What is reconciliation to us? Nothing much has changed in Gove where I live. I don’t understand your law. It always changes. The only thing that stays the same for the white man is that he never listens to our law, and our kids keep getting locked up with that mandatory sentencing. I don’t understand your reconciliation.^[1]

This inquiry has clearly established that the Commonwealth Government’s ‘practical reconciliation’ approach is failing Indigenous people. Indicators of Indigenous disadvantage are not improving in many areas. There has been a very minimal response to the symbolic issues outlined by the Council for Aboriginal Reconciliation. There is no legislation to enact a treaty process and no timeframe or process to resolve ‘unfinished business’. The Government’s emphasis on areas of perceived agreement leaves many important issues off the agenda, to the detriment of Indigenous people. In short, there is a failure of national leadership on this, one of the most critical issues in the definition of the nation.

This is not to say that there has not been progress in recent years, by all levels of government. The Committee welcomes initiatives through the Council of Australian Governments aimed at better coordinating, implementing and monitoring programs in Indigenous communities. Collection of comparative data has also improved in recent years. However, there seems to be very slow progress in terms of setting appropriate targets, benchmarks and evaluation mechanisms that will help to reveal a truer picture of how effectively Indigenous disadvantage is being addressed, let alone the other aspects of reconciliation.

The Committee believes true reconciliation involves not just measures to address disadvantage, but all of the matters contained in the Council for Aboriginal Reconciliation’s Roadmap for Reconciliation and the four National Strategies. The Government’s half-hearted response and lack of recognition of the broader agenda undermine the entire process of reconciliation.

The Council acknowledged in 2000 that reconciliation was ‘a long, winding and corrugated road, not a broad, paved highway’. The process was always going to be slow and the need for discussion at local, regional and national levels was acknowledged.

However, the Committee believes the process is now off track. There is a sense that momentum is being lost. People are becoming disheartened and reconciliation is slipping off the national agenda. While the ‘people’s movement’ is an important part of reconciliation in Australia, as indeed the Council emphasised more than a decade ago, national leadership is equally important. The people need more support, and the Committee has made a series of recommendations to ensure that more assistance is forthcoming, including by funding Reconciliation Australia, the successor to the Council which is facing severe financial difficulties in carrying out its very important work.

Senator the Hon Nick Bolkus

Chair

...

Chapter 2: What Reconciliation Means

2.1. This chapter briefly summarises the history of reconciliation in Australian policy-making, and different perspectives about what the term means:

reconciliation as unity, equity and justice;
reconciliation as a ‘people’s movement’;
‘practical reconciliation’;
reconciliation as the recognition of Indigenous peoples’ rights; and
critiques of the concept.

...

2.8. Thus, at the time that the process of reconciliation formally commenced, reconciliation was seen as a process aimed at:

achieving a better relationship between Indigenous and non-Indigenous Australia, through education, attitude change and fostering appreciation of Indigenous cultures;
overcoming Indigenous disadvantage;
achieving social justice for Indigenous people...

Summary of Common Themes

2.40. There are clearly areas of disagreement over what the term ‘reconciliation’ means. In the course of this inquiry, the Committee has not sought to define the term, noting the [Council for Aboriginal Reconciliation’s] CAR’s view that what reconciliation means will vary with local needs and circumstances and that what is important is an agreed framework for a ‘healthy diversity’ of views.

2.41. However, a number of common themes have emerged:

Reconciliation is now widely seen as a process, rather than simply a destination.

There seems to be broad consensus that the reconciliation process is, at least on some level, about nation-building and national unity. However, there is disagreement about how ‘national unity’ should be defined and how it will be achieved. For example, the Prime Minister has talked about the need to focus on the issues and achievements that unite Indigenous and non-Indigenous Australians, rather than those that divide.^[2] As discussed above, however, some argue that defining national unity in this way obscures discussion about issues that Indigenous people see as important.
There also seems to be broad agreement that reconciliation is about recognition of Indigenous peoples. Again, however, there is disagreement about what should be recognised and how this should be achieved. Most groups involved in the process, including the Commonwealth Government, agree that Indigenous peoples should be recognised as having distinct and valuable cultures, but there is disagreement about the extent to which this recognition should translate to recognition of distinct legal or political rights.
Most agree that overcoming Indigenous disadvantage in areas such as health, education, employment and housing is an important part of the reconciliation process, and that overcoming this disadvantage is an important national priority. The key difference is whether this should be the primary or indeed sole focus of the reconciliation process, as the Commonwealth Government maintains.

