Annual Report 2001-2002: Chapter 4

Human Rights and Equal Opportunity Commission Annual Report 2000-2001

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Aboriginal and Torres Strait Islander Social Justice Commissioner and acting Race Discrimination Commissioner,

Dr William Jonas, AM

Monitoring and Reporting

Social Justice Report 2000

Under section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 , 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 2000 Social Justice Report is the second by Dr Jonas. It tabled in both houses of the federal Parliament on 28 March 2001. The theme of the report is reconciliation and human rights.

The report commences by addressing the issue of why human rights are relevant to the reconciliation process (Chapter 2). The report claims that the broader Australian community lacks an understanding of how the basic human rights principles of non-discrimination and equality before the law relate to the reconciliation process. The view that ‘everybody should be treated the same’ overlooks the simple fact that throughout Australian history Indigenous people never have been (p19).

The report argues that the current approach of ‘practical reconciliation’ does not recognize these factors. The report suggests that an alternative, human rights, approach would:

• Acknowledge that Indigenous disadvantage is historically-derived and remedial measures are needed to give Indigenous people equal opportunity;
• Empower Indigenous people by ensuring they take part in decisions affecting them;
• Use human rights principles as benchmarks to assess the adequacy and appropriateness of the government’s response; and
• Prioritise resources to satisfy basic human rights standards.

The report considers the ‘social cost’ of ‘managing’ (rather than overcoming) Indigenous disadvantage and argues that this will escalate unless an extensive and long-term commitment is made to redressing disadvantage.

Chapter 3 then examines Australia’s current performance in relation to Indigenous human rights. It focuses on the dialogue between the Australian government and the Committee on the Elimination of Racial Discrimination (CERD) in March 2000 concerning Australia’s compliance with our obligations under the United Nations racial discrimination convention. It considered a range of issues that must be addressed for reconciliation to be meaningful.

The report reproduces extensive excerpts from the dialogue to explain why the Committee raised particular issues, to examine the adequacy of the Government’s responses, and the appropriateness of the conclusions and concerns expressed by the Committee. The chapter also exposes a number of myths surrounding the operation of the UN human rights treaty system and Australia’s international obligations.

The report expresses concern at the following issues:

• Australia’s obligations to protect cultural diversity: The government demonstrated to CERD a poor understanding of its obligations to ensure equality before the law, including by taking ‘protective measures’ to protect the cultures of Indigenous peoples;
• Inadequate protection of human rights in Australian law: The federal government breaches its international obligations when it refuses to use its powers to ensure that state and territory laws comply with our human rights obligations – such as with the refusal to overturn mandatory sentencing laws;
• Inadequate protection in Australian law against racial discrimination: Despite the existence of the Racial Discrimination Act 1975, the federal government may still introduce racially discriminatory laws – such as the native title amendments. The Constitution also lacks an entrenched guarantee against racial discrimination;
• Extent of Indigenous disadvantage: The Committee confirmed that the extent of Indigenous disadvantage raises serious concerns about Australia’s compliance with the requirement to provide equality before the law and to treat people in a non-discriminatory manner. It expressed concern at ‘the extent of the dramatic inequalities that are still being experienced by these population groups when they represent no more than 2% of the population of a highly developed, industrialised state’. Australia also has an obligation to adopt special measures to overcome this disadvantage – as a matter of human rights compliance;
• Indigenous over-representation in criminal justice systems: The report highlights the necessity to adopt measures to address socio- economic marginalisation and to develop appropriate diversionary options;
• Mandatory sentencing: The report highlights a series of concerns about mandatory sentencing, including its racially discriminatory impact. It notes the ‘deeply unsatisfactory’ explanations provided by the government on this issue; and

• Reconciliation and ‘Bringing them home’: The report highlights the need for a consensual approach to reconciliation – negotiated with Indigenous peoples; and the importance of responding appropriately to the Bringing them home report.

Chapter 4 then sets out what measures must be taken to achieve meaningful reconciliation that respects human rights. The report argues that it is critical to ensure greater government accountability for Indigenous policies, and accordingly that the government must:

• Make an unqualified national commitment to redressing Indigenous disadvantage;
• Facilitate the collection of data for decision making, reporting and monitoring progress;
• Set benchmarks – negotiated with Indigenous peoples, state and territory governments and service delivery organizations, with clear timeframes for achieving longer term and short term goals;
• Provide national leadership to facilitate inter-governmental cooperation; and
• Ensure the full participation of Indigenous peoples in the design and delivery of services.

