Annual Report 1999-2000: Aboriginal and Torres Strait Islander Social Justice

Back to 1999 - 2000 Annual Report Contents

Annual Report 1999 - 2000

Aboriginal and Torres Strait Islander Social Justice Commissioner

Dr William Jonas commenced his appointment as Aboriginal and Torres Strait Islander Social Justice Commissioner on 6th April 1999 for five years.

Monitoring and Reporting

Social Justice Report 1999

Under section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Social Justice Commissioner is required annually to submit a report to the Attorney-General on the exercise and enjoyment of human rights by Aboriginal persons and Torres Strait Islanders (the Social Justice Report).

The 1999 Social Justice Report is the first by Dr Jonas. It was transmitted to the Attorney-General on 20 January 2000, and tabled in both Houses of the federal Parliament on 6 April 2000. The report focuses on issues relating to Indigenous young people.

Chapter 2 presents a social profile of Indigenous young people and demonstrates the gross disadvantage faced by Indigenous people across every social and economic indicator. The report argues that the disproportionate disadvantage faced by young Indigenous people has the potential to increase and further entrench the disparity between Indigenous and non-Indigenous Australians over the coming decades unless greater effort is made now to reduce the inequality that they face.

The report explains how human rights principles of non-discrimination and equality justify and may in fact require governments to redress this disadvantage through the adoption of remedial programs, or `special measures'.

Chapter 3 of the report examines issues surrounding Indigenous identity. These issues include how non-Indigenous definitions of `Aboriginality' have been used by policy-makers to manage and control Indigenous peoples; the challenge faced by Indigenous youth of striking a balance between involvement in the Indigenous community and the mainstream Australian community; and the continuing impact of the historical treatment of Indigenous peoples in Australia. Young Indigenous people variously speak of being alienated from both black and white communities, of difficulty in coming to terms with the past, of living somewhere `between two worlds', and being unable to find a point of balance.

The report then considers identity rights . That is, human rights principles that recognise and protect the distinct cultural characteristics of Indigenous peoples worldwide. The report considers relevant international human rights principles within the following two themes:

i) the legitimacy of recognising cultural difference - principles of non-discrimination and minority group rights; and

ii) requirements of `effective participation' and self-determination.

The report argues that for reconciliation between Indigenous and non-Indigenous Australians to be lasting and meaningful it must involve the full recognition of identity rights.

Chapter 4 considers the human rights implications of the decision of the Northern Territory Government to abolish bilingual education programs for Aboriginal students in public schools.

Bilingual education is the teaching of children in traditional languages with English gradually becoming the main language of instruction. This process helps maintain Indigenous language, culture and identity, and improves Indigenous students' participation in the formal mainstream education system. It is an example of human rights principles in practice.

The philosophy behind bilingual education is strongly supported by educational research and international human rights principles such as the right to an education, the appropriate recognition of cultural difference and self-determination.

The report argues that the governments of the Northern Territory and the Commonwealth have a responsibility to support the principles behind bilingual education as a means to improving students' experience of and participation in the formal education system and supporting the maintenance of unique cultures and languages. Bilingual education programs have tangible long term benefits.

Chapter 5 examines sentencing laws in the Northern Territory and Western Australia which make detention mandatory for particular property offences.

The report:

• Places concerns about mandatory detention laws within the context of long held, and widely accepted, concerns of Indigenous over-representation in criminal justice processes;
• reviews statistics on mandatory sentencing and the criminal justice system;
• outlines the key human rights principles applying to the mandatory sentencing debate; and
• identifies alternatives to mandatory detention.

Using case studies, the report analyses the disproportionate impact of mandatory sentencing laws on Indigenous youth in Western Australia and the Northern Territory. The report concludes that these laws are inconsistent with the widely-accepted aim of minimising Indigenous contact with the criminal justice system and are in breach of Australia's international human rights obligations.

The report also presents positive alternatives for dealing with Indigenous juvenile crime and highlights the number of times these recommendations have been made previously. It explains how these alternatives fit within international human rights standards and urges governments to give more urgent consideration to them.

The report recommends that:

WA and the NT should repeal the mandatory sentencing provisions. As they have chosen not to, the federal Parliament should exercise its constitutional power under section 51(xxix) of the Constitution (the external affairs power) to bring the law in WA and the NT within Australia's international obligations under CROC and the ICCPR. The passage of overriding legislation by the Commonwealth would send a clear message to the states and territories that they do not have unfettered power to introduce laws that further disadvantage indigenous Australians. It will also re-emphasise and focus states and territories on the fundamental imperative of the Royal Commission into Aboriginal Deaths in Custody, namely reducing the over-representation of Indigenous people in criminal justice processes (p169).

