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Editors --- "Going Forward: Social Justice for the First Australians - Digest" [1996] AUIndigLawRpr 15; (1996) 1(1) Australian Indigenous Law Reporter 67

Going Forward: Social Justice for the First Australians

Council for Aboriginal Reconciliation

Canberra: Australian Government Publishing Service, March 1995

Going Forward is a submission to the Commonwealth Government from the Council for Aboriginal Reconciliation on measures appropriate to advance the cause of social justice for Aboriginal and Torres Strait Islander peoples. The "Summary of Recommendations" is reproduced below.

1. The Council recommends that:

(a) the Commonwealth Government adopt a concise statement acknowledging that Aboriginal and Torres
Strait Islander peoples are entitled as Australians to basic rights to minimum acceptable standards of
services; and

(b) this statement should be enacted by the Commonwealth Parliament to provide a focus for all government
departments and instrumentalities when providing services to or having dealings with Aboriginal and Torres
Strait Islander people.

2. The Council recommends that the Commonwealth insist that such a statement form the philosophic and economic underpinning of all dealings with State and Territory governments concerning Aboriginal and Torres Strait Islander people -- particularly those relating to the delivery of basic services.

3. The Council recommends that:

(a) the Commonwealth develop immediately an implementation strategy involving ATSIC, the State and Territory
governments and key Aboriginal and Torres Strait Islander organisations, to ensure general Australian health
standards are shared by indigenous people as a right;

(b) specific outcomes be met within definite time frames;

(c) this strategy address the comprehensive range of factors contributing to the unacceptable health status of
indigenous men, women and children, including public and environmental health conditions and backlog of
infrastructure, delivery of primary and preventative health care, mental health issues, substance abuse issues, and social behaviour issues such as domestic violence and child abuse; and

(d) this strategy also be supported by research programs into these factors.

Giving a Commitment and Setting a Timeframe

4. The Council recommends that the Commonwealth Government, in developing its response, seek a commitment from all parties in the Commonwealth Parliament to pursue social justice issues on the same cross-party basis as led to the formation of the Council for Aboriginal Reconciliation.

5. The Council recommends that the Commonwealth Government make a single response to all the social justice issues.

6. The Council recommends that the Commonwealth Government seek a commitment from all State and Territory governments and parliaments to pursue social justice matters on a cross-party basis.

The Australian Constitution

Acknowledging the True Place of Indigenous Peoples within the Nation

7. The Council recommends that an appropriate new preamble to the Constitution be prepared for submission to referendum with such preamble to acknowledge the prior occupation and ownership, and continuing dispossession of Aboriginal and Torres Strait Islander peoples.

8. The Council recommends that ATSIC and the Council be funded to conduct a consultation program with Aboriginal and Torres Strait Islander communities and organisations and with the wider community on what would be appropriate forms of words to be written as a new preamble to the Constitution with this process concluding by the end of 1996.

9. The Council recommends that such a consultation process should be undertaken on a cross-party basis with the report being provided to the Parliament.

10. The Council recommends that any constitutional reforms dealing with the rights of Aboriginal and Torres Strait Islander peoples include a question to remove the power of any State to disenfranchise any citizens on the grounds of their race.

Constitutional Prohibition of Discrimination on the Grounds of Race

11. The Council recommends that, in conjunction with other referendum questions dealing with indigenous issues, the proposition also be put that the Commonwealth's power to legislate to outlaw racial discrimination be entrenched in the Constitution.

The "Treaty Debate"--Towards a Document or Documents of Reconciliation

Continuing the Treaty Debate

12. The Council recommends that all political parties acknowledge the value of one or more documents to formalise the position of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

13. The Council recommends that Australians be made more aware that Aboriginal and Torres Strait Islander peoples aspire to self-determination.

14. The Council recommends that the wider community recognise that Aboriginal and Torres Strait Islander peoples, by working within existing national structures, do not abandon their views on or right to advocate separate indigenous sovereignty.