...

Chapter 3: What is Being Done

3.1. One of the main themes in the CAR’s Final Report was that continued progress towards reconciliation would involve a commitment from all levels of government, non-government, business, peak bodies, communities and individuals.

3.2. This chapter examines evidence the Committee heard as to what the different sectors of society are currently doing in terms of progressing reconciliation. It discusses:

Reconciliation Australia;
The Commonwealth Government;
State and Territory governments;
ATSIC;
local governments; and
local and community-based reconciliation groups.

...

The Committee’s Conclusions

3.139. Although the Committee supports the Commonwealth, State and Territory governments’ initiatives to reduce Indigenous disadvantage (particularly those under the COAG framework), it is concerned that progress is slow.

3.140. Further, the Committee agrees with the strong views expressed in many submissions and by many witnesses who appeared before it that true reconciliation involves much more than the Commonwealth Government’s ‘practical reconciliation’ approach allows.

3.141. The Committee agrees with the CAR that ‘True reconciliation will require concerted efforts in all spheres of our nation’s life’. This not only includes governments at all levels, be it federal, state, territory or local, but also business organisations, local community groups and individuals. However, it is clear from the evidence received by the Committee that, unless there is commitment and support for reconciliation at the national level, the prospects of achieving ‘true reconciliation’ will be greatly diminished if not extinguished. The Committee considers that there is clear evidence of a strong desire for, and demonstrated need for, greater national leadership. The only body that can effectively do that is the Commonwealth Government.

3.142. Reconciliation involves much more than practical matters: it also involves cultural and spiritual matters. The Committee considers that it is essential that the Government recognise the importance of these matters to Indigenous people, and take the necessary steps to ensure that they are addressed and given as much prominence as ‘practical’ matters in the overall reconciliation process.

Chapter 4: Benchmarking, Monitoring and Evaluation

Introduction

4.1. A particular area of interest to the Committee during this inquiry was the adequacy and effectiveness of any targets, benchmarks, monitoring and evaluation mechanisms that have been put in place to address Indigenous disadvantage and promote reconciliation (term of reference 2(c)).

...

What is benchmarking and what should be benchmarked?

4.4. The CAR defined a benchmark as .an agreed standard or target which reflects community aspirations that either have been met or are desirable to be met.^[3] Another definition is ‘an example of a “state of affairs” (a practice, process, or output) that is demonstrably among the best of its type’.^[4] Benchmarking itself can be defined as ‘a systematic process for implementing improvements based on learning from examples of good practice’. ‘Improvements’ can encompass ‘incremental change, major steps and innovations’.^[5]

4.5. In the debate over benchmarking progress towards reconciliation, discussion has centred on progress towards addressing Indigenous disadvantage, that is, the measurement and evaluation of outcomes in areas such as health, housing, employment and education.

4.6. Several submissions to the inquiry emphasised that it was impossible to address Indigenous disadvantage without looking at the wider rights issues. Some have argued that Indigenous Australians will have little chance of overcoming the high levels of poverty, unemployment and poor health if they are not empowered to control their own destinies, through capacity-building and self-governance. Reference was made to the Harvard Project in Northern America, which has found strong links between self-governance and self determination, and the capacity to achieve long-term positive outcomes for Indigenous people.^[6]

...

Criticism of Current Approaches to Program Delivery

4.24. Several criticisms of current approaches to program delivery were made during the course of the inquiry, including:

misleading claims of levels of government expenditure;
the need for a long-term outlook and for progressive realisation of rights;
a lack of coordination between and within governments; and
the need for a sustainable approach.

...

Chapter 5: Unfinished Business: The Legal Regime

5.1.This chapter discusses the issues raised by submissions and witnesses in relation to:

the need for a formal process for resolving the unresolved issues of reconciliation; and
the recognition of Indigenous rights more generally, including a discussion of evidence the Committee heard about why the ‘rights agenda’ is an important but unresolved part of the reconciliation process.

