Human Rights and Equal Opportunity Commission
Annual Report 2001-2002
Chapter 4: Aboriginal and Torres Strait Islander Social Justice
Aboriginal and Torres Strait Islander Social Justice Commissioner
Dr William Jonas was appointed Aboriginal and Torres Strait Islander Social Justice Commissioner in April 1999. He is also the acting Race Discrimination Commissioner, a position held since September 1999.
Statement from the Commissioner
The past year has been one of great upheaval in regard to the importance that the community attaches to human rights generally and the rights of Indigenous peoples in particular. The year has seen the Government continue with an approach that seeks to obscure important human rights considerations from the Indigenous policy making lens.
Nowhere is this more clearly present than in the government's 'practical reconciliation' agenda. I have criticised this approach in great detail in the Social Justice Report 2001 and Native Title Report 2001. In short, my concerns with the government's approach can be summarised as relating to the largely ahistorical context within which they apply their policies; their failure to acknowledge the extent of the marginalisation faced by many Indigenous people and the systemic, institutionalised nature of the very real oppression that continues to be felt as a result; and the lack of recognition of the distinct status of Indigenous families and communities which require solutions that extend beyond individualism and self-empowerment and which instead recognise and protect Indigenous cultures.
Instead, practical reconciliation presents itself as a cruel illusion of equality which manages and maintains the status quo of the inequality faced by Indigenous peoples and makes little effort to re-empower or transfer power back to Indigenous communities. Indigenous communities, many of which are dysfunctional and have broken down structures of authority, are treated as passive recipients of government directed programmes and priorities. Ironically, the rhetoric of government policy also attacks those same communities for being passive recipients and for not escaping the extreme poverty and dire circumstances that they face.
Integral to this process of directing policy making towards practical assistance measures has been the refusal to respond to the broader agenda of issues that have been raised by Indigenous peoples, by the now defunct Council for Aboriginal Reconciliation and by the Social Justice Commissioner.
The Council for Aboriginal Reconciliation had been mandated to develop over a 10 year period a series of recommendations for transforming the relationship between Indigenous and non-Indigenous people. Yet more than two years after the Council presented its Australian Declaration towards reconciliation and four national strategies for reconciliation at Corroborree 2000; and over eighteen months after it made six final recommendations to the Government in December 2000, there has been no formal, public response to these documents. There has similarly been no formal response to the fourteen recommendations on human rights and reconciliation contained in the Social Justice Report 2000 and a rejection of the call by Indigenous people to negotiate 'unfinished business'.
The failure to respond to these important processes is of great concern. But they form part of a broader picture in which we have seen significant rises in the number of Indigenous people in the criminal justice system and in rates of Indigenous over-representation. This has also been accompanied by an increase in the number of Indigenous deaths in custody and only a marginal decrease in the rate of such deaths over the past decade. As I note in my review of ten years since the Royal Commission into Aboriginal Deaths in Custody in the Social Justice Report 2001, Indigenous juveniles now regularly comprise 42 percent of all people in juvenile detention and Indigenous adults comprise 20 percent of the adult corrections population on a national basis. This is worse than the circumstances at the time the Royal Commission was established and exists despite Indigenous people constituting just over two percent of the total Australian population.
The situation is similar regarding standards of health and education, employment status and other measures of socio-economic status. Some gains are being made, but they are overwhelmed by the continued hardship, stress and trauma faced by the majority of Indigenous peoples and the extremely slow pace of change.
Issues about which the community would have once expressed great concern, even outrage, now pass by almost unnoticed or simply accepted. But we can never accept this situation as inevitable, to be expected or a reflection of the way things are. This situation reflects serious failure to make progress towards an equal society. It also reflects a serious breakdown in government accountability for human rights.
What concerns me greatly is the lack of momentum to change this situation. The status of Indigenous communities should be attracting bi-partisan political support for commitments at the national level to address it as a matter of urgency and priority, with clear targets and goals for the short, medium and long terms, with funding directed towards meeting such goals, and with processes being instituted which facilitate Indigenous participation in decision making processes. It is in everybody's interests for such change to occur.
