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Inquiries and Reports – Australia
Aboriginal and Torres Strait Islander Social Justice Commissioner
Canberra
May 2002
Editors note: The full report, as well as an executive summary, press releases and speeches delivered in a series of regional launches for the report, can be found at <www.hreoc.gov.au/social_justice/sjreport_01/>.
Each year the Aboriginal and Torres Strait Islander Social Justice Commissioner is required to submit two reports to the federal Parliament on the exercise and enjoyment of human rights by Indigenous peoples (the Social Justice Report) and the impact of the Native Title Act 1993 (Cth) on the exercise and enjoyment of Indigenous peoples’ humans rights (the Native Title Report). The two reports for 2001 were transmitted to the Attorney-General in December 2001 and tabled in Parliament on 14 May 2002.
The Social Justice Report 2001 evaluates progress ten years on from the Royal Commission into Aboriginal Deaths in Custody and one year on from the final report of the Council for Aboriginal Reconciliation. It expresses concerns at the lack of progress in addressing Indigenous over-representation in the criminal justice system and the lack of a systematic response to the formal documents of reconciliation. The report identifies lessons that can be learned from the implementation process of the Royal Commission for the reconciliation process.
The report then elaborates best practice human rights principles for juvenile diversion from custody and applies these to the schemes in operation in Western Australia and the Northern Territory. The report finds that the Northern Territory scheme has been rapidly progressed in its first year of operation but requires additional legal safeguards and must involve greater government coordination and Indigenous participation. There are six recommendations to the Northern Territory government to improve their newly introduced scheme. There are four recommendations directed at the Western Australian government to improve their juvenile diversionary system which does not currently benefit Indigenous juveniles due to a range of factors including the culturally inappropriate nature of the system, the lack of Indigenous participation in designing and delivering programs, and the lack of services outside of Perth.
The report considers the mutual obligation approach to welfare reform noting its many positive features but expressing concern at its limitations. The Commissioner calls for a more widespread, consultative approach to be adopted to Indigenous welfare reform which gives sufficient acknowledgement of Indigenous specific dimensions of Indigenous welfare dependency, ranging from cultural, historical and socio-economic factors. The report also provides case studies of community capacity building and governance initiatives which provide examples of alternatives to the mutual obligation approach.
This extract is from chapter six of the Social Justice Report 2001 and the introductory chapter of the Native Title Report 2001. The extract relates to national progress towards reconciliation in the first year since the final report of the Council for Aboriginal Reconciliation.
In its final recommendations, the Council for Aboriginal Reconciliation proposed that there be a legislative requirement for the Social Justice Commissioner to monitor progress towards reconciliation on an annual basis. In the Social Justice Report 2000 it was noted that while legislative amendment to this end was desirable, this task could be undertaken under the Commissioner’s existing functions. Accordingly, the Commissioner undertook to provide an annual evaluation of progress towards reconciliation as part of the Social Justice Report.
The review examines the measures adopted to implement reconciliation and ensure that it is ongoing; and processes for measuring and evaluating outcomes of these commitments. It seeks to determine whether the federal government has begun to implement the recommendations of the Council for Aboriginal Reconciliation, as well as the fourteen recommendations on reconciliation in the Social Justice Report 2000. It particularly focuses on the necessity for national leadership to maintain the momentum created over ten years by the Council.
...
The year 2000 marked the end of the first, formal, phase of reconciliation in which the Council for Aboriginal Reconciliation (herein CAR or the Council) identified progress to date and the job still ahead for reconciliation to be achieved. At no time did the Council suggest that reconciliation would be achieved by 2000. It was also the year in which the Council handed over control of the reconciliation process to governments and the Australian people to advance (after taking into consideration the work and recommendations of the Council). After ten years of reconciliation, in which there was increased understanding among the broader community of the circumstances of Indigenous people, the time came for governments to make commitments to addressing the issues that had been raised.
During its final year, the Council for Aboriginal Reconciliation presented to the nation the Australian Declaration Towards Reconciliation and the Roadmap for Reconciliation at Corroboree 2000 on 27 May 2000. The Council advised the Prime Minister that these documents constituted its formal recommendations in relation to the ‘nature and content’ of documents of reconciliation, as required to be submitted at the end of the Council’s term under section 6(1)(h) of the Council for Aboriginal Reconciliation Act 1991 (Cth). The Roadmap involved four strategies for reconciliation: overcoming disadvantage; achieving economic independence; recognition of Indigenous rights; and sustaining the reconciliation process.
Corroboree 2000 was followed the next day by the walk across Sydney Harbour Bridge and walks in other cities, in what has been the strongest display of the ‘people’s movement’ for reconciliation to date. The final report of the Council for Aboriginal Reconciliation, Australia’s challenge, was then tabled in federal Parliament on 7 December 2000.1 Australia’s challenge made a further 6 recommendations to the Prime Minister in relation to the ‘manner of giving effect’ to the documents of reconciliation which it had presented at Corroborree 2000.
The six recommendations of the final report focused on the processes necessary to implement reconciliation by ensuring that governments were accountable for their efforts, through the establishment of national commitments and monitoring and evaluation mechanisms, as well as ensuring that they proceeded in a manner that involved negotiation with Indigenous peoples. The 6 recommendations called for:
Having met its obligations to recommend to the federal Parliament the appropriate processes for achieving reconciliation, the Council for Aboriginal Reconciliation ceased to exist on 31 December 2000 and the first ten year phase of the reconciliation process ended.
The Social Justice Report 2000 was transmitted to the federal Attorney-General on 21 December 2000 and tabled in parliament 3 months later on 28 March 2001. It outlined a human rights framework for reconciliation, to ensure the adequate protection of Indigenous rights during the next, implementation, phase of the reconciliation process. The report outlined a rights framework for reconciliation, based on the following four inter-related principles:
It identified three key structural areas for this framework to be implemented, namely redressing Indigenous disadvantage and ensuring progressive realisation; strengthening Indigenous governance; and recognising and protecting Indigenous rights in a federal system. The report recommended fourteen recommendations to progress this framework, the features of which were:
The recommendations of the Social Justice Report 2000 complement those of the Council for Aboriginal Reconciliation, and specify the central position that human rights must take for meaningful reconciliation to be achieved. It is appropriate that these two sets of recommendations be examined together in determining the adequacy of progress towards reconciliation at the end of its first phase.
In 1996, the Aboriginal and Torres Strait Islander Social Justice Commissioner prepared a report on Indigenous Deaths in Custody from 1989-1996 which considered the appropriateness of the implementation process for the Royal Commission recommendations.[3]
The report identified a number of stages in an adequate implementation process, which include reviewing current activities; developing policies and programs; setting goals or targets; allocating responsibility for implementation; and establishing evaluation mechanisms.[4]
The report found that monitoring was not useful unless there is a considered plan for implementation of the Royal Commission’s recommendations. It noted that the lack of holistic, whole of government approaches to the Royal Commission resulted in a ‘public affairs’ approach to monitoring and reporting, which listed existing programs and initiatives under the guise of being a response to the recommendations of the Royal Commission. In many instances, this was done at the end of a reporting period and therefore with no conscious consideration of the implications of the recommendations for program design and delivery. The Social Justice Commissioner’s report observed that ‘state agencies responsible for the implementation of recommendations reach the end of their reporting cycle without any coherent plan for the implementation, and without real ability to assess progress.’[5]
A pivotal issue identified by the report for improving reporting mechanisms was the need to ensure state and territory accountability with the federal system:
the mechanics of the federal system work against accountability. The Royal Commission was a Commonwealth undertaking. The Commonwealth has a funding role, a leadership role in pressing the states for implementation, and an operational role in limited areas. But the recommendations were largely directed at state and territory governments and agencies ...[6]
The report suggested that state and territory accountability could be improved through the adoption of a more active leadership role by the Commonwealth, including forms of leverage to ensure compliance such as performance conditions on grants to states and territories.
In relation to reconciliation, an initial question which needs to be considered is what constitutes a response to the recommendations of the Council for Aboriginal Reconciliation and the Social Justice Report. It is reasonable to expect that at the end of a ten year process, governments would at a minimum engage in the stages outlined above.
It is expected that they would review their current activities through consultation with Indigenous people, given the concerns and priorities identified by the recommendations, and that this review process would feed into the development of ongoing and new policy and program initiatives. It is also expected as an absolute minimum that they would identify targets and benchmarks against which their performance can be measured and for which they can be held accountable. And it is further expected that they would identify lead agencies that are responsible for carrying out particular initiatives as well as establish mechanisms by which efforts can be evaluated.
It can also be reasonably expected that a ten year, multi-million dollar process, which is of such pivotal importance to the development of Australian society, would receive a formal response so that all members of the Australian community are clear as to the level of commitment provided by the government.
We should also expect national coordination of reconciliation in order to prevent a repeat of the mistakes of the past, especially in regard to ensuring adequate accountability, transparency, effective monitoring and long-term planning.