Formal Process for Resolving Unresolved Issues of Reconciliation

5.2. Australia is the only Commonwealth country with an Indigenous population that does not have a treaty with its Indigenous peoples.[7] The CAR’s Final Report concluded that reconciliation ‘requires a formal resolution of issues which were never addressed when this land and its waters were settled as colonies without treaty or consent’.^[8]

The Reconciliation Bill 2000

5.3. The CAR’s Final Report included a draft bill, the Reconciliation Bill 2000. Clauses 8 and 9 of the Bill outline a legislative process to deal with the unresolved issues of reconciliation. Subclause 8(1) proposes:

The Prime Minister must immediately begin negotiations with ATSIC to develop a process which will unite all Australians by way of an agreement or treaty through which the unresolved issues for reconciliation can be resolved.

...

5.5 The Social Justice Commissioner also recommended:

That the federal government introduce framework legislation providing legislative support for the negotiation of agreements with Indigenous peoples at the national, regional and local levels.^[9]

...

5.9 ATSIC told the Committee that it strongly supported the Bill:

which specifically called for the Prime Minister to begin negotiations with us to develop a process to unite all Australians by way of an agreement or a treaty. Through this process, unresolved issues of reconciliation may be progressed and ultimately resolved. A properly negotiated agreement would establish a framework between Aboriginal and Torres Strait Islander people and the Australian government.^[10]

...

The Commonwealth Government’s Response

5.11. The Government agreed that negotiated outcomes on the unresolved issues of reconciliation should be achieved.^[11] However, it stated that these negotiations should be achieved outside of a legislated process^[12] and on a ‘progressive, issue by issue basis rather than through a once and for all global process’.^[13] The Government emphasised its preference for community partnership at the local level to tackle issues of immediate concern and stated that a ‘national agreement – a “top down” policy response – is not appropriate to local circumstances’.^[14]

5.12. In support of its view, the Government pointed to examples of agreements negotiated outside of a legislated process,^[15] stating that the existing reconciliation process allowed for state, regional and local agreements^[16] and that ATSIC ensures the maximum participation for Indigenous peoples in the formulation and implementation of programs.^[17]

5.13. The Government rejected the CAR’s draft legislation on the basis that it would encourage disputes, was not supported by public opinion and was unnecessary to achieve reconciliation.^[18] The Government added that a treaty as a legally enforceable instrument between sovereign states:

would be divisive, would undermine the concept of a single Australian nation, would create legal uncertainty and future disputation.^[19]

...

Effect of Commonwealth legislation

5.21. Witnesses and submissions supported a legislated framework for several reasons: to protect Indigenous interests and rights; provide a mandate for negotiations; promote a culture of negotiation; and coordinate and lead local, regional and state communities’ activities.

5.22. The Gilbert & Tobin Centre of Public Law argued that federal legislation was needed ‘for at least two reasons’:

First, agreements can be made with local and state governments and with private interests as the Government Response points out, but only the Commonwealth can deal with the national and constitutional position of Indigenous people in Australia. Secondly, the successful agreements the Government points to, the ILUAs [Indigenous Land Use Agreements] made under the Native Title Act, are a perfect example of the need to legislate intelligently for negotiation processes. One reason so few native title agreements were reached before 1998 was the consensus on all sides that the agreement-making provisions of the original Act simply did not provide the requisite legal support.^[20]

5.23. In relation to negotiation without legislative backing, the Social Justice Commissioner commented that:

While the use of agreement-making has strong Indigenous support, it is important to realise that these initiatives do not of themselves guarantee protection of Indigenous peoples’ rights and interests. In the case of native title, the difficulty is in convincing developers, mining and resource companies, pastoralists, and local and state governments to enter into agreements which deliver real outcomes to Indigenous peoples when the legislation does not necessarily require this of them.^[21]

...

5.30. The Social Justice Commissioner stated:

While it is undoubtedly true that all levels of government and all members of the community have a responsibility toward achieving reconciliation with Australia’s Indigenous peoples, the Government is not only an important piece in the mosaic: it is an integral one. It is after all the role of federal Government to drive policy and enact legislation at a national level. A lack of effective coordination or participation at a national level can mean that opportunities to make a change at state and local levels can be stymied or even lost.^[22]

Need for Education

5.31. Some submissions also argued that education was an important factor in helping to address the unresolved issues for reconciliation. Suggestions included:

sustained and sophisticated public awareness campaigns to combat institutionalised racism and discrimination;^[23]
greater public understanding of what Indigenous culture can offer and its potential contribution to enriching the quality of life of all Australians;^[24]
research into the history of interactions between Indigenous and non-Indigenous peoples to avoid disagreements of historical fact when considering compensation, reparations and restitution;^[25] and
making past injustices ‘visible’ and not allowing the consequences of those past injustices to go unaddressed.^[26]

...