The introduction to the report also considers four key themes that currently dominate debate about the development of Indigenous policy at the national level and highlights the human rights concerns that they raise. The four themes are:

• Welfare dependency and mutual obligation;
• Accountability;
• Effective participation in decision-making; and
• Reconciliation.

The report argues that there are a number of human rights concerns about the welfare dependency and mutual obligation approach, namely:

• It can reduce Indigenous disadvantage to an individual level and fail to recognise the broader, systemic nature of Indigenous disadvantage;
• It breaks down the process of redressing disadvantage into individual programs rather than taking as its frame of reference a broader systemic approach. The focus on individual programs is `too narrow.' Dr Jonas states that policies that do not acknowledge the fundamental linkages between issues (land and health for example) `stand a reduced chance of being effective in redressing Indigenous disadvantage'; and
• there is little acknowledgment, through this approach, that integral to the shift from welfare dependency is the empowerment of Indigenous Australians through the full recognition and equal enjoyment of their human rights - including `the right to self-determination, to participate in decisions that affect us, as well as having our cultural practices recognised and protected within Australian law.'

Similarly, while welcoming a government focus on accountability in Indigenous affairs, the report argues that a lack of coordination in funding and service delivery hampers the goal of improving Indigenous living conditions.

The report argues that accountability should be expected in every aspect of service delivery to Indigenous people, from all levels of government through to Indigenous organisations. In this regard, Australia's international human rights obligations require governments to provide services and redress Indigenous disadvantage in culturally appropriate, non-discriminatory manner and with adequate consultation. This is to ensure the effective participation of Indigenous peoples, particularly in the design and delivery of services that affect them.

The report warns that `it is essential that the apparently objective aim of ensuring accountability is not used as a subterfuge for not addressing the legitimate and clearly expressed aspirations of Indigenous people. Indigenous people have a role in determining what is `a rational allocation of resources'.

The report also highlights that international scrutiny is a form of accountability:

A further and significant type of accountability of the federal government is to the international community through the upholding of human rights standards and compliance with treaties to which Australia is a signatory. These instruments reflect minimum standards of behaviour commonly accepted by the international community (p13).

The report also argues that the requirement of `effective participation' of Indigenous people in decisions that affect them is essential to secure movement away from welfare dependency:

despite the apparent acceptance of the importance of this principle governments continue in most instances to act in a manner that conceives of it as aspirational rather than essential. The consequence of this is that Indigenous perspectives and concerns are able to be dismissed or outweighed when there is a contrary or competing set of interests (pp16-17).

Finally, the report considers the meaning of reconciliation. It argues that reconciliation must include recognition of rights to equality, non-discrimination and effective participation, and must give weight to the aspirations of Indigenous Australians:

A reconciliation process which is based on anything less than negotiation over these principles will join proposals such as the Social Justice Package as an empty, unfulfilled commitment to social justice for all Australians (p24).

Native Title Report 1999

Under s.209 of the Native Title Act 1993 (Cth), the Social Justice Commissioner is required annually to submit to the Attorney-General a report on the operation of the Native Title Act and the effect of the Act on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.

The Native Title Report 1999 is the first by Dr Jonas. It was transmitted to the Attorney-General on 23 December 1999 and tabled in both Houses of the federal Parliament on 6 April 2000.

The report considers the implications of the March 1999 decision of the United Nations Committee on the Elimination of Racial Discrimination (CERD Committee) which found that the Federal Government's 1998 amended Native Title Act 1993 is in breach of Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The report provides an overview of Australia's obligations under CERD and how the CERD Committee operates. It provides a detailed analysis of the dialogue between the CERD Committee and the government in March 1999. This dialogue centred on discussion of the two fundamental requirements of the Convention, that parties to the Convention:

1. treat all people equally and in a non-discriminatory manner; and

2. ensure the `effective participation' of Indigenous people in decisions which affect them.

The report notes that the government sought to justify the native title amendments by arguing that:

• past discrimination cannot be undone,
• the amendments do no more than validate past discrimination and so are not discriminatory in themselves, and
• the human rights obligation on effective participation is limited to consultation with Indigenous groups and does not require informed consent.

The Committee responded that:

• it is an obligation under CERD that past discrimination be redressed - in other words, equality must be given substance, it must be achieved in fact; and
• merely to consult with Indigenous groups as interested stakeholders does not meet the standard of effective participation which applies to issues, such as native title, which affect Indigenous people at a fundamental level. The Committee made it clear that unless the legislative regimes which affect native title are negotiated with Indigenous people the Committee will continue to scrutinise and criticise State parties at an international level.

