Editors --- "Commonwealth Government response to the Council for Aboriginal Reconciliation Final Report Reconciliation: Australia's Challenge - Digest" [2002] AUIndigLawRpr 66; (2002) 7(4) Australian Indigenous Law Reporter 54

Inquiries and Reports - Australia

Commonwealth Government response to the Council for Aboriginal Reconciliation Final Report Reconciliation: Australia’s Challenge

Government of the Commonwealth Australia

Canberra

September 2002

Editor’s note: For a critique of the concept of practical reconciliation please see the Aboriginal Torres Strait Islander Social Justice Commissioner’s 2001 Social Justice Report extracted in Volume 7, Issue 2 of the Australian Indigenous Law Reporter (2002) or ‘Reconciliation: History Shapes the Future’, a speech by Senator Aden Ridgeway published in Volume 7, Issue 3 of the Australian Indigenous Law Reporter (2002).

Introduction

Reconciliation is not an abstract concept. It is acknowledged as an important priority by and for our nation. Throughout the 1990s and into the new millennium, the process of reconciliation has gathered growing and overwhelming support by governments, by the wider community, and among Aboriginal and Torres Strait Islander people.

The establishment of the reconciliation process was influenced by a range of factors and events spanning successive governments. The 1980s were dominated by the issues of Indigenous rights and land rights with Indigenous people calling for the government to recognise their rights in the form of a ‘treaty’. While in 1988, the then Prime Minister, the Hon R J Hawke AC, committed the Government to negotiating a treaty, broad agreement could not be reached on such matters in the Parliament or within the wider community, and the national focus of Indigenous affairs moved on to other issues. Following on from the 1991 Report of the Royal Commission into Aboriginal Deaths in Custody, there was a call for political leaders to recognise reconciliation as a key means of reducing the division and discord around Indigenous issues and to confront and defeat injustice to Aboriginal people.

In 1991, unanimous cross-party political support was achieved when the Commonwealth Parliament voted to establish the Council for Aboriginal Reconciliation to progress a formal reconciliation process. The Parliament noted that there had been no formal process of reconciliation to date, and that it was ‘most desirable that there be such a reconciliation’ by the year 2001, the Centenary of Federation. At the time the Bill was introduced in Parliament in 1991, the Hon Dr Michael Wooldridge, the then Shadow Minister for Aboriginal and Torres Strait Islander Affairs, said, ‘If anything is to be achieved in the area of Aboriginal affairs, it will be achieved with simple practical solutions, with realistic, measurable and achievable goals, with co-operation rather than confrontation and, quite simply, hard work free from political bickering.’

The object of the establishment of the Council was to promote a process of reconciliation between Indigenous people and the wider community based on an appreciation of Indigenous cultures and to foster an ongoing commitment to addressing Indigenous disadvantage. One of the key Council functions under the Council for Aboriginal Reconciliation Act 1991 (the Act) was to consult widely with Indigenous people and the wider community on the merits of a document or documents of reconciliation and to make recommendations on the content and manner of giving effect to a document or documents. The Council’s charter was to promote both practical and symbolic reconciliation.

The Council ceased operations in accordance with the sunset clause in the Act on 31 December 2000. The Council had energetically performed its functions over the previous nine years and played a significant role in promoting and furthering a process of reconciliation. Australia can be proud of the progress which has been made. Nonetheless there remains much work to be done. True reconciliation can never be said to have occurred until Indigenous Australians enjoy the same opportunities and standards of treatment as other Australians. Achieving sustainable improvements in outcomes for Indigenous people — that is, better health, better education, and a better standard of living — is the true test of reconciliation.

Among the achievements of the past decade are the growth of a people’s movement which harnessed and increased community awareness of, and enthusiasm for reconciliation; bridge walks demonstrating widespread support for reconciliation across the nation; and the recognition of native title in legislation following from the High Court’s findings in the Mabo case ([1992] 1 QdR 78) [1992] HCA 23. The Council presented its reconciliation documents (the Roadmap for Reconciliation and Declaration towards Reconciliation) to the largest ever gathering of Australian leaders at Corroboree 2000 in May of that year. The Council’s work culminated in its final report, Reconciliation: Australia’s Challenge (the Final Report) which was presented to the Commonwealth Parliament in December 2000.

The Council has generated an enduring legacy of bipartisan support for its efforts. This was demonstrated at the November 2000 meeting of the Council of Australian Governments (COAG) where the Commonwealth Government was joined by all State and Territory Governments in its commitment to continuing the process of reconciliation and to addressing the high levels of disadvantage faced by many Indigenous Australians. This commitment was renewed at the COAG meeting in April 2002. Progress continues to be made within and between governments in a number of practical areas.

This bipartisan commitment to reconciliation was also demonstrated when on 26 August 1999, both Houses of the Australian Parliament resolved to adopt the Commonwealth Government’s historic Motion of Reconciliation. This motion appears below.

Motion of Reconciliation

Moved by the Prime Minister, the Hon John Howard MP

That this House:

(a) Reaffirms its wholehearted commitment to the cause of reconciliation between Indigenous and non-Indigenous Australians as an important national priority for Australians;

(b) Recognising the achievements of the Australian nation commits to work together to strengthen the bonds that unite us, to respect and appreciate our differences and to build a fair and prosperous future in which we can all share;

(c) Reaffirms the central importance of practical measures leading to practical results that address the profound economic and social disadvantage which continues to be experienced by many Indigenous Australians;

(d) recognises the importance of understanding the shared history of Indigenous and non-Indigenous Australians and the need to acknowledge openly the wrongs and injustices of Australia’s past;

(e) acknowledges that the mistreatment of many Indigenous Australians over a significant period represents the most blemished chapter in our international history;

(f) expresses its deep and sincere regret that Indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many Indigenous people continue to feel as a consequence of those practices; and

(g) believes that we, having achieved so much as a nation, can now move forward together for the benefit of all Australians.

At Corroboree 2000, the Government pledged its commitment to the Council’s vision of ‘a United Australia, which respects this land of ours; values the Aboriginal and Torres Strait Islander heritage and provides justice and equity for all.’

In its Corroboree 2000 vision, the Council acknowledged that there are many paths to reconciliation. The Government supports a flexible approach to advancing the reconciliation process. The Prime Minister, the Hon John Howard MP, has said that reconciliation is an ‘unstoppable force and rather than a disproportionate focus on what is the preferred path, collective priority must be to strengthen support for the ongoing process to most importantly improve the lives of Indigenous Australians’. The Government believes that the key to continuing progress is a commitment by all Australians to achieving reconciliation through addressing disadvantage and by improving community attitudes and understanding. All Australians have a responsibility in this regard and the Government gladly adopts a driving role. The Government will maintain its commitment to the implementation of practical and symbolic measures which have a positive effect on the everyday lives of Indigenous Australians.

Over the last decade the nation has been enriched by the progress towards reconciliation. Support for reconciliation has never been greater. The Government maintains that the things that unite Australians are infinitely greater and more enduring than the things that divide. And so it is in relation to reconciliation.

Final report

A major function of the Council, as set out in section 6 of the Act, was the requirement to:

... consult Aborigines and Torres Strait Islanders and the wider Australian community on whether reconciliation would be advanced by a formal document or documents of reconciliation; and

after that consultation, to report to the Minister on the views of Aboriginals and Torres Strait Islanders and of the wider Australian community as to whether such a document or documents of reconciliation would benefit the Australian community as a whole, and if the Council considers there would be such benefit, to make recommendations to the Minister on the nature and content of, and manner of giving effect to, such a document or documents.