Twelve months on from the release of the Council’s final report, however, governments have once more provided words of support for the Council’s approach and the reconciliation process in general but have not engaged in any of these stages of implementation. None has offered a formal response to the final recommendations of the Council.[7] In their report card on reconciliation released on 28 November 2001, Reconciliation Australia Co-Chairs Fred Chaney and Shelley Reys noted a ‘lack of progress and unfinished business on several fronts, including... little response from governments as yet to the final recommendations of the Council for Aboriginal Reconciliation, which were released in the Council’s final report a year ago.’[8]
[T]here can be no doubt that the mood of the Australian community is overwhelmingly in favour of reconciliation. It is and should be an unstoppable force.[9]
Prime Minister, Launch of the Council for Aboriginal Reconciliation’s Final Report to Parliament
This chapter focuses on the response of the federal government, and its leadership role in relation to the states and territories. This section examines six key features of the government’s approach to reconciliation over the past eighteen months.
One could expect that the documents which were the outcome of a ten-year process would be met with an all encompassing national response. The Council of Australian Governments (COAG), led by the Prime Minister, has agreed a communiqué on reconciliation which adopts the first recommendation of the Council for Aboriginal Reconciliation. Aside from this initiative (the significance of the COAG commitment is discussed further below), there has been no formal, comprehensive public response by the federal government to the reconciliation documents handed to the government at Corroboree 2000 or the recommendations of the Council for Aboriginal Reconciliation’s final report of December 2000. This is despite the passage of twelve months since the final report and eighteen months since the documents of reconciliation were released.
There is limited material available which explicitly identifies the government’s view on the recommendations in anything more than a general sense. The most specific material that exists is a press statement issued prior to Corroboree 2000, and speeches by the Prime Minister at Corroboree 2000 and the launch of the final report of the Council.
On the eve of Corroborree 2000, the Prime Minister released a press release which stated in relation to the Australian Declaration Towards Reconciliation that:
although there was significant agreement between the government and the Council for Aboriginal Reconciliation, in several areas it has not been possible for the government to give its full support to the document finally adopted by the Council ... The areas of difference relate to customary law, the general application of the laws of Australia to all citizens, self determination and a national apology as distinct from an expression of sorrow and sincere regret.[10]
In relation to the Roadmap for Reconciliation the Prime Minister commented that ‘there are numerous points of agreement. However, on some important aspects, the Minister assisting me on Reconciliation has informed the Council of the government’s reservations.’[11] It has been reported that the government had particular difficulties with the strategy for the recognition of rights, but at no stage since the release of the documents have the government explicitly outlined those areas of the documents with which they have reservations.
In the press release, the Prime Minister also stated:
Although there will be an inevitable focus on these areas of difference, it remains the fact that there is common ground between the government and the Council on most of the sentiments contained in the document. It is also the case that there is common commitment to the process of reconciliation.[12]
Statements such as this, which assure people that the government is committed to reconciliation, have been regularly made over the past eighteen months without any discussion of what exactly they are committed to. In relation to the final report of the Council for Aboriginal Reconciliation, for example, the Prime Minister stated at the launch that:
We will consider the propositions that are contained in the document. We will of course as a government consider them against the background of positions that we have stated previously. But I can assure you... that we will consider them in a spirit of immense good will and a desire to the maximum extent possible, given some different perspectives, to achieve the maximum level of agreement and the maximum level of harmony ... I can assure you that reconciliation will, not withstanding the expiry of the Council’s legislative remit, remain a major focus of the Government.[13]
The only response to specific recommendations of the final report can be found in a question on notice in Parliament on the day that the final report was released. The Prime Minister stated:
Without in any way wishing to walk away from the spirit that was displayed at this morning’s breakfast... the government has certain reservations about the concept of a treaty. What I had to say this morning was seen as a clear statement of very strong support for reconciliation. What I had to say this morning was said against the background of the views that we had previously expressed in relation to a treaty, and those views remain... we [must] try to focus as much as we possibly can on those areas where all of us agree, and there are many areas of agreement in relation to reconciliation... Those things where we agree on reconciliation are much greater, more important, stronger and more enduring that those areas where we disagree.[14]
On 5 April 2001, Senator Ridgeway lodged a Private Members Bill in the Senate which sought to implement recommendation 6 of the final report of the Council for Aboriginal Reconciliation. The bill was the draft legislation appended to the Council’s final report and included legislative recognition of Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia; establishment of a series of National Reconciliation Conventions; and a requirement that the Prime Minister commence negotiations with ATSIC to develop a process by way of a treaty or an agreement to address the unresolved issues of reconciliation. Implementation of the Bill’s objectives require monitoring on a regular basis by the Aboriginal and Torres Strait Islander Social Justice Commissioner, a Joint Parliamentary Committee, and an independent body appointed by the Minister. Consideration of the Bill was the only other potential occasion for the recommendations of the Council for Aboriginal Reconciliation to be discussed in Parliament. However, the Bill is yet to appear on the notice sheets for Senate debate.
Most other material about the government’s approach to reconciliation tell us generally that they are committed to practical reconciliation. For example, in the Menzies lecture the Prime Minister stated:
Symbolic expressions of support are important. However, they are given real meaning when backed with improvements in living standards. That is why we place a great degree of emphasis on practical reconciliation ... True reconciliation is, in our view, to be best found within practical means to improve the well-being and happiness of indigenous Australians and raising standards to levels enjoyed and expected by all of us.15
But again, this material is so general that it does not tell us specifically what their response to the recommendations of the Council is. Indeed, the government have never outlined whether the recommendations of the Council are consistent or not with practical reconciliation. It impliedly tells us that there are some things with which they do not agree – but not what they are or why.
In terms of a process of implementation it is difficult, in fact, to identify any public material that demonstrates that the government has engaged in a good faith process to consider the Council’s recommendations through reviewing their current programs and policies and consulting and negotiating with Indigenous peoples about ways to improve these. Indeed, there has been no follow up to the statement by the Prime Minister on the day of the launch of the Council’s final report that:
I have received on behalf of the government ... the final report of the council. It contains a number of recommendations. We will consider all of those recommendations.[16]
Indeed, my concern with the lack of response to the reconciliation documents by the government goes further than this. Not only has the federal government not explicitly responded to the CAR documents, they have quite deliberately sought to shut down debate and avoid any engagement about them by stating that they are committed to practical reconciliation.
An example which illustrates these attempts to close the debate is the response of the government to last year’s Social Justice Report. In his letter advising me that the report had been tabled in parliament, the Attorney-General stated that the ‘report raises many issues important to the government. The report will be a helpful resource as the Government considers its ongoing approach to these issues.’[17] In a joint press release with the Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs the day before, the Attorney-General stated that ‘the government acknowledges the important work of the Social Justice Commissioner in helping to draw attention to the profound levels of disadvantage faced by Indigenous Australians’ and that the government ‘are pleased that the Social Justice Report commends the government’s action in relation to the number of Indigenous-specific policies.’[18] With praise accepted, the news release then considered the critical aspects of the report as follows:
It is not unexpected that the Social Justice Report includes a number of criticisms but the government believes that these add nothing new to the debate about Indigenous rights and reconciliation in Australia.[19]
There is no mention of the existence of fourteen recommendations in the report, and no response to any of them. While I don’t agree with the assessment of the report’s contents in any way, the rejection of a series of criticisms of the government on the basis that they are ‘not new’ simply does not address the point. This merely admits that the criticisms have been made at sometime in the past and dismisses them on this basis – pretending they are no longer relevant. It is of course one of the greatest frustrations for Indigenous people that many of the criticisms of government policies, and many of the solutions, have been identified time and again. Their re-emergence suggests the inadequacy of government responses, not any inherent flaw in the recommendations. Often it is not innovation or ‘newness’ that is required – merely application of existing commitments or of knowledge learnt.
The function under which this report is completed states that ‘the Aboriginal and Torres Strait Islander Social Justice Commissioner is to submit a report regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders, and including recommendations as to the action that should be taken to ensure the exercise and enjoyment of human rights by those persons.’[20] The legislation also requires that the Attorney-General table the report in Parliament. In other words, the Commissioner is obliged to submit recommendations where appropriate to the federal Parliament through the Minister’s tabling. I believe that this requirement to submit recommendations to the federal Parliament, which provides public scrutiny of the government’s approach, is accompanied by an expectation from Parliament that the government will inform it of its response to the report. In the conclusion of this chapter I make recommendations which relate to these concerns that I have raised.
An important response to the recommendations of CAR has been provided by the agreement by the Council of Australian Governments (COAG) to a communiqué on reconciliation on 3 November 2000.[21] The communiqué predates, but is consistent with, recommendation 1 of CAR’s final report.
The Council of Australian Governments is comprised of the Prime Minister, Premiers and Chief Ministers of the states and territories, and the President of the Australian Local Government Association (ALGA).
The communiqué acknowledges the work of CAR and commits itself to advancing reconciliation in regard to social and economic disadvantage through a nationally-coordinated reconciliation framework. COAG’s approach is based on partnerships and shared responsibilities with Indigenous communities; programme flexibility; and coordination between government agencies, with a focus on local communities and outcomes. Its three agreed priority areas for action are community leadership; reviewing and re-engineering programmes and services to achieve better outcomes for Indigenous peoples; and building links between the business sector and Indigenous communities to advance economic independence. The communiqué provides for periodic review of progress on reconciliation, with its first review to take place at the end of a twelve month period.
