^[84] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth), outline.
^[85] Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth), sch 1, items 1–3. This also repealed the sections exempting the operation of the Northern Territory’s anti-discrimination laws.
^[86] Australian Human Rights Commission, Submission to the Senate Community Affairs Legislation Committee (6 February 2012), para 132. At http://www.humanrights.gov.au/submission-stronger-futures-northern-territory-bill-2011-2012 (viewed 29 August 2013).
^[87] Stronger Futures in the Northern Territory Bill 2011 (Cth), Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011 (Cth), Social Security Legislation Amendment Bill 2011 (Cth).
^[88] Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth), sch 1 item 1.
^[89] Stronger Futures in the Northern Territory Act 2012 (Cth), pt 2.
^[90] Stronger Futures in the Northern Territory Act 2012 (Cth), s 8.
^[91] Stronger Futures in the Northern Territory Act 2012 (Cth), ss 34−35.
^[92] Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth), sch 2, pt 3.
^[93] Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth), sch 1, item 1.
^[94] Stronger Futures in the Northern Territory Act 2012 (Cth), pt 4.
^[95] Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth), sch 3.
^[96] Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth), sch 4.
^[97] Social Security Legislation Amendment Act 2012 (Cth), sch 2.
^[98] Australian Human Rights Commission, Submission to the Senate Community Affairs Legislation Committee Inquiry into the Stronger Futures in the Northern Territory Bill 2011 and two related Bills (6 February 2012), pp 32-40. At http://www.humanrights.gov.au/submission-stronger-futures-northern-territory-bill-2011-2012 (viewed 29 August 2013).
^[99] Social Security Legislation Amendment Act 2012 (Cth), s 10.
^[100] M Gooda, ‘Long-term funding commitment welcomed but Stronger Futures still must change’, (Media release 28 March 2012). At http://humanrights.gov.au/about/media/media_releases/2012/23_12.html (viewed 25 September 2013).
^[101] Australian Human Rights Commission, Submission to the Senate Community Affairs Legislation Committee Inquiry into the Stronger Futures in the Northern Territory Bill 2011 and two related Bills (6 February 2012).
^[102] Commonwealth, Official Committee Hansard, Senate, Community Affairs Legislation Committee: Stronger Futures in the Northern Territory Bill 2012, Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011, 1 March 2012, pp 1-4. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/commsen/00403cc9-35dc-4cfb-86ab-87ca376c7e79/0000%22 (viewed 25 September 2013).
^[103] Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Public Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and related legislation (2013). At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October 2013).
^[104] Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Public Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and related legislation (2013), p 74. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October 2013).
^[105] Including rights to social security, privacy and family, an adequate standard of living and the rights of the child: Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Public Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and related legislation (2013), p 74. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rig… (viewed 10 October 2013).
^[106] Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Public Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and related legislation (2013), p 74. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October 2013).
^[107] Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Public Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and related legislation (2013), p 74. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/112013/index (viewed 10 October 2013).
^[108] The progress report on Stronger Futures does not meet this threshold: Australian Government, Stronger Futures in the Northern Territory: Six-Monthly progress Report 1 July 2012 to 31 December 2012. At http://www.dss.gov.au/our-responsibilities/indigenous-australians/programs-services/stronger-futures-in-the-northern-territory/stronger-futures-in-the-northern-territory-six-monthly-progress-report (viewed 10 October 2013).
^[109] Stronger Futures in the Northern Territory Act 2012 (Cth), s 118.
^[110] T Calma, Reflection on the 1967 Referendum and the Commissioner’s Multiculturalism position paper (Speech delivered at The Ethnic Communities’ Council of Victoria annual general meeting, Melbourne, 27 November 2007). At https://www.humanrights.gov.au/news/speeches/reflection-1967-referendum-and-commissioner-s-multiculturalism-position-paper (viewed 25 September 2013).
^[111] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), ch 4. At http://www.humanrights.gov.au/pdf/social_justice/sj_report95.pdf (viewed 25 September 2013).
^[112] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 70. At http://www.humanrights.gov.au/pdf/social_justice/sj_report95.pdf (viewed 25 September 2013).
^[113] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 71. At http://www.humanrights.gov.au/pdf/social_justice/sj_report95.pdf (viewed 25 September 2013).