Having noted that the current level of protection of human rights in Australia is inadequate, particularly as it relates to Indigenous people, the report recommends:

• A constitutional Bill of Rights – this is identified as the preferable, longer term objective that would bind all levels of government;
• A prohibition of racial discrimination in the Constitution – this is identified as an immediate priority, which would bind all levels of government and ‘place the commitment of government to (the principle of non-discrimination on the basis of race) at the highest possible level, and guarantee that such commitment could never be put aside for more expedient political purposes’; and
• A legislated Bill of Rights – which would guarantee compliance by the states and territories with human rights obligations, and provide moral authority for successive federal governments to act consistently with human rights obligations. People would have time to become more comfortable with a Bill of Rights before a referendum to constitutionally enshrine it.

To improve Australia’s objective accountability for human rights at an international level the report also recommends that:

• Australia ratify all individual communication mechanisms under United Nations human rights treaties, including under the Convention on the Elimination of All Forms of Discrimination Against Women;
• The government respond more appropriately to the conclusions of treaty committees; and
• The government increase the priority with which it processes periodic reports under human rights treaties.

The report also calls for the negotiation of agreements or treaties with Indigenous peoples to redress historical injustices in tandem with a framework for protecting rights in the future. The report recommends a two stage process for agreement making:

The first stage is the introduction of framework agreements legislation, which recognizes the need to negotiate with Indigenous peoples about a range of matters and sets out protocols and a negotiation framework within which negotiations will take place. It should provide legislative force to agreements with Indigenous organizations on a local, regional and national level...

It recommends the adoption of the Social Justice Package principles as the basis of negotiations. Having introduced framework legislation, and provided appropriate resources for agreement processes, the second stage would be a commitment to work towards constitutional entrenchment of agreements by:

amending the Commonwealth Constitution along similar lines to the current section 105A to provide the Commonwealth with the power to make agreements with Indigenous peoples. Section 105A of the Constitution provides that the Commonwealth may make agreements with the States with respect to the public debts of the States. It further provides that the federal Parliament has power to legislate any matter contained in the agreement; that such agreements can be varied or rescinded by the parties; and that agreements, and any variations, are to bind all levels of government.

Chapter 5 of the report then examines the importance of providing reparation for the victims of forcible removal policies to reconciliation. The report reviews international human rights principles that suggest that measures aimed at rehabilitation and atonement are appropriate and necessary responses to gross violations of human rights.

The Report then examines the response of the federal government to Bringing them home. It criticises the Government’s rejection of a formal national apology, its refusal to consider monetary forms of compensation, and its insistence on legal liability as a prerequisite to compensation.

The report considers recent international experience in responding to violations of human rights and concludes that the refusal to apologise, the failure to develop comprehensive reparations programs and reliance on litigation as an appropriate redress mechanism are contrary to a world-wide trend.

An executive summary, the full report and press release can be downloaded from the Commission’s website at http://www.humanrights.gov.au/social_justice/index.html.

Native Title Report 2000

Under section 209 of the Native Title Act 1993, 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 2000 is the second by Dr Jonas, and was tabled in both houses of the Federal Parliament on 28 March 2001.

The 2000 Native Title Report finds that the Australian law of native title, both the common law and statute, provides insufficient protection to the relationship that the Indigenous peoples of Australia have with their traditional land and sea country. In Australia, non-Indigenous interests will always prevail over Indigenous interests in the same area. While this discriminatory treatment of Indigenous peoples is of concern what is even more worrying are developments in the case law that find that even where minor clashes occur between Indigenous and non-Indigenous rights, native title will be extinguished forever in order to give non-Indigenous interests full enjoyment of their title. Both the common law and the legislation governing native title permit this extreme discrimination to occur.

The Report’s criticism of the Native Title Act and its interpretation in the courts is based on international human rights norms contained in various treaties to which Australia is a signatory. Three human rights committees that oversee the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights respectively have, within the reporting period, criticised Australia’s failure to provide protection to Indigenous relationships to their traditional lands in accordance with its treaty obligations. Chapter One of the Report analyses the international dialogue that has taken place in relation to native title through the Committee process. The meaning of equality and self-determination that has emerged out of this dialogue is discussed.