Under this framework, 25 Commonwealth/State Ministerial Councils are to develop action plans, benchmarks and reporting strategies within 12 months for improving outcomes for Indigenous people. The Ministerial Council on Aboriginal and Torres Strait Islander Affairs (MCATSIA) is to coordinate and monitor this process, and was required to report back to COAG in November 2001 on the Councils’ action plans and strategies. MCATSIA’s role is also to include advising COAG about where gaps in policy and program development and service delivery remain, and where further improvements can be made in producing sustainable outcomes for Indigenous people. At this stage, action plans have been developed, ratified and endorsed but the progress report will not be available to COAG until early 2002, and it is yet to be decided whether it will be a public document. Given the significance of the progress report to advancing reconciliation it would be in the national interest for this document to be available for comment and evaluation.
The communiqué is a significant development to progress reconciliation. It cannot, however, be seen as a total response to the recommendations of CAR or by itself as an adequate response of governments. This is due first to the fact that the communiqué does not respond to significant aspects of the Council for Aboriginal Reconciliation’s recommendations, particularly issues that relate to the recognition of rights and some of the symbolic aspects of CAR’s proposals.
The CAR chairperson and the Deputy Chairperson welcomed COAG’s leadership role and the commitments made toward reconciliation, but also warned that ‘the 1992 COAG National Commitment is an example of fine words that produced no real or lasting outcomes, and this 2000 agreement must not repeat this experience.’[22]
While COAG’s commitments to reconciliation are consistent to an extent with some of the recommendations in the Social Justice Report 2000 that relate to the making of a long term national commitment to redressing Indigenous disadvantage,[23] I remain concerned about the COAG arrangement. In relation to the monitoring of Bringing them home by MCATSIA on behalf of COAG, I have previously expressed concerns relating to the insufficient information that is publicly available which limits the accountability of governments. I also expressed concerns about the adequacy of monitoring processes, lack of consultation with Indigenous people and lack of independence in the evaluation of government responses.24 This also applies to the approach to reconciliation.
In the past year the federal government made the following contributions to the ongoing reconciliation process: seed funding for the establishment of Reconciliation Australia; full tax deductibility status for all donations to Reconciliation Australia;25 and funding for the construction of a monument to reconciliation to be located in the Parliamentary triangle and named Reconciliation Place.
On 22 May 2001, the government announced the creation of Reconciliation Place in the Parliamentary triangle in Canberra. The announcement noted that:
The development of a reconciliation square would be historic as it would represent the first truly integrated national symbol recognising indigenous people and our desire as a nation to share a harmonious future. [It] ... will place the reconciliation process physically and symbolically at the heart of Australia’s democratic life and institutions. It will signify the importance the government places on the ongoing process of reconciliation and be a prominent symbol of the nation’s commitment to healing the wounds of the past.[26]
The square, and memorial contained within it, is intended to acknowledge ‘the history of the nation’s first people; our shared history and common bonds; the separation of many indigenous people from their families as a result of past practices, and the ongoing consequences; and the significant achievements of indigenous people’,[27] among other things.
Since this announcement, there has been significant disquiet among Indigenous people over the lack of consultation about the contents of the square, the design of the square as well as a number of components contained within. Representative organisations of Indigenous people forcibly removed from their families, for example, have protested at the manner of the depiction of their experiences in the monument. In their first Reconciliation report card, Reconciliation Australia expressed concern at the lack of adequate consultation with the stolen generations or the organisations representing them, and put on public record the Board’s belief that ‘the process of developing the new Reconciliation Place in Canberra did not adequately reflect the goals or the spirit of reconciliation.’ They stated that:
To apply the Reconciliation Test to Reconciliation Place is to ask whether the manner of establishing it is consistent with the Prime Minister’s stated intention of contributing to reconciliation. In particular, does it reflect a true partnership with Indigenous peoples — a shared journey together?[28]
As the Canberra Times commented on the government’s approach to the building of Reconciliation Place:
[I]t appears to reflect a European mindset that is the antithesis of the attitudes that it is seeking to commemorate. It is almost as though reconciliation, like so much else in the Aboriginal story, is to be imposed on indigenous Australians.[29]
Reconciliation Place has the potential to provide long overdue acknowledgement to the place of Indigenous Australians in our history. Early indications are that it may not meet this purpose, and may in fact contribute to further alienation and distrust for many Indigenous people.
The government has also provided $5.5 million funding for the establishment of Reconciliation Australia, as well as tax deductibility status for all donations. It is an independent, non-profit private company established by CAR to maintain a national focus for the reconciliation process and the people’s movement for reconciliation, to report on progress to the Australian community, circulate information, encourage partnerships and provide forums for discussion.
Reconciliation Australia is in the process of developing partnerships with sectors of the Australian community, with a particular emphasis on establishing partnerships with other non-government organizations that result in tangible outcomes for Indigenous peoples. Partnerships have been initiated with Indigenous Business Australia the National Institute of Governance, as well as with the Aboriginal and Torres Strait Islander Commission and state and territory Governments.
Reconciliation Australia’s strategic plan for 2001-2003 targets three goals based on the reconciliation documents with specific action areas to progress – achieve social and economic equity for Indigenous Australians; strengthen the people’s movement for reconciliation; and acknowledge the past and build a framework for a shared future. Some of these action areas also link in with the COAG commitments, including adoption of a proactive role to encourage rigorous monitoring of Australian governments; identification of best practice in service delivery; improving Indigenous access to banking and financial services, identification and promotion of best practice in Indigenous governance through the provision of appropriate training, education and capacity-building; promotion of Indigenous economic self-sufficiency; and establishment of a national support network for youth mentoring and of a national friends for reconciliation program.
The efforts that have been made by Reconciliation Australia to date demonstrate much potential. However, it appears that the Federal Government has effectively transferred responsibility for moving forward the reconciliation process to a private, non-government institution. Concerns with this approach include the following.
Reconciliation Australia has been presented by the federal government as the ‘successor’[30] to the Council for Aboriginal Reconciliation. There are, however, significant differences between the Council and Reconciliation Australia. As stated, Reconciliation Australia is a not-for profit private company. It is not a government authority and its operation and objectives have not been mandated by Parliament. Its relationship with government at all levels is accordingly based on goodwill rather than any mandatory requirements.
Reconciliation Australia is not funded sufficiently to be the national coordinator of reconciliation. The amount of seed funding provided by the government, for example, is the equivalent of six months of the operational costs for the Council for Aboriginal Reconciliation. Reconciliation Australia is reliant on fundraising activities with the corporate and community sectors to ensure its viability and effectiveness into the future. Of the $5.5 million provided by the federal government, Reconciliation Australia has budgeted $2 million for its operating costs over the next three years, and has invested and maintained $3 million at a level consistent with CPI (the remaining $0.5 million of the funding provided was for payment of GST.)
As a result of this funding situation, Reconciliation Australia clearly will not have the capacity that the Council for Aboriginal Reconciliation did to provide ongoing, nationally significant public awareness activities regarding reconciliation. There is a danger that the reconciliation walks from last year will be the high watermark of support for reconciliation, as national attention (necessarily related to the ability of Reconciliation Australia and the government to keep a national profile for reconciliation) slowly dissipates.
Ultimately, there is also a question of national leadership. It is completely correct for one of Reconciliation Australia’s main agendas to be undertaking a ‘proactive role to encourage rigorous monitoring of Australian governments’. However, they have only moral persuasion and good will to achieve this goal. As discussed, my predecessor had argued about the implementation process for the Royal Commission, better results may have been achieved with a more active leadership role being played by the Commonwealth, including through the use of forms of leverage to ensure compliance such as performance conditions on grants to states and territories.
The Commonwealth Grants Commission (CGC)’s Report on Indigenous funding 2001 indicates how the federal government might exert such influence on the states, territories and non-government providers. Currently, approximately two-thirds of total Commonwealth expenditure on Indigenous housing, infrastructure and education is in the form of specific purpose payments (SPPs).[31] Additional influence can be brought to bear on service delivery by the States through introducing and enforcing additional conditions for both mainstream and Indigenous-specific SPPs, such as data collection, mandating performance reporting, Indigenous-specific performance criteria and greater involvement in decision-making; and seeking extra conditions that target some of the expenditure of mainstream SPPs to aspects of the services that are important to Indigenous people.32
The CGC Report also suggests that collaborative State level decision-making arrangements with Indigenous people could assist improved targeting and accountability regarding the expenditure of SPPs to meet Indigenous needs and, in doing so, assist a movement towards outcome-based conditions in SPPs.[33] These arrangements could facilitate greater Indigenous participation in decision-making processes, such as identifying need and setting priorities, at state, regional and local levels; provision of better sources of data and other information from local and regional levels for State level decision making; and greater responsibility for service provision and outcomes: for example, in relation to the expenditure of SPPs.[34]
Clearly, this requires governmental commitment and control. Reconciliation Australia can not fulfil this role.