The report argues that native title is a non-discriminatory recognition of Indigenous culture that, under CERD, Australia has an obligation to recognise and protect. The Report agrees with the reasoning of the CERD Committee which found that significant amendments to the Native Title Act withdrew the protection which the original Act extended to native title holders, and accordingly that the amended Native Title Act is racially discriminatory.

In determining that the amendments to the Native Title Act were discriminatory, the CERD Committee looked at the level of participation of Indigenous people in the formulation of the amendments, and whether the informed consent of Indigenous people was given. The report concludes, consistently with the CERD decision, that the standard required under the Convention is that of informed consent, and that the government did not meet this standard in formulating the native title amendments.

The Report then considers the two fundamental principles of the Convention in relation to the following aspects of the Native Title Act:

• the adequacy of the minimum standards which the Commonwealth requires state governments to comply with in their management of native title regimes;
• the impact of the registration test on native title claims; and
• the impact of the amendments to the Native Title Act in relation to Native Title Representative Bodies on the capacity of Indigenous people to participate in and determine the outcomes of the decisions which affect them.

The report expresses concern that the minimum standards which the Commonwealth presently applies to state-based native title regimes do not incorporate the human rights of Indigenous people as expressed through the principles of equality and effective participation.

The report examines the impact of the amendments to the registration test to be applied to most native title claims lodged since the inception of the NTA in 1994. The report states that the principle of equality requires that legislation protects native title from the destructive impact of mining and other developments. The level of protection is unacceptable if it fails to protect Indigenous culture and title to land.

The report concludes that the conditions of registration exceed those that, on a prima facie basis, satisfy a claim to native title at common law. The test is contrary to the principles of equality and effective participation established by the CERD Committee as the cornerstones of Australia's international obligations to Indigenous people.

The final chapter of the report examines the amendments to the NTA which have significantly altered the identity and functions of native title representative bodies.

Jurisdictional boundaries and eligibility criteria have been substantially amended and accountability requirements significantly changed. The range of functions for representative bodies has been greatly expanded. The report examines the overall effect of the amendments from a human rights perspective and asks whether the amendments improve the capacity of Indigenous people to participate in and determine the outcome of decisions which affect them.

The chapter concludes that the emphasis for representative bodies is now on organisational transparency and accountability. The need to support and to develop appropriate organisational mechanisms is stressed but not at the expense of meaningful Indigenous participation at local national and international level.

The report concludes that the guiding principle of equality and effective participation have been eroded by the Government's amendments to the Native Title Act and diluted by an ever-expanding labyrinth of state legislation. The report urges an end to the divisive approach to Indigenous issues and calls for an acknowledgment that Indigenous people have a right to enjoy their cultural identity.

Promoting awareness and discussion of human rights issues

The Social Justice Commissioner is required under section 46C(1)(b) of the Human Rights and Equal Opportunity Commission Act to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders.

On August 5-6 1999, the Social Justice Commissioner ran a two-day forum for 60 young Indigenous people aged between 15 and 30 years at Tranby College in Sydney.

The objectives of the forum were to:

• Promote discussion and awareness of Indigenous human rights and social justice issues from a young Indigenous perspective;
• Discuss and articulate attitudes and expectations of young Indigenous people towards issues of Indigenous identity and reconciliation between Indigenous and non-Indigenous Australians;
• Provide a forum for a dialogue between young Indigenous people and Indigenous leaders; and
• provide material for use by the Aboriginal and Torres Strait Islander Social Justice Commissioner in the performance of his statutory functions.

Participants were selected through a nomination and application process, with an emphasis placed on bringing together a diverse group of young Indigenous people, with geographical location, area of interest and expertise, age and gender balance all being taken into consideration.

A range of organisations and institutions around Australia were encouraged by the Social Justice Commissioner to nominate a young person to attend the forum. Applicants were also able to nominate themselves. Almost all interstate participants and those travelling to Sydney from regional areas gained support from their workplaces, or philanthropic and community organisations to meet the cost of their travel and accommodation.

The Council for Aboriginal Reconciliation generously contributed $5000 towards the costs associated with the forum, and workshops and discussions held with the participants formed part of the Council's consultation process on the draft declaration and documents of reconciliation. Tranby Aboriginal College contributed greatly to the success of the forum by hosting it at their premises in Glebe, Sydney. Students of Tranby were also involved in the forum, and their participation counted towards their academic work.