^[114] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), ch 2. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013).
^[115] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), ch 2. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013).
^[116] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 65. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013).
^[117] M Gooda, Social Justice Report 2010, Australian Human Rights Commission (2011), ch 2. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/index.html (viewed 25 September 2013).
^[118] M Gooda, Social Justice Report 2010, Australian Human Rights Commission (2011), p 32. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/index.html (viewed 25 September 2013).
^[119] A full list of members of the Expert Panel is available here: Recognise, The Expert Panel. At http://www.recognise.org.au/about/expert-panel (viewed 25 September 2013).
^[120] Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012), pp 5-7. At http://www.recognise.org.au/expert-panel-report (viewed 25 September 2013).
^[121] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 13 February 2013, p 1121 (The Hon Julia Gillard MP, Prime Minister).
^[122] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 13 February 2013, p 1123 (The Hon Tony Abbott MP, Leader of the Opposition).
^[123] Parliament of Australia, Information about the establishment of the Committee. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/index (viewed 16 October 2013).
^[124] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 (January 2013), ch 3. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4943%22 (viewed 16 October 2013).
^[125] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Progress Report (June 2013). At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/consultation/index (viewed 16 October 2013).
^[126] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Progress Report (June 2013), p 7. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/consultation/index (viewed 16 October 2013).
^[127] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Progress Report (June 2013), p 7. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/jsatsi/consultation/index (viewed 16 October 2013).
^[128] Reconciliation Australia, ‘Reconciliation Australia Welcomes Support for Constitutional Recognition’ (Media Release, 15 February 2012). At http://www.recognise.org.au/media/press-releases (viewed 25 September 2013).
^[129] Recognise, Get involved. At http://www.recognise.org.au/ (viewed 25 September 2013).
^[130] Newspoll, Recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution – National Survey (November 2011).
^[131] Essential Vision, Essential Report – 23 July 2013. At http://essentialvision.com.au/referendum (viewed 25 September 2013).
^[132] For example, see M Dodson, Social Justice Report 1994, Human Rights and Equal Opportunity Commission (1995), ch 3. At http://www.austlii.edu.au/au/other/IndigLRes/1994/2/index.html (viewed 17 October 2013).
^[133] Australian Health Ministers’ Advisory Council, Aboriginal and Torres Strait Islander Health Performance Framework 2012 (2012), p 57. At http://www.health.gov.au/internet/publications/publishing.nsf/Content/oatsih-hpf-2012-toc (viewed 29 October 2013).
^[134] T Calma, Social Justice Report 2005, Human Rights and Equal Opportunity Commission (2005) Recommendation 1. At http://www.humanrights.gov.au/publications/social-justice-reports-index#2005 (viewed 25 September 2013).
^[135] See T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), ch 5. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 25 September 2013); Close the Gap Campaign Steering Committee, Close the Gap Campaign Evaluation Report (2011).
^[136] Oxfam Australia, Sign the Close the Gap Pledge. At https://www.oxfam.org.au/my/act/sign-the-close-the-gap-pledge (viewed 25 September 2013).
^[137] Close the Gap Campaign Steering Committee, National Indigenous Health Equality Targets: Outcomes from the National Indigenous Health Equality Summit, Canberra (18-20 March 2008). At http://www.humanrights.gov.au/publications/closing-gap-national-indigenous-health-equality-targets-2008 (viewed 25 September 2013).
^[138] These targets were revised by the Campaign Steering Committee as part of their submission to the Health Plan: Close the Gap Campaign Steering Committee, Submission to the National Aboriginal and Torres Strait Islander Health Plan (December 2012), Appendix 3. At http://www.humanrights.gov.au/sites/default/files/20121220_CTG_Health_Plan_Submission%20Final.pdf (viewed 25 September 2013).
^[139] I note that I have been Co-Chair; Dr Calma was the Chair of the Campaign in his own right whilst Social Justice Commissioner.