In chapter 2, the Native Title Report analyses the way in which the construction of native title as a bundle of rights by the majority of the Court in the Miriuwung Gajerrong case renders Indigenous rights vulnerable to discriminatory extinguishment. Under this approach the erection of a fence on pastoral leasehold land is considered inconsistent with the exercise of any native title rights and will extinguish native title forever. A more resilient construction is offered in a depiction of native title as a right to traditional land. The deep spiritual relationship between Indigenous people and their land allows native title to survive the grant of many Indigenous interests even though native title rights cannot be exercised for a period of time. In this way Indigenous and non-Indigenous people are able to co-exist on the same land.

Chapter 3 compares the recognition that both the common law and the Native Title Act give to traditional relationships to sea country, with the recognition that is given to traditional relationships to land. The decision of the Full Federal Court in the Croker Island case is analysed in the Report as an example of how the legal system imposes severe limitations on the recognition of traditional fishing rights and the spiritual connections that exist between the Indigenous native title groups and the sea. The level of protection provided is inadequate to ensure the survival of Indigenous culture and Indigenous marine economy.

Also discussed, in chapter 4, is the failure of the Native Title Act and the common law to give protection to Aboriginal heritage. While the recognition of native title offered an opportunity to reframe the protection of Indigenous heritage within the broader framework of a human right to enjoy one’s culture, governments have squandered this opportunity. The amendments to the NativeTitle Act take heritage out of the native title framework of rights and relegate it to inadequate targeted legislation that conceives of Aboriginal heritage as a relic of a dying civilisation. The recommendations of the Evatt Report to reform Aboriginal heritage legislation so as to provide better protection to Aboriginal culture have been largely ignored in the proposed amendments to the Aboriginal Heritage Act.

The Report, in chapter 5, expresses deep concern at the reduction of procedural rights under the amended Native Title Act. The few opportunities that native title holders have under the Act to advise governments, mining companies and developers of the nature of their traditional links with the land and the adverse impact that might result from specific developments have been interpreted to have little value in the decision-making process. Neither government nor private decision-makers are compelled to take Indigenous concerns into account. Moreover where Aboriginal peoples’ procedural rights are completely ignored actions and decisions that adversely affect native title rights are valid nonetheless. The report concludes that procedural rights under the Native Title Act provide only nominal protection to native title holders.

An executive summary, the full report and press release can be downloaded from the Commission’s website at http://www.humanrights.gov.au/social_justice/index.html.

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 1986 to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders.

Face the Facts

Dr Jonas released an updated, revised version of Face the facts – Some questions and answers about Immigration, Refugees and Indigenous Affairs on 21 March 2001.

The publication is available on the Commission’s website at: http://www.humanrights.gov.au/racial_discrimination/face_facts/index.html or in hard copy from the Commission.

The publication contains updated material on commonly asked questions about Indigenous affairs and native title. For further information on Face the Facts see the report on race discrimination (chapter 7).

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 i n the performance of his functions. The Social Justice Commissioner has sought to promote an awareness of human rights issues facing Aborigines and Torres Strait Islanders by participating in the processes of the Council for Aboriginal Reconciliation.

Dr Jonas has provided regular briefings to the Council’s Secretariat on human rights issues, as well as 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 and ahead of the Council’s Final Report to Parliament in December 2000.

Since the release of the Council for Aboriginal Reconciliation’s four national strategies and final report to Parliament, Dr Jonas has examined how the Council’s recommendations can be implemented in the course of the performance of the Social Justice Commissioner’s functions. In the Social Justice Report 2000, Dr Jonas commits to reporting on the implementation of the Council’s recommendations in the Social Justice Report each year.

National Reparations Conference

During the financial year, the Commission entered a partnership with the Aboriginal and Torres Strait Islander Commission and the Public Interest Advocacy Centre to run a national conference on reparations for the stolen generations. The conference, Moving forward – achieving reparations for the stolen generations will take place on 15-16 August 2001 at the University of New South Wales. The purpose of the conference is to develop a model for providing reparations for the stolen generations. The conference features a range of national and international speakers including representatives of the stolen generations, government and non-government parties, the churches, Reconciliation Australia, as well as the Aboriginal Healing Foundation (Canada), Law Commission of Canada, Waitangi Tribunal, and a former South African Truth and Reconciliation Commissioner. The secretariat for the conference is located at the Commission, who are also providing managerial and budgetary oversight of the conference. Conference details and outcomes can be viewed online at www.humanrights.gov.au/movingforward .