Reconciliation and Human Rights

5.33. In his Social Justice Report 2000, the Social Justice Commissioner proposed that reconciliation be based on full respect for human rights.^[27] Human rights are broadly those rights flowing from Australia’s obligations under international human rights instruments, for example, the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights.^[28]

5.34. In his Social Justice Report 2001 report, the Social Justice Commissioner classified human rights into two categories:

citizenship rights – those to which every Australian is entitled, for example, the right to basic services and the right not to be discriminated against on the basis of race; and
inherent rights – those rights inherent to Indigenous peoples that flow from their prior occupation and their culture, for example, the right to native title.^[29]

...

5.39. It is important to note that the Social Justice Commissioner also argued for the ‘substantive’ equality, as opposed to ‘formal’ equality, of Indigenous peoples. Briefly, formal equality means that everyone is treated the same. The principle of substantive equality recognises that not all people are the same and therefore they need to be treated differently to enjoy the same opportunities.^[30]

5.40. In his Social Justice Report 2000, the Social Justice Commissioner argued that treating Indigenous peoples the same as non-Indigenous peoples was inadequate. Because Indigenous peoples have not been treated the same as non-Indigenous Australians throughout history, they have been ‘dispossessed, marginalised and excluded from mainstream society’.

...

Self-Determination

5.82. ... [The booklet] Recognising Aboriginal and Torres Strait Islander Rights ... recommended that:

A. Governments at all levels acknowledge Aboriginal and Torres Strait Islander peoples right to self-determination as the basis for policy on Aboriginal and Torres Strait Islander affairs.

B. Governments at all levels enter into negotiations with Aboriginal and Torres Strait Islander peoples in order to realise self-determination goals.^[31]

...

5.85. However the Government’s response ... stated its strong opposition to self-determination, stating that the term ‘implies the possibility of a separate Indigenous state or states’. The Government stated, however, that:

it unequivocally supports the principle of Indigenous people having opportunities to exercise control over aspects of their affairs (as reflected in the establishment and operation of ATSIC for example).^[32]

5.86 Instead, the Government preferred the terms ‘self-management’ or ‘self empowerment’, on the basis that:

these terms are consistent with a situation in which Indigenous people exercise meaningful control over aspects of their affairs in active partnership and consultation with government.^[33]

...

Sovereignty

5.99. Dr Haynes commented that ‘the right to self-government is usually seen as arising out of the notion of “sovereignty”’.^[34] He pointed to the High Court judgments of Gibbs CJ and Brennan J in Coe v Commonwealth^[35] and Brennan J in Mabo v Queensland^[36] and Coe (on behalf of Wiradjuri tribe) v Commonwealth.^[37] These judgments indicate that the ‘Australian courts have refused to recognise that Aboriginal people are able to exercise sovereignty’ outside of that conferred upon the Aboriginal people by legislation ...

Traditional or Customary Law

...

5.105. The Australian Law Reform Commission’s (ALRC) 1986 report recommended a range of ways in which the Australian legal system might recognize customary law, including by taking customary law into account in sentencing offenders. The ALRC also stated that:

As far as possible, Aboriginal customary laws should be recognised by existing judicial and administrative authorities, avoiding the creation of new and separate legal structures, unless the need for these is clearly demonstrated.^[38]

...

Communal and Unending Intellectual Property

5.113. The national strategy, Recognising Aboriginal and Torres Strait Islander Rights, recommended that:

All governments take steps to ensure the recognition and protection of Indigenous intellectual property as already occurs in some Commonwealth legislation.^[39]

5.114. ... [The booklet] Recognising Aboriginal and Torres Strait Islander Rights, stated that the current intellectual property protections do not sufficiently protect Indigenous intellectual property. ...

