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Chapter 1 - Introduction: Social Justice Report 2008

Social Justice Report 2008

Chapter 1: Introduction

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A united Australia which represents this land of ours; values the Aboriginal
and Torres Strait Islander heritage and provides justice and equity for all.
Vision of Reconciliation, Council for Aboriginal
Reconciliation.[1]

This is my fifth Social Justice Report as the Aboriginal and Torres
Strait Islander Social Justice Commissioner. The focus of this year’s
report is on human rights protections for Indigenous peoples, remote Indigenous
education, Indigenous healing and the progress on achieving Indigenous health
equality by 2030.

1 A time for change

As I reflect on the past eighteen months, it is the National Apology to the
Stolen Generations on 13 February 2008 that stands out as the most meaningful
moment. The Prime Minister’s Apology to the Stolen Generations transformed
decades of fear, pain and hurt into a moment of national reconciliation for
Australia. The Apology was the first step in setting a bold and ambitious future
for Indigenous peoples in Australia.

The Apology was a milestone that marked a change in attitude, a new way of
doing business, a new partnership between Indigenous peoples and governments.

Over the last 18 months, there have been changes across most areas of
Indigenous affairs. Some communities have had to deal with changes to local
government, regionalisation of their representative structures, as well as
changes to the Community Development Employment Program (CDEP), Welfare to Work
and other welfare programs and reforms to Indigenous education assistance.
Indigenous communities have also been dealing with significant changes to the
rules that govern Indigenous corporations being phased in, as well as
changes to native title laws, issues relating to water rights, environmental
protection and climate change, and so forth. I am consistently told by
Indigenous peoples that they are overwhelmed by the level and the constant
nature of change occurring in their communities. 

However, as the federal government has clearly marked, now is the time for
change and to borrow the words of Barack Obama, its time to set a vision for
‘change we can believe in’.

The reference to Barack Obama is a timely one. The sense of hope and
ambition that he has engendered among the American community and across the
world is extraordinarily exciting. It is amazing for the feeling of unity and
inclusion that it creates.

Obama has been described by a number of commentators as a
‘transformational’ figure. Transformation is what we also need here
in Australia on issues facing Aboriginal and Torres Strait Islander peoples. The
Prime Minister himself has voiced this possibility. In the Apology speech
he expressed this hope as follows:

let us seize the day... Let (the Apology) not become a moment of mere
sentimental reflection. Let us take it with both hands and allow this day, this
day of national reconciliation, to become one of those rare moments in which we
might just be able to transform the way in which the nation thinks about
itself...[2]

So if we look back to such events at the beginning of the Rudd government, we
can see that transformation of this situation is possible and that with
leadership it can capture the imagination of the Australian
community, unify us and make us stronger.

Just as many people will remember what they were doing when Barack Obama was
elected President of the USA, an overwhelming majority of Australians will
remember what they were doing when the Prime Minister apologised to the stolen
generations. I think many people were taken aback by how powerful and emotional
the Apology was, given that, for many years this was something that many
Australians had been led to believe was something to fear. It provided a glimpse
– if just for one day – of what our society can be at its very best
and how good it feels.

The Apology is also emblematic of what governments should generally be
striving to achieve – namely, that their efforts should be based in a
steely determination to uplift and support communities.

The Prime Minister has made very clear what is critical in achieving this
– a new partnership and a new relationship. As he stated in the Apology
speech:

symbolism is important but ... It is not sentiment that makes history; it is
our actions that make history. Today’s apology... is also aimed at
building a bridge between Indigenous and non-Indigenous Australians—a
bridge based on a real
respect...[3]

Our challenge for the future is to cross that bridge and, in so doing, to
embrace a new partnership between Indigenous and non-Indigenous Australians.

I have taken the Apology in the spirit that I believe it was intended –
as the ‘line in the sand’ that marks the beginning of a new
relationship and a new era of respect.

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2 Milestone achievements

In the course of the past year I delivered six speeches in a series I called Essentials for Social Justice. Each speech discussed a particular
challenge that we face as a nation if we are to realise true equality and
respect for our Aboriginal and Torres Strait Islander brothers and sisters. The
speeches identify shared ambitions where every Australian, both in
government and in the community, has a role to play:

  • With governments providing leadership, being accountable for their
    actions, embracing genuine partnership with Indigenous peoples and not
    being the barrier to our advancement – as they so often are.
  • With Indigenous peoples embracing the prospect of a better life for our
    children and families, recognising that we need to be at the centre of creating
    such change and accepting the primary responsibility for the wellbeing of our
    communities.
  • And with the broader Australian community offering their support and
    treating us with dignity and respect, with the firm expectation that we
    will have the same opportunity to thrive and prosper as all other Australians do, and where our cultures are celebrated as among the great
    strengths of our diverse nation rather than being feared.

