1. Social Justice and Equity

Objectives

1. Social justice and equality for Aboriginal and Torres Strait Islander peoples ensuring free and full participation in society

2. Effective implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody and Bringing Them Home reports

3. Increased public understanding of equality and awareness of the meaning and workings of special measures programs

Social justice is a term often used to describe the achievement of equality in the enjoyment of fundamental rights of citizenship, for example in the delivery of essential services, education, and employment. The first report of the Aboriginal and Torres Strait Islander Social Justice Commissioner, explained it in these simple terms:

'Social Justice is what faces you when you get up in the morning. It is awakening in a house with an adequate water supply, cooking facilities and sanitation. It is the ability to nourish your children and send them to a school where their education not only equips them for employment but also reinforces their knowledge and appreciation of their cultural inheritance. It is the prospect of genuine employment and good health: a life of choices and opportunity free from discrimination.' Michael Dodson, First Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner, 1993

The Council's vision for social justice is based on a society that actively enables Aboriginal and Torres Strait Islander individuals, communities and organisations to control their own destinies. A society that ensures social justice for all Australians will inspire and enrich relationships between Aboriginal and Torres Strait Islander peoples and the wider community.

Social justice requires that we address the devastating effects of colonisation that have profoundly affected the lives of Aboriginal and Torres Strait Islander peoples. By ensuring that Aboriginal and Torres Strait Islander peoples enjoy the rights and freedoms that most citizens of Australia take for granted, and addressing the impact of a history of disadvantage and discrimination, we ensure that our society is one in which every Aboriginal and Torres Strait Islander person is free to participate fully and reach their individual potential.

Australia has been an active member of the international community regarding human rights, although it does not have a strong record in the recognition and protection of the rights of Aboriginal and Torres Strait Islander peoples. Those international standards provide a guide in reaching goals of social justice, particularly while Australia does not have a comprehensive domestic human rights framework. As a means of establishing a national baseline for the protection of rights and realisation of social justice, the Council recommends that all levels of government ensure that legislation policy and practice are consistent with international human rights instruments and Australia's obligations under them.

The most important protection presently provided by Australian law for the rights of Aboriginal and Torres Strait Islander peoples is contained in the Racial Discrimination Act. It gives effect in domestic Australian law to the Convention on the Elimination of Racial Discrimination, ratified by the Australian government. The RDA provides legal protection to all Australians against racial discrimination. The Act does not enjoy any special status under the Constitution and can therefore be amended or set aside by the Commonwealth Parliament. It is critical to the reconciliation process that its scope and operation should be preserved and not diminished. Its effectiveness lies in its protections applying to all in this country.

Measures to address disparity

Addressing the cycle of disadvantage and disempowerment is the key to achieving social justice. For Aboriginal and Torres Strait Islander peoples, this requires a commitment from all levels of government to guarantee that Aboriginal and Torres Strait Islander individuals and communities enjoy levels of service delivery and infrastructure, education and employment opportunities and participation in decision making and outcomes which should be expected in a prosperous country like Australia. For Aboriginal and Torres Strait Islander peoples it is imperative that those services are appropriate to their physical social and cultural circumstances.

Measures to achieve this must go further than avoiding discrimination in the provision of services or access to educational opportunities. In some instances special measures are needed to ensure that the failure to provide adequate levels of services or educational opportunities in the past does not continue.

Special measures are employed where any group in society remains disadvantaged by circumstance, history or the institutional and systemic biases of our society. However, many people do not understand the reasons behind special measures and think it unfair to treat Aboriginal and Torres Strait Islander people in this way. Special measures are sometimes seen as unwarranted preferential treatment and the backlash can intensify the original problem. If the cycle of disadvantage is to be broken such programs and policies must be introduced and maintained until accumulated disadvantage has been addressed.

The Council considers that the use of special measures and the benefits that such measures deliver to the whole community must be an integral part of the ongoing educational campaigns discussed and recommended in this Document.

Over recent decades Australian governments have sought to understand and address issues of Aboriginal and Torres Strait Islander disadvantage. Governments have sought to assess the extent and causes of disadvantage through the conduct of Royal Commissions and other Inquiries. Some of the more significant being: The Royal Commission into Aboriginal Deaths in Custody, Bringing Them Home and the Law Reform Commission's Report on Aboriginal Customary Law.

The Council believes these reports provide the guideposts for us as a nation to deal effectively with the problems that get in the way of the achievement of true social justice for Aboriginal and Torres Strait Islander peoples. It is useful to refer back to these reports to assess how far we have come and where we can implement, or better implement, their recommendations as circumstances change.

For example, in 1991 the National Report of the Royal Commission into Aboriginal Deaths in Custody found that Aboriginal and Torres Strait Islander peoples were grossly over-represented in the criminal justice system and concluded that this was a result of the broader underlying social issues of disadvantage and discrimination.

The Report of the Royal Commission provides one of the most comprehensive assessments of Aboriginal and Torres Strait Islander disadvantage in the context of one its most devastating effects. Its recommendations remain relevant, in the context of current debates concerning mandatory sentencing and diversionary programs as well as the broader issues of cultural and social development and overcoming disadvantage, which contribute to criminal activity. With Aboriginal and Torres Strait Islander incarceration reaching even higher levels in recent years, continued efforts to effectively implement the recommendations of the Royal Commission should remain a high priority.

In the past, there have also been policies that directly discriminated against Aboriginal and Torres Strait Islander peoples that have had a continuing impact on every aspect of the life experiences of Aboriginal and Torres Strait Islander people. Dislocation from family traditional lands and breaking down of social structures through the forced removal of children from their families has now been recognised for its devastating effect on individuals, communities and Aboriginal and Torres Strait Islander peoples as a whole.

Also the 1997 Report of the Human Rights and Equal Opportunity Commission, Bringing Them Home--the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families made broad ranging recommendations concerning the Stolen Generations.

The Inquiry allowed Aboriginal and Torres Strait Islander peoples to share intimate stories of their lives, stories of grief and pain, to a nation that knew little about this part of Australia's history or the ongoing consequences of forced removal.

The Council supports the recommendations of the Bringing Them Home Report including:

• processes to increase support and family reunions for members of the Stolen Generation;
• recording of stories of those affected by forced removal; and
• education for the whole community about this part of Australia's history.

Actions for Implementation

A. All levels of government take responsibility to ensure that their laws, policies and practices comply with international human rights instruments and other international human rights standards.

B. The Commonwealth, State and Territory governments take action to overcome the over-representation of Aboriginal and Torres Strait islander peoples in the criminal justice system, including through the elimination of laws that preclude discretion in sentencing, and continued encouragement for diversionary and other programs, consistent with the findings of the Royal Commission into Aboriginal Deaths in Custody that sentencing should be an option of last resort.

C. State and Territory governments continue to develop and expand programs to strengthen Aboriginal and Torres Strait Islander families directly or indirectly affected by forced removal policies.

D. Commonwealth and State Governments establish a process to address the consequences of forced removal, reparation and restitution.

E. The Commonwealth must ensure the protections provided by the RDA apply equally to all Australians. Any existing measure to remove these protections must be immediately rescinded. Any measure designed to remove the protections of the RDA shall be prohibited.

F. The Human Rights and Equal Opportunity Commission and State and Territory anti-discrimination bodies work with Reconciliation Australia to produce accessible information about social justice and equality as it relates to reconciliation and human rights.

G. Schools and other educational institutions revise relevant curricula to include information about social justice and equality.