Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
From a purely formal point of view, this question is answered in the legislation under which the Aboriginal and Torres Strait Islander Social Justice Commissioner was established, the Human Rights and Equal Opportunity Commission Act 1986 . As outlined in my First Report, the legislative functions fall into three categories:
a. Monitoring the enjoyment of human rights by Indigenous Peoples
The Aboriginal and Torres Strait Islander Social Justice Commissioner is to monitor the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples, and to report his/her findings annually to the Attorney-General. The legislation specifically states that in assessing the state of Indigenous peoples' rights, the Commissioner is to have regard to the relevant international human rights standards, as set out in relevant instruments, such as the Universal Declaration of Human Rights , the International Covenant on Civil and Political Rights , the International Covenant on Social, Economic and Cultural Rights , the Convention on the Elimination of All Forms of Racial Discrimination , and the Convention on the Rights of the Child .
b. Human rights education and awareness
The Commissioner is also conferred with broad educational functions, which involve promoting understanding and awareness of the human rights of Aboriginal and Torres Strait Islander peoples, and respect for those rights. This educational function can be broken into two further strands: first, the promotion of understanding and awareness of Indigenous rights among Australians in general; and second, the development of community education programmes expressly for Aboriginal and Torres Strait Islander peoples to develop a greater awareness and understanding of our own rights, and of the laws and mechanisms which we can use to assert those rights.
c. Legislative review
The final function set out in the legislation is the examination of enactments and proposed enactments to see whether they recognise and protect the human rights of Aboriginal and Torres Strait Islander peoples and to report the findings to the Attorney-General.
Since I last reported, powers have been conferred upon the Commissioner in relation to native title under section 209 of the Native Title Act 1993, which states:
209. (1) As soon as practicable after 30 June in each year, the Aboriginal and .Torres Strait Islander Social Justice Commissioner must prepare and .submit to the Commonwealth Minister a report on:
(a) the operation of this Act; and
(b) the effect of this Act on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.
(2) The Commonwealth Minister may at any time, by written notice, direct the Commissioner to report to the Commonwealth Minister on any matter covered by (1)(a) or (b).
These functions will be covered in full in the 1993-94 report on native title which I am in the process of preparing.
Read alone, this extremely broad statement of functions provides little in the way of explicit guidance. `Human rights', the pivotal concept on which the whole legislation rests, encompasses virtually every sphere of life, be it social, cultural, economic, political or civil. Name any issue of concern to Indigenous peoples and it relates to a human right: health, land, education, non-discrimination, judicial fairness, humane prison conditions, cultural freedom and property.
For most people the legislation probably does little more than place human rights in the realm of theory, far removed from everyday life. Its formal terms fail to capture any of the complexity or humanness of the very people it is supposed to serve or of the work my Office is required to do.
Thus, while we must look to the legislation for legal authority, it must not distract us from what we are actually about. It is all too easy for an organisation of this nature to merge into the culture of anonymous bureaucracies. It takes constant vigilance not to be swamped by provisions, sections, sub-sections, regulations and procedures until you are hypnotised into believing that they direct your work.
Put the papers and the finances and the legislation to the side - the raw fact that at the heart of Social Justice are the human experience and suffering of Aboriginal peoples and Torres Strait Islanders.
The Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner had its seeds in the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. It was set up as part of the Federal Government's response to the findings of the Royal Commission, and as a practical manifestation of its clear commitment to change the circumstances in which the Indigenous peoples of this country live. It is crucial that we continually come back to this point of reference in our work.
A similar distinction needs to be drawn between formal and legislative empowerment and accountability on the one hand and community and ethical accountability on the other. I may be formally empowered by an Act of the Australian Parliament and, in legal terms, I am answerable and accountable to the Attorney-General but there should be no doubt that it is the Aboriginal and Torres Strait Islander peoples of this country who confer what authority I have and to whom I am morally responsible.
That there was the need for a Royal Commission, which operated between October 1987 and 1990, was testimony to the dereliction of this country's duty in relation to Indigenous peoples. This was more than confirmed by the Royal Commission's findings which provided irrefutable evidence of what we had always known, that is, that in every aspect of our lives, the experience of Indigenous peoples is characterised by inferior standards, limited access and opportunity to the goods and services available to other Australians and inappropriate and discriminatory treatment. The findings of the Royal Commission can also be read as evidence that Australia has failed in its obligations to ensure the enjoyment of human rights by one sector of its citizens - the Aboriginal and Torres Strait Islander peoples.
Three years after the findings of the Royal Commission and two years after Federal, State and Territory Governments committed themselves to implement those recommendations 5 , together with the allocation of an unprecedented amount of resources to support programmes specifically designed to implement recommendations, has the human experience of Aboriginal children, women and men changed? No. We are still the poorest, sickest, most poorly housed and most locked up people in the country.
There can only be one conclusion from this state of affairs. Something is not happening. Whatever that may be, it now desperately needs to happen.
For many of us struggle has turned to exhaustion, exhaustion to desperation, and desperation to cynicism. In the face of a seemingly endless line of disappointments people come to believe that there is no answer. I do not believe that this is the case. We must, however, avoid the temptation to clutch at superficial explanations and automatic answers, to explain the problem as simply a lack of political will, or inadequate resources, or entrenched and institutional racism thwarting efforts for reform, or the refusal to allow Indigenous peoples to take control of the systems which affect our lives. Every one of these factors is relevant but none are sufficient by way of explanation. To move forward they must all be addressed but addressed with reference to the context of a rights-based approach.
Again I emphasise that unless the framework changes, action in particular areas will ultimately make no significant difference. As I have noted in the Introduction, Indigenous affairs in this country have been suffocated by bureaucracy's failure to connect its work with peoples' lives. Part of the failure lies in a lack of clarity about exactly what different agencies can and should contribute to the process and how they can co-ordinate an effective collective response.