The first
speech in this series, entitled Sorry and delivered in December 2007 outlined an agenda for addressing the needs of the stolen
generations and the delivery of a national apology.

The second speech, entitled Reform, outlined an agenda for changing
the way governments do business and are accountable for their
performance. 

The third speech, entitled Protecting Indigenous children, identified
a range of lessons that we can all learn from Indigenous communities that are
facing up to the violence in their communities. I also identified a way forward
on the Northern Territory Intervention to ensure that it is non-discriminatory
and ultimately capable of creating sustainable outcomes for our communities.

Close the Gap, the fourth speech, reflected on what is needed to
achieve health equality for Indigenous Australians within a generation, and to
create equal life chances for Indigenous children. There were some good advances
on this deceptively difficult challenge over the past year, but there is
still much to do.

The fifth speech, entitled Caring for Culture, Caring for
Country
, discussed the role of our traditional lands and culture in
achieving economic development for our communities as well as in contributing to
the challenges of climate change and other environmental issues.

The speeches identified major challenges for this nation in developing
options for mitigating climate change without further displacing the rights of
Indigenous peoples. For example, the ongoing lack of engagement with the
Indigenous nations of the Murray-Darling and the lack of respect for the
cultural importance of this area is extremely disturbing. It amounts to a
contemporary form of dispossession of Indigenous peoples from their lands and
waters.

The final speech, simply entitled The future, reflected on the
achievements in the first twelve months of the new government and its
performance in addressing these essentials for social justice. And in doing
so, I also identified the challenges that exist for the future:

  • first, to engender a sense of hope and ambition that things can change for
    the better; and
  • second, to identify what some of the critical elements of this change might
    involve or look like.

The other milestone event that comes to mind
as I reflect is the signing of Statement of Intent to Close the Gap on
Indigenous Health Equality
(‘Statement of Intent’).

Building on the recommendations of the Social Justice Report 2005, the National Indigenous Health Equality Summit in Canberra (18 – 20
March 2008) brought to culmination the two years of work of the Close the Gap
Campaign on Indigenous Health Equality, since 2005. The Statement of Intent
commits government to work in partnership, to:

Developing a comprehensive, long-term plan of action, that is targeted to
need, evidence-based and capable of addressing the existing inequities in health
services, in order to achieve equality of health status and life expectancy
between Aboriginal and Torres Strait Islander peoples and non- Indigenous
Australians by 2030.[4]

And the government has committed to do so with the full participation of
Aboriginal and Torres Strait Islander peoples; by respecting and promoting the
rights of indigenous peoples, and by monitoring efforts, in accordance with
benchmarks and targets.
We have now made a substantial breakthrough on this
most pressing human tragedy. That breakthrough is to convince policy makers,
politicians and the general public that the goal of health equality for all
Australians within a generation is realistic and achievable if we act together
in partnership, and in a targeted and determined manner.

These commitments provide the basis for the cultural shift necessary to face
up to the challenges that exist for Indigenous peoples in this country. While
the commitments were made in relation to Indigenous health equality, they also
form a template for the type of approach that is needed across all areas of
poverty and disadvantage experienced by Indigenous peoples.

The government has recognised this, and has made equally important
commitments in the areas of education, employment and early childhood
development.
The Statement of Intent is one of the most significant compacts
between Australian governments and civil society in Australian history. It
should be seen as a foundation document for a national effort to achieve
Indigenous health equality by 2030, setting out key principles that should
underpin national efforts to that end. It was another hallmark and indication of
the ambitious agenda government and Indigenous peoples can set and achieve
together.

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3 Follow-up action on Social Justice Report 2007

In my Social Justice Report 2007 I committed to report on ‘the
actions taken by the government to address the concerns identified in this
report relating to non-compliance with Australia’s human rights
obligations and the Racial Discrimination Act 1975 (Cth) (‘Race
Discrimination Act’/ ‘
RDA’). In particular, the
Social Justice Commissioner will identify the response of the Australian
Government to the 14 recommendations contained in this
report’.[5]

The first two of these recommendations related to family violence and child
abuse in Indigenous communities. The remaining 12 recommendations came out of my
human rights analysis of the Northern Territory Emergency Response
(‘NTER’/ ‘NT Intervention’).