5.117. The Government has since announced that it will introduce legislation to protect Indigenous communities. moral rights in intellectual property.^[40] The Committee welcomes that development.

Conclusion

5.118. The Committee is deeply concerned that the Commonwealth Government has chosen to focus on the limited scope of ‘practical reconciliation’ to the exclusion of the broader structural causes for Indigenous disadvantage. Reconciliation cannot be achieved without addressing these broader structural causes.

Chapter 6: Where to From Here?

Progress to Date

6.1. The Committee is most concerned that the Commonwealth Government has fully agreed to only the first of the CAR’s six recommendations, namely, that COAG should implement and monitor a national framework to overcome Indigenous disadvantage.

...

6.5. It is clear that reconciliation between Indigenous and non-Indigenous Australians is not going to be achieved overnight. However, the Committee considers that there is clear evidence of a widespread feeling that the momentum present during the CAR’s decade of existence is being lost.

...

6.7. There is room for a range of responses, but an overarching national framework and commitment to continue dialogue with Indigenous people are essential.

What is Needed

6.8. The Committee considers that certain key issues must be addressed to increase and sustain national progress towards reconciliation:

greater national leadership;
developing a national policy framework that amongst other things encourages consultation with, and the use of partnerships and agreements with, Indigenous communities;
encouraging COAG.s involvement in the policy framework that extends beyond ‘practical reconciliation’;
establishing effective monitoring, evaluation and scrutiny of activities;
addressing specific legal issues, including Constitutional change;
providing more support for the ‘people’s movement’ and for Reconciliation Australia; and
improving the research and knowledge base on relevant issues.

...

[Recommendations]

Recommendation 1

The Committee recommends that the Commonwealth Government accept responsibility for providing national leadership on reconciliation and adopt all of the recommendations contained in the Final Report of the CAR. The Committee is of the view that reconciliation encompasses far more than the current ‘practical reconciliation’ approach, and that the Commonwealth Government has a duty to engage with and to lead the nation on this vital and important issue.

...

Recommendation 2

The Committee recommends that the Commonwealth Government support the establishment of a National Reconciliation Convention (as proposed by clauses 6 and 7 of the Reconciliation Bill) that would identify and prioritise issues and recommend action, to be held every four years.

...

Recommendation 3

The Committee urges State and Territory governments to continue to progress reconciliation by implementing all of the CAR.s recommendations, and also urges the Commonwealth Government to take a greater leadership role through the COAG process.

Recommendation 4

The Committee recommends that the Commonwealth Government encourage COAG to incorporate the unresolved issues of reconciliation into COAG’s reconciliation framework and to develop appropriate benchmarks and action plans.

...

Recommendation 5

The Committee stresses the importance of developing effective performance monitoring regimes, and recommends that MCATSIA:

rigorously pursue the development of action plans, performance reporting strategies and benchmarks by Ministerial Councils,
provide regular updates on progress, and
publish those updates in a widely available form, including on the Internet.

...

Recommendation 6

The Committee recommends that the Commonwealth Government take steps to increase its monitoring and reporting of data on outputs and outcomes of government funding for Indigenous related programs. These requirements include:

incorporating reporting on outcomes of Indigenous-related programs into performance agreements for CEOs of Commonwealth departments and agencies;
amending the guidelines issued under subsection 63(2) of the Public Service Act 1999 to require Government agencies to give detailed information relating to Indigenous focused outputs and outcomes in their annual reports (noting that guidelines are subject to approval by the Joint Committee of Public Accounts and Audit); and
continuing to incorporate further data collection and reporting requirements into the conditions of Specific Purpose Payments when Commonwealth/State agreements are renewed.

...

Recommendation 7

The Committee recommends that the Aboriginal and Torres Strait Islander Social Justice Commissioner be required by statute to report publicly on progress towards reconciliation (as proposed by clause 10 of the Reconciliation Bill).

Recommendation 8

The Committee recommends that the Minister be required by statute to appoint an independent body to report on progress towards national reconciliation (as proposed by clause 11 of the Reconciliation Bill), and that in determining the membership of the taskforce, the Minister be required to consult with relevant stakeholders, including the established parliamentary parties.

Recommendation 9

The Committee recommends that the Government should be required by statute to respond to the reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner and the proposed ministerial taskforce.