^[140]For a detailed history of the early years of the Close the Gap Campaign, see T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), ch 5. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[141] ‘Close the Gap’ was adopted as the name of the human rights based campaign for Aboriginal and Torres Strait Islander health equality led by the Campaign Steering Committee in 2006. The term ‘closing the gap’ entered the policy lexicon as a result of Campaign's activities and has since been used to tag COAG and Australian Government Aboriginal and Torres Strait Islander policy-specific initiatives aimed at reducing disadvantage — from the COAG Closing the Gap Targets to the National Partnership Agreement to Closing the Gap on Indigenous Health Outcomes. As a general rule, any initiative with ‘closing the gap’ in the title is an Australian Government or COAG initiative. There is a very important difference in the meaning and intention between ‘close the gap’ and ‘closing the gap’ and it is important to note that closing the gap does not necessarily reflect the human rights-based approach of the Close the Gap Campaign, nor does the use of the term reflect an endorsement of them by the Close the Gap Campaign Steering Committee.
^[142] The COAG targets are contained in the National Indigenous Reform Agreement: Council of Australian Governments, National Indigenous Reform Agreement. At http://www.federalfinancialrelations.gov.au/content/npa/health_indigenous/indigenous-reform/national-agreement_sept_12.pdf (viewed 25 September 2013).
^[143] There are four other Indigenous specific National Partnership Agreements attached to the NIRA.
^[144] M Gooda, Social Justice Report 2012, Australian Human Rights Commission (2012), pp 199-205. At http://www.humanrights.gov.au/publications/social-justice-report-2012 (viewed 16 October 2013).
^[145] The Hon N Roxon MP, Minister for Health and Ageing and The Hon W Snowdon MP, Minister for Indigenous Health, ‘New National Aboriginal and Torres Strait Islander Health Plan’ (Media release, 3 November 2011).
^[146] For more information on the Health Plan see: Department of Health and Ageing, National Aboriginal and Torres Strait Islander Health Plan (NATSIHP). At http://www.health.gov.au/natsihp (viewed 25 September 2013).
^[147] Close the Gap Campaign Steering Committee, ‘Aboriginal and Torres Strait Islander health plan a crucial step forward’ (Media release, 23 July 2013). At https://www.humanrights.gov.au/news/stories/aboriginal-and-torres-strait-islander-health-plan-crucial-step-forward (viewed 25 September 2013).
^[148] National Aboriginal and Torres Strait Islander Health Plan 2013-2023, Department of Health and Ageing (2013). At http://www.health.gov.au/natsihp (viewed 25 September 2013).
^[149] See Close the Gap Campaign Steering Committee, Building on the Close the Gap platform: Commitments for an incoming government (2013), p 8. At https://www.humanrights.gov.au/close-gap-indigenous-health-campaign (viewed 25 September 2013).
^[150] Australian Institute of Criminology, Trends and Issues: detaining Aboriginal juveniles as a last resort (1996), p 1. At http://www.aic.gov.au/documents/4/3/9/%7b43950229-E7E1-422B-9645-00293E7A2318%7dti64.pdf (viewed 25 September 2013).
^[151] Australian Institute of Health and Welfare, Youth Justice in Australia – An Overview 2011-2012 (2013), p 10. At http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129543208 (viewed 25 September 2013).
^[152] The crude rate does not provide age standardisation which is a more robust measure. We have provided the crude rate as the age standardised measure was not used in 1993.
^[153] Australian Institute of Criminology, Prisoners in Australia 1993, Table 3.
^[154] Australian Bureau of Statistics, Prisoners in Australia 2012 (2013), p 34. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/24B61FAA213E5470CA257B3C000DCF8A/$File/45170_2012reissue.pdf (viewed 25 September 2013).
^[155] C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia (2002), p 288.
^[156] Mandatory sentencing laws were enacted in Western Australia in 1996 (through amendments to the Criminal Code 1913 (WA)) and in the Northern Territory in 1997 (through amendments to the Sentencing Act 1995 (NT) and the Juvenile Justice Act 1993 (NT)).
^[157] Sentencing Act 1995 (NT), s 78A, later amended by Sentencing Amendment Act (No 3) 2001 (NT).
^[158] Criminal Code 1913 (WA), s 401(4).
^[159] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (2000). At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 24 September 2013).