Disappointingly, the Government has not implemented the majority of the
recommendations contained in my Social Justice Report 2007. In
particular, I note that there continues to be in place legislation and measures
that are racially discriminatory, that are not compliant with the Race
Discrimination Act
and raise significant human rights concerns.

In spite of this, I am pleased to report that the following few elements of
the 14 recommendations have been implemented since my last report:

  • With respect to Recommendations 1and 2 on addressing family violence and
    child abuse in Indigenous communities, I welcomed the government’s
    initiative in establishing the National Council to Reduce Violence against Women
    and their Children (the ‘Council’) on 26 May 2008. The Council was
    given the responsibility to oversee the Government's commitment to establish and
    implement the National Plan to Reduce Violence against Women and their
    Children
    (the ‘Plan’). The Commission has made submissions and
    held discussions with the Council on addressing family violence in Indigenous
    communities. The Council was expected to release its report in December
    2008.
  • Recommendation 7 was in response to my concerns with changes to the permit
    system under the Families, Community Services and Indigenous Affairs and
    Other Legislation Amendment (Northern Territory National Emergency Response and
    Other Measures) Act 2007
    (effective 17 February 2008) and the extent to
    which they could be classified as a ‘special measure’ under the RDA.
    Although not fully implementing this recommendation, I note that the Minister
    has not exercised her discretion to remove permits.

    The Minister for Families, Housing, Community Services and
    Indigenous Affairs introduced a Bill in Parliament in February
    2008[6] to reinstate aspects of the
    permit systems that were removed under the NT Intervention. The Bill proposes to
    remove the provisions enacted by the former Government, but retain the capacity
    of the Commonwealth Minister to permit selected individuals or classes of
    individuals to enter any specified Indigenous land. However, the Senate did not
    pass the Bill and voted in support of retaining the existing measures that are
    not compliant with the RDA.[7]

  • Recommendation 11(a) to reinstate CDEP in the 25 prescribed communities and
    five town camp regions in the Northern Territory was implemented on 30 June
    2008. The government has also distributed a discussion paper on ‘The
    Future of CDEP and Indigenous Employment Programs’ in May 2008, with a
    view to reviewing CDEP and preparing a report to be completed in 2009.
  • Recommendation 11(b-d) pertained to introducing voluntary income management
    measures; reviewing and amending the income management scheme to ensure
    compliance with human rights standards; and developing and introducing voluntary
    income management and financial literacy programs for welfare recipients.

    Since my last report, the Government has confirmed it will maintain
    the mandatory income management scheme under the NT Intervention, but that it
    will look to revise the scheme to ensure it will conform with the RDA and will
    not involve suspension of the Act.[9] In addition it has also introduced the following new income management schemes
    under the NT Intervention
    legislation:[10]

  • The Family Responsibilities Commission (FRC) commenced in
    Queensland on 1 July 2008.[11] The
    FRC has the power to recommend Indigenous and non-Indigenous individuals who
    have lived in the designated areas of Hope Vale, Aurukun, Mossman Gorge, and
    Coen for three months, who are recipients of a welfare payment or are
    CDEP participants, and who aren’t meeting parental and community
    responsibilities,[12] for income
    management.

    Although the majority of people subject to the FRC
    are Indigenous, the application of Part II of the Race Discrimination Act is suspended for the FRC, which includes the operative provisions
    prohibiting racial discrimination.

    However, unlike the mandatory income
    management scheme in the Northern Territory, under the FRC, income management is
    a measure of last resort and only applies to identified individuals, rather than
    automatically applying to everyone within the designated areas.

  • Trial income management scheme - Kununarra and Cannington, WA:
    Commenced in WA on 24 November
    2008.[13] Under the scheme up to 70%
    of welfare payments and 100% of lump sum payments can be quarantined from
    parents whose children are considered at risk.

    Like the Queensland
    scheme, the WA trial is a measure of last resort and only applies to identified
    individuals, rather than to everyone within the trial site.

    However, it differs from the other schemes identified above in that
    at least one of the trial sites is not predominantly populated by Indigenous
    peoples and it is subject to the RDA.

    Although the government has not implemented my recommendations for income
    management to date, aspects of the schemes that the Government has introduced
    have begun to be responsive to my recommendations. For example, both the
    Queensland and WA schemes are a preferable approach to differing degrees because
    they are applied on the basis of the individual circumstances of families, and
    so have the capacity to be more targeted to need. Further, making the WA scheme
    subject to the Race Discrimination Act provides for the scheme to be
    applied in a non-discriminatory way.