Recommendation 10

The Committee recommends that legislation be enacted to give to a Parliamentary Joint Committee the functions (consulting, reporting and examining public reports and Government responses in relation to reconciliation) proposed by clauses 13, 14 and 15 of the Reconciliation Bill. If the Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund does not continue beyond March 2004, these functions should be given to a separate Joint Parliamentary Committee.

...

Recommendation 11

The Committee recommends that the Government embark on a broad consultation process before preparing legislation for a referendum that would insert a preamble to the Constitution recognising the status of Indigenous peoples as Australia.s first peoples.

Recommendation 12

The Committee recommends that the Government immediately prepare an amendment to remove section 25 from the Constitution, conduct an information campaign to inform the Australian people of the desirability of such reform and put the amendment to a referendum at the next election.

Recommendation 13

The Committee recommends that the Government immediately prepare an amendment to paragraph 51(xxvi) of the Constitution that provides the Commonwealth Parliament with power to make special laws only for the benefit of any particular race, conduct an information campaign to inform the Australian people of the desirability of such reform and put the amendment to a referendum at the next election.

...

Recommendation 14

The Committee recommends that the Government implement its commitment to addressing Indigenous intellectual property issues by introducing relevant legislation in the near future.

Recommendation 15

The Committee recommends that the Government progress the implementation of resale royalty rights arrangements for Indigenous artists as part of its broader review.

Recommendation 16

The Committee recommends that the recognition of customary law, such as cultural protection and environmental protection, form part of the matters for ongoing negotiations between governments and Indigenous peoples.

Recommendation 17

The Committee recommends that the Commonwealth Government provide funding to support local and community-based reconciliation groups, through ongoing funding to Reconciliation Australia and through grants to peak reconciliation bodies in each State and Territory.

Recommendation 18

The Committee recommends that the Government provide ongoing funding to Reconciliation Australia, sufficient for it to meet its diverse range of responsibilities.

Recommendation 19

The Committee recommends that the Commonwealth Government fund on an ongoing basis a national clearing house of research, data and publications about Indigenous issues.

...

Dissenting Report by Government Senators

Introduction

1.1. Government Senators have concerns with the Chair’s report in its rejection of the Government’s position of allocating issues of ‘practical reconciliation’ nature a high priority. Government Senators agree that while it is important to resolve the many social issues that have been raised within the community, the Australian Government must of course direct resources towards addressing the areas of disadvantage that Indigenous Australians currently experience. As noted in the Government Senators’ response to Recommendation 1, the national reconciliation approach should extend beyond the prioritised ‘practical’ reconciliation measures to include some of the ‘symbolic’ reconciliation issues.

1.2. While practical considerations are deservedly receiving higher Commonwealth priorities, issues of a more ‘symbolic’ nature are also being implemented as recommended by the Council for Aboriginal Reconciliation. The construction of Reconciliation Place in Canberra is a primary example where symbolic initiatives have been progressed.

1.3. The Commonwealth Government is committed to reconciliation as an ongoing process with practical, cultural and spiritual dimensions.^[41] The Government also believes that national leadership is required to achieve reconciliation. They further believe that national leadership alone will not achieve the desired outcome. Full State and Territory government support is essential with strong community support also critical to achieving reconciliation.

1.4. The difficulty remains with the reconciliation process of a lack of definition as to what reconciliation is, and how we as a people will really know that we are advancing the issue and moving towards true reconciliation; that is blending the outstanding practical and symbolic reconciliation issues.

1.5. Notwithstanding the stated view of Opposition and other Committee members, the Committee discussion over how to benchmark progress towards reconciliation has still concentrated on evaluation of outcomes in the key government priorities of health, housing, employment, housing and education. These are priority areas of the Government’s practical reconciliation agenda and outcomes will be measured and evaluated to measure improvement.

1.6. This position is supported by the Council of Australian Governments (COAG) with all State and Territory leaders, (except NSW who disappointingly failed to make any submission to this enquiry), agreeing that the national indicator framework, based on these measures, are the important areas of greatest disadvantage for Indigenous people.

1.7. Government members of the committee record their disappointment in the COAG process through this report over the demonstrated lack of commitment to reconciliation issues within COAG.