Subsequently, at Corroboree 2000, on 27 May 2000, the Council presented to the Prime Minister, other national leaders and the nation as a whole, the Australian Declaration Towards Reconciliation (the Declaration) and the Roadmap for Reconciliation (the Roadmap) representing its formal recommendations on documents of reconciliation. These documents were followed by its Final Report which was presented to the Prime Minister and the Commonwealth Parliament on 7 December 2000, and which makes six recommendations on the manner of giving effect to these documents of reconciliation.

It is important to appreciate that the Council’s proposals, especially the Roadmap and accompanying strategies, were not solely addressed to the Commonwealth Government. They were addressed to all governments and to the community as a whole. It is up to each to respond in its own way to the Council’s proposals. The response of the Commonwealth Government is but one piece, albeit an important one, in that mosaic.

The Commonwealth Government’s response to the Final Report’s six recommendations and to other issues raised in the Declaration and the Roadmap is set out below. In developing this response, the Government has taken a careful and considered approach to ensure that the enormous amount of effort and commitment the Council put into producing these documents is reflected in the Government’s response. Other stakeholders or groups with an interest in the report will respond as they see fit.

Recommendation 1

The Council of Australian Governments (COAG) agree to implement and monitor a national framework whereby all Governments and the Aboriginal and Torres Strait Islander Commission (ATSIC) work to overcome Aboriginal and Torres Strait Islander peoples’ disadvantage through setting programme performance benchmarks that are measurable (including timelines), are agreed in partnership with Aboriginal and Torres Strait Islander peoples and communities, and are publicly reported.

This recommendation was acted on before the Final Report was presented to the Commonwealth Parliament.

The COAG considered the challenges of reconciliation at its meeting on 3 November 2000. It took the opportunity to thank the Council for its extensive work and contribution to the nation in its nine years of existence. It agreed that reconciliation would be an ongoing issue in the life of Australians and a priority issue for all governments, requiring a concerted and sustained effort over many years. COAG also acknowledged the unique status of Indigenous Australians and the need for recognition, respect and understanding in the wider community.

On 3 November 2000, COAG also agreed to a framework to advance reconciliation, promote economic independence and address the economic disadvantage that is experienced by many Aboriginal and Torres Strait Islander people. COAG agreed to a new national approach in Aboriginal and Torres Strait Islander Affairs, based on partnerships and shared responsibilities with Indigenous communities, and programme flexibility and coordination between government agencies, with a focus on local communities and outcomes. COAG agreed to action in three priority areas:

• investing in community leadership initiatives;
• reviewing and re-engineering programmes and services to ensure they deliver practical measures that support Indigenous families, children and young people. In particular, governments agreed to look at measures for tackling family violence, drug and alcohol dependency and other symptoms of community dysfunction; and
• forging greater links between the business sector and Indigenous communities to help promote economic independence.

The Council indicated in the Final Report that it was heartened by the fact that COAG has acknowledged reconciliation as a priority issue for all governments and agreed to take a leading role in pursuing the necessary changes and periodically reviewing progress under these arrangements. The Council recognised the implementation of the COAG agreement as a key plank in sustaining the reconciliation process into the future.

The November 2000 COAG commitment to reconciliation recognises that the 1992 National Commitment to Improved Outcomes in the Delivery of Programmes and Services for Aboriginal peoples and Torres Strait Islanders proved less successful than originally anticipated, largely because it did not contain mechanisms for follow through or accountability measures.

COAG therefore agreed to the development of action plans, performance-monitoring strategies and performance benchmarks for Indigenous programmes. These are being developed and implemented by Commonwealth/State Ministerial Councils. The Australian Health Ministers’ Council provides a model for the other ministerial councils with its Aboriginal and Torres Strait Islander health performance indicators first agreed in 1997.

COAG also agreed that the annual Report on Government Services, prepared by the Productivity Commission on behalf of the Steering Committee for the Review of Commonwealth State Service Provision, would continue to focus on the performance of mainstream services in meeting the needs of Indigenous Australians. This annual report covers many areas of social policy that are critical to the advancement of reconciliation, including: school education, vocational education and training, health, police services, court administration, corrective services, aged and community care services, services for people with a disability, children’s services, child protection and support services, and housing.

In April 2002, COAG met to consider the nation’s progress in implementing the framework to advance reconciliation and to consider next steps in addressing the identified priorities. The Council agreed to trial a whole-of-governments approach in up to 10 communities or regions. The aim of these trials will be to improve the way governments interact with each other and with communities to deliver more effective responses to the needs of Indigenous Australians.

The Commonwealth is determined that these trials will succeed and has established a core group of Departmental Secretaries which will guide a dedicated taskforce charged with the responsibility of turning the whole-of-government approach into reality.

At its April 2002 meeting, COAG also agreed to commission the Steering Committee for the Review of Commonwealth/ State Service Provision to produce a regular report against key indicators of Indigenous disadvantage. This report will help to measure the impact of changes to policy settings and service delivery and provide a concrete way to measure the effect of the Council’s commitment to reconciliation through a jointly agreed set of indicators.

Converting the COAG agreement into measurable outcomes is and will remain a central priority for the Government.

COAG’s approach is very much consistent with that of the Council. The Council agreed that many actions are necessary to advance reconciliation, from governments, the private sector, community organisations, Indigenous communities, and the wider community. The Commonwealth Government continues to pursue the approach agreed by COAG and looks forward to the achievement of real and lasting improvements as a result.

The Government recognises and has consistently focused on the need to relieve the serious social and economic disadvantage suffered by many Indigenous Australians. It is the Government’s view that the cornerstone of its contribution to the reconciliation process must continue to be providing practical and effective measures to address the legacy of profound economic and social disadvantage experienced by the Indigenous community, particularly in the areas of housing, health, education and employment. The Government is committed to addressing these disadvantages and, in 2002-03, is providing $2.5 billion for Indigenous-specific programmes, the highest amount on record for the fourth year in a row. The Government considers that true reconciliation can be achieved only if Indigenous Australians can participate equally in the opportunities available to all Australians.

Governments have made solid and consistent efforts to address disadvantage and improvements have been achieved.

Education:

• from the commencement of secondary schooling, the proportion of Indigenous children who stay on at school through to Year 12 has risen from 29 per cent in 1996 to 36 per cent in 2001;
• the number of Indigenous people undertaking post-secondary vocational education and training has increased from 26,138 in 1995 to 58,046 in 2001; and
• in 2001, there were 7342 Indigenous higher education students compared to 1933 in 1987.

Employment:

• for the 2001-02 financial year commencements in Intensive Assistance increased by 14 per cent to 22.4000, Interim outcome numbers increased by 73 per cent to almost 4600 and Job Matching eligible placements increased by 32 per cent to 12,200;
• since 1 July 1999, more than 5800 Indigenous people have been placed into jobs through the Indigenous Employment Policy’s wage assistance program and almost 11,000 Indigenous jobseekers have been assisted under the Structured Training and Employment Project;
• 62 private sector corporations have signed up to be Corporate Leaders for Indigenous Employment with commitments to provide over 3000 jobs;
• the number of Indigenous people commencing traineeships and apprenticeships has increased from around 1320 in 1995 to approximately 6435 in 2001; and
• under Australians Working Together (AWT) initiatives announced in the 2001-02 Budget, some Community Development Employment Program (CDEP) organizations have taken on the role of Indigenous Employment Centres in areas with good job opportunities. These centres will offer a range of support to participants to gain off-benefit employment and aim to assist 10,000 Indigenous Australians over the next four years.

