Indigenous Law Bulletin
AGPS, Canberra, 1996
Reviewed by Ann Wansbrough
The Fourth Report continues two basic themes from previous annual reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The first is that Australia continues to violate the human rights of Aboriginal and Torres Strait Islander peoples, through abuse, incompetence and neglect, in ways for which there can be no excuse. The nation is not fulfilling its basic obligations under international human rights instruments. We are violating international law.
The second is that change requires a new approach by politicians and bureaucrats. Models are available or are being developed that can bring about an effective improvement in the situation of Aboriginal and Torres Strait Islander peoples, but they need to be adopted and funded at adequate levels.
The Fourth Report 1996 covers the period July 1995 to June 1996. It begins by reporting on how the new Coalition Government failed to exercise responsibility, and thereby harmed Indigenous people, in the 1996 racism debate. The Government lacks understanding of the nature of cultural rights guaranteed by the international human rights instruments, and has reduced other human rights to a question of disadvantage and welfare. The assimilationist approach of the Government fails to respect the dignity and rights of Indigenous people.
The violation of the human rights of Aboriginal and Torres Strait Islander juveniles was dealt with in detail in the Commissioner's Third Report; the Fourth Report looks at the question of diversion from court and detention. In many cases cautions could be used, but police display racial discrimination when making choices about whether to use these. Attempts in Australia to introduce community conferencing have missed the key point of the model as it is used in places like Aoteoroa/New Zealand. The Maori community is given responsibility and power, and police discretion is restricted; in Australia, we have tended to give police much more power to decide who is diverted to conferencing and what happens at crucial stages of the process. Indigenous communities and families of offenders must be empowered and trusted if such models are to achieve their goals of diverting offenders from the court system and reintegrating offenders into the community so that they do not re-offend. In particular, there must be a more sensitive understanding of the subtleties of Indigenous customary law. Community-based models also require involvement of relevant community agencies, and must be adequately funded.
Housing is a human right recognised in Article 11 of the International Covenant on Economic, Social and Cultural Rights. What is required has been defined in General Comment 4 of the Committee on Economic, Social and Cultural Rights. The provision of housing and associated physical infrastructure for Aboriginal and Tones Strait Islander people is, by these standards, grossly inadequate, and is a major cause of the ill-health of Indigenous people and of their involvement in the welfare and criminal justice systems. At least $3.1 billion is required, but governments dribble out a few hundred million dollars. They also fail to ensure the quality of what is provided, so many facilities cease working and many houses are uninhabitable within a few months or years. Yet the provision of housing is fundamental to Indigenous health, as was made clear in the Second Report.
The basic principles for an effective public policy on housing are that it must: be well co-ordinated, with clear lines of responsibility within administering bureaucracies; be outcome-oriented, transparent and accountable; be adequately resourced; be based on the principle of housing being a human right; be based on a commitment to human rights and social well-being; be based on equality and giving priority on the basis of need; guarantee minimum standards; and involve consumers in policy development and implementation.
The Fourth Report provides two sorts of cases studies on housing: examples of housing policy which does not respect the human rights of Aboriginal and Tones Strait Islander peoples, such as Homewest, and examples of where housing and infrastructure provision is incorporating most, if not yet all, of the principles outlined above, such as the Aboriginal and Torres Strait Islander Commission's Health and Infrastructure Priority Projects (HIPP). The processes adopted in HIPP enable communities to be actively involved in the decision-making process, and ensure that project managers are also accountable for professional and technical standards to appropriate authorities with relevant expertise.
The National Community Education Program is designed to equip Aboriginal and Torres Strait Islander peoples with knowledge of their human rights, understanding of what these mean in everyday life, and the skills necessary to assert those rights in the face of neglect or racial discrimination or abuse. The program has proceeded slowly because of inadequate, indeed abysmal, funding. Governments seem to be unable to move beyond a rhetorical to a financial commitment, and the program is dependent on non-Government sponsorship. Community educators in some State agencies are willing to cooperate, but their agencies rely on 'user pays'. How can it be reasonable or just to expect the most disadvantaged Australians, many of whom are illiterate or unemployed, to pay to learn about their basic rights?
The program being developed includes tools, that is, information, knowledge of rights and law, and tracks, that is, legal, individual and community-based strategies for asserting rights. The problem is finding the finance to publish and distribute the materials, which include a video and manual, and to train and employ people to use them. Yet this is not a new program - it was first mentioned in the First Report, and is the response to the horrific findings of the National Inquiry into Racist Violence, and to recommendation 211 of the Royal Commission Into Aboriginal Deaths in Custody.
The National Indigenous Legal Curriculum continues to develop, in cooperation with TAFE and the University of Technology, Sydney. The proposed courses will give field officers and paralegal workers an understanding of Australian law and legal issues from an Indigenous perspective. The diploma course will gain recognition towards an LLB or BA/LLB in Australian Indigenous Law.
The Convention on Biodiversity shows a lack of respect for the rights and dignity of Indigenous peoples, seeing them instead as a resource to be controlled and exploited. Provision for protection of intellectual rights of Indigenous peoples is inadequate in the Convention, and also in the approach of the Australian Government. The Government seems unable to move outside the general concept of copyright, which cannot cater for community knowledge.
The Draft Declaration on the Rights of Indigenous Peoples was completed in 1993, and is now before the United Nations Commission on Human Rights. Australia should adopt this. The Australian Government in July 1995 tried to put a limitation on the right of self-determination as it applies to Indigenous people. The Commissioner challenges this approach - self-determination of First Peoples is not something that governments bestow or have the right to restrict. The Coalition Government's present approach to international instruments would seem to make it more difficult to ratify such treaties, since it strengthens the involvement of the States and Territories and requires a national interest statement, which may focus on economic rather than social issues. But the Australian Government has the responsibility to lead, not follow the States. It should not shy away from its use of the external affairs power in s5l(xxix) of the Constitution, or allow States to decide national standards.
This Report is not an academic exercise. It documents the actual violation of human rights in Australia. The Government and the nation have the responsibility to find the political will to fulfil our legal and moral obligations to respect the human rights of the First Peoples of our nation.