1.8. All State and Territory leaders walked out of the latest COAG meeting in a blatant media stunt before the important Aboriginal reconciliation issues could be discussed. The Commonwealth Government placed a number of items on the agenda that were not discussed. This was an important opportunity lost in the reconciliation process.

...

Comments on Report Recommendations

Recommendation 1

Government Senators recommend that the Commonwealth Government maintain responsibility for providing national leadership on reconciliation and continue to advance the recommendations of CAR with priority given to the areas of greatest social and economic need. This approach should extend beyond the prioritized ‘practical reconciliation’ measures to include some of the ‘symbolic reconciliation’ issues. Government Senators believe that priority must be given to the areas of greatest need and disadvantage and that the State and Territory governments must also equally support this process.

Recommendation 2

Government Senators do not support the proposal to hold a national reconciliation convention prescribed to be held every four years. While conventions may be held from time to time as necessary, a formal four year timeframe may be neither productive nor timely. This could be a role for Reconciliation Australia. Such a convention could be held once sufficient issues have been developed to a stage where national endorsement is required.

Recommendation 3

Government Senators urge State and Territory governments to continue to progress reconciliation by further developing the CAR recommendations with the Commonwealth Government maintaining the coordinating leadership role through COAG.

Recommendations 4, 5 and 6

Government Senators endorse these recommendations.

Recommendation 7

Government Senators support this recommendation but with the reservation that in the absence of any definition of reconciliation it would be difficult to measure progress.

Recommendation 8

Government Senators do not support this recommendation, as this is a role for Reconciliation Australia and the ATSI Social Justice Commissioner.

Recommendation 9

Government Senators do not support this recommendation due to reasons given in relation to recommendations 7 and 8.

Recommendation 10

Government Senators do not support this recommendation. These functions should be performed by COAG and a community supported and endorsed Reconciliation Australia. These two bodies would provide both the highest level government and community endorsement and impetus.

Recommendation 11

Government Senators fully support this recommendation.

Recommendation 12

Government Senators recommend that the recommendation be amended to provide that the Government prepare an amendment to remove section 25 from the Constitution, conduct an information campaign to inform the Australian people of the desirability of such reform and put the amendment to a referendum at a suitable time after the successful completion of the educational campaign. Government Senators note the historical difficulty in holding successful referenda in Australia. This should only be put to the Australian people once there is strong support for the referendum question.

Recommendation 13

Government Senators do not support this recommendation. Government Senators believe that there should be one law that applies to all Australians.

Recommendations 14 and 15

Government Senators fully support these recommendations. It should be noted that the Minister has recently announced that the Government is considering residual royalty rights for Aboriginal artists.

Recommendation 16

Government Senators recommend that the recommendation be amended to provide that customary law, such as cultural protection and environmental protection, is recognised as a source of law and forms part of the matters for on-going negotiations between governments and Indigenous peoples. Government Senators believe that there should be one law that applies to all Australians. Customary law should be a source of law as it would add to Australian laws by introducing significant and meaningful aspects to our cultural and environmental, among other issues, appreciation.

Recommendation 17

Government Senators recommend that the recommendation be amended to provide that the Commonwealth Government in partnership with State and Territory governments provides funding to support local reconciliation groups through continued funding of Reconciliation Australia or peak reconciliation bodies in each State and Territory. Government Senators maintain that State and Territory governments have an obligation to provide support to the reconciliation process.

Recommendation 18

Government Senators recommend that the recommendation be amended to provide that the Government contribute core funding to Reconciliation Australia, and jointly fund programs and initiatives proposed by Reconciliation Australia that have COAG endorsement and meet Commonwealth, State and Territory funding criteria. Funding could be provided to Reconciliation Australia provided that they have a detailed proposal containing initiatives and strategies to achieve desired outcomes.

Recommendation 19

Government Senators recommend that the recommendation be amended to provide that the Commonwealth Government fund and monitor on an ongoing basis a national clearing house of research, data and publications about Indigenous issues as provided by AIATSIS. This role is presently being performed and AIATSIS should be adequately resourced to fulfil the role. Establishing another body would simply be duplicating the role.

Recommendation 20

Government Senators recommend that the recommendation be amended to provide that at a later date the Senate refer to it an inquiry on progress in addressing the problems surrounding petrol sniffing in remote Aboriginal communities. Government members believe that petrol sniffing is a problem in many regions of Australia and any inquiry should be able to review strategies employed in different regions to assess their effectiveness.