Young Indigenous people at the forum had the opportunity to meet, question and speak with Indigenous leaders such as Dr Bill Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner; Christine Christophersen, Jabiluka activist and artist; and Evelyn Scott, Chairperson of the Council for Aboriginal Reconciliation.

Participants also had the benefit of the knowledge and experiences of young Indigenous leaders such as Trevor Dodds and Nancia Guivarra from ABC's Radio National; Caroline Barton from Koori Radio; film-maker Pauline Clague; Jason Field from the Department of National Parks and Wildlife; and Neva Collings from the Indigenous Law Centre.

The particular human rights and social justice issues discussed at the forum included education, juvenile justice and criminal law processes, the United Nations Draft Declaration on the Rights of Indigenous Peoples, Indigenous people and the media, identity, and reconciliation. Identity, education and reconciliation emerged as the major themes of the forum.

Discussions and perspectives put forward by the young people at the forum has informed the work of the Social Justice Commissioner. The 1999 Social Justice Report focused on youth issues and in particular, contained chapters on identity, education and a statistical profile of Indigenous young people, based on a presentation to the forum by Kate Ross and Tony Barnes of the Australian Bureau of Statistics.

UNICEF 10th Anniversary Conference on the Convention on the Rights of the Child

To mark the 10th anniversary of the Convention on the Rights of the Child, the Tuscan Regional Authority, in co-operation with UNICEF and the Italian National Committee for UNICEF, held an international conference in Florence, Italy. The meeting specifically addressed the question of cultural diversity and discrimination by looking at the rights of children of minorities, immigrants and Indigenous peoples.

Elsie Fischer, an 18 year old woman from South Australia, was sponsored by the Social Justice Commissioner to attend the meeting. Elsie was a participant in the Indigenous Young People's Forum. The Australian Youth Foundation and an anonymous donor contributed to the costs of Elsie's travel.

Prior to leaving for Florence, Elsie met with Prime Minister Howard, Senator Aden Ridgeway and Senator Natasha Stott Despoja, who as a result put forward a three-part motion to the Senate, passed unanimously, recognising the anniversary of the Convention and expressing support for Elsie.

The involvement of Elsie contributed greatly to the proceedings of the conference. Elsie contributed to the Firenze Youth Statement, which encapsulated the outcomes of the conference. As the youth representative for Australia, Elsie presented the section on Poverty Issues, bringing to the conference her own perspective as a young Indigenous woman.

Reconciliation

Under section 46C(4)(c) of the Human Rights and Equal Opportunity Commission Act 1986, the Social Justice Commissioner must have regard to the objectives of the Council for Aboriginal Reconciliation Act 1991. The Social Justice Commissioner has sought to promote an awareness of human rights issues through consultation with the Council for Aboriginal Reconciliation.

Dr Jonas has provided regular briefings to the Council's Secretariat on human rights issues, as well as highlighting the human rights dimension of the Council's work through participating in the Council's Document's Reference Committee. This Committee allowed Dr Jonas to attend full council meetings and to make contributions to the debate on the draft documents of reconciliation.

International activities

Section 46C(3) of the Human Rights and Equal Opportunity Commission Act 1986 states that in the performance of the Commissioner's functions, the Social Justice Commissioner may consult with international organizations and agencies. Section 46C(4) states that in the performance of the Commissioner's functions, the Commissioner must have regard to international human rights treaties to which Australia is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.

In accordance with these functions, Dr Jonas attended the United Nations in Geneva to observe the Committee on the Elimination of Racial Discrimination in their consideration of Australia's 10th, 11th and 12th periodic reports under the International Convention on the Elimination of All Forms of Racial Discrimination.

Dr Jonas made a submission to the Committee on behalf of the Human Rights and Equal Opportunity Commission highlighting a range of matters concerning Indigenous people and race discrimination generally. The submission was based on material previously provided to the government.

In an informal briefing of the Committee, Dr Jonas highlighted four key areas of concern in relation to Australia's compliance with its obligations under the Convention in regard to Indigenous peoples:

1) Native title

Despite the Committee having found in March and August 1999 that the native title amendments are racially discriminatory, the States and territories have continued to introduce discriminatory legislation, under the authorisation of the Commonwealth. Dr Jonas stressed that this meant that Australia was not just acting in contravention of the recommendations made by the CERD Committee in March and August 1999 (see discussion of Native Title Report above), it was further breaching its obligations under the Convention. In particular:

• Article 2(1)(a) of the Convention requires States parties to undertake not to engage in any `act or practice of racial discrimination against persons. and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation'; and
• Article 2(1)(c) provides further that States `shall take effective measures to review governmental. policies, and to amend, rescind or nullify any laws. which have the effect of creating or perpetuating racial discrimination wherever it exists.'