    However, I have also noted that for such schemes to be effective, there also
    needs to be proper engagement with communities that ensures affected people
    are provided the assistance they need to ensure their children are fed,
    clothed and schooled. I have also noted that any form of income management needs
    to be accompanied by a suite of services to assist families - income
    management of itself is a blunt tool to meet the challenges facing many people.

    The government has indicated that it will be drawing on the findings of each
    of the three income management models to implement broader welfare reforms,
    possibly within 12 months. It is hoped that the further welfare reforms will
    ensure they are consistent with human rights standards, as per my
    recommendations.

  • The Review of the NT Intervention implemented my fourteenth recommendation
    to: independently monitor Intervention measures, 12 months following
    their commencement.

    In its submission to the Review, the
    Commission noted the limited time and capacity provided for the Review. The
    Commission also noted the Review would be constrained by the lack of
    benchmarking and monitoring data collected prior to the Northern Territory
    Emergency Response Review Board’s (‘Review Board’) formation
    in June 2008. At the commencement of the NT Intervention the Commission noted
    that there were insufficient baseline measures in place to allow a comparison of
    the circumstances of Indigenous peoples before and after the NT
    Intervention.[14] The lack of
    benchmarking and monitoring data and processes limits the capacity to assess the
    effectiveness of the NT Intervention.

    The Commission, in light of the limited progress made by government in
    implementing the 14 recommendations of the Social Justice Report 2007,
    recommended the Review Board call for the full implementation of the ten point
    plan and associated recommendations made in the Social Justice Report
    2007
    .

The Review Board’s report, released in October 2008 found that the NT
Intervention had made some positive changes in the Northern Territory, for
instance in terms of increased police presence in communities, measures to
reduce alcohol-related violence, improving quality and availability of housing,
health and wellbeing of communities and education. However, the Review Board
noted that the NT Intervention had in many respects not succeeded because it had
failed to engage with the very people it was intended to help. The Review Board
noted that local communities saw the significant government investment under the
NT Intervention as ‘an historic opportunity wasted because of its failure
to galvanise the partnership potential of the Aboriginal
community’.[15]

Despite the advantages and disadvantages of the NT Intervention, in light of
the acute levels of deprivation and disadvantage continuing to exist in many
communities, the Review Board found that the NT Intervention should be
continued, but that there needed to be improvements made. This was particularly
in terms of better coordination by government in delivery of services and
increased engagement with affected communities on the design and delivery of
services. The Review Board placed significant emphasis on the need for the
government to reframe the NT Intervention so that it is undertaken in
conjunction with Indigenous communities, rather than involuntarily imposed on
them:

The most essential element in moving forward is for government to re-engage
with the Aboriginal people of the Northern
Territory.[16]

The three overarching recommendations made by the Review Board were:

  • 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 governments acknowledge the requirement to
    reset their relationship with Aboriginal people based on genuine consultation,
    engagement and partnership; and
  • Government actions affecting Aboriginal communities respect
    Australia’s human rights obligations and conform to the Racial
    Discrimination Act 1975
    .[17]

In addition the Review Board made recommendations in relation to:
welfare reform, employment, law and order, education, family support, health,
housing, land reform, coordination, re-engagement, funding, governance, data and
evaluation.

The recommendations of the Review Board were closely consistent with the
recommendations made in my Social Justice Report 2007, particularly with
regards to removing suspensions of the Race Discrimination Act and
addressing the human rights concerns I had identified with the Intervention.

On 23 October 2008, the federal government issued an Initial Response to the
Review Board’s report,[18] outlining the government’s intention to continue the current stabilisation
phase of the NTER for the next twelve months before transitioning to a
long-term, development phase. The government stated that it agreed with the
Report’s three overarching recommendations and will act on them in
progressing towards the development phase of the Intervention.

The key elements of the stabilisation phase identified in the
Minister’s statement included:

  • maintaining compulsory income management, the five-year leases, and
    alcohol and pornography controls;
  • legislating in the first half of 2009 to ensure people subject to the NT
    income management regime have access to the full range of appeal mechanisms
    afforded to other Australians, including through the Social Security Appeals
    Tribunal and the Administrative Appeals Tribunal;
  • asking the NT Valuer-General to determine a reasonable rent for all
    existing five-year leases and payment commencing automatically; and examining
    the scope to reduce the current boundaries of five-year leases; and
  • negotiating with traditional owners for long term leases to continue. This
    is to ensure that beneficial activities already under way, in particular, the
    Australian Government’s $547 million investment in new housing, housing
    upgrades and reformed tenancy arrangements, can be progressed.