An opportunity to make real changes based on the inherent rights of Indigenous people was presented in the High Court's recognition of native title 10 years ago. Rather than maximising the potential of native title to deliver economic, social and political outcomes for Indigenous people the government's response has been to encase native title in a legal armature that is aimed at restricting rather than maximising this potential. The amendments to the Native Title Act which ensure that the grant of a non-Indigenous interest extinguishes, partially extinguishes or prevails over Indigenous interests render native title powerless to transform the lives of Indigenous people.
Through the combination of the Council for Aboriginal Reconciliation, the landmark report of the Commonwealth Grants Commission, the work of the Aboriginal and Torres Strait Islander Commission and the Social Justice Commissioner, a plethora of parliamentary committees and other agencies there is much guidance on how to go about improving this situation.
As Social Justice Commissioner I will continue to critically analyse the adequacy of governmental efforts towards this goal even though it gives me no pleasure to report on governmental failure.
I will also continue to give prominence to positive initiatives by government and by Indigenous communities - such as through my focus in my latest reports on governance initiatives and community capacity building processes, developments in the introduction of diversionary processes for juveniles in the Northern Territory, and agreement making processes under the Native Title Act.
I will continue my efforts to provide a broader understanding of the importance of human rights standards to Indigenous people's lives, through the redevelopment of the National Indigenous Legal Studies Curriculum for Aboriginal Legal Services' field officers; the redevelopment and outreach of the Tracking your Rights package; the distillation of further best practice principles and case studies similar to those developed for juvenile diversion in the past year; and the enhancing of Indigenous community capacity to understand and incorporate human rights to protect culture and land through my ongoing corporate responsibility, land and resources project. And I will continue to seek to persuade the broader community to recognise and respect the valuable, distinct characteristics of Indigenous cultures.
Monitoring and reporting
Social Justice Report 2001
Under section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986, the Commissioner is required annually to submit a report to the Attorney-General on the exercise and enjoyment of human rights by Aboriginal peoples and Torres Strait Islanders.
The Social Justice Report 2001 is the third by the current Commissioner. It was transmitted to the Attorney-General on 23 December 2001, and tabled in both houses of Federal Parliament after 15 sitting days on 14 May 2002.
The Report expresses concern at developments ten years on from the Royal Commission into Aboriginal Deaths in Custody:
The sense of urgency and commitment to addressing Indigenous over-representation in criminal justice processes has slowly dissipated. Indigenous people have continued to die in custody at high rates in the decade since the Royal Commission, and the average rate of Indigenous people in corrections has steadily increased on a national basis since the Royal Commission. Yet in 2001 this hardly raises a murmur of discontent yet alone outrage among the broader community. These facts either go unnoticed, or perhaps even worse in the age of reconciliation, are simply accepted and not challenged. As a consequence, Indigenous affairs seem to have become a series of anniversaries - operating as an annual reminder of the unfulfilled promises and commitments of governments. (Social Justice Report 2001, page 7).
In reviewing government progress in the first year since the final report of the Council for Aboriginal Reconciliation, the Report also focuses on measures adopted to ensure reconciliation is ongoing; processes for measuring and evaluating outcomes; and the leadership of the federal government.
The Report notes that in this period there has been no formal response by the federal government to the documents of reconciliation or the final report of the Council for Aboriginal 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…. 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. (Social Justice Report, page 203).
To refocus attention on the reconciliation process, and to ensure adequate accountability and transparency of government, the Commissioner makes two recommendations in the Report relating to reconciliation, namely that the Senate establish a committee inquiry into the response of government to the reconciliation process and that the government provide a response to the Social Justice Report in Parliament within 15 sitting days of tabling the Report.
The Report also analyses criminal justice issues relating to juvenile diversionary schemes and mandatory sentencing in Western Australia and the Northern Territory. There are four recommendations directed at the Western Australian government to improve the juvenile diversionary system. This 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 Perth.
There are six recommendations for the Northern Territory government to improve their newly introduced juvenile diversionary schemes. The Report finds that the schemes have been rapidly progressed in their first year but require additional legal safeguards and must involve greater government coordination and Indigenous participation.
The Report also considers the mutual obligation approach to welfare reform. While noting it has many positive features the Report also expresses concern at the limitations of this approach and its potential to effect Indigenous people detrimentally. 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, which range from cultural to historical factors. The Report also provides case studies of community capacity building and governance initiatives which provide examples of alternatives to the mutual obligation approach.
An executive summary and the full report can be found on the Commission's website at www.humanrights.gov.au/social_justice/.