2) The lack of an entrenched guarantee against racial discrimination in Australian law

Dr Jonas expressed concern that, despite the existence of the Racial Discrimination Act 1975 (RDA), there still exists the capacity for the federal Parliament to introduce laws that discriminate on the basis of race. That they have done so twice in the past four years - first in relation to the removal of the protection of the RDA in relation to native title, and second through removing the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act in relation to the Hindmarsh Bridge affair - raises concerns under Articles 1,2 and 5 of the Convention.

It also raises concerns under Article 6 of the Convention, which provides that `States. shall assure to everyone within their jurisdiction effective protection and remedies. against any acts of racial discrimination.' There is no remedy against this discrimination, as the Australian legal system permits such laws.

3) Indigenous disadvantage

Indigenous Australians remain the most disadvantaged of all Australians. There are clear disparities between Indigenous and non-Indigenous Australians across all indicators of quality of life. This disadvantage impacts on the lives of Indigenous people in a number of ways, including through contact with the criminal justice system and welfare services. The Royal Commission into Aboriginal Deaths in Custody concluded, for example, that the over-representation of Indigenous people in the criminal justice system is directly linked to their socio-economic disadvantage. This disadvantage raises concerns under Articles 2 and 5 of the Convention.

Dr Jonas noted that while there is government funding and programs aimed at redressing Indigenous disadvantage, they are clearly not sufficient to raise Indigenous people to a position of equality within Australian society. International human rights principles provide justification for giving higher priority to Indigenous disadvantage and for taking steps, or further steps, to redress this disadvantage and achieve equality of outcome across the full range of economic, social and cultural rights. Articles 1(4) and 2(2) of CERD require this.

4) Mandatory sentencing laws

Dr Jonas noted that mandatory sentencing laws in the Northern Territory and Western Australia raise concerns under Articles 2 and 5 of CERD. In particular:

• The mandatory sentencing provisions target crimes that are generally committed by people from lower socio-economic backgrounds. In the Northern Territory and Western Australia this necessarily means Indigenous people. The limited statistics available show that since the introduction of mandatory detention in the NT there has been an increase in Indigenous women prisoners by approximately 225%. In WA, in the first year of operation of the laws, approximately 80% of juveniles incarcerated under these laws were Indigenous. This is despite their constituting less than 10% of the WA population. These laws have a clear disparate impact upon people of different races. They breach Article 2 and 5 of the Convention.
• In the NT, mandatory detention laws are coupled with the failure of the government to provide interpreter services in courts and medical services. Consequently, Indigenous people appear on mandatory detention charges without an interpreter and often do not understand the nature of the charges or why they are being imprisoned. This is a clear breach of Article 5(a) of the Convention.
• These laws have also been introduced against the background of the over-representation of Indigenous peoples in criminal justice processes and the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the Stolen Generations report. In June 1999 for example, for every 1 non-Indigenous person per 100,000 in corrections in WA there were 22 Indigenous people in corrections. In the NT, the rate for - Indigenous people is approximately 14 times that for non-Indigenous people. Mandatory detention provisions are not consistent with the principal goals of the Deaths in Custody Royal Commission, namely to reduce the rate of over-representation of Indigenous people with the criminal justice system.

Dr Jonas noted that:

The ultimate message that I am delivering to you today - and while I have a responsibility to deliver it, I am still saddened to deliver it is that the issues that I have focussed on demonstrate a genuine lack of equality for Indigenous people within Australia. In terms of the Convention, they expose serious deficiencies in Australia's compliance.

The Committee on the Elimination of Racial Discrimination provided the Australian government with its concluding observations on 24 March 2000. [1] The Committee welcomed the adoption of various recommendations of the Royal Commission into Aboriginal Deaths in Custody, and expressed concern on the following issues affecting Indigenous peoples in Australia:

• The lack of an entrenched guarantee against racial discrimination (para 6);
• The failure of the Commonwealth government to ensure compliance of the states and territories with treaty obligations (para 7);
• The continuation of discriminatory practices in relation to native title, particularly the development of state native title regimes (para 8);
• The unsatisfactory response to the Committee's findings that the native title amendments are racially discriminatory (para 9);
• Proposed changes to the role and function of ATSIC and the Social Justice Commissioner (para 11);
• The progress of reconciliation, and the apparent loss of confidence of Indigenous people in the process (para 12);
• The inadequate response of the government to the recommendations of Bringing them home (para 13);
• Over-representation of Indigenous people in the criminal justice system (para 15); - Lack of interpreter services for Indigenous people in court processes (para 15);
• The discriminatory impact of mandatory sentencing laws in the Northern Territory and Western Australia (para 16); and
• The extent of continuing discrimination and disadvantage faced by Indigenous people (para 18).