The elements of the transition period between the stabilisation
phase and the development phase are:

  • the ongoing development and implementation of our policies to close the gap
    on Indigenous disadvantage;
  • an immediate, renewed emphasis on community engagement and development to
    build the foundations for more lasting change; and
  • the Government designs and consults on a new compulsory income management
    policy which does not involve the suspension of the Race Discrimination
    Act
    . These consultations will acknowledge that not all welfare recipients
    are unable to manage their finances in the interests of dependent women and
    children.

The commencement of the development phase will be marked by the
introduction of legislation to lift the suspension of the Race Discrimination
Act
in the Spring 2009 sittings of the Parliament.

However, beyond this initial commitment made in October 2008, as at the time
of writing this report, the Government has issued no further detailed response
addressing the majority of recommendations of the report. Irrespective of this
absence of a considered response, the government has continued to implement the
NT Intervention without adequately addressing the significant problems
highlighted both in my Social Justice Report 2007 and in the Review
Board’s report:

Addressing specific concerns in Aboriginal communities does not require the
exclusion of fundamental human rights such as the RDA. This was also made
clear in the Aboriginal and Torres Strait Islander Commissioner’s Social
Justice Report which identified a 10-point ‘action plan’ to modify
the NTER to ensure compliance with human rights.

From the Board’s perspective, it is critical to ensure that the
fundamental issues concerning the exclusion of the RDA, the right to
procedural fairness including the right to seek external merits review, the
exclusion of anti-discrimination laws in the Northern Territory and the deeming
of measures as ‘special measures’, are all matters that require
immediate change. Changes to other measures, such as income management, the
acquisition of land, the development of community development partnership
agreements and community development plans also need to be made, but may require
an intermediate period to transition from the present scheme to alternative
arrangements as identified by the Board in its recommendations in
chapter 3.

In the Board’s view, there are no convincing arguments for excluding
human rights principles and the RDA. Consistent with a key theme of the
review the Board believes the re-engagement process has to be underpinned by
acknowledgment of the informed consent principle and human rights
provisions.

Recommendations on human rights: Government actions affecting Aboriginal
communities respect Australia’s human rights obligations and conform with
the Racial Discrimination Act
1975
.[19]

The recommendations of the NT Review Board provide government an opportunity
to re-engage with Indigenous communities and give Indigenous communities both a
role in the running of their communities and in determining their own
futures. Hopefully it will be an opportunity that is taken.

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4 Native Title Report 2008

The election of the new federal government in 2007 brought a raft of policies
aimed at improving the social and economic situation of Aboriginals and Torres
Strait Islanders, many of which are inextricably linked to native title.

The National Apology highlighted the devastating impacts of dispossession and
removal of Indigenous peoples from their traditional lands, resulting in the
disruption of connection to their country and their culture. This continues to
impact upon the ability or success of Aboriginal and Torres Strait Islander
peoples claiming native title, with the cruel twist that the more an Aboriginal
or Torres Strait Islander has been hurt by government policy, the less likely
they are to have their native title recognised.

In this year’s Native Title Report, in addition to examining the
progress the government has made in achieving greater rights and equality for
Indigenous peoples, through native title, the two thematic foci for this
year’s report are climate change and water. While both issues are of
national significance, I focus on the specific implications and impacts on
Indigenous peoples and their rights. I also examine the protection of Indigenous
knowledge in policies and processes developed in response to these issues.

In examining the effect of climate change and water on Indigenous peoples in
Australia, I make a number of recommendations aimed at heightening Indigenous
participation and engagement in meeting these challenges. I have included two
case studies which illuminate the importance of these issues, exploring the
potential impacts of climate change on a number of human rights of Torres Strait
Islanders and the Indigenous nations of the Murray-Darling Basin.

The report also considers three important native title cases before the
courts in 2007- 2008; Noongar, Rubibi and Griffiths, followed by a discussion of
the Blue Mud Bay case which related to the Aboriginal Land Rights (Northern
Territory) Act 1976
(Cth). These cases consider how the Native Title Act and other legislation impacts on the human rights of Aboriginal and Torres
Strait Islander peoples.

As I have endeavoured to do in previous reports, the Native Title Report
2008
considers issues relevant to Aboriginal and Torres Strait Islander
peoples now and for the future.