Health:

• infant death rates have fallen by a third between 1992 and 1999;
• since 1996, basic health services have been approved for 44 remote communities which previously had little or no access to services;
• between 1992-94 and 1997-99, Indigenous death rates for respiratory illness fell from between 7 and 8 times the non-Indigenous average to 4 times;
• between 1992-94 and 1997-99, Indigenous death rates for infectious and parasitic diseases fell from between 15 to 18 times the non-Indigenous average to between 4 and 5 times; and
• other examples of progress include: 50 per cent reduction in the number of patients progressing to end stage renal disease in the Tiwi Islands (NT); at Yarrabah (QLD) incidents of self-harm have substantially decreased following implementation of a youth suicide program; a 100 per cent immunisation rate has been achieved for children 0-5 years in Wilcannia (NSW).

Infrastructure and housing:

• 93 per cent of discrete communities now have access to electricity, compared to 72 per cent of those communities in 1992;
• 73 per cent of those communities now have higher level sewerage systems, compared to 55 per cent in 1992;
• the proportion of dwellings, managed by Indigenous Housing Organisations, in need of major repair or replacement has declined from 39 per cent in 1992 to 31 per cent in 2001;
• since 1996 the proportion of residents living in temporary dwellings has decreased from 7 per cent to 5 per cent; and
• the Army has been working alongside community members in some of the most needy Indigenous communities in Australia, building important housing and health related infrastructure.

Law and justice:

• despite a rise in the total prison population since 1994, the rate of Indigenous incarceration has remained relatively stable in recent years;
• on average, the rate of Indigenous deaths in custody has fallen since the Royal Commission, and Indigenous people are less likely to die in custody than non-Indigenous prisoners; and
• the revision of the National Indigenous Justice Strategy will strengthen efforts towards improved justice outcomes for Indigenous people.

Land and native title:

• through various statutory schemes, land purchase and native title, more than 15 per cent of the Australian continent is now Aboriginal owned or controlled;
• almost half of the Northern Territory has been returned to Aboriginal ownership under the Northern Territory Land Rights Act 1976 (Cth); and
• the 1998 amendments to the Native Title Act 1993 have resulted in; the volume of claims being rationalised and claim processes streamlined. There are now 43 determinations of native title, including 24 consent determinations; an increased interest in the negotiation of Indigenous Land Use Agreements. 50 Agreements are in place and a further 30 are being processed by the National Native Title Tribunal.

In the medium term the performance monitoring strategies developed by ministerial councils and an enhanced annual Report on Government Services will result in regular, comprehensive and public performance reports across a wide range of economic and social policy areas. This information will enable Indigenous people and the wider community to evaluate the performance of governments. It will also enable government agencies to identify those service delivery approaches that are most effective in overcoming disadvantage. Also relevant, in the area of education, reporting arrangements are legislated in the Indigenous Education (Targeted Assistance) Act 2000. Under this Act, the Commonwealth Minister for Education, Science and Training is required amongst other things, to report to the Parliament on national performance information relating to Indigenous students, as well as reporting on retention rates and post-compulsory education participation rates for Indigenous students. The Commonwealth has established performance benchmarks against which the States and Territories must report as a condition of targeted Indigenous education funding.

The Government commissioned the Commonwealth Grants Commission (CGC) Report on Indigenous Funding 2001 as part of its 1998 election commitment to ensure that Indigenous funding is targeted on a needs basis, particularly in relation to geographic location. The Government’s suspicion, confirmed by the CGC, was that socio-economic disadvantage is highest among Indigenous people living in remote locations. However, the distribution of Commonwealth resources does not match the distribution of need.

One of the key issues that emerged from the report is that if governments don’t make mainstream services perform better, they give an impossible task to the limited Indigenous specific funds that are available. For example, in the area of public and community housing services for Indigenous people, overcoming the Aboriginal backlog requires an increase in the supply of safe and healthy housing. Redirecting Indigenous demand in urban areas towards mainstream housing options and allocating Indigenous-specific resources to remote areas would make more funds available for housing construction and upgrades in the remote areas. This is why the Government has shifted its focus to housing in remote communities.

In the 2001 Budget, the Government targeted new housing funds to areas of greatest need, specifically rural and remote areas where no other housing markets operate. At the same time, the Government is committed to improving the responsiveness and accessibility of mainstream services to Indigenous need in the areas where such services are provided. The Government response to the CGC Report illustrates the collaborative and coordinated approach this government is taking to address Indigenous disadvantage. The Report called for better targeting (through needs based planning) for mainstream and Indigenous-specific services, informed by improved data availability, quality and comparability at the regional level. The Government response largely accepts the CGC report’s findings and outlines a number of actions towards ensuring that mainstream services are improved and Indigenous-specific resources are directed to areas of greatest need. These actions include:

• The adoption and use of key funding and equity principles. These principles confirm the Government’s commitment working with Indigenous people, its recognition of Indigenous need, its commitment to improving the mainstream service system with support from Indigenous-specific services as needed, its commitment to improving community capacity and the better coordination of government services.
• The Government has agreed that when specific purpose payments to states and territories are renewed in the areas of health, housing, infrastructure and education, the Commonwealth will seek to include clear objectives and associated reporting requirements in respect of inputs and regional outcomes for Indigenous people.
• The Government is committed to including an Indigenous identifier in mainstream collections (like public housing records) and ensuring this data is collected. Better data will improve public accountability for outcomes and will ensure that we are able to plan for services where they are most needed.
• The Government has also agreed to publicly report in 2005-06 on the geographic distribution of Indigenous need, the alignment of mainstream and Indigenous-specific services to meet need, and progress in making mainstream services more responsive to Indigenous clients.

Recommendation 2

All parliaments and local Governments pass formal motions of support for the Australian Declaration Towards Reconciliation and the Roadmap for Reconciliation, enshrine their basic principles in appropriate legislation, and determine how their key recommendations can best be implemented in their jurisdictions.

The documents of reconciliation:

Australian declaration towards reconciliation

The Prime Minister indicated at the time of release of the Declaration that although there were significant areas of agreement, the Government could not give its full support. Consequently, on 11 May 2000, the Government presented a revised Declaration to which it offered its full support. Presentation of this document reflected the goodwill and desire of the Government and of Australians for the goal of reconciliation and for seeking areas of common ground. Many individuals, groups and organisations throughout the country have also made their own commitments and statements reaffirming a common commitment to reconciliation reflecting the varying views, approaches and priorities within this common goal.

11 May 2000 (Government version)

Australian Declaration Towards Reconciliation

We, the peoples of Australia, of many origins as we are, make a commitment to go on together in a spirit of reconciliation.

We value the unique status of Aboriginal and Torres Strait Islander peoples as the original owners and custodians of lands and waters.

We recognise this land and its waters were settled as colonies without treaty or consent.

Reaffirming the human rights of all Australians, we respect the cultures and beliefs of the nation’s first people and recognise the place of traditional laws within these cultures.

Through understanding the spiritual relationship between the land and its first peoples, we share our future and live in harmony.

Our nation must have the courage to own the truth, to heal the wounds of its past so that we can move on together at peace with ourselves.

Reconciliation must live in the hearts and minds of all Australians. Many steps have been taken, many steps remain as we learn our shared histories.

As we walk the journey of healing, Australians express their sorrow and profoundly regret the injustices of the past and recognise the continuing trauma and hurt still suffered by many Aboriginals and Torres Strait Islanders.

We desire a future where all Australians enjoy equal rights, live under the same laws and share opportunities and responsibilities according to their aspirations.

And so, we pledge ourselves to stop injustice, overcome disadvantage and respect the right of Aboriginal and Torres Strait Islander peoples, along with all Australians to determine their own destiny.