Native Title Report 2001
Under section 209 of the Native Title Act 1993, the Commissioner is required annually to submit to the Attorney-General a report on the operation of the Native Title Act and the effect of the Act on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.
The Native Title Report 2001 is the third by the current Commissioner. It was transmitted to the Attorney-General on 2 January 2002 and tabled in both houses of the federal Parliament on 14 May 2002.
The Report considers progress in the 10 years since native title was first recognised in the Mabo decision. It finds that the potential outcomes of native title have not been realised because the native title system, as structured by the Native Title Act and the common law, operates to restrict rather than enhance the capacity of native title to deliver real outcomes.
The Report evaluates, against human rights standards, the administrative practices developed in Western Australia, Northern Territory, Queensland, New South Wales, and Victoria in creating and managing non-Indigenous interests (largely mineral tenements) on land where native title does or may exist. It also evaluates against the same standards, the management of the expedited procedure (a process where a government can 'fast track' a proposed development where there will be only limited effects on Indigenous interests in the relevant land) by state governments and the National Native Title Tribunal. The Report concludes that:
"the failure to provide native title parties with the opportunity to negotiate about the development of their native title lands favours the property rights of kinds held by non-Indigenous people over those held by Indigenous people". (Native Title Report, page 51).
The Report considers how the allocation of funds by the Commonwealth government to institutions participating in the native title system impacts on the level of protection extended to native title. The Report explains the distribution of funding within the native title system, assessing the division between the Federal Court, National Native Title Tribunal, Commonwealth Attorney-General and native title representative bodies. Following these comparisons the Report then looks at the level of funding of native title representative bodies compared to their statutory functions, and demonstrates the critical factors that are not reflected in the levels of funding:
From a human rights perspective, it is essential that the organisations whose function is to ensure the recognition and protection of native title and the participation of native title parties in economic development of their land are properly funded. The allocation of funds in the Federal budgetary process has not apportioned sufficient funds to the representative bodies responsible for carrying out these functions. The inadequate funding of representative bodies relative to their statutory functions has had the cumulative effect of undermining their capacity to adequately promote and protect Indigenous interests in the native title process. (Native Title Report, page 55).
In view of the limitations in the current native title system and the practices developed to administer native title policies, the Report considers the use of framework agreements as an opportunity for both Indigenous and non-Indigenous parties to settle upon a set of standards for the co-existence of their interests in land.
The Report argues that the content and process in the development of a framework agreement needs to be guided by human rights standards. Issues such as recognising Indigenous interests, contemporary Indigenous culture, and the communal nature of native title are vitally important to developing an equitable agreement. Issues that can be addressed through agreements consistent with human rights principles include meaningful acknowledgement of Indigenous interest in the relevant area, recognition and protection of contemporary cultural practices, allowing (and where necessary, assisting) the involvement of all native title holders who may be affected by outcomes of any framework agreement, and ensuring a cooperative approach to implementing any agreement.
Framework agreements can provide certainty and stability in the relationships that they engender, and will be a viable option for commercial entities wanting to do business with Aboriginal people. The drawback however, is that while framework agreements may provide an effective way forward, they depend on being voluntarily adopted by those engaging directly with Indigenous people. While native title rights are seen as limited non-exclusive, easily extinguishable rights, it will be increasingly difficult to convince developers, mining and resource companies, pastoralists, local and state governments, to voluntarily adopt a human rights approach.
An executive summary and the full report can be found on the Commission's website at www.humanrights.gov.au/social_justice/.Submissions
The Commissioner provided submissions into a number of projects and reviews in 2001-02. These include:
Review of the Project Development Approvals System (Western Australia)
The Western Australian Government commissioned an independent committee to review the system in Western Australia for dealing with proposals to develop projects in the State. The Commissioner made a submission on the interim report urging the Committee to address, in its analysis of the development approval system in Western Australia, the human rights of Indigenous peoples and their relationship to that system.
A threshold issue of concern in the review was the lack of Indigenous input. Various human rights standards indicate that the effective participation of Indigenous peoples is essential in decision making that will affect their traditional lands and lifestyles. The Committee was urged to ensure that its deliberations were well publicised to Indigenous organisations and people who may be affected by those deliberations, and that, where necessary, the participation of those parties be facilitated by the Committee.