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5 Contents of the Social Justice Report 2008

At a time now where we can believe change is possible, where there is a level
of bipartisan support, as well as support across federal and state and territory
governments, we have an unprecedented opportunity to turn these commitments into
sustained action. 

Chapter two examines the current gaps in protection for Indigenous
peoples’ human rights and identifies formal protections needed to protect
Indigenous peoples’ rights into the future.

Since 1788, as Indigenous peoples we have consistently asserted our rights.
We have repeatedly and publicly called upon governments to formally recognise
our human rights and to protect us from racial
discrimination.[20]

Our legal system has enshrined very few of the rights contained in the two
main international human rights treaties, on economic, social and cultural
rights and civil and political rights. While this affects all Australians, the
consequences of such a lack of protection impacts the most on those who are the
most vulnerable and marginalised in our society – such as Indigenous
peoples.

The end result is a legal system that offers minimal protection to human
rights and a system of government that treats human rights as marginal to the
day to day challenges that we face.

We need better protection of human rights in our legal system as well as
mechanisms to ensure that the courts, the executive and the cabinet have human
rights at the forefront of their thinking at all times.

Democratic accountability, parliamentary scrutiny and a strong separation of
powers in Australia did not prevent Aboriginal peoples being disenfranchised and
excluded from the national census for the best part of the 20th century.

The protections of the common law did not prevent the removal of Aboriginal
and Torres Strait Islander children from their families and has since provided
limited redress for the ill-treatment of children removed.

The clear deficiencies in our existing system of human rights protection
leave Indigenous peoples either without protection or with protection that is
vulnerable to being overridden by competing priorities.

The new Commonwealth government has announced a broad national consultation
process to consider the adequacy of human rights protections in Australia. The
Prime Minister has also raised the possibility of constitutional reform to
recognise Indigenous peoples and has identified processes to improve Indigenous
representation – two key issues that will impact on the adequacy of rights
protection for Indigenous peoples.

It is therefore timely to consider an agenda to ensure adequate protection of
Indigenous peoples rights into the future.

There are six main areas where reform is needed to ensure full protection for
Indigenous peoples and to modernise our human rights system. These are as
follows:

  1. Commonwealth Government to formally declare its support for and implement
    the Declaration on the Rights of Indigenous
    Peoples
    ;[21]
  2. A national Human Rights Act to be enacted in Australia that
    includes protection of Indigenous rights;
  3. Constitutional reform to recognise Indigenous peoples in the preamble;
    remove discriminatory provisions from the Constitution and replace these with a
    guarantee of equal treatment and non-discrimination;
  4. The establishment of a National Indigenous Representative Body and processes
    to ensure the full participation of Indigenous peoples in decision making that
    affects our interests;
  5. The establishment of a framework for negotiations/ agreements with
    Indigenous peoples to address the unfinished business of reconciliation;
    and
  6. A focus on human rights education and the building of a culture of human
    rights recognition and respect.

Chapter three reviews the provision of education services in
remote Australia with specific focus on the availability and accessibility of
education services for Indigenous preschool, primary and secondary school
students. A major finding of the chapter is that there is no accurate
information to assess whether remote Indigenous students have reasonable access
to education in their region. There is no data which matches populations of
school-aged students against preschool, primary and secondary school services
across Australia.

In line with the Commonwealth Government’s commitment to improve the
life chances of Indigenous Australians through education, this chapter outlines
specific measures to address the considerable challenges of providing quality
school education in remote Australia.

I focus on developing partnerships between Indigenous stakeholders and school
service deliverers in remote regions so that decisions can be made at the local
level.

A partnership between Indigenous people, governments and others must
be driven by local priorities if it is to be successful in improving education
in remote Australia. Partnerships must establish common understandings of the
roles and responsibilities of all education stakeholders as well as clear
direction about the objectives and anticipated outcomes of the education
service.

This chapter also looks at the issue of remote teachers and leaders and the
extent to which this workforce is supported and resourced. It discusses the
provision of early childhood education which, as we know is an essential
building block in the education process.

Throughout the chapter I provide examples of initiatives which demonstrate
good practice and I conclude with recommendations for government action to
improve the systems that provide and deliver education services to remote
Indigenous students.

The case studies in this chapter show that remarkable
things can happen. There is an imperative for governments and other providers to
act now on Indigenous education. There is an economic cost and a human cost to
the poor educational performance of remote Indigenous students. We Indigenous
people are best placed to be the architects of our own policies and services,
but we can’t do this alone and we can’t do this without the
infrastructure and the services which will give our children access to the best
possible education.