There is vastly more common ground than difference between the Revised Declaration and the Council’s Declaration. Both documents make a commitment to the process of reconciliation and acknowledge the unique status of Aboriginal and Torres Strait Islander peoples as the original owners and custodians of lands and waters. Both recognise that this land and its waters were settled as colonies without treaty or consent and reaffirm the human rights of all Australians. Both documents identify the importance of understanding the spiritual relationship between the land and its first peoples, and in sharing a future and living in harmony.

Also, both the Revised Declaration and the Council’s Declaration affirm that our nation must have the courage to own the truth and to heal the wounds of its past so that we can move on together at peace with ourselves. They both affirm that reconciliation needs to live in the hearts and minds of all Australians and acknowledge that many steps have been taken and many remain as we learn our shared histories. Both encourage Australians to walk the journey of healing and express sorrow and regret for injustices of the past, and both pledge Australians to stopping injustice and overcoming disadvantage. Both documents aspire to an improved future for all Australians, recognising our shared history and the unique role, contribution and cultural identity of Indigenous Australians.

The Government is pursuing a better future for all Australians, and believes that any reconciliation document should provide the inspiration to all Australians to commit to the process of reconciliation with the objective of realising the Council’s vision of ‘a united Australia, which respects this land of ours; values the Aboriginal and Torres Strait Islander heritage and provides justice and equity for all’.

The areas of difference between the Revised Declaration and the Council’s Declaration relate to areas where there remain clear differences of view within the community. For example, the Government is unable to endorse the approach to customary law in the Council’s Declaration as the Government believes all Australians are equally subject to a common set of laws. Neither can the Government endorse the term ‘self-determination’ (which implies the possibility of a separate Indigenous state or states) although 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). Also, the Commonwealth Government does not support a formal apology to Indigenous people for the injustices of the past. Such an apology could imply that present generations are in some way responsible and accountable for the actions of earlier generations, actions that were sanctioned by the laws of the time, and that were believed to be in the best interests of those concerned, but which when judged by today’s standards were not.

These areas of disagreement are important. The Government does not seek to deny the validity of continued debate and discussion, but given the divergence of views on the Council’s Declaration, the Government does not believe it is appropriate to pursue legislation that would enshrine the principles in the Council’s Declaration and the Roadmap for Reconciliation. The Government reaffirms its support for reconciliation expressed through its Motion of Reconciliation passed by both Houses of Federal Parliament on 26 August 1999. The principles of reconciliation expressed in the Motion remain entirely relevant to the Government’s continuing commitment to the cause of reconciliation between Indigenous and non-Indigenous Australians as an important national priority for all Australians. Further, the Government reaffirms its support for the content of the Motion that expresses deep and sincere regret that Indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many Indigenous people continue to feel as a consequence of these practices.

Roadmap for reconciliation: four national strategies to advance reconciliation

The Government supports many proposals contained in the Roadmap for Reconciliation including the need for individuals, communities, organisations and governments to act on their commitments to the reconciliation process. The Government is fully supportive of a partnerships approach to Indigenous affairs and recognises the need for flexible local options where individuals, communities, organisations and governments look at ways to action commitments which suit local needs and circumstances. This approach is at the core of the COAG Reconciliation Framework.

The Government supports the overall direction and intention of the strategies of the Council to overcome disadvantage, sustain the reconciliation process and promote economic independence. It does, however, have a different view on matters in the National Strategy to Promote the Recognition of Aboriginal and Torres Strait Islander Rights.

National strategy to overcome disadvantage

The Government supports the goal set by the Council in its National Strategy to Overcome Disadvantage: a society where Aboriginal people and Torres Strait Islanders enjoy comparable standards of social and economic well-being to those of the wider community, without losing their cultural identity. It also agrees that priority must be given to achieving comparable outcomes in health, education, employment, housing and law and justice, and that improvement in these areas is critical to advancing reconciliation. The objectives outlined in this strategy are strongly supported by the Government, which has taken many steps towards addressing Indigenous disadvantage. While not an exhaustive list, examples of some of the practical measures that have been undertaken by the Government are outlined below. While there is clearly still much progress to be made, the Government is committed to ensuring these positive trends are continued through the provision of adequate resources. Indeed, it is worthwhile again noting that the level of resources dedicated to redressing Indigenous disadvantage is now at a historically high level.

Health

• By 2003-04, Commonwealth Government spending on Indigenous specific health programs will have increased by 89 per cent since 1996 to $257 million per year.
• Considerable effort has been invested in making mainstream programmes more accessible and more responsive to the needs of Indigenous Australians. A range of initiatives including improving access to medicines for remote Indigenous Australians, increased use of Medicare in Aboriginal community controlled health services (providing improved access to doctors via bulk billing), and streamlined enrolment and billing arrangements have resulted in greater use of the Medicare and Pharmaceutical Benefits Schemes by Indigenous Australians.
• Four landmark co-ordinated care trials, conducted in Aboriginal communities between 1997 and 1999, showed significant improvement in increasing access for Aboriginal people to services, health care planning and population health programs that address priority needs at the community level.
• Another outcome of critical importance has been building the capacity of local communities, organisations and services to identify and meet local health needs.
• The provision of basic health services in remote communities has improved, and over the last five years, 44 basic health services have been approved for remote Indigenous communities.

Housing

• In the 2001-02 budget, $75 million was allocated for extra housing, as well as repairs and replacement of old houses, along with improved infrastructure and management.
• A number of states and territories have entered into Indigenous housing agreements with ATSIC and the Commonwealth (represented by the Department of Family and Community Services) to pool housing and infrastructure funds and to allocate these funds regionally on the basis of need.
• In 2001, 93 per cent of remote communities had access to electricity compared to 72 per cent in 1992.
• In 2001, 73 per cent of remote communities had higher-level sewerage systems compared to 55 per cent in 1992.
• In 2001, 31 per cent of dwellings in remote communities were in need of major repairs or replacement compared to 39 per cent in 1992.

Education

• The Year 12 retention rate from the commencement of secondary schooling has increased from 29 per cent in 1996 to 36 per cent in 2001.
• Indigenous Education Strategic Initiatives Programme funding has grown by 75 per cent in the past five years from $89 million in 1995-96 to over $156 million (est) in 2001-02. There has been an almost fourfold increase in new apprenticeships undertaken by Indigenous Australians, up from just 1,380 in-training at 31 December 1995 to 6,170 in-training at 30 September 2001.
• Between 1992 and 2001, the number of Indigenous students in higher education increased from 5105 to 7342.
• The Commonwealth will provide some $1.68 billion to improve educational outcomes for Indigenous students over the 2001-2004 period.
• The National Indigenous English Literacy and Numeracy Strategy, launched by the Prime Minister in March 2000, is another key element in the Government’s programme to improve the educational outcomes achieved by Indigenous students.
• The participation in vocational education and training by Indigenous people under the age of 25 years old has increased from 13,454 in 1996 to 23,290 in 2000 (an increased rate of 73 per cent).

Employment

In 1999 the Government introduced the Indigenous Employment Policy. The Policy has three elements, Job Network, the Indigenous Employment Programme and the Indigenous Small Business Fund. The Indigenous Employment Programme has a number of elements providing flexible financial assistance to employers to assist in achieving sustainable employment outcomes for Indigenous Australians. These elements include Wage Assistance, Structured Training and Employment Projects (STEP), Corporate Leaders for Indigenous Employment, National Indigenous Cadetship Project as well other initiatives.

The Job Network is a national network of around 200 private, community and government organisations dedicated to finding jobs for unemployed people. Job Network provides the bulk of assistance to Indigenous job seekers through Intensive Assistance, Job Search Training and Job Matching. Almost 35,000 programme and job placements were provided for Indigenous Australians through Job Network in the 2001-02 financial year. Currently 62 major Australian companies have signed up as Corporate Leaders for Indigenous Employment. This initiative involves the commitment of major private sector companies to generate more jobs for Indigenous job seekers in the private sector, with commitments to provide over 3000 jobs. This public commitment of industry leaders provides excellent employment opportunities in key companies and helps to improve the employment outcomes for Indigenous Australians in the private sector.