^[160] See Human Rights Committee, Concluding observations of the Human Rights Committee: Australia (2000) UN Doc A/55/40. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?OpenDocument (viewed 25 September 2013); Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations Of The Committee On The Elimination Of Racial Discrimination: Australia (2000) UN Doc CERD/C/304/Add.101. At http://www.un.org/Docs/journal/asp/ws.asp?m=CERD/C/304/Add.101 (viewed 25 September 2013).
^[161] Australian Human Rights Commission, Mandatory Detention Laws in Australia (2001). At http://www.humanrights.gov.au/publications/mandatory-detention-laws-australia-2001 (viewed 25 September 2013).
^[162] Sentencing Amendment Act (No 3) 2001 (NT).
^[163] S Jackson and F Hardy, The Impact of Mandatory Sentencing on Indigenous Offenders (Paper presented at Sentencing Conference, Canberra, 6-7 February 2010), p 1. At http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2010/Sentencing%202010/Papers/Jackson-Hardy%20.pdf (viewed 25 September 2013).
^[164] Smart Justice, Mandatory Sentencing. At http://www.smartjustice.org.au/resources/SMART_Mandatory.pdf (viewed 25 September 2013).
^[165] National Aboriginal and Torres Strait Islander Legal Services, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Justice Reinvestment in Australia (March 2013), p 7. At http://vals.org.au/static/files/assets/1884b5ec/NATSILS_Submission_Justice_Reinvestment.pdf (viewed 25 September 2013).
^[166] Sentencing Act 2008 (NT), s 78BA as amended by Sentencing Amendment (Violent Offences) Act 2008 (NT).
^[167] Sentencing Act 2008 (NT), s 78BA as amended by Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 (NT).
^[168] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage, Key Indicators 2011, Productivity Commission (2011), p 4.133.
^[169] W Jonas, Social Justice Report 2002, Human Rights and Equal Opportunity Commission (2002), p 150. At http://www.humanrights.gov.au/sites/default/files/content/social_justice/sj_report/sjreport02/Social_Justice_Report02.pdf (viewed 25 September 2013).
^[170] W Jonas, Social Justice Report 2004, Human Rights and Equal Opportunity Commission (2005), pp 11-65. At http://www.humanrights.gov.au/publications/social-justice-report-2004 (viewed 3 October 2013).
^[171] W Jonas, Social Justice Report 2002, Human Rights and Equal Opportunity Commission (2002), p 148. At http://www.humanrights.gov.au/sites/default/files/content/social_justice/sj_report/sjreport02/Social_Justice_Report02.pdf (viewed 25 September 2013).
^[172] In using the word ‘cognitive impairment’, I am referring to a ‘range of disorders relating to mental processes of knowing, including awareness, attention, memory, perception, reasoning and judgement’. I include intellectual disabilities, learning disabilities, acquired brain injury, foetal alcohol spectrum disorders, dementia, neurological disorders and autism disorders.
^[173] E Baldry, L Dowse and M Clarence, People with Intellectual and other Cognitive Disability in the Criminal Justice System, NSW Family and Community Services, Ageing, Disability and Home Care (2012), p 4. At http://www.adhc.nsw.gov.au/__data/assets/file/0003/264054/Intellectual_and_cognitive_disability_in_criminal_justice_system.pdf (viewed 25 September 2013)
^[174] T Calma, Preventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues, Australian Human Rights Commission (2008). At http://www.humanrights.gov.au/publications/preventing-crime-and-promoting-rights-indigenous-young-people-cognitive-disabilities (viewed 25 September 2013).
^[175] T Calma, Indigenous Young People with Cognitive Disabilities and Australian Juvenile Justice Systems, Human Rights and Equal Opportunity Commission (2005). At http://www.humanrights.gov.au/publications/indigenous-young-people-cognitive-disabilities-and-australian-juvenile-justice-systems (viewed 25 September 2013).
^[176] Detention can occur in prisons in Western Australia under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and in the Northern Territory under the Criminal Code Act 1983 (NT), Part IIA. Detention occurs in psychiatric hospitals in Queensland under the Mental Health Act 2000 (Qld) and the Forensic Disability Act 2011 (Qld) and in Tasmania under the Tasmania Criminal Justice (Mental Impairment) Act 1999 (Tas).