Reconciliation Australia also has limited ability to ensure adequate processes of monitoring and evaluation. They have no formal mandate to require governments to provide adequate information so that they may be held accountable and have their programs monitored and evaluated. The Council for Aboriginal Reconciliation also did not envisage that Reconciliation Australia would form the main measure for such evaluation. The proposed Reconciliation Bill contained a complex range of monitoring and evaluation mechanisms, from a National Reconciliation Convention every three years to be convened by ATSIC, a three yearly national progress report of government efforts to be completed by an independent taskforce, annual reporting by the Social Justice Commissioner and the establishment of a joint parliamentary committee on reconciliation which would consult widely about the reconciliation process, as well as evaluate the national progress reports and annual social justice commissioner report.
The government needs to ensure that responsibility for reconciliation is not, in effect, transferred to Reconciliation Australia. A centralised, coordinated approach to reconciliation is required at the national governmental level to ensure that reconciliation continues to grow.
The central response to reconciliation over the past eighteen months has been the continuation of the government’s commitment to a ‘practical reconciliation’ approach by addressing ‘key priority’ areas of disadvantage. As I also noted earlier in the chapter, this approach has continued independently of, and without reference to or assessment against, the recommendations of the Council for Aboriginal Reconciliation.
References to the inadequacy of practical reconciliation have been made throughout this report and in the Social Justice Report 2000.
In brief, the problem with this approach is the simplistic, arbitrary and extremely artificial division it creates between measures which are described as practical as opposed to symbolic. No such clear distinction exists — there is a clear inter-relationship between different issues and approaches which require multi-dimensional solutions. The focus solely on practical measures to address disadvantage within key priority areas is simply too narrow. It is also not accompanied with sufficient accountability for government performance — with inadequate monitoring and evaluation mechanisms, and a lack of sufficient benchmarks, targets and an insufficient basis of program delivery on outcomes. Similarly, it does not provide Indigenous people with a central role in determining priorities and it dismisses human rights as irrelevant.
Practical reconciliation seeks to address Indigenous people on a restrictive basis of equality. Ultimately it is assimilationist in approach, aiming for formal equality with only limited recognition of cultural difference. It seeks to maintain rather than transform the relationship of Indigenous people to the mainstream society.
The limited form of the equality offered by a practical reconciliation approach was exemplified by the government’s response to the release of the final report of the Council for Aboriginal Reconciliation:
And whatever may be our different perspectives and the different views we might hold as to how to achieve our goals, I believe it can be said with total sincerity and total accuracy that there is, within the Australian community, a great deal of good will towards the indigenous people of our nation; a determination whatever our political perspectives may be to honour in a sensitive understanding way the special place that they will always occupy in the life of this nation and a determination to bring about those changes in the circumstances of their education, their health, their employment and their housing opportunities that will enable this country in the fullness of time to say that in relation to each of their citizens and to each of the groups that make up the Australian community that all are receiving a fair go; that all are sharing in the Australian dream and all are in every sense of the word fully and equally part of the great Australian nation.[35]
Equality as presented in this statement promotes equal opportunities for participation in the mainstream ‘Australian dream’ on the basis of sameness. As I observed last year, ‘[t]he failure to provide us with the same opportunities as the rest of society in the past means that to now insist on identical treatment will simply confirm the position of Indigenous people at the lowest rungs of Australian society.’[36] A substantive equality approach would necessitate acknowledgement of the impact of historically-derived disadvantage on Indigenous peoples, and facilitate measures that are both culturally-appropriate and responsive to the inequity already experienced by Indigenous people.
Moreover, the terms of equal participation set out in this statement do not allow for recognition of the diversity and difference of Indigenous cultures, societies, values and traditions. The ‘fair go’ being offered is constrained to an offer to participate in the existing mainstream system, rather than an offer for that system to adapt or accommodate Indigenous cultural distinctiveness.
A position which appreciated the disadvantaged position of Aboriginal people and asserted their right to maintain their social and racial identity was fundamental to the Royal Commission into Aboriginal Deaths in Custody’s original vision for the reconciliation process. This vision included recognition of the principle of self-determination:
The process of reconciliation, if it is to be successful, will, in my opinion, follow closely the principle of self-determination which, as I have said in this report, should be the guiding principle for all change in Aboriginal affairs. The principle provides a safeguard for Aboriginal people — by ensuring that the diversity of Aboriginal opinion is recognized — and at the same time imposes a restraint on Aboriginal leaders which they well appreciate.[37]
The current offer of equal participation in the great Australian nation blurs the visions and perspectives of different citizen groups into one ‘Australian dream’, obscuring the need for specific recognition of Indigenous social and racial identity. In doing so, it closes down the dialogue between Indigenous and non-Indigenous peoples that was envisaged as an essential part of the reconciliation process. This dialogue was to be respectful of cultural difference while promoting co-existence:
... the non-Aboriginal society and culture is evolving and changing and the Aboriginal people must be allowed to develop their own culture in their own ways; clearly there is scope for the two to interact in a fruitful and mutually fulfilling way ... And in the end, perhaps together, Aboriginal and non-Aboriginal, the situation can be reached where this ancient, subtly creative Aboriginal culture exists in friendship alongside the non-Aboriginal culture. Such an achievement would be a matter of pride not only for all Australians but for all humankind.[38]
As the Social Justice Report 2000 noted in relation to the response to the Bringing them home report:
Reconciliation cannot be imposed on one party by the other. It cannot be achieved when there is little or no consultation between the parties or when they adopt a ‘take it or leave it’ approach to the terms of their reconciliation. Participation on equal terms and the full agreement of both parties are essential to genuine reconciliation.[39]
The lack of participation on equal terms is also evident in the dismissive approach of the government in refusing to address what it has termed the ‘symbolic’ aspects of reconciliation. The list of symbolic issues that fall outside the focus of the government on priority areas keeps growing. It includes issues such as an apology and reparations for those forcibly removed from their families, a treaty or the facilitation of agreement-making processes to deal with the unfinished business of reconciliation, and invariably almost any issue concerning human rights which does not meet with government approval.
One of the main concerns with this approach is that it clearly misconceives, or misrepresents, the purpose of a number of initiatives. Agreement-making processes and a treaty are not symbolic measures — they are about a fundamental realignment of the relationship between Indigenous people and the State. They are about ensuring the effective participation of Indigenous people in decision making processes in the broadest possible way rather than within boundaries imposed without negotiation.
In relation to a treaty, the government’s response has been to express reservations about the possible divisiveness of a treaty: that it would create legal uncertainty and result in greater recourse to litigation (by both Indigenous and non-Indigenous parties). It instead promotes a focus on ‘those things where we agree on reconciliation’ — namely, the areas of the reconciliation documents and report in keeping with the Coalition’s longstanding Indigenous policy focus on practical measures.
This is a ‘take it or leave it approach’ to reconciliation. The potential divisiveness of the treaty issue does not necessitate foreclosure of the debate, especially when it could be addressed constructively through the facilitation of a mechanism or process for ongoing discussion and negotiation of this issue.
ATSIC is currently engaged in facilitating a process for consulting with Aboriginal and Torres Strait Islander peoples by holding informal community meetings across the country. The aim of this process is to provide Indigenous people with information about the concept of a treaty, including the various types of treaties, with a view to holding more formal meetings or conventions that may result in a vote or plebiscite in the future. ATSIC is not negotiating a treaty; the ATSIC Board ‘has recognised the need for broad Indigenous support and endorsement before any negotiations can occur.’[40] ATSIC has also established a National Treaty Support Group comprised of the ATSIC Chair, five commissioners and four community representatives to oversee the Board’s treaty strategy and a national Treaty Think Tank which includes Indigenous intellectuals and activists, and ‘has the role of stimulating debate and discussion and networking with regional and State/Territory think tanks.[41]
Reconciliation Australia’s strategic plan also supports public education and informed and objective debate across the community on the issues relating to a treaty or a framework agreement.[42] Reconciliation Australia is currently developing a long-term project in partnership with the Gilbert and Tobin Centre of Public Law in the Faculty of Law at the University of New South Wales to provide information for the community to develop well-informed views on the issues involved.
Practical reconciliation is backed up by a significant level of expenditure. The 2001-02 Budget includes ‘Indigenous-specific spending’ of $2.39 billion – a record high level. In the Budget, the government announced ‘its commitment to reconciliation and reducing Indigenous disadvantage through a boost of more than $327 million to spending on Indigenous affairs’.43
Out of an overall commitment to spend $1.7 billion over four years on the ‘Australians Working Together’ welfare reform package, $82.8 million was designated for ‘Promoting self-reliance for Indigenous Australians’.[44] ATSIC funding, which represents 47 % of total Indigenous-specific funding in 2001-02, was ‘increased by approximately 5 % since last financial year.’[45] The budget also provided, over a four year cycle, an additional $75 million on housing and infrastructure; $40 million on health; and $54 million on stolen generations programs and initiatives; $20 million from the Stronger Families and Communities Strategy for Indigenous community capacity building; $11 million for Indigenous-specific initiatives under Partnerships Against Domestic Violence Strategy; and $23 million through the Alcohol Education and Rehabilitation Foundation for Indigenous community-based projects to prevent alcohol and other substance abuse.