Structured Training and Employment Projects (STEP) provides flexible assistance for structured training, such as apprenticeships and traineeships, for groups of Indigenous job seekers. A requirement of STEP is that the training leads to lasting job opportunities. For the period 1 July 2001 to 31 June 2002, 292 STEP projects have been approved with a commitment to assist over 7700 Indigenous job seekers.

Wage Assistance is an incentive to help Indigenous job seekers to find long term jobs either through Job Network or their own efforts using an eligibility card, supplied by Centrelink. A $4400 incentive is paid over 26 weeks to employers providing ongoing job opportunities. It is available to all job seekers who identify as Indigenous and are in receipt of income support and all Indigenous job seekers under 21 years of age. For the period 1 July 2001 to 31 June 2002, almost 2000 Indigenous job seekers have been placed in employment through Wage Assistance.

The National Indigenous Cadetship Programme provides opportunities for Indigenous undergraduates to gain professional qualifications needed for a range of jobs in the public and private sectors. One hundred and ten new cadetships have been funded in 2001-02. As at 30 June 2002, the Cadetship Project had over 220 participants.

The Community Development Employment Projects (CDEP) programme, administered by ATSIC, assists with employment creation and the establishment of successful businesses. It is the Government’s largest Indigenous programme, and ATSIC and the TSRA will spend $510.47 million in 2002-03.

The Australians Working Together measures announced in the 2001-2002 budget include a number of initiatives aimed at improving employment services to Indigenous job seekers. These include:

• some CDEP organisations taking on the role of Indigenous Employment Centres in areas where there good job opportunities — these centres will offer work experience, job search support and access to training, as well as the provision of support and mentoring assistance to Indigenous job seekers, outside the CDEP;
• the development of community capacity and community participation agreements;
• a Centrelink remote servicing strategy;
• increased education and training assistance;
• access to training credits for eligible participants; and
• measures to better assess indigenous job seekers needs.

Other initiatives

While much has been achieved, much remains to be done. Substantial disparities remain between Indigenous people as a group and other Australians in the areas of health, housing, education and employment — the Government is addressing these disparities and will continue to do so.

The COAG framework to advance reconciliation, promote economic independence and address disadvantage demonstrates the Government’s commitment to keep looking for further ways forward. Other Government initiatives confirm this commitment.

The Government is exploring flexible and pooled funding arrangements in a number of areas, most notably in the health area by incorporating lessons from the co-ordinated care trials in the Primary Health Care Access Program (PHCAP). The PHCAP framework entails co-ordinated effort with state/territory jurisdictions in joint service planning and delivery and, where possible, the pooling of funding. PHCAP funding is provided on the basis of need and the capacity to utilise funds effectively. Where there is a high need but limited capacity to utilise funds effectively, there is some scope within the program to provide for capacity building at an organisational, community and individual level. The Government is willing to explore the benefits that can be achieved from innovations in financing in other policy areas.

In 2000, the Government convened the Indigenous Community Capacity Building Roundtable to consider how to strengthen Indigenous families and communities. Roundtable members include senior Indigenous and community leaders, industry and church representatives, academics and individuals with expertise in the area. The Roundtable developed a set of principles to guide Government work in Indigenous communities. These principles represent a best practice guide in terms of identifying how governments should go about the process of developing and delivering programmes that are responsive to the needs of Indigenous communities in partnership with them.

The Council also recommends that the Government, through the COAG process, monitor and report on work which is being undertaken to overcome Indigenous disadvantage. COAG and other Ministerial Councils have committed to this role, and the Government notes that the Human Rights and Equal Opportunity Commission already has the power to report on the enjoyment, exercise and protection of the human rights of Indigenous people, including in the context of addressing disadvantage. The Human Rights and Equal Opportunity Commission has been established with the function of promoting an understanding, acceptance, and public discussion of human rights in Australia. It also undertakes research, educational and other programmes on behalf of the Commonwealth Government, for the purpose of promoting human rights. Further, it deals with complaints of unlawful discrimination. The importance of this educational role was emphasised by the Council for Aboriginal Reconciliation.

ATSIC has as one of its legislative functions a responsibility to monitor the effectiveness of programmes for Aboriginal persons and Torres Strait Islanders, including programmes conducted by bodies other than the Commission. The Government therefore considers that ATSIC has an existing and fundamental role in relation to monitoring disadvantage.

National Strategy for economic independence

The Government supports the goal set by the Council for Aboriginal Reconciliation in its National Strategy for Economic Independence: a society where Aboriginal and Torres Strait Islander peoples and communities can share the same level of economic independence as the wider community. It also supports the broad objectives outlined in the strategy as being complementary to those objectives identified in the National Strategy to Overcome Disadvantage.

The Government notes that for most Australians the pathway to economic independence involves employment, and for fewer people economic independence is achieved through business and capital management. This presents challenges in respect of the relatively large proportion of Indigenous people who live in areas with limited employment and economic opportunities. It is also noted that some Indigenous people choose to pursue traditional lifestyles, which are not reflected in Western measures of economic independence.

Nonetheless, there is clear evidence of progress being made. As already highlighted, increases are evident in the participation of Indigenous people in traineeships and apprenticeships, as well as in employment in professional occupations. There have been significant increases in the proportion of Indigenous people who buy or own their own home. Largely as a result of the various approaches pre-dating native title, at least 15 per cent of the continent is already Aboriginal owned or controlled (including most of the coastline and control over mining in the case of the Northern Territory). The provisions of the Native Title Act, in particular the Indigenous Land Use Agreements provisions, also offer people significant opportunities to negotiate agreements that will contribute to their overall economic well-being. An example is the Giants Reef Exploration agreement with the Central Land Council which covers over 7500 square kilometres of land and permits mining, exploration and related activities and includes protection of the environment and native title rights. There is also around $50 million per annum available through the Indigenous Land Corporation to purchase and develop land and other economic assets for Indigenous Australians.

There are a number of Commonwealth initiatives and programmes that focus on the need to assist Indigenous people to achieve economic independence, as follows.

• In April 2001, Indigenous Business Australia (IBA) was established to build on the previous work of the Aboriginal and Torres Strait Islander Commercial Development Corporation (CDC). During 2002-03 IBA will build its capital base to over $70 million and will be involved in joint ventures with an annual turnover exceeding $350 million. IBA will forge partnerships between Indigenous people and corporate Australia by developing commercially viable joint ventures that will enable Indigenous Australians to acquire equity in a number of large businesses and create opportunities for employment and training. The establishment of IBA complements other ongoing programmes.
• ATSIC’s Business Development Programme provides financial assistance and business support (including financial planning, marketing, training and mentoring) to Indigenous businesses. Currently approximately $38 million is provided for this programme.
• The Indigenous Small Business Fund (ISBF) has funding of $11 million available between 1999 and 2002 to help Indigenous people enhance business prospects and networks, develop good business ideas and the business management skills needed to start commercially viable businesses and to gain access to business capital and support services. As at 31 June 2002, 95 projects had been approved.
• A number of Indigenous tourism enterprises and organisations have been assisted through regional tourism programmes and ATSIC’s Business Develop-ment programme over the last eight years. The Tjapukai Aboriginal Cultural Park in Cairns is one such enterprise. The centre employs approximately 55 Indigenous staff (75 per cent of the total staff).
• The Indigenous Land Corporation which provides funds to enable Indigenous people to purchase land, also assists them to manage their land in a sustainable manner so as to provide cultural, social, environmental and economic benefits.