While in Geneva, Dr Jonas also met with a variety of people within the United Nations, including the Deputy High Commissioner for Human Rights; Secretary of the Working Group on Indigenous Populations; Special Rapporteur on Racism, Xenophobia and Other Forms of Racial Intolerance; members of the Committee on the Elimination of Racial Discrimination; and with other international organizations including the Anti-Racism Information Service; and the International Commission of Jurists.

Research and educational programs

Under section 46C(1)(c) the Social Justice Commissioner is required to undertake research and educational programs for the purposes of promoting respect for, and enjoyment and exercise of, human rights by Aboriginal persons and Torres Strait Islanders.

National Community Education Program - Tracking Your Rights

Tracking Your Rights was developed in response to recommendation 211 of the Royal Commission into Aboriginal Deaths in Custody, which called on the Commission, and State Anti-discrimination Commissions, to further programs to inform the Aboriginal community about anti-discrimination legislation and how to use it. The package aims to transfer information about anti-discrimination laws to Aboriginal and Torres Strait Islander people so that they know their legal rights and can thereby facilitate the successful resolution of community and individual conflicts.

Tracking Your Rights was launched in January 1998. The implementation of the program relies heavily on coordination with the states and territories, and a number of initiatives is currently in place to promote the program in each state and territory.

The Commission entered into a memorandum of understanding with the Commonwealth Public Service and Merit Protection Commission (PSMPC) for the conduct of training of the Tracking Your Rights package for Commonwealth public servants. A national select tender was conducted by HREOC and the PSMPC, and a pool of appropriate training providers with national coverage was selected.

During the reporting period, the PSMPC conducted two Tracking Your Rights training programs. The first was held in March and the second in June 2000. Further courses are planned in the coming year, including through regional offices of the PSMPC.

The South Australian Government have played a critical role in implementing Tracking Your Rights in that State. Following a launch of the resource in April 1999, the Office of the Commissioner for Public Employment has continued to promote the program and the South Australian Equal Opportunity Commission (SAEOC) conducted two one-day pilot Tracking Your Rights in Port Lincoln in June 2000. The SAEOC is currently planning further pilots in Port Augusta.

Negotiations are also under way between the SAEOC and the SA Department of Correctional Services for delivery of the course. The Department of Human Services has also contracted Tauondi College to pilot a Tracking Your Rights course during the year and, at the time of writing, were considering its implementation on a more systemic basis.

The Anti-Discrimination Commission, Queensland (ADCQ), has also been funded by the Queensland government to prepare the Queensland component of the Tracking Your Rights manual. Tranby College in New South Wales has also received a grant from the Department of Aboriginal Affairs for delivery of the program.

National Indigenous Legal Studies Curriculum

The National Indigenous Legal Studies Curriculum was developed in 1996 to increase the level of human rights and legal education and training available to Aborigines and Torres Strait Islander peoples, particularly those working as Aboriginal Field Officers in legal services.

As at 30 June 2000, there are seven registered training organisations licensed to use the curriculum. The Institute for Aboriginal Development have also been conducting the course on a trial basis to a number of Aboriginal students in years 11 and 12 of Centralian College and Alice Springs High School. The initiative is endorsed by the Northern Territory Department of Education.

Collaboration with state and territory equal opportunity and anti-discrimination commissions

In December 1999, HREOC Commissioners and the state and territory equal opportunity Commissioners agreed to work collaboratively on three projects relating to Indigenous peoples:

• Education on issues relating to Indigenous Australians;
• Implementation of `Tracking Your Rights' program; and
• Examining processes for racial discrimination complaints and Indigenous Australians.

Dr Jonas has carriage for the first two projects, and Ms June Williams, Anti-Discrimination Commissioner of Western Australia, the third.

Examining enactments for compliance with human rights principles

Under section 46C(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Social Justice Commissioner may examine and report on enactments and proposed enactments to ascertain whether or not they recognize and protect the human rights of Aboriginal persons and Torres Strait Islanders.