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 organisations and agencies, particularly international Indigenous organisations. 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 has participated in a range of international dialogues on human rights during the financial year. In particular, Commissioner Jonas:

• Attended the United Nations in Geneva to observe the Human Rights Committee in their consideration of Australia’s 3rd and 4th periodic reports under the International Covenant on Civil and Political Rights, and to participate in the Working Group on Indigenous Populations, in July ߐ
• Attended the United Nations in Geneva to observe the Committee on Economic, Social and Cultural Rights in their consideration of Australia’s 3rd periodic report under the International Covenant on Economic, Social and Cultural Rights in August ߐ and
• Participated in international preparations for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (for further details of this involvement see the report on race discrimination).

Dr Jonas made submissions to both the Human Rights Committee and the Committee on Economic, Social and Cultural Rights on behalf of the Human Rights and Equal Opportunity Commission. These submissions were based on material previously provided to the government.

Human Rights Committee (July 2000)

Dr Jonas made a written submission to the Human Rights Committee in relation to Australia’s 3rd and 4th periodic reports in July 2000. The submission highlighted issues of Indigenous heritage; disadvantage (in health, housing, education, and employment); deaths in custody and over-representation in criminal justice processes; mandatory sentencing laws; native title and the implementation of Bringing them home. Commissioner Jonas also addressed the Committee in an informal briefing on 19 July 2000 in which he discussed concerns about the detention of asylum seekers; mandatory sentencing; Bringing them home and deaths in custody. In concluding his comments, Dr Jonas noted:

In respect of the great majority of our concerns raised with you today Indigenous Australians are at great relative and absolute disadvantage in Australian society. Australia is a very wealthy country and when only two per cent of its population suffer in this way some fundamental issues of equality and rights must be raised.

Second, this situation is not new – it is profound, it is deep and it is enduring. We must also ask, therefore, why things not only remain distressingly bad, but on many measurements actually get worse. And, I am sad to report, until a genuine human rights approach is adopted towards Australia’s Indigenous people – until Australia accepts and implements its fundamental Covenant obligations - many of our most basic human rights will continue to be denied.

The Human Rights Committee provided its concluding observations on 28 July 2000. [1] The Committee welcomed the establishment of the Aboriginal and Torres Strait Islander Social Justice Commissioner position within the Commission and positive developments in the recognition of traditional rights to land in Mabo and the original Native Title Act 1993 . The Committee expressed the following concerns relating to Indigenous issues.

• The insufficient action taken to assure Indigenous peoples their right to self-determination. The Committee urged that ‘The State party should take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources.
• The Native Title Amendments of 1998, which ‘in some respects limits the rights of Indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use’. The Committee urged that the ‘State party take further steps in order to secure the rights of its Indigenous population under article 27 of the Covenant. The high level of the exclusion and poverty facing Indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps should be taken to restore and protect the titles and interests of Indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns.’
• The inadequate protection of Indigenous heritage, and urged that ‘in the finalization of the pending Bill intended to replace the Aboriginal and Torres Strait Islander Heritage Protection Act (1984), the State party should give sufficient weight to the above values’.
• The continuing effects of forcible removal policies. The Committee urged that ‘the State party intensify these efforts so that the victims themselves and their families will consider that they have been afforded a proper remedy. (articles 2, 17 and 24)’.
• The absence of entrenched protections of rights, such as a Bill of Rights; and legislative attempts to limit the effectiveness of rights such as through the Administrative Decisions (Effect of International Instruments) Bill;
• The failure to ensure compliance of the states and territories with Australia’s human rights obligations. The Committee noted that ‘political arrangements between the Commonwealth Government and the governments of states or territories may not condone restrictions on Covenant rights that are not permitted under the Covenant’.
• Legislation regarding mandatory imprisonment in Western Australia and the Northern Territory, ‘which leads in many cases to imposition of punishments that are disproportionate to the seriousness of the crimes committed and would seem to be inconsistent with the strategies adopted by the State party to reduce the over-representation of Indigenous persons in the criminal justice system’ and which raises serious issues of compliance with various articles in the Covenant. The Committee urged the government to ‘reassess the legislation regarding mandatory imprisonment so as to ensure that all Covenant rights are respected’.