National strategy to sustain the reconciliation process

The Government is committed to reconciliation as an ongoing process with practical, cultural and spiritual dimensions.

The Commonwealth Government is only one entity to which the Council’s recommended strategy is addressed. It is also directed towards parliaments and political parties, state, territory and local governments and their agencies, reconciliation organisations at national, state and local level, private sector organisations, voluntary and community organisations, Indigenous organisations, and Indigenous and non-Indigenous individuals. The Government views the Commonwealth’s role primarily as a practical one in which it makes a substantial (but not exclusive) contribution of the resources necessary to meet the practical needs of Indigenous Australians.

The Motion of Reconciliation moved by the Prime Minister in the Parliament in 1999 demonstrated the government’s commitment to the process of reconciliation. The Government wants to maintain this commitment and the momentum towards reconciliation, and provided $5.6 million to Reconciliation Australia to continue promoting reconciliation throughout all sectors of the Australian community. The Government has also accorded Reconciliation Australia tax deductibility status so that organisations, businesses and ordinary Australians can be encouraged to contribute to the valuable work of Reconciliation Australia. The foundation’s three priority areas are to: work towards social and economic equity for Indigenous Australians; strengthen the people’s movement for reconciliation; and acknowledge the past and build a framework for a shared future by amongst other things, facilitating constructive discussion on all aspects of the rights agenda.

The Government agrees that there should be tangible recognition of the value of Indigenous history, culture and heritage. It allocated $5 million for the design and construction of Reconciliation Place, in the Parliamentary Triangle. The first stage of Reconciliation Place was opened by the Prime Minister, the Hon John Howard MP, the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, and the former Chairperson of the Council for Aboriginal Reconciliation, Dr Evelyn Scott, on 22 July 2002.

Reconciliation Place, as a national place of reflection, will portray Australia’s shared journey of reconciliation — past, present and future. It is a prominent public symbol of the nation’s commitment to healing the wounds of the past and of our desire as a Nation to move forward together and share a harmonious future. It is envisaged that it will continue to evolve over time, reflecting the process of reconciliation for current and future generations of all Australians.

Protocol and symbols

The nation values and respects Indigenous cultures and heritage. There are now many examples where this has been given symbolic and practical effect. The opening ceremony of the Sydney 2000 Olympic Games and the forecourt of Parliament House are important examples. The Prime Minister and Government ministers have adopted the practice of ‘acknowledging country’ at ceremonial occasions and appropriate public events. This practice involves acknowledgment that the event is taking place in the country of the traditional Indigenous owners. It shows respect for Aboriginal and Torres Strait Islander protocol and the ongoing relationship of the traditional owners of the area with that land and/or waters. Significantly, an Indigenous element was included in the formal welcoming ceremony for Her Majesty the Queen when she visited Australia.

Another positive advance in this area is the practice of flying both the Aboriginal and Torres Strait Islander flags on Commonwealth buildings at times of particular significance for reconciliation, such as for National Aboriginal and Torres Strait Islander Day Observance Committee (NAIDOC) week and National Reconciliation Week.

Recognising that such symbolic practices can contribute to improving the understanding of Aboriginal and Torres Strait Islanders peoples by the wider community, in 1999, the Government provided significant funding for the development of a kit to assist communities to develop local symbols of reconciliation. The kit Local Symbols of Reconciliation — What Can we Do? was launched at the end of 2000 and led to the establishment of a number of reconciliation symbols. One of many positive examples is the memorial built at Myall Creek to commemorate the deaths of Aboriginal people at the hands of stockmen in 1838.

The Government believes that responses to reconciliation which promote Indigenous heritage and culture at a public level and through symbols of reconciliation can do much to improve and expand community understanding of our Aboriginal and Torres Strait Islander people, and build public support for reconciliation. Therefore the Government believes that acknowledgment of the special place of Indigenous people in the life and history of Australia is appropriate on certain occasions and in certain Commonwealth ceremonies, such as citizenship ceremonies. While the Government does not believe a prescriptive approach should be taken, it nonetheless feels that the cause of reconciliation is greatly aided by such acknowledgment.

Of relevance also, the House of Representatives Standing Committee on Procedure released a report in August 2001, Balancing Tradition and Progress: procedures for the opening of Parliament, which recommends a number of changes to the procedures for the opening of Parliament. The proposed changed procedures include significant Indigenous content. This matter will be considered in the Government’s response to the Procedures Committee report.

The Commonwealth welcomes the statement of commitment to reconciliation adopted by the Australian Local Government Association in 2000. This statement openly acknowledges Australia’s Aboriginal and Torres Strait Islander heritage and commits to practical and ongoing reconciliation activities by local councils, including Indigenous involvement in events and celebrations of significance which respect the dignity and protocols of the local Indigenous community. The Commonwealth encourages all local government authorities to implement the statement and urges the states and territories to pursue this issue in a similar light.

National strategy to promote recognition of Aboriginal and Torres Strait Islander Rights

The Government agrees that all Australians have the right to enjoy, in daily life, a fundamental equality of rights, opportunities and acceptance of responsibilities. The Government agrees that the unique status and identities of the Aboriginal and Torres Strait Islander people as the first people of Australia must achieve recognition, respect and understanding in the wider community. This unique status is already recognised in legislation including the ATSIC Act, the Native Title Act and the Aboriginal and Torres Strait Islander Heritage Protection Act. The Government recognises that the cultures of Indigenous Australians are essential to our distinctive character as a nation. The Government sought to have this special status recognised in the 1999 referendum on the adoption of a preamble to the Constitution, however, the proposed preamble was not approved by the Australian people.

The Government is committed to common rights for all Australians. The Government recognises that many Aboriginal and Torres Strait Islander people have not had the opportunity to enjoy such equal rights in the past because of events that have had a profound impact on Indigenous people. The Government supports additional measures to ensure equality of opportunity where such measures are necessary to overcome specific disadvantages experienced by Indigenous people. Neither the Government nor the general community, however, is prepared to support any action which would entrench additional, special or different rights for one part of the community.

The Council’s Rights Strategy recommends three key areas for essential action — education, legislation and a referendum — as follows.

Education

The Government supports the Strategy’s focus on education as an effective mechanism for promoting tolerance and understanding in our society, an appreciation of Indigenous heritage and culture, and a clear understanding of our nation’s history. The Government supports a range of programmes and initiatives aimed at promoting community awareness, and supporting Indigenous culture and languages.

For instance, the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) houses the world’s most extensive collection of printed, audio and visual materials on Aboriginal and Torres Strait Islander subjects. The new National Museum of Australia includes the First Australians Gallery, one of the permanent exhibitions in the museum. Together the National Museum of Australia and AIATSIS create a precinct of international significance and stature that will enhance the public’s appreciation and understanding of Aboriginal and Torres Strait Islander peoples’ cultures and experiences.

ATSIC has a wide range of programmes relating to Indigenous heritage, culture, language and media. The ATSIC heritage and culture programmes fund local keeping places, arts and craft centres, repatriation of Indigenous remains and cultural property, festivals and ceremonial activities. The Aboriginal and Torres Strait Islander Languages Initiatives Programme funds around 25 regional language centres and community-based language projects that promote Indigenous languages and protect those languages in danger of being lost forever. Through its broadcasting programme, ATSIC provides funding for the establishment and support of a large number of Aboriginal and Torres Strait Islander owned and operated media groups (approximately 150 so far).