I welcome this expenditure and these initiatives. There are however a range of concerns about this approach.
The first is the emphasis that the government places on ‘Indigenous-specific expenditure’. The definition of Indigenous-specific, for example, is extremely broad and includes everything from funding of the Federal Court and National Native Title Tribunal to process native title applications, funding for parties other than Indigenous people to native title matters (such as pastoralists) and to governments (generally to oppose native title applications), funding for programs of broad community benefit such as the National Museum of Australia and reconciliation, and so forth. In other words, it includes all expenditure that in some way relates to Indigenous people, regardless of the specificity of the relationship or the benefit that it provides (some of the funding identified as Indigenous-specific is clearly detrimental to Indigenous people’s advancement).[46]
The emphasis on specific programs also skews debate about Indigenous policy and reconciliation. As the Social Justice Report 2000 noted, it is inappropriate to measure government progress in redressing Indigenous disadvantage in terms of expenditure on specific programs. The focus should instead be outcomes-based.
Specific or specialist programs are ‘designed to compensate for the disadvantage and particular needs of Indigenous people – which stem from where they live, degree of poverty and particular aspects of their history or culture.’[47] But while Indigenous-specific programs are often strategic and targeted, they are not in position to replicate the level of services and expertise provided by mainstream programs, such as specialist hospital services.[48] One of the findings of the Commonwealth Grants Commission’s Report on Indigenous Funding was that Indigenous-specific programs are being asked to do more than they were designed and funded to achieve because of the failure of mainstream programs to address Indigenous need effectively.
Accordingly, in response to the available evidence across all regions that mainstream services did not meet the needs of Indigenous people to the extent that they met non-Indigenous people’s needs, the CGC Report identified equity of access for Indigenous people to mainstream services as the highest priority for government in reducing Indigenous disadvantage. It outlines the following three actions as most likely to guarantee equitable access:
• Ensuring all spheres of government recognise their responsibilities through mainstream programs, and the appropriate relationship between mainstream and Indigenous-specific programs;
• Reviewing all aspects of mainstream service delivery to ensure that they are sensitive to the special needs and requirements of Indigenous people; and
• Involving Indigenous people in the design and delivery of mainstream services.[49]
Ironically, some of these matters which are identified as the key to practical outcomes, are the same matters that lie at the core of processes such as a treaty — but which are dismissed as symbolic in other contexts.
A further concern is that expenditure on Indigenous-specific programs and initiatives announced in the 2001 budget falls short of the projected funding needs in a number of significant areas. The funding provided for housing and infrastructure is well below ATSIC’s estimates of current housing needs – ATSIC Chair Geoff Clark observed on the budget’s release that $75 million over four years ‘will make little dent in the $3 billion deficit in this area’.[50]
While the budget allocates more than $31 million over the next four years to assist CDEP workers in making the transition to labour market employment, the level of funding it provides for CDEP operational costs is not comparable with that for the WFTD scheme. The incremental increases to the health budget over 2001-2004 was criticised by the National Aboriginal Community Controlled Health Organisation (NACCHO) and the Australian Medical Association (AMA), with the AMA Conference calling for ‘urgent changes in Indigenous health policy, included increasing funding by at least $245 million a year, minimum benchmarks for service delivery and an “annual public report card”.’[51]
Of the $86 million spending on native title, $17.4 million will go to ATSIC to assist the native title representative bodies and to establish a priority claims litigation program; the majority of funds will go to the National Native Title Tribunal and the Federal Court and will support the activities of those opposing native title claims as well as native title claimants. While the Federal Government has allocated $11 million funding for Indigenous-specific family violence projects over a four-year period, issues remain surrounding the coordination of targeted funding and resources by a range of federal, state and territory departments and agencies with responsibilities for this area.
Despite the incremental increases in funding for Indigenous employment and housing needs, the failure to take into account the broader context of Indigenous disadvantage indicates that a more fundamental and far-reaching understanding of social justice and equity is lacking in Budget 2001’s conception of a ‘fair deal’. On its release, Budget 2001 received criticism from Indigenous leaders for being ‘modest in the short term and disappointing for the long term’, amounting ‘to little more than a down payment on a future for Aboriginal and Torres Strait Islander peoples that never seems to come.’[52] From a substantive equality perspective, the supplements to Indigenous-specific funding in Budget 2001 and the $11 million for reconciliation projects present fairly slim pickings for Indigenous people, particularly in the absence of a long-term, nationally-coordinated framework with effective, negotiated outcomes. We are faced once again with the continuation of an approach that manages rather than seeks to overcome Indigenous disadvantage and marginalisation.
An issue that came to dominate national debate about Indigenous issues and reconciliation over the past eighteen months was that of domestic violence and abuse in Indigenous communities.
The focus on this issue has been used by the government to reinforce the practical reconciliation approach. The Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs, for example, claimed that a long term benefit of the public debate about these issues was evidence that the ‘public debate is finally beginning to catch up with the government’s emphasis on practical assistance’.[53] The implication of his comments was that a focus on rights did not have the capacity to ‘make a practical difference to people’s lives.’[54] This is, however, an overly simplistic argument which disregards the history of government neglect of this issue.
Over a decade ago, the following observations were made about the lack of serious treatment of violence in Indigenous communities, especially that experienced by women and children:
In 1988, amid calls for a royal commission to investigate black deaths in prison cells and police watch houses, Aboriginal women argued that it was also important to consider the level of violent deaths of our people outside of these places. At that time we were concerned that while death in a watch-house received frenzied media attention, a suicide on the same day, in the same community, was viewed with no concern at all by the authorities. It was considered to be common place. More importantly, levels of violence towards women and children seem to be rising. A number of rapes of young girls cemented our concern that these were an expression of distress of people living in situations that Paul Wilson has described as ‘violence provoking’.[55]
An awareness of the prevalence of violence in Indigenous peoples’ lives, particularly those of women and children, is not new and has been the subject of a series of reports. It has been, for example, a major policy focus of both ATSIC and the Office for the Status of Women for a number of years. In light of this, the history of a lack of adequate levels of response from government and other sectors of the community is profoundly disturbing.
The main avenue for the Commonwealth’s response to family violence issues has been its Partnerships Against Domestic Violence (PADV) scheme, which was launched in 1997 at the National Domestic Violence Summit.[56] The Federal Government allocated $50 million over a four-year period (1999-2003) for PADV, which works with state and territory governments and the community to prevent domestic and family violence and includes $6 million for the Indigenous Family Violence Grants Programme.
Last year, 30 Indigenous organisations from across Australia received funding of $2.2 million for 31 projects addressing family violence. Three of these were funded through ATSIC, others through Commonwealth agencies, especially the Department of Family and Community Services. In addition, another $5 million was spent under PADV on Indigenous initiatives for preventing and responding to family violence.
The National Domestic Violence Summit also recommended that COAG establish a National Task Force which would be supported by the Office for the Status of Women and report annually through the Commonwealth/State Ministers’ Conference on the Status of Women to Heads of Government. In August 1999 MCATSIA endorsed a National Strategy on Indigenous Family Violence. Its Working Group on Family Violence established a set of principles for funding community-based organisations addressing family violence, which have been incorporated into the design of the National Indigenous Family Violence Grants Programme.[57]
As the peak advisory body for Indigenous affairs, ATSIC provides another major avenue for Commonwealth funding of Indigenous family violence programs and policy advice in this area. ATSIC currently spends approximately $4.5 million a year on a range of initiatives, including 12 family violence projects. These are located in rural and remote areas, and provide advice, counselling and support to women and children affected by violence. The projects also have a preventative focus, mainly through community education. ATSIC is also working on a national family policy in association with the Secretariat National Aboriginal and Islander Child Care.
During the media debate this year concerning Indigenous family violence, assertions were made, directly and indirectly, that ATSIC was wholly responsible for setting funding priorities for family violence strategies, and that it has failed to make Indigenous family violence a high priority on the national agenda as a consequence of a focus on rights at the expense of practical measures.
However, service delivery to Indigenous Australians is a shared responsibility between all levels of government: primary responsibility for issues of family violence rests with health and community service agencies in Federal, State and Territory governments. In addition, currently about 70 per cent of ATSIC’s budget is quarantined by the Government for CDEP and housing and infrastructure, with the remaining discretionary funds to be spread across a wide range of social, cultural and economic programs, including family violence.
In 1991 ATSIC established a family violence intervention program in response to the National Committee on Violence report, Violence: Directions for Australia, which was funded through the Community and Youth Support Scheme. However, this program was terminated when the Community and Youth Support Scheme was abolished as a result of funding cuts of $470 million over 4 years to ATSIC’s budget introduced by the Coalition in 1996. ATSIC has since received $1.3 million in the first PADV funding round to support two projects. When the government increased PADV funding by $25 million in 1999, ATSIC expressed its support for the then Minister for Aboriginal and Torres Strait Islander Affairs to secure as much as possible of the available funds. However, ATSIC did not receive any increase to its funds for addressing family violence issues.