^[177] M Gooda, Social Justice Report 2012, Australian Human Rights Commission (2012). At http://www.humanrights.gov.au/publications/social-justice-report-2012 (viewed 25 September 2013).
^[178] M Sotiri, P McGee and E Baldry, No End in Sight. The Imprisonment and Indefinite Detention of Indigenous Australians with a Cognitive Impairment, University of New South Wales (2012). At http://www.pwd.org.au/systemic/adjc.html (viewed 25 September 2013).
^[179] National Aboriginal and Torres Strait Islander Legal Services, Submission to the Australian Human Rights Commission: Access to justice in the criminal justice system for people with a Disability (August 2013), p 5.
^[180] Australian Human Rights Commission, Access to justice in the criminal justice system for people with disability – Issues Paper (2013). At http://www.humanrights.gov.au/publications/access-justice-criminal-justice-system-people-disability-issues-paper-april-2013 (viewed 25 September 2013).
^[181] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2009). At http://humanrights.gov.au/social_justice/sj_report/sjreport09/index.html (viewed 25 September 2013).
^[182] Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013). At http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=legcon_ctte/completed_inquiries/2010-13/justice_reinvestment/report/index.htm (viewed 25 September 2013); House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time, Time for Doing: Indigenous youth in the criminal justice system (June 2011). At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/sentencing/report.htm (viewed 25 September 2013); Noetic Solutions, A Strategic Review of the New South Wales Juvenile Justice System: Report for the Minister for Juvenile Justice (April 2010). At http://indigenousjustice.gov.au/db/publications/285011.html (viewed 25 September 2013);
Legal and Constitutional Affairs References Committee, Access to Justice (December 2009). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2008-10/access_to_justice/report/index.htm (viewed 25 September 2013).
^[183] Senate Legal and Legal and Constitutional Affairs References Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013), pp xi-xii. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/justicereinvestment/report/index (viewed 25 September 2013).
^[184] Justice Reinvestment Campaign for Aboriginal Young People. At http://justicereinvestmentnow.net.au/ (viewed 25 September 2013).
^[185] See the Smart Justice Project in Victoria. At http://www.smartjustice.org.au/ (viewed 14 February 2013); Justice Reinvestment Implementation Committee in Western Australia. At http://www.deathsincustody.org.au/prisonovercrowding (viewed 25 September 2013); Project 10% in Queensland. At http://www.project10percent.org.au/ (viewed 25 September 2013) and Justice Reinvestment Forum in the ACT. At http://ncis.anu.edu.au/events/past/jr_forum.php (viewed 25 September 2013).
^[186] T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2008), pp 359-411. At http://www.humanrights.gov.au/publications/social-justice-report-2007-appendix-2 (viewed 25 September 2013).
^[187] W Jonas, Social Justice Report 2003, Human Rights and Equal Opportunity Commission (2003). At http://www.humanrights.gov.au/publications/social-justice-report-2003-chapter-5-addressing-family-violence-indigenous-communities (viewed 25 September 2013).
^[188] T Calma, Ending Family Violence and Abuse in Aboriginal and Torres Strait Islander communities - Key issues, Human Rights and Equal Opportunity Commission (2006), pp 5-6. At http://www.humanrights.gov.au/publications/ending-family-violence-and-abuse-aboriginal-and-torres-strait-islander-communities-key (viewed 25 September 2013).
^[189] COAG, Communiqué – Meeting 14 July 2006 (2006). At http://archive.coag.gov.au/coag_meeting_outcomes/2006-07-14/index.cfm (viewed 25 September 2013).
^[190]COAG, National Plan to Reduce Violence Against Women and their Children (2011). At http://www.fahcsia.gov.au/our-responsibilities/women/programs-services/reducing-violence/the-national-plan-to-reduce-violence-against-women-and-their-children (viewed 25 September 2013).
^[191] COAG, National Framework for Protecting Australia’s Children 2009–2020 (2009). At http://www.fahcsia.gov.au/sites/default/files/documents/child_protection_framework.pdf (viewed 25 September 2013).
^[192] National Congress of Australia’s First Peoples, National Justice Policy (2013), p 21. At http://nationalcongress.com.au/wp-content/uploads/2013/02/CongressJusticePolicy.pdf (viewed 3 September 2013).