The Social Justice Commissioner has sought to fulfill this role through submissions to parliamentary inquiries, as well as by providing briefings on the work of the Commission to various parliamentary committees.

Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - Inquiry into CERD and the Native Title Amendment Act 1998

The Social Justice Commissioner made a written submission to the Committee on 3 May 2000 and appeared before the Committee on 22 February 2000. The Submission addresses the three terms of reference of the Inquiry, namely;

• whether the finding of the Committee on the Elimination of Racial Discrimination (CERD Committee) that the Native Title Amendment Act 1998 is inconsistent with Australia's international legal obligations, in particular the Convention on the Elimination of all Forms of Racial Discrimination, is sustainable on the weight of informed opinion;
• what amendments are required to the Act, and what processes of consultation must be followed in effecting those amendments, to ensure that Australia's international obligations are complied with; and
• whether dialogue with the CERD Committee on the Act would assist in establishing a better informed basis for amendment to the Act.

The submission states that the test of whether native title is treated equally to non-Indigenous title under the CERD is a substantive test, namely whether the protection extended to native title by the legislation is the same as the protection extended to non-Indigenous title. The government, in both its oral and written submissions, accepted that, at international law, substantive equality is the relevant standard.

The submission further states that in applying the test of equal protection to the amended NTA, it is clear that native titleholders are not protected to the same degree as non-Indigenous titleholders. The submission points out that in all the situations in which there is a conflict or potential conflict between the interests of native titleholders and the interests of non-Indigenous titleholders, the amended NTA ensures that the interests of non-Indigenous titleholders prevail.

The submission rejects the government's proposition that the CERD permits discriminatory treatment so long as such treatment is reasonable and has a legitimate purpose. Discriminatory treatment cannot be justified by reference to the objective of providing certainty to non-Indigenous titleholders or by reference to the purpose of balancing the interests of all stakeholders.

The submission is available on the HREOC website.

Senate motion regarding mandatory sentencing

On 13 April 2000 the Senate passed a motion requesting that HREOC inquire into all aspects of:

I. the agreement between the Northern Territory government and the Commonwealth regarding the Territory's mandatory sentencing regime;

II. the consistency of mandatory sentencing regimes with Australia's international human rights obligations; and

III. Western Australia's mandatory sentencing regime.

The Senate requested that HREOC report on (i) within 4 weeks; and (ii) and (iii) within 12 months.

The Commission responded to part (i) of the Senate's request by letter dated 3 May 2000. The Commission expressed disappointment that under the deal between the Northern Territory and Commonwealth governments, mandatory detention laws are retained. The Commission commended the raising of the age of majority from 17 to 18 years, and encouraged Queensland and Victoria to follow suit. The Commission also supported announcements for greater use of diversionary programs, the funding of an Indigenous interpreter service and attempts to improve coordination in service delivery.

However, the Commission also noted that the success or appropriateness of these initiatives would depend on the detail of the agreement. The Commission encouraged the two governments to ensure that the diversionary programs introduced complied with international standards as well as recommendations previously made by the Commission in the Bringing them home and Seen and Heard reports.

In relation to parts (ii) and (iii) of the motion, the Commission indicated that the Social Justice Commissioner intends to undertake the following project over the next twelve months:

• assess the continued impact of mandatory sentencing laws in the Northern Territory and Western Australia on Indigenous Australians;
• assess the impact on Indigenous Australians of the additional discretion placed in the Northern Territory Police; and
• develop a methodology against which to assess the appropriateness and success of diversionary schemes in the Northern Territory and Western Australia, and assess these schemes on this basis.

Dr Jonas stated that:

The development of a methodology against which to assess the appropriateness and adequacy of the Northern Territory and Western Australian schemes will also form the basis of further consideration of diversionary programs for Indigenous youth in other states and territories. Such consideration could significantly enhance the development of best practice models for Indigenous youth in juvenile justice processes Australia-wide.

Senate Legal and Constitutional References Committee - Inquiry into the stolen generation

The Commission made a submission to this inquiry on 8 June 2000. The submission considered terms of reference 1 of the inquiry, namely the adequacy and effectiveness of the federal government's response to the recommendations of Bringing them home.

The submission identifies three principles for evaluating the adequacy of the government's response:

• national coordination and leadership;
• addressing forcible removal issues within a human rights framework; and
• ensuring the `effective participation' of Indigenous people in decisions that affect them.

The submission concludes that:

The Commission is of the view that the Commonwealth government's response to date has been inadequate and inappropriate. The Commission particularly notes that the government's submission to this inquiry constitutes a fresh response to many of the recommendations of Bringing them home, which rejects several recommendations of report on the basis of flawed arguments and poor reasoning.