Indigenous Participation in the Structure of Government

Dedicated Seats in the Parliament

15. The Council recommends that, in any constitutional consultation process, an element should be provided for an educational strategy on the possibility of separate indigenous seats, based on an indigenous electoral roll, in the House of Representatives and in the Senate.

16. The Council recommends that it would be better not to proceed with a referendum on this issue unless there was broad support for the concept rather than undertake such a referendum and have a divisive political campaign which would damage the reconciliation process.

Indigenous Bill of Rights

17. The Council recommends that the Commonwealth, in any promotion of public debate on the issue of a "Bill of Rights", should ensure that the debate also deals with the issue of specific indigenous rights for Aboriginal and Torres Strait Islander peoples.

The Role of ATSIC in the Structure of Government

18. The Council recommends that the Chairperson of ATSIC be a full member of the Ministerial Council on Aboriginal and Torres Strait Islander Affairs.

Compensation

19. The Council recommends that the Commonwealth Parliament establish a Joint Select Committee drawn from the House of Representatives and from the Senate to inquire into the general issue of compensation or reparation to Aboriginal and Torres Strait Islander peoples for their dispossession as a result of colonisation and that such Committee be required to report within two years of its establishment.

Regional Agreements

General Issues

20. The Council recommends that the Commonwealth provide funding to underwrite the costs of indigenous negotiating structures for a number of regional agreements.

21. The Council recommends that in the selection of projects for this purpose, such projects should not be confined to those based on large-scale or remote area structures but that expressions of interest also be sought from urban communities or organisations for consideration in this process.

Moving Toward Regional Self-Government in the Torres Strait

22. The Council recommends that the Commonwealth give a commitment to an enhanced form of regional self-government in the Torres Strait and that a special negotiating group be established to examine mechanisms to enhance the powers and operations of the Torres Strait Regional Authority as a basis for seeking to establish regional self-government by the year 2001.

23. The Council recommends that such a negotiating group comprise appropriate representatives of the Commonwealth and Queensland Governments, the Torres Strait Regional Authority, the Torres Shire Council and Torres Strait Islanders living on the mainland, and that the negotiating group be required to report to the Commonwealth and Queensland Parliaments, the Torres Strait Regional Authority and the Board of Commissioners of ATSIC on an annual basis on progress being made in the negotiations.

Issues for the Justice System

Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody

24. The Council recommends that the Commonwealth, State and Territory governments acknowledge that implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody has been inadequate.

25. To cure these defects, the Council recommends that the Commonwealth, State and Territory governments should legislate to provide a statutory basis for the implementation of the Royal Commission's recommendations.

Custody Levels

26. The Council recommends that Commonwealth, State and Territory governments acknowledge that levels of arrest and incarceration of indigenous people, particularly young indigenous men, remain unacceptably high. Despite government actions in response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the need for improved implementation remains.

27. The Council recommends that the Commonwealth press State and Territory governments to expand the range of alternatives to custodial punishment and to implement recommendations for the decriminalisation of "social offences" such as public drunkenness.

Indigenous Women

28. The Council recommends separate funding be allocated for indigenous women (particularly those subject to domestic violence) to provide legal advice and representation.

Education of the Legal Profession

29. The Council recommends that a cultural studies strand be mandatory in the pre-vocational training syllabus for the legal profession to ensure that all new entrants to the legal profession receive an appropriate level of understanding of indigenous issues.

Other Issues

Appropriate Terminology

30. The Council recommends that the Commonwealth undertake a consultation process with indigenous peoples to establish appropriate language guidelines for referring to Aboriginal and Torres Strait Islander people and that such guidelines be incorporated in the Style Manual.

31. The Council recommends that agreement be sought from State and Territory Governments and the Australian Local Government Association to adopt such guidelines for language use at all levels of government.