The Government currently supports a range of initiatives designed to promote tolerance and understanding, promote an appreciation of Indigenous culture and a clear understanding of our nation’s history. Programmes include Living in Harmony, which encourages Australian organisations to work with multicultural and Indigenous communities to address issues of racism and to promote harmony in communities across Australia; and several programmes administered by ATSIC which promote an awareness of Indigenous culture contributing to the wider recognition of the cultural identity of Indigenous Australians. The Aboriginal and Torres Strait Islander Arts Board, through the Australia Council for the Arts, supports Indigenous artists and communities and distributes funding to foster Indigenous arts and culture.

Legislation: recognition and protection of Indigenous intellectual property

The Government is committed to addressing Indigenous intellectual property concerns and enhancing the protection of the expression of Indigenous culture. Existing intellectual property laws and other laws (for example, contract law) afford a considerable opportunity to obtain protection for matters of cultural, historical, religious, moral and economic significance to Indigenous groups and individuals. For example, the use of trademarks, including certification marks, is one means of exercising control over the commercial utilisation of particular representations. Copyright can also be used to protect certain uses of Indigenous arts and cultural expressions. In addition to the economic rights available under copyright, on 21 December 2000 amendments to the Copyright Act came into force giving the ‘moral rights’ of integrity and attribution to all authors, artists and new film-makers, including Indigenous creators. The Government committed, in the context of the 2001 election, to amend the moral rights regime to give Indigenous communities a means to prevent unauthorised and derogatory treatment of works that embody community images or knowledge. The Government is actively involved in international fora which are considering Indigenous traditional knowledge and its interaction with intellectual property protection schemes.

Legislation: international Indigenous and human rights obligations

As stated in the preamble to the ATSIC Act 1989, the Australian Government has acted to protect the rights of all its citizens, and in particular its Indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms through:

(a) the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination and other standard-setting instruments such as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights; and

(b) the acceptance of the Universal Declaration of Human Rights. Australia has been actively and constructively participating in United Nations deliberations concerning a possible Declaration on the Rights of Indigenous Peoples.

Legislative processes to deal with unfinished business

The Government believes that a continuing dialogue on the unfinished business of reconciliation allowing for negotiated outcomes on matters such as rights, self-determination within the life of the nation and constitutional reform should be achieved outside the confines of a legislated process. The Council’s draft legislation would impose a potentially divisive, protracted (at least 12 years) and inconclusive process on the nation. It envisages an agenda encompassing self-government, recognition of customary law, compensation and reparation, comprehensive settlement of native title and other land claims, deaths in custody and separated children issues, a bill of rights, and constitutional recognition. ATSIC’s treaty consultation process identifies similar objectives, including possible legislative recognition of sovereignty, recognition of Indigenous inherent rights, and control, ownership and management of land, waters and resources. Whatever community support there may be for a written declaration of goals and values, the Council’s own public opinion research disclosed community opposition to the idea of a treaty as a legally enforceable instrument such as is made between sovereign states. A number of Aboriginal leaders have also recently voiced concerns about the concept, its relevance and relative importance. The Government is deeply concerned that rather than offering closure, pursuit of a treaty would be a recipe for ongoing disputation and litigation as has happened in North America and elsewhere.

There are areas in this debate which evidence widespread disagreement between the aspirations of some Indigenous people and the wider community. The Government is committed to a process which fosters an open, honest and ongoing dialogue on reconciliation. This process must respect the rights and differing views of all interested parties while also fostering ongoing and increased support for reconciliation based on the principle of equal and common rights for all Australians. Australian governments have generally observed the principle of only enacting legislation once they are convinced that a legislative solution is superior to other policy instruments for achieving the stated objective. The Government does not consider that the Council’s proposed legislation would achieve increased support for reconciliation or necessarily achieve the Council’s desired outcomes. There are many examples of negotiated agreements and outcomes which have been achieved outside of such a special legislative process. Local memoranda of understanding and industry specific agreements are positive outcomes which can be achieved under existing processes. Examples include the actions by companies such as Normandy and Pasminco to affirm recognition of Aboriginal and Torres Strait Islander peoples’ relationship to the land by the development and implementation of agreed principles by which negotiations can be carried out.

The Government supports the principle that Indigenous people should have meaningful opportunities to exercise control over their own affairs. The Government’s continuing support for the operations of the Aboriginal and Torres Strait Islander Commission which ensures the maximum participation of Aboriginal and Torres Strait Islander people in the formulation and implementation of programmes which affect them is a practical illustration of this commitment. ATSIC was established by the Parliament to pursue its objectives in a manner that is consistent with the aims of self-management, self-sufficiency and economic independence for Aboriginal and Torres Strait Islander peoples.

However, the Government is concerned that self-determination is defined by some as representing the right to unilaterally challenge national sovereignty. It carries the implication of a separate Indigenous state or states. The ATSIC Act itself does not use the term. The Government prefers the term self-management or self empowerment, believing 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.

It is the responsibility of government to ensure that all Australians have equality of opportunity and access to services. The Government is concerned that self-determination implies that a government must in some way relinquish responsibility for and control over those aspects of Indigenous well being over which it rightly has jurisdiction in common with its responsibilities to all Australian citizens. The Commonwealth Government remains accountable for outcomes in Indigenous affairs when making fiscal commitments. The Government has demonstrated its strong and continuing commitment to outcomes in addressing disadvantage in the areas of health, housing, education and employment and is continuing to provide funds where most needed. The COAG agreement further solidifies the commitment of the Government to achieving outcomes for Indigenous peoples in these areas. Very importantly, the Government is committed to ensuring that in the process of meeting its responsibilities to Indigenous people, they are engaged to the maximum extent possible as partners in the design and delivery of services.

Legislation for a referendum

The Government recommends legislation for a referendum which seeks to:

• prepare a new preamble to the Constitution which recognises the status of the first Australians; and
• remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against any people on the grounds of race.

This is discussed below in response to Recommendation 3 of the Final Report.

Recommendation 3

The Commonwealth Parliament prepare legislation for a referendum which seeks to:

Recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia in a new preamble to the Constitution

The Government put forward a proposed preamble to the Constitution at a referendum in November 1999 which, among other things, honoured Aboriginal and Torres Strait Islanders as ‘the nation’s first people, for their deep kinship with their lands and for the ancient and continuing cultures which enrich the life of our country’. The proposed preamble was not approved by the Australian people and this decision is respected by the Government. Therefore, the Government will not pursue this recommendation.

Remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against any people on the grounds of race.

Section 24 of the Constitution is used to determine the number of House of Representatives members in each State. This is qualified by s 25, which provides:

For the purposes of the last section, if by any law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

Being a limitation on the previous section, the clear intention of this section is, as noted by the Council, to discourage discrimination by the states on the basis of race. The Government, nevertheless, recognises that this section anticipates State provisions to disenfranchise citizens on the basis of race and this, clearly, has no role to play in the governance of the modern Australian nation.

However, s 25 does not have any practical effect in the governance of the nation. No State has a racially discriminatory voting provision in place and any such provision would contravene the Racial Discrimination Act and would be rendered inoperative by virtue of s 109 of the Constitution. The Government is generally supportive of the proposal to remove s 25 of the Constitution. Given adequate support for such a proposal, the Government would be disposed to put the matter to a referendum at an appropriate time.

The Government does not believe that paragraph 51(xxvi) of the Constitution needs to be amended, as proposed by the Council in its National Strategy to Recognise Aboriginal and Torres Strait Islander Rights. Prior to the 1967 referendum the Commonwealth was specifically precluded under the Constitution from making laws specifically relating to Indigenous Australians. Since the referendum, which was overwhelmingly endorsed by the nation, Commonwealth, State and Territory Governments have shared responsibility for enacting special laws and delivering special programs and services to Indigenous Australians. While the view has been put that this power has the capacity to be used to discriminate against Indigenous Australians, the Government considers that Australia’s robust parliamentary system mitigates against such a possibility. The Government remains of the view that this legislative power is necessary to advance the interests of Indigenous Australians and does not propose to seek its amendment.