In the Commissioner's view the interim report adopted a development oriented perspective at the expense of human rights principles relevant to Indigenous people. Even where the status and role of Indigenous people is centrally important, for example in discussing the operation of the Native Title Act and Aboriginal heritage, this is not reflected in the report.
The Commissioner was particularly concerned by the Committee's view that '[I]t is not sensible to allow obstacles to be placed before the owner of a resource, as that owner may have alternatives elsewhere, where land is not an issue'. In the context of the Report, 'obstacles' refers to 'Aboriginal…claims to hold native title'.
Mining, Minerals and Sustainable Development Project
The Mining Minerals and Sustainable Development (MMSD) project, is a two year global project run by the World Business Council for Sustainable Development (a coalition of 150 international companies "united by a shared commitment to sustainable development") and the International Institute for Environment and Development ("an independent, non-profit organisation promoting sustainable patterns of world development through collaborative research, policy studies, networking and knowledge dissemination"). The MMSD Project is divided into regions, with the Australian part including various projects and meetings to:
- identify how the mining and minerals industries can best contribute to sustainable development
- build understanding and trust between the industry and people affected by its operations
- develop a common understanding of the industry's contribution - positive and negative - to society
- develop a shared vision for future minerals development in Australia.
MMSD Australia has prepared research studies and an overall draft report. The Commissioner made submissions in relation to the studies and the draft report and participated in key meetings and workshops. The Commissioner is pleased that the final report of the Australian component of the project included, as one of its critical issues, 'The promotion of the rights and well being of Indigenous communities' The report recognised that it was essential that mineral development operations receive the prior informed consent of local Indigenous communities; that traditional owners are able to assess and respond to mining proposals; and benefits of the project are equitably distributed between companies, communities and government.
Wand Review of the State Governments "General Guidelines for Native Title Determinations and Agreements"
The "Wand Review" established a set of draft negotiating principles for the settlement of native title applications in Western Australia. The Draft Guidelines state that the Government will pursue a 'cooperative approach' to the resolution of native title claims. The main focus of the Guidelines is to establish the level of evidence that will be required by Government of connection to country before they will engage in negotiations.
On 14 August 2001 the Commissioner made a submission to the Review which applauded the attempt of the Western Australian Government to identify and adopt appropriate processes for negotiating agreements, but noted with concern that in some respects, the approach adopted did not endorse essential minimum standards that require outcomes to be consistent with basic human rights standards.
The submission recommended that any minimum standards should recognise that:
- Native title interests are entitled to the same level of protection as non-Indigenous interests.
- Negotiations be based on the non-extinguishment of native title.
- Agreements should be negotiated that encourage and allow continued observance of Indigenous laws and customs.
- Agreements should be negotiated that encourage and allow Indigenous governance within their traditional lands.
- Native title holders should be recognised as owners or joint owners and managers of the land.
- Joint management arrangements in national parks should be provided for.
- Native title is a group right and that the intergenerational aspect of the right must be protected.
- Native title parties' "connection" to land should not be interpreted restrictively.
It was submitted that the process for negotiation of native title agreements should also reflect these principles.
Technical Taskforce on Mineral Tenements and Land Title Applications
In August 2001 the Western Australian Government released a discussion paper on mineral tenements and land title applications which recommended amendments to Western Australian mining legislation aimed to reduce the backlog of mining lease applications.
The Commissioner commended some elements of the Technical Taskforce's recommendations, but remained concerned about:
- The focus of the recommendations on the reduction of the 'backlog' of mining license applications (and other future act applications), rather than the development of a long term approach to the inclusion of native title rights within land management in Western Australia.
- The substitution of heritage agreements for more substantial negotiation with native title parties.
- The failure to adopt a policy of non-extinguishment for all dealings with native title land.
Protection of human genetic information
The Commissioner made a submission to the Australian Law Reform Commission's Inquiry into the Protection of Human Genetic Information. The submission noted the particular vulnerability of Indigenous people to exploitation of their genetic heritage, the necessity for specific protection from such exploitation and the necessity for processes to require their informed consent and participation. The submission also referred to developing international human rights standards for the protection of genetic information. The submission is available on the Commission's website at www.humanrights.gov.au/social_justice/genetic_information.html.