Communication and Negotiation Structures

32. The Council recommends that the Commonwealth give a commitment to develop a strategy for all Commonwealth departments and agencies for appropriate language, methodology and technologies, including interpreter and translator services, to be utilised when communicating or negotiating with, or providing services to, indigenous communities and individuals.

33. The Council recommends that the Commonwealth utilise the skills and expertise of indigenous language centres and similar organisations, under contract, for such purposes.

34. The Council recommends that the Commonwealth utilise the technology, distribution and broadcast networks of indigenous communities or media organisations, under contract, for the distribution of such materials.

35. The Council recommends that the Commonwealth fund a remote area video link network to be introduced progressively over the period leading up to the year 2000.

Community Property Title

36. The Council recommends that a reference be made to the Australian Law Reform Commission to examine the need for and forms of indigenous community property title, and customary intellectual and cultural property rights.

Education Issues

37. The Council recommends that all pre-vocational teacher training courses have a mandatory accredited cultural awareness element built into them so that teachers at all levels have an awareness of indigenous issues prior to commencing their teaching careers.

38. The Council recommends that State and Territory education departments include cultural awareness training as part of their program of in-service training for current members of the teaching profession, to ensure that all existing teachers have a proper awareness of indigenous issues.

39. The Council recommends that an indigenous studies strand be made mandatory throughout the Kindergarten to Year 12 syllabus to ensure that all school children develop an appropriate level of understanding of indigenous cultures, history and aspirations.

Commonwealth Development and Construction Activities

40. The Council recommends that the Commonwealth legislate to ensure that indigenous cultural values are recognised and protected in the course of projects by Commonwealth departments or agencies on a similar basis to that provided for environmental protection under the Environment Protection (Impact of Proposals) Act, 1974.

Triennial Program Funding

41. The Council recommends that the Commonwealth adopt a process of triennial funding for ATSIC and for other programs for Aboriginal and Torres Strait Islander people to ensure continuity of funding.

General Revenue Grants

42. The Council recommends that the Commonwealth identify those areas where direct funding for targeted programs is appropriate and that direct funding to Aboriginal or Torres Strait Islander organisations be utilised to avoid suggestions that State or Territory governments are transferring specifically targeted Commonwealth monies away from indigenous programs. However, direct funding should only be undertaken after consultation with State and Territory governments.

Grants Commission Processes

43. The Council recommends that the Grants Commission Act, 1973 be amended to provide that:

(i) When determining the factors to be applied in weightings for the States and Territories for the distribution of
untied Commonwealth revenue grants, the Grants Commission shall specify what precise element for each State
or Territory relates to issues concerning the disadvantage of Aboriginal or Torres Strait Islander communities
Publication of this information should include direct specific factors such as health, environmental health or
other specific disadvantage of such communities together with elements such as remoteness which might affect
Aboriginal or Torres Strait Islander communities disproportionately compared to the general population of the
State or Territory.

(ii) The Grants Commission be required to establish performance measures against which State and Territory
government actions in addressing Aboriginal or Torres Strait Islander needs which had been provided for in the
weighting factors could be assessed and that the Grants Commission be required to publish an analysis of State
or Territory performance against such indicators on an annual basis.

(iii) The process of setting performance indicators includes a statutory right for submissions from Aboriginal and
Torres Strait Islander communities and organisations on what the performance measures should be.

(iv) If the Grants Commission assesses that any State or Territory has inadequately performed or failed to perform
against such indicators, the Grants Commission should be required to report to the Commonwealth Government
on what changes need to be adopted to enable such funding to be applied directly through Aboriginal and Torres
Strait Islander organisations.

Infrastructure Backlog

44. The Council recommends that the Grants Commission be given a reference to consider and report upon infrastructure backlog needs for Aboriginal and Torres Strait Islander communities and where responsibilities lie for meeting these needs.