Chapter four reflects on the undeniable and urgent need for healing in
Indigenous communities. You only need to listen to the stories of members of the
Stolen Generations; the stories of Indigenous women escaping family violence;
the stories of Indigenous peoples in custody who know about the thin line
between victim and perpetrator; and the Indigenous children that carry all of
these stories around, to know that we need healing urgently.

This need is not new. There have been widespread calls for healing and
healing programs to meet the recommendations for the Bringing them home report. However, we are also seeing renewed calls for healing to address broader
issues like family violence, suicide and alcohol and other drug abuse.

I have argued in this chapter that I do think we have a rare confluence of
events at the moment to address this need. The National Apology has stirred real
compassion and understanding amongst Australians. Many are looking for ways that
they can try and ‘make good’ for the past, but in a way that is also
about achieving a better future. Healing holds that promise and I think it is
something people will get behind if we put it firmly on the national agenda.

Healing has been taking place in many different Indigenous communities and
contexts. But I have also found that many of the good examples of healing are ad hoc and poorly funded, when what is needed is consistent, long
term support to heal the wounds of the Stolen Generations, their families and
communities.

It is timely to bring healing to the fore of the national agenda on
Indigenous affairs. In this chapter I aim to assist the context for a national
discussion on Indigenous healing by articulating some of the common
understandings of healing and healing programs. I provide examples of healing
from around Australia and examine what we can learn from the decade of healing
work in Canada. This year I carried out some consultations with Indigenous
experts and representative organisations on suggestions for a national
Indigenous healing body. I report on the feedback, highlighting what can be done
to support and advance an agenda for healing.

However, I urge that action not be at the expense of proper consultation.
This is too important an issue to rush in and develop healing policy without
real community engagement. Experience tells us that this could be a once in a
life opportunity so let’s do it in a way that respects human rights and
will ultimately lead to better policy and outcomes.

Chapter five looks at progress made in addressing Indigenous health
inequality since 2005. In the Social Justice Report 2005, I called
for a national effort to close the gap in health inequality within a
generation. Since 2006, I have led a substantial national campaign to
garner public support for this goal and to articulate what is required to
achieve it.

Close the Gap has become part of the lexicon. It is widely used to
describe the policy aspirations of Australian governments across a range of
areas of socio-economic disadvantage. This signifies the breakthrough we have
made in convincing policy makers, politicians and the general public that the
goal of health equality for all Australians within a generation is realistic and
achievable if we act together in partnership, and in a targeted and determined
manner.

Already, we have seen substantial investments and the beginning of
health system reforms to back them up. Some of the significant achievements
include: the commitments by the Council of Australian Governments in 2007, the
commitments to the Close the Gap Indigenous Health Equality Summit Statement
of Intent;
the development of accountability measures in the Close the
Gap National Indigenous Health Equality Targets
; and the formation of the
National Indigenous Health Equality Council, among others. These achievements
have elevated the urgency of dealing with the Indigenous health crisis to a
national priority and one that shares bipartisan support.

However, there is still much to do, and in this chapter I outline the
measures that now need to be undertaken to consolidate and build on the
achievements to date. Overall, I am cautiously optimistic that Indigenous
Australians born in the year 2030 will look forward to the same long and healthy
lives as their non-Indigenous counterparts so long as we continue to build on
the substantial gains made since 2006.

Appendix 1 of this report contains a chronology of important events in
Indigenous affairs from 1 July 2006 to 30 June 2007.

Appendix 2 provides a statistical overview of the current circumstances of the
Aboriginal and Torres Strait Islander populations in Australia across a range of
indicators including: health; education; employment; housing; and contact with
criminal justice and welfare systems. This updates the statistical overview
provided in the Social Justice Report 2003. Where possible data is
provided that identifies absolute change in the situation of Indigenous peoples
over the past five and ten years; and relative change in relation to the
non-Indigenous population over the past five to ten years.

Appendices 3 and 4 of the report provide background information for
chapter three on remote Indigenous education. Appendix 3 sets out the National Aboriginal and Torres Strait Islander Education Policy in
full. Appendix 4 outlines definitions of ‘accessible’ and
‘available’ education.