Senate motion regarding mandatory sentencing
On 13 April 2000 the Senate passed a motion requesting that the Commission inquire into all aspects of mandatory sentencing in the Northern Territory and Western Australia in two stages.
The Commission responded to the first stage of the request in May 2000 and indicated that the Commissioner would then:
- assess the continued impact of mandatory sentencing laws in the Northern Territory and Western Australia on Indigenous Australians
- assess the impact on Indigenous Australians of the additional discretion placed in the Northern Territory Police
- develop a methodology against which to assess the appropriateness and success of diversionary schemes in the Northern Territory and Western Australia, and assess these schemes on this basis.
The Commissioner addressed the Senate Legal and Constitutional References Committee Public Hearing for their Inquiry into Mandatory Sentencing on 14 August 2001 in Sydney and updated his progress in this work. A submission was also provided to the Committee.
The Commissioner published the results of his research on mandatory sentencing and diversionary schemes in the Social Justice Report 2001 which was tabled in Parliament on 14 May 2002.
Promoting awareness and discussion of human rights issues
The Commissioner is required under section 46C(1)(b) of the Human Rights and Equal Opportunity Commission Act to promote discussion and awareness of human rights in relation to Aboriginal peoples and Torres Strait Islanders.
Corporate Responsibility Forum
In May 2002 Commissioner co-hosted, with Griffith University, a forum in which approximately 30 Aboriginal people from diverse resource regions of Australia developed a set of principles for resource development on their land. The forum explored the question: "What would the relationship between Indigenous communities and resource development companies look like if human rights, such as the right of Indigenous people to effective participation in the management of their land and the right to cultural recognition, were shared values?"
The significance of this forum lay, not only in the principles, but also in the unique process by which their formulation took place. The forum was held over three days. On the first two days Indigenous participants and representatives developed principles as a response to the issues that have arisen for them on their land. Fundamental to this process was the belief that, as an exercise of the right to self determination, Indigenous people must be given the opportunity to decide, from their perspective, the obstacles that need to be overcome and the priorities that need to be set in their relationship with resource companies.
On the third day of the forum the draft principles were presented to mining company representatives and non-government organisations for feedback and discussion. Company representatives were asked to provide the participants with honest feedback on whether, and if so how, the principles could best operate in the field. It was agreed that as a result of this process, both company representatives and Indigenous people gained a greater understanding of their respective values and priorities.
The principles are intended to have a number of uses including: for the use of Indigenous communities wishing to develop their own policy on mining; to assist in framing issues for negotiation with mining companies; for incorporation into social responsibility policies of companies, and for use by auditors and assessors in developing benchmarks for company's social responsibility performance.
Further information and documents concerning the forum can be found at www.humanrights.gov.au/social_justice/corporateresponsibility/.
National Reparations Conference
The Commissioner co-hosted Moving Forward - Achieving Reparations for the Stolen Generations with the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Public Interest Advocacy Centre (PIAC) on 15-16 August 2001 at the University of New South Wales.
The Commission, ATSIC and PIAC were concerned about the inadequacy of the responses of governments and the churches to the issues raised in Bringing them home, the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. The three organisations agreed to join in a partnership to convene a national conference to facilitate discussion about ways to move forward and better meet the needs of those people forcibly removed from their families.
The conference sought to provide a forum to consider the adequacy of government measures to meet the needs of those affected by forcible removals; international law principles and models for providing reparations for violations of human rights; the findings of PIAC's national consultation process on reparations; government and church responses to the history and effects of forcible removals; and the importance of reparations in advancing the process of reconciliation.
Funding for the conference and a conference secretariat were provided by ATSIC. The Commission agreed to manage the organisation of the conference, provide finance processing, website design and public awareness.
The conference featured a number of international guests providing perspectives on proposals for reparations in other countries, as well as representatives of government, the opposition, the churches and stolen generations groups in Australia.
What became apparent fairly early in the conference was that members of the stolen generations continue to suffer great hardships, and that efforts to date have not ameliorated their harm. Stolen generations members needed to be able to share their stories and experiences as part of their individual healing process. Throughout the conference, members of the stolen generations rose to speak about their lives and the problems they face as a consequence of their removal.
The emotion and the reality of their experiences stood in stark contrast to the response by the Government that immediately followed, with its detailed rejection of the concept of a reparations tribunal. There could be no greater gulf between the individual cries for help heard during the conference, and the narrowness and unwillingness of the Government to consider alternative approaches to redressing this harm.