Ownership of and Access to Land

Management of National Parks

45. The Council recommends that the Commonwealth Government develop national model legislation, following negotiations with the States and Territories, for the vesting of ownership and management in the relevant indigenous people of existing conservation areas which have high indigenous cultural value.

46. The Council recommends that, if one or more of the States or Territories enacts legislation of such a nature in a form which is acceptable to the Commonwealth, the Commonwealth fund appropriate indigenous communities, on a project basis, for the establishment and management of such arrangements.

47. The Council recommends that the Minister responsible commit to providing a report to the Parliament each year on progress being made with each of the States and Territories on the implementation of these recommendations.

Rights to Camp, Hunt, Gather and Fish

-- Access to Public Land

48. The Council recommends that the Commonwealth legislate to establish national and regional frameworks for access by Aboriginal and Torres Strait Islander people to public lands, public waterways or seas for the purposes of camping, ceremonial activities, or hunting and harvesting for personal or family consumption with:

(i) No license fees or access charges applying to such activities; and

(ii) Negotiations taking place in the first instance at a State or Territory level to be reflected subsequently in more
detailed discussions at a local level, between officials of the Australian Nature Conservation Agency, relevant
State or Territory Land Management officials, and indigenous representatives, on conditions for such access,
particularly including issues which might involve species protection or conservation.

-- Access to Freehold or Leasehold Land

49. The Council recommends that a program be funded, for a five-year period, to permit the re-establishment of rights for camping, ceremonial purposes, hunting or gathering, on freehold or leasehold land, by purchasing such rights, in perpetuity, under State or Territory real property laws.

50. The Council recommends that discussions be convened by ATSIC with the National Farmers' Federation, the Australian Bankers' Association and the Australian Finance Conference to establish a broad framework for such processes.

Protection of Indigenous Designs and Cultural Knowledge

51. The Council recommends that the Commonwealth legislate to create a specific new form of intellectual property which would enable Aboriginal and Torres Strait Islander communities and individuals to protect from exploitation styles of art or crafts and knowledge of traditional foods and medicines.

52. The Council recommends that such legislation include a power to initiate representative proceedings to enforce such rights and seek forfeiture of any profits made in contravention of such rights.

53. The Council recommends that such protection should be extended to the protection of broad cultural rights including indigenous stories, literature, music, song and dance in similar terms as is proposed to be extended to arts, crafts, food or medicinal knowledge.

Human Remains

54. The Council recommends that a code of conduct be developed by indigenous people in consultation with relevant professional associations to deal with issues involving the remains of indigenous people and that such code be made enforceable through Commonwealth indigenous heritage protection legislation.

55. The Council recommends that a national keeping place be established as a culturally appropriate place to hold the recovered remains of indigenous people, and after discussions with appropriate Aboriginal and Torres Strait Islander organisations, to hold there those remains for which an appropriate location for funerary arrangements cannot be established.

Culturally Significant Objects held by Museums

56. The Council recommends that the Commonwealth re-examine the restrictions it currently places on the purchase of indigenous cultural artefacts when offered for sale outside Australia with a view to adopting a more informal approach which would permit the acquisition of such objects and their return to Australia to the proposed national keeping place until their provenance is established.

57. The Council recommends that the Commonwealth Government give a formal commitment to Aboriginal and Torres Strait Islander peoples that it will use its best diplomatic endeavours to ensure that culturally significant objects are recovered from overseas institutions and returned to Australia either to their traditional owners or to the proposed national keeping place pending the determination of who might be appropriate custodians for them.

58. The Council recommends that the Commonwealth use its best diplomatic endeavours with overseas institutions, pending negotiation of return to Australia of cultural artefacts, to seek to have them removed from display or be subject to culturally appropriate restrictions on display according to advice from relevant Aboriginal or Torres Strait Islander peoples.