Working Group on Indigenous Populations (July 2000)

Following the Human Rights Committee’s consideration of Australia, Dr Jonas remained in Geneva to participate in the 18th session of the Working Group on Indigenous Populations from 24-28 July 2000. Dr Jonas made an intervention in the working group on the theme of Indigenous children and youth, as well as chairing a workshop on Indigenous people and juvenile justice.

Committee on Economic, Social and Cultural Rights (August 2000)

Dr Jonas attended the United Nations in Geneva to observe the Committee on Economic Social and Cultural Rights’ consideration of Australia in their consideration of Australia’s third periodic report under the International Covenant on Economic Social and Cultural Rights.

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. The submission addressed the issues of native title, heritage protection, mandatory sentencing, deaths in custody, Indigenous disadvantage (including health, mortality rates, education, and domestic violence). The Committee on Economic, Social and Cultural Rights provided concluding observations on 1 September 2000, noting as positive the allocation of 2.3 billion dollars to Indigenous programmes while at the same time expressing deep concern that despite the efforts and achievements, the Indigenous people of Australia continue to be at a comparative disadvantage in the enjoyment of economic, social and cultural rights particularly in the field of employment, housing, health and education. The Committee also noted with regret that the amendments of the 1993 Native Title Act had ‘affected the reconciliation process between the State party and the Indigenous populations who view these amendments as regressive’.

World Conference Against Racism

During 2001, in his capacity as acting Race Discrimination Commissioner, Dr Jonas also participated in various preparatory meetings for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance at both the national and international level. Dr Jonas was the opening speaker at the ATSIC Regional meeting of Indigenous Peoples of Australia, New Zealand, Hawaii, Canada and the United States of America in Sydney in February 2001. A full report on these meetings is contained in the report on race discrimination (chapter 7).

Visit of the United Nations Special Rapporteur on Contemporary Forms of Racism and Racial Discrimination

The Special Rapporteur, Professor Maurice Glèlè-Ahanhanzo conducted a country-visit to Australia from 22 April to 10 May 2001 in order to ascertain Australia’s record on contemporary forms of racism. Dr Jonas provided briefing materials to the Rapporteur and met with him on two occasions, alongside the Human Rights Commissioner Dr Ozdowski. The Rapporteur also opened the Commission’s National Summit on Racism and Civil Society in Canberra on 8 May 2001. The Rapporteur will report to the General Assembly of the United Nations on his visit in approximately March 2002.

Research and educational programs

Under section 46C(1) 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 federal agencies and with the states and territories, and a number of initiatives are currently in place to promote the program.

The Commonwealth Public Service and Merit Protection Commission (PSMPC) conducted several Tracking Your Rights training programs during the financial year. The South Australian Equal Opportunity Commission (SAEOC) have continued to promote the program in South Australia, including through the running of pilot programs in Port Augusta and providing course training to the Department of Human Services.

The Anti-Discrimination Commission, Queensland (ADCQ) entered into a partnership arrangement with the Commission for the updating of the Queensland component of the Tracking Your Rights manual. The Queensland manual was researched and written by the ADCQ with funding provided by the Commission, ADCQ and the Queensland government. The ADCQ launched the manual in Aboriginal communities across Queensland in September 2000, distributing 500 copies and providing training. The Commission has placed the updated manual on its website to ensure greater accessibility to the material at: http://www.humanrights.gov.au/social_justice/tracking/index.html .

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 curriculum must be re-accredited by mid-2002. During the financial year, the Australian National Training Authority agreed to contract the Business Services Advisory Board to evaluate the curriculum against training competencies in order to ascertain the scope of the re-accreditation task.

Examining enactments for compliance with human rights principles

Under section 46C(4) of the Human Rights and Equal Opportunity Commission Act 1986, the Social Justice Commissioner may examine and report on enactments and proposed enactments to ascertain whether or not they recognise 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.

Senate motion regarding mandatory sentencing

On 13 April 2000 the Senate passed a motion requesting that the Commission 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 the Commission 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 commenced examining these issues during the financial year and will report the outcomes of his research in the Social Justice Report 2001.

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

The Commission made a submission to this inquiry on 8 June 2000 and appeared before the Committee on 12 July 2000. The submission considered 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 the Bringing them home report. 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 Commission’s website. An updated version of the submission was also included as Chapter 5 of the Social Justice Report 2000.

Intervention in court proceedings

Section 11(1)(o) of the Human Rights and Equal Opportunity Act provides that the Commission may seek leave to intervene in court proceedings (see page 92 of Legal Section Report for discussion on Intervention).