ATSIC’s elected arm in Queensland also endorsed the Indigenous Women’s Task Force on Violence Report in February 2000 and called on state and Federal Governments to match funds allocated already by Regional Councils, ‘at the very least’.[58] Recently, ATSIC intervened to secure the continued operation of Apunipima Family Violence Advocacy Service on Cape York with an injection of funding until at least the end of the next financial year. This project was set up three years ago through stage one of the PADV program with part of the $1.3 million Indigenous-specific funds which expired on 30 June 2001. As ATSIC Commissioner Pryor pointed out, ‘This is the old story with pilot projects – what happens when the funding runs out?’[59]
In addition to existing funds for this area, ATSIC’s Board has agreed to allocate $200,000 to fund a National Indigenous Working Group process, including a series of roundtable meetings, to address family violence. The Board also endorsed a leadership role for ATSIC in the National Strategy on Indigenous Family Violence ‘by pursuing full membership status on relevant Federal and State task forces, working groups and committees established to combat family violence and sexual assault’, and emphasised the need for increased government funding to combat family violence, to expand the number of services and to increase funding to existing services. A subsequent Indigenous Women’s Roundtable meeting ‘endorsed a holistic approach, a national framework for changing the intergovernmental arrangements for dealing with violence, and linking ATSIC’s Family Policy and Violence Strategy with the roundtable process’.[60]
Further outcomes from roundtable meetings include agreement: to establish a combined men and women’s National Indigenous Family Violence Working Group; to seek government funding to support ATSIC’s family policy; and to establish a National Family Violence Secretariat.61
ATSIC’s National Indigenous Women’s Forum and Roundtable process, and its emphasis on direct community involvement and collaboration with government to find solutions for family violence issues have been commended by relevant government ministers.[62] Calls have also been made by ATSIC, Reconciliation Australia and the federal Minister and Parliamentary Secretary for Reconciliation and Aboriginal and Torres Strait Islander Affairs for re-assessment of national coordination of this issue.
On 28 July 2000 MCATSIA was addressed for the first time by an Indigenous delegation, which consisted of representatives from the ATSIC Indigenous Women’s Roundtable, who called for ‘a holistic and strategic long term response to family violence to empower Indigenous women, men and children to deal with the complex issues involved rather than a quick fix approach based on the current proliferation of Government funded pilot schemes.’[63] MCATSIA agreed to an audit of existing Indigenous family violence strategies, and to a seven-point strategy comprised of reducing alcohol and substance abuse; child safety and well-being; building community capacity (including cultural strength); improving the justice system; creating safe places in communities; improving relationships (focusing on perpetrators and those at risk of offending); and promoting shared leadership.
The Council also endorsed ATSIC’s establishment of a National Indigenous Women’s Forum to provide a national voice for Indigenous people on violence by communicating with local Indigenous networks on culturally-appropriate initiatives, as well as the facilitation of Indigenous women and men’s roundtables on the issue, which are to report back to MCATSIA. However, in addition to the Federal Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs and his Parliamentary Secretary, the meeting was only attended by three State ministers (from Western Australia, Queensland and Victoria) and Deputy ATSIC Chair.[64] ATSIC noted its disappointment at the non-attendance of so many state and territory ministers and at the lack of any proposals for new targeted funding or resources.[65] A press release issued by the Federal Minister recorded that: ‘the question of providing additional funding was raised at the meeting, and I indicated that I was prepared to pursue this at the Commonwealth level but unfortunately state ministers were not prepared to do the same.’[66]
On 6 August 2000 Reconciliation Australia repeated their 26 June call for a concerted national approach to Indigenous family violence, saying that they ‘feared Australia would fail the “reconciliation test” on domestic violence in Indigenous communities unless Heads of Government ensured a concerted and comprehensive national effort on the issue.’[67] They criticised the outcomes of the MCATSIA meeting since they ‘did not demonstrate that a coherent national strategy is being progressed in tangible ways’ and questioned MCATSIA’s authority to instigate change in this area, given that many departments and agencies responsible for the issue are not under the control of MCATSIA.
They also called for the issue to be dealt with through COAG, because ‘many departments and agencies at Federal, State and Territory levels are relevant to this issue, and they are not under the control of Ministers for Aboriginal and Torres Strait Islander Affairs.’[68] Their 26 June media release had noted COAG’s commitment to addressing family violence as part of its review of service delivery arrangements, and announced Reconciliation Australia’s readiness to work in partnership with all relevant parties ‘to achieve the most appropriate and adequately-resourced national response to these pressing issues and to monitor progress’.[69]
While calls for a nationally-coordinated response to Indigenous family violence have received some support, such as MCATSIA’s commitment to a 7-point action plan, there is clearly a need for further commitments to be made to drive a whole-of-government approach across all relevant Commonwealth, state and territory agencies and departments, including appropriate responses to requests for additional funding and services. As ATSIC’s Annual Report 2000-2001 observes:
The feeble national response to this family violence strategy provides yet more evidence of the defects of Australia’s federal system in relation to Indigenous Australians. As numerous recent UN reports have pointed out, the Commonwealth is accountable for the commitments Australia has made under various international human rights instruments. This accountability extends to the record of the States and Territories ...[70]
Reconciliation Australia has stressed that the recent focus on Indigenous family violence provides COAG with an opportunity to make good its November 2000 commitment to evaluating measures for tackling family violence and other symptoms of community dysfunction. As part of its national leadership and coordination role, COAG should link the achievement of effective outcomes in this areas to a long-term investment in building Indigenous capacity that is responsive to the rights of Indigenous peoples to family and culture, including the role which women play in sustaining families and communities and the future part of younger people in community participation and leadership. Similar commitments should also be made across other sectors of the community.
Indigenous representatives have articulated a number of common elements for achieving effective outcomes in response to family violence issues. These include the need for national coordination of a holistic and strategic long-term strategy rather than quick-fix, short-term solutions, and to ground policy on Indigenous family violence in self-determination and cultural rights.
This stands in contrast to the Federal Government’s claim that the renewed focus on family violence has led to a ‘turning point’ for Indigenous people in which they have recognised the need to eschew a rights-agenda and accept a practical reconciliation approach.
The government’s current provision of practical assistance through measures such as the Aboriginal and Torres Strait Islander Substance Misuse Strategy, the Stronger Families and Communities Strategy, and the Alcohol Education and Rehabilitation Foundation in addition to PADV funding seeks to target specific areas such as chronic levels of substance and alcohol abuse which often relate to high levels of violence. This represents a piecemeal rather than a consolidated effort to address the symptoms of the loss of individual, family and community cohesion and well-being. One of the dangers present in isolating and targeting issues such as alcohol or substance abuse, or family violence is the perpetuation of a crisis-funding approach that focuses on short-term gains but fails to set in place long-term, integrated strategies that will bring about genuine change, as demonstrated by the near-collapse of the Apunipima Family Violence Advocacy Service.
In part this is a reflex of the short-term funding arrangements that characterise Indigenous affairs, and in ATSIC’s case the imposition of accountability requirements that limit the time-frame for successful implementation of strategies and the discretion to determine available levels of funding for different programs. Longer time-frames for funding projects and the discretion to determine funding levels would provide greater opportunity to implement projects that could target the long-term effects of issues such family violence.
In their media responses to Indigenous family violence, both ATSIC and the Federal Government mention the expenditure across a broad range of Indigenous programs such as health, housing and employment as a significant, if indirect, contribution to redressing the underlying causes of family and community dysfunction.[71] However, as discussed above, a more far-reaching, nationally-coordinated response that seeks to identify gaps in existing funding and services is needed. It is simply not enough to tout an injection of funds into a handful of strategies as signs of an effective and practical approach to serious issues which are the product of long-term dispossession and community disintegration and which will take a long time to reverse.
This response needs to go beyond the identification of best practice examples recommended as part of the national audit of Indigenous family violence strategies to the identification of outcomes that will empower Indigenous people and support their aspirations. Far from establishing the irrelevance of so-called symbolic measures and the need for an emphasis on individual self-reliance, the renewed focus on family violence issues has highlighted the need for recognition of Indigenous cultural values and traditions.
ATSIC’s Indigenous Women’s Roundtable meeting endorsed a rights-based family policy to drive its national strategy for addressing family violence. This policy upholds the distinct cultural characteristics of Indigenous families in accordance with the right to self-determination; the importance of traditional authority structures and the role each family plays within community; and the need to redress those issues with a detrimental effect on families, communities and cultures through strategies related to women, men, children, youth, elders and people with a disability.[72] The policy also notes the powerful role that could be played by a symbolic measure such as a formal apology,
... which acknowledges that past governments violated our inherent right to express and enjoy our right to family. Recognition in this way will enable us to reconnect, rebuild and restore our traditional family unit as the primary source for nurturing and protecting us in our cultural heritage and general wellbeing.[73]
The renewed emphasis of governments on violence and abuse in Indigenous communities is long overdue and welcomed. The use of this issue to reinforce the practical reconciliation approach is not. It operates to foreclose debate about significant issues of reconciliation.
No aspects of the Council for Aboriginal Reconciliation’s proposals on Indigenous rights have been implemented by the government.