The Commission is of the view that the government has not provided any sound arguments for failing to implement the recommendations of the report. The Commission reiterates that the recommendations constitute the minimum acceptable policy response to the separation of Aboriginal and Torres Strait Islander children from their families.

The first section of the submission provides comment on the government's response to particular recommendations of Bringing them home. The second section examines the government's submission to the Senate inquiry and rejects the reasoning of the government in relation to issues of compensation, reparation and the violation of human rights. It also corrects misrepresentations by the government of the methodology of the Bringing them home report. The final section provides international examples of governmental responses to gross violations of human rights, which demonstrate that the Australian government is out of step with international practice in responding to violations of human rights.

The submission is available in full on the HREOC website.

Aboriginal and Torres Strait Islander Heritage Protection Act - Submission regarding Boobera Lagoon

The Social Justice Commissioner made a submission to a review of the commencement date of the declaration made under s10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to Boobera Lagoon. The submission expressed concern that any further delay of the declaration, originally made on 24 December 1998, would result in the desecration of the Lagoon as the sacred site of the Rainbow Serpent. The submission also points out that permitting the lagoon to be used as a recreation site for water skiers for a further two years shows a lack of respect for the cultural and spiritual significance of the area to the Indigenous community involved and constitutes a breach of international human rights instruments to which Australia is a signatory.

Provisions which require the protection of minority rights, provisions which promote equality on the basis of race, and provisions which protect freedom of religious practice are integral to Australia's duty to protect indigenous cultural heritage. In addition to this duty, these instruments also require the effective participation of Indigenous people in decisions which effect them.

Australia has extensive human rights obligations to protect Indigenous heritage. These are violated by any delay to the protection promised by the declaration in 1998.

On 28 June 2000 Senator Hill decided to postpone the protection of Boobera Lagoon for a further two years to 1 May 2002.

Speeches

Attached is a selection of speeches, seminars and presentations made by Commissioner Jonas in the reporting period. Selected papers are available on the HREOC website.

Keynote address to the Model United Nations Conference, Sydney University. 12 July 1999.

Address to the NSW Reconciliation Convention, Wollongong. 14 August 1999.

Address to Human Rights and Sport Conference: `How You Play the Game: The Contribution of Sport to the Protection of Human Rights', Bondi. 1 September 1999.

Address to the Institute of Australian Geographers Annual Conference, Sydney. 28 September 1999.

Address the Australian Institute of Criminology Conference, Best Practice Interventions in Corrections for Indigenous People on Indigenous Community Expectations of Best Practice Interventions in Corrections, Adelaide. 14 October 1999,

Address to the Geelong Catholic Social Justice Committee on Human Rights: Indigenous Australians Current and On-Going Issues, Geelong. 20 October 1999.

Address Environment Australia, State of the Environment Advisory Committee, Canberra. 8 November 1999.

Address the Aboriginal Anti-Discrimination and Equal Opportunity Conference on Racial Discrimination and the Native Title Amendment Act, Sydney. 11 November 1999.

Address the ACOSS Congress on A New Deal for a New Century - Justice for Indigenous Australians, Sydney. 11 November 1999.

Address the Link-Up, National Bringing Them Home Conference, The Spirit of Family Our Future/Our History The Stolen Generations, Friend or Foe - The Government's Role, Gold Coast, Queensland. 23 November 1999.

Launch of "Too Much Wrong": A Report on the Death of Edward James Murray, Sydney. 26 November 1999.

Address Australian Local Government Association's National General Assembly on Social Justice for All, Canberra. 29 November 1999.

Address the Southern Cross University, Indigenous Human Rights Conference - `The legitimacy of special measures', Ballina. 11-13 February 2000.

Launch of Maitland's Heritage Month Celebrations and Opening of the Yinarr Baran Bali Exhibition, Mindaribba Local Aboriginal Land Council Community Centre, Maitland. 29 March 2000.

Address the NSW Department of Aboriginal Affairs - Aboriginal Seniors Yarn Up Conference on Our Rights and Responsibilities as Older People, Eagle Hawk Hill, Canberra. 1-3 May 2000.

Address the NSW Community Legal Centres Conference - Searching for justice, `Searching for justice, the challenges ahead', Sydney. 3-9 June 2000.

[1] UN Doc: CERD/C/56/Misc.42/rev.3. Available on the internet at: http://www.faira.org.au/cerd.index.html

Last updated 1 December 2001.