Ultimately, 28 recommendations were formed at the conference. These remained open for comment and community consultation for approximately 10 weeks after the conference and were finalised in early November 2001.
The recommendations reflect concerns at the level of implementation of the recommendations of Bringing them home, with conference participants urging the Government to see the recommendations as a package of integrated, complementary measures. Conference participants considered that there are significant social and economic costs to the current approach of not adequately responding to the recommendations, and reaffirmed the ongoing and urgent need for reparations and healing.
A strong message from the conference was the need for broader consultations with stolen generations' members about the forms reparations should take. They considered that PIAC's reparations tribunal model was an appropriate basis on which to conduct further consultations.
One of the main outcomes of the conference was that it expanded the knowledge of participants on the reparations approach and national and international developments in this regard. Many people left the conference keen to go back to their communities to share their experiences and their knowledge. They saw the conference outcomes as the start of further important processes which might bring some resolution to their calls for redress.
The conference recommendations and speeches are available at the conference website at www.humanrights.gov.au/movingforward/.
International activities
Section 46C(3) of the Human Rights and Equal Opportunity Commission Act 1986 states that in the performance of the Social Justice Commissioner's functions, the Commissioner may consult with international organisations and agencies, particularly international Indigenous organisations. Section 46C(4) states that in the performance of the Commissioner's functions, the Commissioner must have regard to international human rights treaties to which Australia is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination.
In accordance with these functions, and in his dual capacity as Social Justice and acting Race Discrimination Commissioner, the Commissioner attended the World Conference Against Racism in South Africa in August-September 2001. A full report on the World Conference is contained in the Race Discrimination Section at Chapter 7 of this Report.
In May 2002, the Commissioner also attended the inaugural session of the United Nations Permanent Forum on Indigenous Issues in New York. The establishment of a Permanent Forum was identified as one of the major goals of the United Nations International Decade for the World's Indigenous People which ends in 2004.
The Commissioner made two interventions in the Forum, highlighting issues of human rights significance in the Forum's interaction with United Nations agencies and setting out key considerations for how the Forum should operate from an Australian Indigenous perspective. Information about the Permanent Forum and copies of Commissioner Jonas' interventions are available on the Commission's website at www.humanrights.gov.au/social_justice/.
A new International Indigenous issues section was added to the Social Justice Commissioner's website in May 2002 which provides simple access to relevant United Nations documents on Indigenous issues and international scrutiny of Australia's Indigenous affairs policies. The address is www.humanrights.gov.au/social_justice/internat_develop.html.
Research and educational programs
Under section 46C(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 the Commissioner is required to undertake research and educational programs for the purposes of promoting respect for, and enjoyment and exercise of, human rights by Aboriginal peoples and Torres Strait Islanders.
National Indigenous Legal Studies Curriculum
The National Indigenous Legal Studies Curriculum was developed in 1996 to increase the level of human rights and legal education and training available to Aborigines and Torres Strait Islander peoples, particularly those working as Aboriginal Field Officers in legal services. There are currently seven registered training organisations licensed to use the curriculum.
Nationally recognised accreditation for the curriculum was due to expire in April 2002. The package of courses that make up the curriculum must be reformatted from their current module based format into a competency framework in accordance with national training accreditation guidelines in order for them to be reaccredited.
The Commission obtained an extension for re-accreditation from the Australian National Training Authority until 2003, and during the past financial year the Commissioner commenced the re-accreditation process.
In 2001, the Business Services Advisory Board of the Australian National Training Authority conducted a mapping exercise for the Commission to identify how current modules of the curriculum could be matched against competencies in existing registered training packages. The results of this process were then used to consult with existing registered training providers about the re-accreditation process.
The Commission has since been provided with $30 000 funding from the National Policy Office of the Aboriginal and Torres Strait Islander Commission and other assistance from the Legal Preventative Services Branch of this Commission towards the necessary process for the re-accreditation of the curriculum. Curriculum designers will shortly be hired by the Commission to complete the necessary revisions, and a Curriculum Development Advisory Committee comprising educational providers, Aboriginal legal services and peak bodies is currently being formed to guide the process in accordance with national reaccreditation guidelines.