Chapter 2 of this report (the Social Justice Report 2001) was critical of the way that the government has adopted, and misrepresented, Noel Pearson’s arguments about reciprocity and responsibility to justify this approach. In particular, the government incorrectly take concerns expressed by Noel Pearson about rights to justify a position where rights are not respected.
There is a distinction to be made between two types of rights of application to Indigenous people.[74] There are those rights that every Australian is entitled, including Indigenous people, commonly referred to as citizenship rights; and those that recognise and protect Indigenous culture and which are inherent to Indigenous people.
This important distinction has not been made in the government’s recent and generalised attack upon a rights approach as inadequate to deal with, if not causally related to, the high levels of violence perpetrated by Indigenous people against their own families and communities.
The government has condemned the rights approach as symbolic only, one which doesn’t produce practical results.[75] Symbolic rights are distinguished from practical outcomes. Practical outcomes result from dealing with Indigenous issues on an individualistic basis.
It appears from a close analysis of the arguments opposing a rights approach to Indigenous issues that it fails to distinguish between the two types of rights relevant to Indigenous peoples; citizenship rights and inherent rights. What are actually being attacked as the cause of the horrendous and irresponsible violence in some Indigenous communities are the rights that came with citizenship. That is, the right of Aboriginals to be treated the same as non-Aboriginals, without being discriminated against on the basis of their race. The right to leave a mission or reserve without first seeking permission. The right to vote. The right to enter a pub and buy alcohol. The right to unemployment benefits when out of work. The right to enter a de facto relationship. The right to formal equality.
Yet of those attacking the rights approach as producing no improvement in Aboriginal lives, no one has suggested that the solution is to take these rights away and force Aboriginal people back to the mission or the reserve under the supervision of the Crown, the police or the church. To do so would strike at the very core of Australian society as well as marginalise Aboriginal communities and their problems even more than is presently the case. These rights do not need to be abandoned, they need to be augmented. The real problem with citizenship rights... is that they are not capable of transforming the poverty and destitution that marks so many Aboriginal people’s lives. They were not intended for this purpose.
Formal equality on its own is not enough. As a tool of social change it is inadequate and, indeed, entrenches the inequality that already exists. To that extent I agree with the critics of a rights approach to Indigenous disadvantage and poverty. What I don’t agree with is their conclusion that, as an approach to social policy, rights are incapable of addressing these Indigenous issues.
The problem is not that Aboriginal people were given equal rights and treated like everyone else. The problem is that these are the only rights that Aboriginal people were given. This type of equality, formal equality, is not enough to restore Aboriginal people to their rightful place as the first peoples of this country. We need to go further with rights. We need to adopt a rights approach that does have the capacity to transform social, economic and political relations in Australia. I have, in my previous annual reports advocated two types of measures, based on rights, which have this capacity. First, measures known as special measures, aimed at achieving equality, rather than assuming it; and second, the full recognition of Indigenous people’s inherent rights, in particular native title.
A combined approach, utilising these two types of rights, has not been adopted by any government as a way of addressing the disadvantage it is designed to transform. When an opportunity did arise to recognise inherent rights through native title it was immediately encased in a legal armature that gave it no room to deliver real outcomes. Its capacity to provide economic opportunities for Indigenous people, to provide equal respect for Indigenous culture, to provide governance structures for Aboriginal communities has been severely limited through the NTA and the common law. The proposal to implement special measures to overcome the destructive cultural, social and economic impact of dispossession with the full participation and consent of Indigenous people through the Social Justice Package was never pursued by any government.
The call to abandon rights assumes that they have been tried and failed. That is incorrect. Indigenous rights, ones that recognise Aboriginal people for what they are, and have the capacity to change their dire living circumstances, have never been embraced as a way forward. What is required is that Aboriginal people be given the full enjoyment of their inherent rights through native title and that Indigenous disadvantage be addressed with the full participation of those affected.
There is an urgent need for the federal government to commit, in meaningful terms, to the recommendations of the Council for Aboriginal Reconciliation. This is not the same as generalised statements of commitment to reconciliation – such statements are cheap and do not hold government’s accountable.
Due to concerns about the lack of response to the Council for Aboriginal Reconciliation’s documents of reconciliation and final report, as well as the inadequate response to the Social Justice Report 2000, I have chosen to make the following recommendations in accordance with s46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986. The first relates to the urgent need for a national response and plan of action to sustain reconciliation into the future. The second reflects provisions of the Council for Aboriginal Reconciliation’s Reconciliation Bill which relate to monitoring and evaluation mechanisms for the Social Justice Report.[76]
...
Recommendation 11: The Senate empower the Legal and Constitutional References Committee to conduct an inquiry into the implementation and response to the reconciliation process. The terms of reference of the inquiry should require the Committee to examine the recommendations contained within the Roadmap towards reconciliation, the final report of the Council for Aboriginal Reconciliation and the Social Justice Report 2000 as well as the adequacy of the response of the Federal Government to each of these. In determining the adequacy of the response, the Committee should be required to consider processes by which government agencies have reviewed their policies and programs against the documents of reconciliation; as well as the adequacy of targets and benchmarks adopted and monitoring and evaluation mechanisms.
Recommendation 12: At the time of tabling of the annual Social Justice Report in Parliament, or within 15 sitting days, the Government furnish a response to the report and its recommendations in Parliament. In the event that the Government does not furnish such a response in Parliament, the Senate consider the establishment of a parliamentary inquiry to consider matters that appear in or arise out of the report and its recommendations, and matters to which the Committee believes Parliament’s attention should be directed.
This chapter has raised a number of significant concerns about the approach of the federal government to reconciliation in the eighteen months since the release of the documents of reconciliation, and in the twelve months since the end of the Council for Aboriginal Reconciliation. As the Council for Aboriginal Reconciliation noted:
[T]rue and lasting reconciliation is not a foregone conclusion. Reconciliation is hard work - it’s a long, winding and corrugated road, not a broad, paved highway. Determination and effort at all levels of government and in all sections of the community will be essential to make reconciliation a reality.[77]
True and meaningful reconciliation is being prevented as long as the only attempt being made to accommodate Indigenous peoples within the fabric of Australian society is on the basis of sameness, without recognition of cultural distinctions. The lack of leadership demonstrated by the federal government leaves reconciliation without focus and without cohesion. As important as the people’s movement for reconciliation is, it will surely dissipate if not accompanied by real commitments to real outcomes by governments.
In concluding this chapter and this report, I return to the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission laid out the essential parameters of reconciliation, so that it would be meaningful in addressing the situation of Indigenous involvement in criminal justice processes. The national report emphasised that joint recognition of Indigenous peoples’ right to self-determination and the need to redress Indigenous disadvantage were intrinsic to the success of the reconciliation process. Commissioner Johnstone wrote:
If it is recognized that the cause of distrust and disunity is the historical experience of Aboriginal people and their continuing disadvantage, then, plainly, good community relations cannot be achieved without the elimination of the disadvantage and the recognition of Aboriginal rights, Aboriginal culture and traditions. There must be a complete rejection of concepts of superiority and inferiority...
I believe that it can be demonstrated that where, over the last twenty-five years, there has been an improvement in community relations it is invariably associated with a genuine effort to reduce disadvantage and to do so by dealing with Aboriginal people in a way which respects their position. Furthermore, if the broader society does give tangible and on-going proof of such efforts in a way which recognizes the principle of self-determination it can, I think, be said with much confidence that there will be substantial improvements in relations between Aboriginal and non-Aboriginal.[78]
Recent years have seen the emphasis of the reconciliation process shift dramatically. Currently, it is not about mutual accommodation on the basis of equality – it is about whether one group, Indigenous people, are prepared to conform to the rest of society. If not, then the offer is closed.
... ?
[1]Council for Aboriginal Reconciliation, Australia’s Challenge,
CAR, Canberra 2000.
[2]Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2000,HREOC, Sydney, 2000, pp 130-132,
Recommendations 1 - 14.
[3]Aboriginal and Torres Strait Islander Social Justice Commissioner,
Indigenous deaths in custody 1989-1996: A report prepared for the
Aboriginal and
Torres Strait Islander Commission, Office of Public Affairs, ATSIC, Woden, ACT,
October 1996.
[4]ibid, p257.
[5]ibid, p267.
[6]ibid, p258.
[7]See the overview of state and territory developments in Appendix
Two of this report.
[8]Reconciliation Australia, ‘The reconciliation report card and
the reconciliation test’, Media release, 28 November 2001.
[9]Howard, the Hon J, ‘Address at the presentation of the Final
Report to Federal Parliament by the Council for Aboriginal
Reconciliation’,
Transcript, 7 December 2000, p1.
[10]Prime Minister, ‘Reconciliation documents’, Media
release, 11 May 2000.
[11]ibid.
[12]ibid.
[13]Howard, the Hon J, ‘Address at the presentation of the Final
Report to Federal Parliament by the Council for Aboriginal
Reconciliation’,
op.cit, p2.
[14]Howard, The Hon J, Aboriginals; Reconciliation, Question on
notice, Hansard — House of Representatives, 7 December 2000, p23651.