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6 Setting a new agenda

The exploration in this year’s report of Indigenous human rights
protections, remote Indigenous education, Indigenous healing and Indigenous
health equality provide the basis for identifying the important steps government
needs to take over the following eighteen months, to set the new agenda for
Indigenous affairs. These include:

  • In partnership with Indigenous peoples, establish and put into place a
    credible national Indigenous representative mechanism that is respected by the
    government;
  • Creating a role for human rights as part of the architecture in building a
    new relationship with Indigenous peoples including:

    • formally declare support for and implement the Declaration on
      the Rights of Indigenous
      Peoples
      ;[22]
    • enact a national Human Rights Act that includes
      protection of Indigenous rights;
    • amend the Constitution to recognise Indigenous peoples in
      the preamble; remove discriminatory provisions and provide a guarantee of equal
      treatment and non-discrimination;
    • establish a framework for negotiations/ agreements with Indigenous
      peoples to address the unfinished business of reconciliation; and
    • provide human rights education;
  • Reinstating the application of the Racial Discrimination Act 1975 (Cth) for the Northern Territory Emergency Response legislation;
  • Developing a remote education strategy and accountability framework,
    embedded in the National Indigenous Reform Agreement and in the relevant
    National Partnership Agreements;
  • Initiating an audit of populations and projected populations of remote
    pre-school and school-aged children by statistical sub-division to be measured
    against the relevant education infrastructure and services;
  • Establishing, in consultation with the Commonwealth and state/ territory
    governments and Indigenous organisations and communities, an independent,
    Indigenous controlled national Indigenous healing body, responsible for
    developing and implementing a coordinated National Indigenous Healing Framework.
  • Developing an appropriately funded, long-term national plan of action to
    achieve Indigenous health equality;
  • Establishing adequate mechanisms to coordinate and monitor the multiple
    service delivery roles of governments that impact on Indigenous health, and to
    monitor progress towards the achievement of Indigenous health equality.

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[1] Council for Aboriginal
Reconciliation, The Council for Aboriginal Reconciliation Vision
Statement
, http://www.austlii.edu.au/au/orgs/car/council/spl98_20/council.htm (viewed 6 February 2009).
[2] Commonwealth, Parliamentary Debates, House of Representatives, 13
February 2008, p 172 (The Hon Kevin Rudd MP, Prime
Minister).
[3] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 171
(The Hon Kevin Rudd MP, Prime
Minister).
[4]Close the Gap
Statement of Intent
(signed at the Indigenous Health Equality Summit,
Canberra, 20 March 2008). At www.humanrights.gov.au/social_justice/health/statement_intent.html (viewed 28 January 2009).
[5] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007
, Human Rights and Equal Opportunity Commission (2007), p
309.
[6] Families, Housing,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Emergency Response Consolidation) Bill
2008.
[7] In my Social Justice
Report 2007
I found that the RDA excludes from the ‘special
measures’ exemption any provisions that authorise management of property
without the consent of Aboriginal and Torres Strait Islander people or prevent
them from terminating management by another of land owned by them.8 To be consistent with the RDA, the measures relating to the management of land
must be undertaken with the consent of the landowners, and this was not obtained
for the changes to the permit system. Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social Justice Report 2007, Human Rights and
Equal Opportunity Commission (2007), p
263.
[9] Commonwealth Government,
Statement: ‘Australian Government Initial Response to the NTER
Review’ (23 October 2008).
[10]Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act
2007

[11] The Family
Responsibilities Commission was established by legislation (Family
Responsibilities Act 2008
(QLD)) that is authorised by the same legislative
provisions as the income management regime of the Northern Territory
Intervention.
[12] For instance in situations
where: a child has three unexplained absences from school; a person is subject
to a child safety notification or report; or is convicted of an offence; or
breaches a public housing tenancy agreement.
[13] The WA Welfare trials were
introduced under the Social Security and Other Legislation Amendment (Welfare
Payment Reform) Act 2007
(Cth).
[14] Milroy, H., (Associate
Professor, Centre for Aboriginal Medical and Dental Health University of Western
Australia) personal email correspondence with the Aboriginal and Torres Strait
Islander Social Justice Commissioner, 9 August
2007.
[15] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p
10.
[16] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p
11.
[17] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p
12.
[18] Commonwealth Government,
Statement: ‘Australian Government Initial Response to the NTER
Review’ (23 October 2008).
[19] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p
47.
[20] For a thorough
historical account of calls for Indigenous rights protection, see B Attwood and
A Markus, The Struggle for Aboriginal Rights (1999).
[21]United Nations
Declaration on the Rights of Indigenous Peoples
GA Resolution 61/295, UN Doc
A/61/L.67 (2007)
(‘Declaration’).
[22]United Nations Declaration on the Rights of Indigenous Peoples GA
Resolution 61/295, UN Doc A/61/L.67 (2007)
(‘Declaration’).