Customary Law

59. The Council recommends that, as the area of customary law is one of high cultural importance to indigenous communities, the Commonwealth publish, as a matter of high priority, a response to the Australian Law Reform Commission Report, including draft Commonwealth implementation legislation, for consideration by indigenous people and the wider Australian community.

60. The Council further recommends that such published response include an indication of attitudes adopted by the State and Territory governments on issues appropriate to their jurisdictions.

Displaced Persons

61. The Council recommends that the Commonwealth, State and Territory governments formally recognise that the past practices of forced removal of indigenous people from their families, their land, their communities and their birthright connections to their land were unacceptable and in breach of the human rights of the people, their families and their communities.

62. The Council recommends that the Commonwealth, State and Territory governments provide funding to enable a program of detailed research for such displaced people to seek to identify and link up with their families and their origins.

63. The Council recommends that the Commonwealth, State and Territory governments identify the best means of delivering services to displaced people to address the specific difficulties arising from past government policies of removal.

64. The Council recommends that Commonwealth, State and Territory governments seek to negotiate a possible settlement of claims for perceived breaches of duties to people who were removed from their families, their land, their communities and their birthright connections to their land.

65. The Council recommends that, if the Commonwealth, State and Territory governments are unable to resolve these matters by negotiation, the Commonwealth should fund a test case or cases.

Recognition of the Aboriginal and Torres Strait Islander Flags

66. The Council recommends that the Flag Act, 1953, be amended to give official recognition to the Aboriginal flag and to the Torres Strait Islander flag.

Date of Australia Day

67. The Council recommends that the Government recognise that the celebration of January 26 as Australia Day is not accepted by indigenous and many other Australians, and that the nation should find another suitable day which can be supported by all Australians as the national day.

Exploitation of Native Flora and Fauna

68. The Council recommends that the Commonwealth seek to negotiate with the States and Territories a process which will encourage indigenous participation in native flora or fauna based industries including preferential or no fee access to appropriate licences.

Indigenous Program Expenditure for Business and Employment Creation

69. The Council recommends that the Commonwealth develop and implement an Indigenous Contracting Policy which incorporates a set of criteria, including indigenous participation and management, in the awarding of tenders for service delivery to indigenous people.

Use of Government Contracting Processes

70. The Council recommends that, in circumstances where proponents for a particular contract are otherwise broadly comparable, the level of employment and training opportunities being provided for indigenous people be used where relevant as one of the factors to determine the awarding of the contract.

Vesting of Housing Assets

71. The Council recommends that all future public housing which is constructed for the purposes of Aboriginal or Torres Strait Islander communities, should be vested in appropriate legal entities owned and controlled by indigenous people.

72. The Council recommends that the structure of future Commonwealth/State housing agreements should include a provision to have all current public housing for Aboriginal and Torres Strait Islander people transferred to ownership by indigenous housing trusts.

73. The Council recommends that future construction of public housing for Aboriginal and Torres Strait Islander people should be subject to a tendering process under the rules outlined above for the encouragement of employment and training for indigenous people.

74. The Council recommends that maintenance programs for Aboriginal and Torres Strait Islander housing should similarly be used for business creation, employment or training purposes.

Further Consultation Structures

75. The Council recommends that additional funding be provided to ATSIC and to the Council for Aboriginal Reconciliation over each of the 1995/96 to 1997/98 financial years to enable the two bodies to undertake further joint consultation processes on social justice and related issues.

76. The Council recommends that the Commonwealth Government use ATSIC and the Council as the vehicles for future consultations with indigenous peoples on social justice issues.

77. The Council recommends that the Aboriginal and Torres Strait Islander Social Justice Commissioner be given the responsibility and resources to report on the progress of Council for Aboriginal Reconciliation and ATSIC social justice recommendations.

78. With respect to those submissions received during the consultation process which raised detailed or local matters, the Council recommends that Commonwealth, State, Territory and local governments evaluate the concerns raised and act to address the issues involved or hold further discussions with appropriate indigenous communities or organisations.