The Government’s position on a Bill of Rights, or express Constitutional provisions to the same effect, have been clearly stated on a number of occasions. The Government strongly believes that the best guarantee of fundamental human rights in this country is to have a vigorous and open political system, an incorruptible judicial system, and a free press. It follows that the Government does not support the establishment of a formal Bill of Rights, either by way of discrete legislation or by the incorporation of specific rights into the Australian Constitution.

In relation to the specific provision recommended by the Council, Australia already has an effective system in place to prevent discrimination on the basis of race. The Racial Discrimination Act 1975 has had a major impact on the legal and cultural life of Australia. The Act makes it unlawful to discriminate against another person on the basis of race, colour, descent or national or ethnic origin in any field of public life. The Act also prohibits acts done because of race, colour or national or ethnic origin, otherwise than in private which are likely to offend, insult, humiliate or intimidate.

To complement this Act, complaints of unlawful discrimination can be made to the Human Rights and Equal Opportunities Commission (HREOC). HREOC can investigate and attempt to conciliate such complaints and, where a complaint cannot be conciliated, it can be terminated by HREOC and taken up in court. If a complaint is upheld, the courts can make certain orders, including orders to cease the unlawful conduct, to redress the loss or damage suffered, or to pay compensation. As Australia’s national human rights institution, HREOC also researches issues concerning racism, and educates the community on racism and tolerance. A framework of State and Territory laws also prohibits discrimination.

Discrimination on the basis of race is contrary to law and to the Australian way of life. Nothing practical would be gained by the changes suggested by the Council.

Recommendation 4

Recognising that the formal reconciliation process over the last decade has achieved much and has helped bring Australians together, all levels of government, non-government, business, peak bodies, communities and individuals commit themselves to the process and sustaining it by:

Affirming the Australian Declaration Towards Reconciliation and actioning the Roadmap for Reconciliation;

Providing resources for reconciliation activities and involving Aboriginal and Torres Strait Islander peoples in their work;

Undertaking educational and public-awareness activities to help improve understanding and relations between Aboriginal and Torres Strait Islander peoples and the wider community; and

Supporting Reconciliation Australia, the foundation which has been established to maintain a national leadership focus for reconciliation, report on progress, provide information and raise funds to promote and support reconciliation.

The Government generally supports this recommendation. As discussed above in Recommendation 2, the Government supports many proposals contained in the Roadmap, and although there are some topics within the Council’s Declaration to which the Government cannot give its full support to, there are many significant areas of agreement.

There are, and will continue to be, national celebrations which provide the opportunity for Indigenous people to demonstrate the richness of their culture and heritage to other Australians, in addition to allowing the wider community to show their support. National Reconciliation Week (NRW) and the National Aboriginal and Islander Day Observance Committee (NAIDOC) are well established events which are both educative and raise awareness to help improve understanding and relations between Aboriginal and Torres Strait Islander people and the wider community. The Government flies both the Aboriginal and Torres Strait Islander flags on Commonwealth buildings at such significant times for reconciliation.

Also, as discussed in more detail under recommendation 2, the Government provided $5.6 million to Reconciliation Australia to maintain its commitment and the momentum towards reconciliation, as well as funding the design and construction of Reconciliation Place, in the Parliamentary Triangle. Reconciliation Place, launched on 22 July 2002 by the Prime Minister, the Hon John Howard MP, as a national place of reflection, will portray Australia’s shared journey of reconciliation — past, present and future. Four artworks, known as ‘slivers’, have been included in the initial development of Reconciliation Place. It is envisaged that many more slivers will be added over time to represent significant issues and events of our shared history. The design of another sliver that will recognise Indigenous leaders Neville Bonner and Vincent Lingiari, is well under way. The National Sorry Day Committee is also conducting a consultation process to determine how the past separation of Aboriginal children from their families could be depicted at Reconciliation Place.

Recommendation 5

Each Government and parliament:

Recognise that this land and waters were settled as colonies without treaty or consent and that to advance reconciliation it would be most desirable if there were agreements or treaties; and

Negotiate a process through which this might be achieved that protects the political, legal, cultural and economic position of Aboriginal and Torres Strait Islander peoples.

Recommendation 6

That the Commonwealth Parliament enact legislation (for which the Council has provided a draft in this report) to put in place a process which will unite all Australians by way of an agreement, or treaty, through which unresolved issues of reconciliation can be resolved.

The Government has affirmed that Indigenous people were the original custodians of this land and its waters, and that they were settled as colonies without treaty or consent. The Government acknowledged this through its Revised Declaration, on page 10 of this Response.

The Government agrees that there is much work to be done to advance reconciliation. It does not, however, support the concept of a treaty for the reasons already discussed. The Government considers that ongoing community debate and education must occur prior to being able to clearly identify, agree and resolve issues which will benefit the community as a whole and take the reconciliation process forward. Moreover agreement is more likely to be achieved on a progressive, issue by issue basis, rather than through a once and for all global process. The Council for Aboriginal Reconciliation itself, at the end of its term in 2000, acknowledged that reconciliation is an ongoing process and that there are a number of challenges still ahead.

The ‘people’s movement’ itself clearly demonstrates the importance of communities concentrating on working in partnership at the local level to tackle issues of immediate concern to them. This means that considerably more progress must be made to improve community awareness and understanding in order to shift communities to a position where they can make progress. A national agreement — a ‘top down’ policy response — is not appropriate to local circumstances. Change must be driven and enacted from the local level on the basis of community will.

It is important to note that in recent years there has been a proliferation of agreements between Indigenous groups and proponents of infrastructure and mining development, businesses, local and state governments, tertiary institutions and many other agencies. The Council in its Final Report highlighted many examples of such partnerships that had positively impacted on Indigenous and non-Indigenous relations in communities. The Body Shop, for example, has worked with several Aboriginal and Torres Strait Islander communities to develop their own business programme, First Australians Business. In Moree, the Gwydir Valley Cotton Grower’s Association has also done much to foster partnerships between Indigenous and non-Indigenous people. As a result the previously negative community relations are shifting.

The Government will continue to listen to and act on views that serve to further the cause of reconciliation based on the fundamental principal of equality for all Australians whilst recognising the unique position of Aboriginal and Torres Strait Islander peoples in Australian society.

The Government’s position on a treaty is that such a legally enforceable instrument, as between sovereign states would be divisive, would undermine the concept of a single Australian nation, would create legal uncertainty and future disputation and would not best harness the positive environment that now exists in relation to reconciliation. In fact, such a process could threaten that environment.

The existing inclusive reconciliation process already allows for state, regional and local level agreements. Significant achievements in regional planning have been made in each state and territory under the initial Framework Agreements in Aboriginal and Torres Strait Islander Health entered between the Commonwealth, the state/territory, ATSIC and the community controlled health organisations. Similarly, there are now bilateral Commonwealth/state and ATSIC housing agreements in an increasing number of jurisdictions, and this Government has also legislated for a native title process by which Indigenous and non-Indigenous people can enter into Indigenous Land Use Agreements (50 have been registered as at 22 July 2002 with many more in the pipeline).

Conclusion

The Council’s report reflects the fact that reconciliation must and does take place on many levels and in many forms. It relies on people, communities, organisations and governments doing things which suit their circumstances, needs and possibilities. There is no single blueprint for reconciliation, no one policy or action to make it happen, no magic formula to ensure success. ?