^[193] National Congress of Australia’s First Peoples, National Justice Policy (2013), p 21. At http://nationalcongress.com.au/wp-content/uploads/2013/02/CongressJusticePolicy.pdf (viewed 3 September 2013).
^[194] Australian Human Rights Commission, Submission to Senate Legal and Constitutional Affairs Committee on Access to Justice (20 October 2009), para 23. At http://www.humanrights.gov.au/inquiry-access-justice-2009 (viewed 25 September 2013).
^[195] T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007). At http://www.humanrights.gov.au/publications/social-justice-report-2007 (25 September 2013).
^[196] Aboriginal Male Health Summit 2008, ‘Inteyerrkwe Statement’ (Media release 3 July 2008). At http://www.nirs.org.au/images/stories/Feature_material/malehealthsummit2008sorry.pdf (viewed 25 September 2013).
^[197] See chapter 3 for discussion of Closing the Gap framework.
^[198] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (1999), p 104. At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).
^[199] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (1999), p 105. At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).
^[200] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (1999), p 103. At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).
^[201] B Devlin, NT Bilingual education: The debate about its effectiveness and value, (Paper for the AIATSIS Research Symposium on Bilingual Education in the Northern Territory: Principles, policy and practice, Canberra, 26 June 2009), p 4. At http://www.abc.net.au/4corners/special_eds/20090914/language/docs/Devlin_paper.pdf (viewed 25 September 2013).
^[202] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2009), p 59. At http://www.humanrights.gov.au/publications/social-justice-report-2009 (viewed 25 September 2013).
^[203] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (1999), ch 4. At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).
^[204] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (1999), p 116. At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).
^[205] As set out in the International Covenant on Economic, Social and Cultural Rights, 1966, art 13. Also see art 2(2) which requires that States undertake to guarantee that the rights in the Covenant, such as education, can be exercised without discrimination as to race, colour or other status.
^[206] See the Convention on the Rights of the Child, 1989, art 29(1)(c), which states that the education of a child shall be directed to the ‘development of respect for the child’s parents, his or her own cultural identity, language and values...’
^[207] W Jonas, Social Justice Report 1999, Human Rights and Equal Opportunity Commission (1999), p 118. At http://www.humanrights.gov.au/publications/1999-social-justice-report (viewed 25 September 2013).
^[208] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2009), p 7. At http://www.humanrights.gov.au/publications/social-justice-report-2009 (viewed 25 September 2013).
^[209] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2009), p 93. At http://www.humanrights.gov.au/publications/social-justice-report-2009 (viewed 25 September 2013).
^[210] Department of Education and Training, Framework for Learning English as an Additional Language, Northern Territory Government (2011), p 1. At http://www.education.nt.gov.au/about-us/policies/documents/schools/framework-for-learning-english-as-an-additional-language (viewed 25 September 2013).
^[211] T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007), p 279. At http://www.humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).
^[212] T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007), p 279. At http://www.humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).
^[213] T Calma, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007), ch 3. At http://www.humanrights.gov.au/publications/social-justice-report-2007 (viewed 25 September 2013).
^[214] COAG Reform Council, Indigenous Reform 2011-12: Comparing Performance Across Australia (2013), p 37. At http://www.coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia (viewed 25 September).
^[215] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 96. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[216] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 98. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[217] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 103. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[218] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 106. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[219] COAG Reform Council, Indigenous Reform 2011-12: Comparing performance across Australia, Key Findings. At http://www.coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia (viewed 25 September 2013).
^[220] COAG Reform Council, Indigenous Reform 2011-12: Comparing performance across Australia, Key Findings. At http://www.coagreformcouncil.gov.au/reports/indigenous-reform/indigenous-reform-2011-12-comparing-performance-across-australia (viewed 25 September 2013).
^[221] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 107. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[222] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 121. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[223] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 126. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[224] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), pp 132-33. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[225] ACARA, Draft Framework for Aboriginal and Torres Strait Islander Languages (2013).
^[226] ACARA, Draft Framework for Aboriginal and Torres Strait Islander Languages (2013), p 3; United Nations Declaration on the Rights of Indigenous Peoples GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 25 September 2013).