[15]Howard, The Hon J, ‘Perspectives on Aboriginal and Torres
Strait Islander issues’, Menzies Series Lecture, 13 December
2000,
pp3-4.
[16]Howard, The Hon J, Aboriginals; Reconciliation, op.cit.
[17]Attorney-General, Letter to Commissioner Jonas, 29 March 2001.
[18]Attorney-General and Minister for Reconciliation and Aboriginal
and Torres Strait Islander Affairs, ‘Social Justice and Native Title
Reports’, Joint News Release, 28 March 2001.
[19]ibid.
[20]Section 46C(1), Human Rights and Equal Opportunity Commission Act
1986 (Cth).
[21]Prime Minister, ‘Council of Australian Governments
communiqué’, Press Release, 3 November 2000; For updated
information
see: Prime Minister, ‘Council of Australia Government’s
meeting Canberra communiqué’, Press Release, 8 June
2001.
[22]Council for Aboriginal Reconciliation, ‘Council welcomes
COAG agreement on reconciliation and calls for actions to back up the
words’, Media release, 3 November 2000.
[23]This was noted by the government in responding to my report:
Attorney-General and Minister for Reconciliation and Aboriginal and Torres
Strait Islander Affairs, Social Justice and Native Title Reports, Joint
media release, 28 March 2001.
[24]See further: Aboriginal and Torres Strait Islander Social Justice
Commissioner, Submission to the Senate Legal and Constitutional
References
Committee inquiry into the stolen generation, HREOC Sydney 2000,
<www.hreoc.gov.au/social_justice/senate_submission/
index.html>.
[25]See further: Reconciliation Australia, Strategic Plan 2001-2003,
Reconciliation Australia, Canberra 2001.
[26]Prime Minister, ‘Reconciliation square in Canberra’,
Press Release, 22 May 2000.
[27]ibid.
[28]Reconciliation Australia, ‘The reconciliation report card
and the reconciliation test’, op.cit, p2.
[29]‘Memorial may deepen the divide’, The Canberra Times,
1 December 2001, p7.
[30]Howard, the Hon J, ‘Address at the presentation of the Final
Report to Federal Parliament by the Council for Aboriginal
Reconciliation’,
op.cit. p2.
[31]Commonwealth Grants Commission, Report on Indigenous Funding 2001,
Commonwealth of Australia, Canberra, 2001, p65.
[32]ibid, pxx.
[33]ibid, p.100. SPPs will become a smaller proportion of Commonwealth
funding for states with the increase to general revenue grants
under GST
arrangements, which could provide an opportunity for re-assessment of SPP
funding and identification of gaps in service
delivery, or the creation of
outcomes in new areas such as community capacity building.
[34]ibid, pp98-9.
[35]See Howard, the Hon J, ‘Address at the presentation of the
Final Report to Federal Parliament by the Council for Aboriginal
Reconciliation’, op.cit, pp2-3.
[36]Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2000, op.cit, p19.
[37]Royal Commission into Aboriginal Deaths in Custody, National
Report – Volume 5, AGPS Canberra 1991, paras 38.3, 38.26.
[38]ibid, para 38.32
[39]Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2000, op.cit, p139.
[40]ATSIC, ATSIC Annual Report 2001-2001, National Media and Marketing
Office, ATSIC, Woden, ACT, 2001, p36. See also: <www.treatynow.org>.
[41]ibid.
[42]Reconciliation Australia, op.cit, para 3.3.
[43]Minister for Reconciliation and Aboriginal and Torres Strait
Islander Affairs, ‘Budget promotes self reliance for Indigenous
Australians’, Media release, 22 May 2001, p1.
[44]Minister for Reconciliation and Aboriginal and Torres Strait
Islander Affairs, ‘A fair deal for Indigenous Australians’,
Australians working together – Helping people to move forward, Fact Sheet
2, pp1-2.
[45]ATSIC, ‘Fact Sheet: Summary of new ATSIC Specific Funding
and Allocations’, ATSIC Budget Response, 22 May 2001, p1.
[46]See further: Jopson, D, ‘Money that’s black and white
and spent all over’, Sydney Morning Herald, 16 March 2001,
p12.
[47]Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2000, op.cit, p92.
[48]Commonwealth Grants Commission, Report on Indigenous Funding 2001,
op.cit, p91.
[49]ibid, p92.
[50]ATSIC, ‘A reconciliation budget?’, ATSIC News (Autumn
2001), p3.
[51]ibid.
[52]ATSIC (Chairman), ATSIC - Budget Response, 2001 Budget: A mixed
bag, Media release, 22 May 2001.
[53]Ruddock, the Hon P, ‘Aborigines reach a turning point: the
public is coming round to practical reconciliation based on individual
responsibility’, Age, 23 July 2001, p15.
[54]ibid.
[55]Atkinson, J, ‘Violence against Aboriginal women:
Reconstitution of community law – the way forward’ (1990) 2(46)
Aboriginal Law Bulletin, reprinted in (August-September 2001), 5 (11) Indigenous
Law Bulletin, p19.
[56]For example: ‘It is not as if the recent reporting of
domestic violence in indigenous communities is a complete revelation.
The issue
has been around for years, and the Federal Government has been doing a lot of
work in this area. Unfortunately, many have
chosen to ignore this.’
Ruddock, the Hon P, ‘Aborigines reach a turning point’, op.cit.
[57]See Commonwealth of Australia, Working together against violence:
The first three years of partnerships against domestic violence,
Office of the
Status of Women, Canberra, August 2001, p57.
[58]Pryor, J, ‘Whose cover up?’, ATSIC News (Spring 2001),
p16. For example, Goolburri Regional Council allocated $200,000
for domestic
violence and trauma counselling across southern Queensland but has had no
response from state and Federal Governments.
See Button, B, ‘Family
violence not such a priority for governments’, ATSIC media release, 2 July
2001.
[59]ibid.
[60]ATSIC, ‘Indigenous Women’s Roundtable achieves
results’, Media release, 13 September 2001, p1.
[61]ATSIC, ‘Indigenous roundtable seeks partnership’,
Media release, 30 October 2001.
[62]Parliamentary Secretary on Aboriginal and Torres Strait Islander
Affairs, ‘Indigenous Women’s Roundtable a crucial step
forward’, Media release, 13 September 2001; Minister for Reconciliation
and Aboriginal and Torres Strait Islander Affairs and
Parliamentary Secretary on
Aboriginal and Torres Strait Islander Affairs, ‘Agreement on Indigenous
family violence welcomed’,
Media release, 28 July 2000, p1; Minister for
Aboriginal and Torres Strait Islander Affairs and Minister for Family and
Community
Services, ‘$2.2 million for indigenous communities to design
solutions to family violence’, Joint media release, 14 August
2000,
p2.
[63]ATSIC (Commissioner Anderson and Deputy Chair Robinson),
‘Action on family violence’, Media release, 29 July 2001, p1.
[64]NSW Minister Refshauge refused to attend on the basis that the
Federal Minister for Family and Community Services wouldn’t be
there:
‘Time and again we have had Aboriginal affairs ministers’ meetings
noting things, but nothing happened because
no Federal line agency is
represented’: ATSIC, ‘No more silence’, ATSIC News, Spring
2001, p14.
[65]ATSIC (Commissioner Anderson and Deputy Chair Robinson), Action on
family violence, Media release, 29 July 2001, p2.
[66]Minister for Reconciliation and Aboriginal and Torres Strait
Islander Affairs and Parliamentary Secretary on Aboriginal and Torres
Strait
Islander Affairs, ‘Agreement on Indigenous family violence
welcomed’, op.cit, p2.
[67]Reconciliation Australia, ‘Heads of Government should ensure
concerted national action on domestic violence in Indigenous communities
–
Co-Chairs’, Media release, 6 August 2001.
[68]ibid.
[69]Reconciliation Australia, ‘The reconciliation test: will
current debate lead to a concerted effort to address family violence
in
Indigenous communities?’, Media release, 26 June 2001, p2.
[70]ATSIC, Annual Report 2000-2001, op.cit, p45.
[71]Minister for Reconciliation and Aboriginal and Torres Strait
Islander Affairs and Parliamentary Secretary on Aboriginal and Torres
Strait
Islander Affairs, ‘Agreement on Indigenous family violence
welcomed’, op.cit, p2.
[72]ATSIC (Chair), ‘National Indigenous group on domestic
violence’, Media release, 22 August 2001.
[73]ATSIC, ‘Our rights: our lives: our way’, op.cit,
p10.
[74]See further: Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 1999, HREOC Sydney 1999, Chapter 3
– Identity rights.
[75]Ruddock, The Hon P, ‘Aborigines reach a turning
point’, The Age, 23 July 2001.
[76]See further, Draft Reconciliation Bill 2000, section 15(c) in
Council for Aboriginal Reconciliation, Australia’s Challenge,
CAR Canberra
2000, p173.
[77]Council for Aboriginal Reconciliation, Australia’s
Challenge, CAR Canberra 2000, p101.
[78]Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 5, AGPS Canberra 1991, para 38.3
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