On 6 March 2001 the Aboriginal and Torres Strait Islander Social Justice Commissioner was granted leave by the High Court to intervene in the case of Western Australia v Ward . The decision to intervene had several bases including the significance of the case in the development of the common law’s approach to the nature of native title; the power of the Crown to extinguish native title; the meaning of the statutory definition of native title in the context of Native Title Act 1993 and the extent to which the courts should take account of international human rights law in developing new jurisprudence. It was considered that a human rights approach to the issues raised in the case could assist in the survival of Indigenous laws and customs in Australia.

At the hearing the Commission argued that native title should not be construed as a bundle of rights that could be severally or jointly extinguished by the creation of any inconsistent interest. Rather it should be construed as a resilient relationship between Indigenous people and their land. This relationship was capable of surviving even if particular rights could not be exercised due to their inconsistency with non-Indigenous interests in the same land.

The High Court has reserved its decision in the case.

Speeches

Attached is a selection of speeches, seminars and presentations made by Dr Jonas in the reporting period. Selected papers are available on the Commission’s website at: http://www.humanrights.gov.au/speeches/ .

4 July 00 Launch, The Aboriginal Hunter Gateway Website at the Yamuloong Group Initiatives Pty Ltd, Newcastle.

19 - 21 July 00, Workshop on Indigenous Children and Youth, United Nations Working Group on Indigenous Populations, Theme Two – Juvenile Justice, Palais des Nations, Geneva.

13 October 00, The University of Newcastle – Laws, Societies and Cultures Research Group Conference: ‘Treaties and Constitutions Representing Indigenous Peoples in the Pacific’ on `Unfinished Business – The Recognition of Aboriginal and Torres Strait Islander Rights’, Newcastle.

19 October 00, HREOC Youth Challenge, Darwin.

25 October 00, Centre for Aboriginal Programs - Lunch Meeting, University of Western Australia.

25 October 00, Sir Wallace Kyle Oration ‘Reconciliation: Whose Rights, Whose Responsibilities?’ University of Western Australia.

29 October 00, Community Aid Abroad and Oxfam Australia launch of the Oxfam International Investigative Mission into the Rights of Indigenous Australians, Sydney.

30 October 00, Indigenous Studies Unit, Koori Centre, University of Sydney on Indigenous Australians and Human Rights, Sydney.

1 November 00, The Yarramundi Lecture, University of Western Sydney on ‘Reconciliation and the Recognition of Aboriginal and Torres Strait Islander Rights’, Richmond.

4 November 00, Public hearing on a proposal for a Hunter People’s Inquiry into a Treaty between Indigenous and non-Indigenous Australians, Newcastle.

8 November 00, Centre for Aboriginal Economic Policy Research (CAEPR) Conference “The Indigenous Welfare Economy and the CDEP Scheme: Autonomy, Dependence, Self- Determination and Mutual Obligation on Welfare Reform and Social Justice”, Canberra.

21-23 November 00, Indonesian National Commission on Human Rights KOMNAS HAM on “Transitional Justice and Racial and Religious Discrimination”, Surabaya, Indonesia.

27 November 00, HREOC and Australian Human Rights Centre (UNSW) “Prisoners as Citizens” Workshop entitled “Citizens Inside”, Sydney.

30 November 00, HREOC, Anti-Discrimination Boards and Equal Opportunity Commissions Legal Officers Seminar, Sydney.

11 December 00, University of Technology Sydney, Equity, Social Justice and Human Rights Awards, Sydney.

17 February 01, Sydney Leadership Program Day on Aboriginal Issues, Sydney.

20 February 01, Dr Jonas addressed the opening session at the Conference of Indigenous Peoples and Racism, A Regional Meeting for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Sydney.

21 February 0,1 Panel discussion and workshop session at the Conference of Indigenous People of Australia, New Zealand, Canada and the United States – Indigenous Peoples and Racism, Sydney on the theme of prevention of racism.

30 March 01, Launch, Exhibition of weavings by the women of Central Australia (Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women’s Council) titled Manguri Weaving at Araluen Cultural Centre, Alice Springs.

19 June 01, Dr Jonas addressed the Sydney office of the Native Title Tribunal on the Social Justice and Native Title Reports, Sydney.

UN Doc: CCPR/CO/69/AUS