...

^[1] Barnamby Wungungmurra quoted in Northern Territory Aboriginal Justice Advocacy Committee, Submission 10.

^[2] John Howard, ‘Perspectives on Aboriginal and Torres Strait Islander Issues’, Menzies

Lecture Series, 13 December 2000.

^[3] Council for Aboriginal Reconciliation, Towards a benchmarking framework for service

delivery to Indigenous Australians, Council for Aboriginal Reconciliation and Centre for Aboriginal Economic Policy Research (1998) 16.

^[4] Royal Melbourne Institute of Technology website, available online at <http://www.planningquality.rmit.edu.au/benchmarking.htm> .

^[5] Ibid.

^[6] Gilbert and Tobin Centre of Public Law, Submission 4; Reconciliation Australia, Submission 64A.

^[7] George Williams, Sean Brennan and Vanessa Bosnjak, Gilbert and Tobin Centre of Public Law, Submission 4, 7.

^[8] Council for Aboriginal Reconciliation, Final Report, 103.

^[9] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000,

Report No. 2/2001, 132, Recommendation 11.

^[10] Ray Robinson, Committee Hansard, 15 May 2003, 115– 6.

^[11] Commonwealth Government Response to the Council for Aboriginal Reconciliation Final

Report, Reconciliation: Australia’s Challenge, September 2002, 18–19; see also

Commonwealth Government, Submission 75, 4–5.

^[12] Commonwealth Government Response to the Council for Aboriginal Reconciliation Final

Report, Reconciliation: Australia’s Challenge, September 2002, 18–19.

^[13] Ibid 22–3.

^[14] Ibid 23.

^[15] Ibid 23; Commonwealth Government, Submission 75, 5–9.

^[16] Commonwealth Government Response to the Council for Aboriginal Reconciliation Final

Report, Reconciliation: Australia’s Challenge, September 2002, 23.

^[17] Ibid 18–19.

^[18] Ibid.

^[19] Ibid 23.

^[20] Williams et al, Submission 4, 7; note also Gilbert and Tobin Centre’s Treaty Project, Discussion Paper No 1, attached to Submission 4.

^[21] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002,

81.

^[22] Ibid 78.

^[23] Equal Opportunity Commission of Victoria, Submission 56, 5.

^[24] Lynn Pollack, Submission 9, 4–5.

^[25] Herbert and Valmae Freilich, Foundation Humanities Research Centre, The Australian National

University, Submission 63, 2–3.

^[26] Minoru Hokari, Humanities Research Centre, Australian National University, Submission 3.

^[27] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000,

18.

^[28] See Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report

1999, 54–6.

^[29] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000,

Report No. 2/2001, 217.

^[30] For examples of the disproportionate impact of ‘neutral’ laws on Indigenous peoples, see L

Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003) Ch 2.

^[31] Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights: Ways to Implement the National Strategy to Recognise Aboriginal and Torres Strait Islander Rights, one of four National Strategies in the Roadmap for Reconciliation, 3. See also ‘Self-Determination and Political Participation’, available online at <http://www.reconciliation.org.au/recognising_rights/pg6.htm> .

^[32] Commonwealth Government Response to the Council for Aboriginal Reconciliation Final

Report, Reconciliation: Australia’s Challenge, September 2002, 10.

^[33] Ibid 19–20

^[34] Submission 43, 2.

^[35] [1979] HCA 68; (1978) 24 ALR 118 at 128.

^[36] [1992] HCA 23; (1992) 107 ALR 1 at 20.

^[37] [1993] HCA 42; (1993) 118 ALR 193 at 198.

^[38] Australian Law Reform Commission, Recognition of Aboriginal Customary Law, Report No. 31, 1986, available online at <http://www.alrc.gov.au/inquiries/title/alrc31/recommendations.htm> .

^[39] Council for Aboriginal Reconciliation, Final Report, 111.

^[40] Richard Alston and Daryl Williams, Media release, ‘Indigenous communities

to get better protection for creative works’, 19 May 2003, available online at <http://www.minister.immi.gov.au/atsia/meida/media03/r03031.htm> .

^[41] Commonwealth Government Response to the Council for Aboriginal Reconciliation, Final Report.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2003/45.html