^[227] T Calma, Social Justice Report 2009, Australian Human Rights Commission (2010), ch 3. At http://www.humanrights.gov.au/publications/social-justice-report-2009 (viewed 25 September 2013).
^[228] Asia Pacific Forum of National Human Rights Institutions and the Office of the United Nations High Commissioner for Human Rights, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions (2013), p 40. At http://www.ohchr.org/Documents/Issues/IPeoples/UNDRIPManualForNHRIs.pdf (viewed 21 October 2013).
^[229] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya: Addendum: The situation of indigenous peoples in Australia, UN Doc A/HRC/15/37Add.4 (2010), para 78. At http://unsr.jamesanaya.org/PDFs/Australia3.pdf (viewed 25 September 2013).
^[230] M Dodson, Social Justice Report 1993, Human Rights and Equal Opportunity Commission (1993), p 110. At http://www.austlii.edu.au/au/other/IndigLRes/1993/3/index.html (viewed 21 October 2013).
^[231] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 62. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 21 October 2013).
^[232] Unless otherwise specified, information in this table is drawn from Asia Pacific Forum of National Human Rights Institutions and the Office of the United Nations High Commissioner for Human Rights, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions (2013), p 4. At http://www.ohchr.org/Documents/Issues/IPeoples/UNDRIPManualForNHRIs.pdf (viewed 25 September 2013); C Charters and R Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (2009). At http://www.internationalfunders.org/documents/MakingtheDeclarationWork.pdf (viewed 25 September 2013).
^[233] Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (Speech delivered at Parliament House, Canberra, 3 April 2009).
^[234] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 62. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 21 October 2013).
^[235] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 89. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).
^[236] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 92. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).
^[237] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 93. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).
^[238] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), pp 93-94. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).
^[239] M Dodson, Social Justice Report 1995, Human Rights and Equal Opportunity Commission (1995), p 94. At http://www.humanrights.gov.au/publications/1995-social-justice-report (viewed 25 September 2013).
^[240] United Nations Department of Public Information, ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples; Major Step Forward Towards Human Rights For All, Says President’, sixty first General Assembly Meeting, UN Doc GA/10612, (Media Release 13 September 2007). At http://www.un.org/News/Press/docs/2007/ga10612.doc.htm (viewed 21 October 2013).
^[241] A Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples’, in C Charters and R Stavenhagen (eds), Making the Declaration Work (2009), p 40. At http://www.internationalfunders.org/documents/MakingtheDeclarationWork.pdf (viewed 25 September 2013).
^[242] T Calma, Social Justice Report 2006, Human Rights and Equal Opportunity Commission (2006), p 237. At http://www.humanrights.gov.au/publications/social-justice-report-2006-report-contents (viewed 25 September 2013).
^[243] Global Indigenous Peoples’ Caucus, Closing statement – Human Rights Council (30 June 2006). At http://www.humanrights.gov.au/publications/declaration-rights-indigenous-peoples-indigenous-peoples-caucus-closing-statement (viewed 25 September 2013).
^[244] Australia along with Canada, New Zealand and the United States of America voted against the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in the General Assembly in New York on 13 September 2007. United Nations Department of Public Information, ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples; Major Step Forward Towards Human Rights For All, Says President’, sixty first General Assembly Meeting, UN Doc GA/10612 (Media Release 13 September 2007). At http://www.un.org/News/Press/docs/2007/ga10612.doc.htm (viewed 21 October 2013).
^[245] T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 30. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[246] See T Calma, Social Justice Report 2008, Australian Human Rights Commission (2009), p 31. At http://www.humanrights.gov.au/publications/social-justice-report-2008 (viewed 25 September 2013).
^[247] M Gooda, Social Justice Report 2010, Australian Human Rights Commission (2011), p 10. At http://www.humanrights.gov.au/publications/social-justice-report-2010 (viewed 25 September 2013).
^[248] I report on the international mechanisms for the Report Period of 1 July 2012 to 30 June 2013 in Appendix 2.
^[249] Aboriginal Peak Organisations Northern Territory, Strong Aboriginal Governance Report (2013). At http://apont.org.au/index.php/governance-summit.html (viewed 14 October 2013).