The Commission will be able to apply for reaccreditation of the Curriculum by February 2003. Further details about the accreditation process can be obtained from the Commission's website at www.humanrights.gov.au/social_justice/education/.
Best practice principles for diversion of juveniles
In November 2001 the Commissioner released the fifth instalment in the Human Rights Brief series - Best practice standards for the diversion of juveniles. The Brief provides practitioners and policy makers with a simple, schematic guide to human rights principles relevant to the establishment of diversionary mechanisms from custody for juveniles. It includes a practitioner's checklist to ensure compliance with human rights standards. The principles in the Brief were utilised in the review of juveniles diversion in the Northern Territory and Western Australia contained in Chapter 5 of the Social Justice Report 2001.
The brief is available on the Commission's website at www.humanrights.gov.au/human_rights/briefs/brief_5.html.
National Community Education Program - Tracking Your Rights
Tracking Your Rights was developed in response to recommendation 211 of the Royal Commission into Aboriginal Deaths in Custody, which called on the Commission, and state anti-discrimination commissions, to develop programs to inform the Aboriginal community about anti-discrimination legislation and how to use it. The package aims to transfer information about anti-discrimination laws to Aboriginal and Torres Strait Islander peoples so that they know their legal rights and can thereby facilitate the successful resolution of community and individual conflicts.
Tracking Your Rights was launched in January 1998. The implementation of the program relies heavily on coordination with federal agencies and with the states and territories. A number of initiatives that are currently in place to promote the program were discussed in last year's Annual Report.
During the financial year the Commissioner began to consider options for the updating and review of the project.
Intervention in court proceedings
Section 11(1)(o) of the Human Rights and Equal Opportunity Act 1986 provides that the Commission may seek to intervene in court proceedings.
On 23 May 2002 the Commission was granted leave by the High Court to intervene in the native title case of Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors.
The Commission made submissions on the substantive issues of the appeal, namely, abandonment of native title; the concept of traditional laws and customs; the requisite connection with the claimed land or waters; the burden of proof in relation to cessation, and the role of oral testimony in native title claims. The Commission submitted that the provisions of the Native Title Act which affect these substantive issues, among others section 223(1), must be construed consistently with human rights standards relating to equality before the law, the rights of indigenous minorities to practice and revitalise their culture, and freedom of religion. Further information can be found in the Legal Section at Chapter 3 of this Report.
The High Court has reserved its decision in the case.
Speeches
A selection of speeches, seminars and presentations made by, or on behalf of, Commissioner Jonas during 2001-02 are listed below. Further speeches are available on the Commission's website at www.humanrights.gov.au/speeches/social_justice/.
Welfare Poison or Welfare Autonomy, University of New South Wales: Social Policy Conference, Sydney, 6 July 2001.
Indigenous Disadvantage: Australia's Human Rights Crisis, Australian Council of Social Services/Australians for Native Title and Reconciliation Seminar: Practical Reconciliation or Treaty Talks, Canberra, 25 July 2001.
Moving forward - from 'practical reconciliation' to social justice, Moving Forward - Achieving Reparations for the Stolen Generations Conference, Sydney, 14 August 2001.
Evolving Law and Order Policy - A Rights Perspective, Aboriginal and Torres Strait Islander Commission Conference: The Royal Commission into Aboriginal Deaths in Custody Forum - Unfinished Business, Sydney, 2 November 2001.
Capacity Building Workshop for Native Title Representative Bodies, Noosa, 20 November 2001.
International Workshop on Indigenous People and Relationships with the Mining Sector, MMSD Australia, Perth, 4-6 February 2002.
Indigenous Rights Recognition in Public Policy - a domestic perspective, Aboriginal and Torres Strait Islander Commission: National Policy Conference, Canberra, 28 March 2002.
Community Justice, Law and Governance, Reconciliation Australia: Indigenous Governance Conference , Canberra, 4 April 2002.
Opening Speech, Human Rights and Equal Opportunity Commission Corporate Responsibility Forum, Alice Springs, 6 May 2002.
The right to self-determination of Indigenous Peoples - an Australian perspective, The International Centre for Human Rights and Democratic Development: Self-determination workshop, New York, United States, 18 May 2002.
Reflections on the History of Indigenous People's Struggle for Human Rights in Australia - What Role Could A Treaty Play, Treaty - Advancing Reconciliation, Murdoch University, Perth, 27 June 2002.
