Table of Contents Executive Summary Social justice Year in review 2



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Social Justice and Native Title Report 2014



Table of Contents

Executive Summary………………………………………………………….6

1.Social justice - Year in review


2

1.Social justice - Year in review 7

1.1Introduction 13

1.2Machinery of Government changes 14

1.3The 2014 Budget 17

(a)Indigenous Advancement Strategy 17

(b)Mainstream budget measures 20

(c)Indigenous Advancement Strategy – some challenges 22

(d)Other budget measures – some concerns 23

(i)Indigenous languages 23

(ii)Aboriginal and Torres Strait Islander legal services 23

(iii)Cuts to other crucial services and programs 25

(iv)Health measures 25

(v)Welfare and pension age 27



(e)Future engagement 28

1.4Leadership, representation and engagement 28

(a)Prime Minister’s Indigenous Advisory Council 29

(b)National Congress of Australia’s First Peoples 30

(c)Empowered Communities 32

(d)Commentary 32

1.5Constitutional recognition 34

(a)Background 34

(b)Processes, bodies and recommendations 35


 The Hon J Anderson AO, T Hosch & R Eccles, Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel (2014). At 35



 The Hon J Anderson AO, T Hosch & R Eccles, note 78. 36


(c)Timing of referendum 36

(d)Support for constitutional recognition 37


 The Hon J Anderson AO, T Hosch & R Eccles, note 78, p 26. 37



 The Hon J Anderson AO, T Hosch & R Eccles, note 78, p 22. 37



 The Hon J Anderson AO, T Hosch & R Eccles, above, p 15. 37


(e)Seizing the moment 38


 The Hon J Anderson AO, T Hosch & R Eccles, above, p 21. 38


1.6Indigenous Jobs and Training Review 38

(a)Overview 38

(b)Response 41

1.7Closing the Gap 42

(a)Background 42

(b)Prime Minister’s report 42

(c)Progress and Priorities Report 2014 44

(d)Latest data on progress in Closing the Gap 45

(e)Next steps 45

1.8Stolen Generations 47

1.9International developments 49

(a)World Conference on Indigenous Peoples 49

(b)Expert Mechanism on the Rights of Indigenous Peoples 51

(c)United Nations Permanent Forum on Indigenous Issues 52

1.10Australian Human Rights Commission complaints 53

(a)Complaints received in 2013-14 by Aboriginal and Torres Strait Islander peoples 54

1.11Conclusion 55

2.Racial Discrimination Act - Proposed changes to racial hatred provisions 56

2.1Introduction 56

2.2Background to the Racial Discrimination Act 56

(a)International human rights and responsibilities 57

(i)Freedom of expression 58

(ii)Prohibition of hate speech 59

(b)Sections 9 and 10 of the Racial Discrimination Act 60

(c)The 1995 amendments 61

2.3Operation of the Racial Discrimination Act in its current form 62

(a)Complaints mechanism 63

(b)Interpreting s 18C matters before the court 63

2.4Proposed amendments to the Racial Discrimination Act 65

2.5Impact of the proposed changes on Aboriginal and Torres Strait Islander peoples 67

(a)Health impacts of racism 67

(b)Concerns about changes to s 18C 68

2.6General concerns with the proposed changes 69

(a)Scope of the proposed changes 69

(b)Community standards test 71

2.7Reaction to the draft Bill 71

2.8Latest developments 73

2.9Conclusion 76

4.Native Title - Year in Review 81

4.1Introduction 81

4.2Key trends in native title over the last five years 85

4.3Federal reviews of native title 85

(a)Australian Law Reform Commission Inquiry 88

(i)Connection and continuity requirements 90

(ii)Ensuring consistency with international human rights standards 92

(b)Deloitte Access Economics review 94

(i)Social and economic benefits of native title 95

(ii)Private agents 96

(c)Taxation of Native Title and Traditional Owner Benefits and Governance Working Group 96

(i)The Indigenous Community Development Corporation Model 97



(d)Indigenous Land Corporation and Indigenous Business Australia Review 97

4.4Budget reforms 99

4.5Reinstating legislation to amend the Native Title Act 100

4.6Tax Laws Amendment Acts 2013 101

4.7Native title developments in Queensland 102

(a)Land and Other Legislation Amendment Bill 2014 (Queensland) 102

(b)Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 (Queensland) 103

(c)Quandamooka 106

4.8South Australia 107

(a)De Rose Hill compensation case 107

(i)Compensation: legal entitlements and ‘just terms’ 107

(ii)Implications 109

(iii)Compensation under International Human Rights Law 110

(iv)Snapshot of compensation applications 111

6.Creating safe communities 113

6.1Introduction 113

6.2Justice reinvestment in Australia five years on 114

(a)Justice reinvestment explained 115

(b)Developments towards justice reinvestment 116

(c)Community justice reinvestment initiatives 120

(i)Bourke Justice Reinvestment Project 121

(ii)Cowra Justice Reinvestment Project 126

(d)Challenges 127

(i)Learning from the United States 127

(ii)Bipartisan support for alternative to imprisonment 129

6.3Justice targets 130

(a)What are justice targets and why are they important? 131

(b)Lessons from Closing the Gap targets 132

(c)Options for developing justice targets 133

(i)Overcoming Indigenous Disadvantage framework 135



6.4National Justice Coalition 139

6.5Conclusion and recommendations 140

Recommendations 141

8.Nations - Self-determination and a new era of Indigenous governance 142

8.1Introduction 142

8.2The importance of Nations 145

8.3Framework for Indigenous governance 149

8.4Community governance: a Nation building approach 151

(a)Development in Indigenous Nation building research and practice 151

(b)Indigenous Nation building 153

(c)Comments on Nation building 156

8.5Australian accounts of successful nation building 157

(a)Similarities between the two accounts 166

(b)Commentary on the accounts of Nation building 167

8.6Voices of Nations, not just national voices 168

(a)Background to the Assembly of First Nations 168

(b)Progress towards establishing an Assembly of First Nations 169

8.7Conclusions and recommendations 173

(a)Government and Nation building 174

(b)Government engaging with Nations 175

10.Giving effect to the Declaration 180

10.1Introduction 180

10.2Steps taken by the Australian Government to implement the Declaration 181

10.3Giving effect to the Declaration 183

(a)The Declaration Dialogues 184

(b)Findings of the Declaration Dialogues 185

(i)Raising awareness 186

(ii)Identifying areas of improvement for a National Strategy 186

(iii)The business sector and the Declaration 188



10.4Conclusion and recommendations 190

Recommendations 191

11.Appendices 192

11.1Appendix 1: Acknowledgements 192

11.2Appendix 2: Mandatory sentencing laws as at July 2014 194

11.3Appendix 3: Declaration Dialogues: questions asked at workshops 199



Executive Summary

It is with great pleasure that I present my fifth Social Justice and Native Title Report 2014 (the Report) as the Aboriginal and Torres Strait Islander Social Justice Commissioner.

One of my primary responsibilities is to report annually on the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples.1 I also report annually on the operation of the Native Title Act 1993 (Cth) (the Native Title Act) and the effect of the Act on the exercise and enjoyment of human rights of Aboriginal and Torres Strait Islander peoples.2 In 2014, I have again combined the reporting requirements into the Social Justice and Native Title Report, which covers the period from 1 July 2013 to 30 June 2014.

Chapter 1: Social justice - Year in review

In this chapter, I provide a snapshot of the key issues and developments relating to Aboriginal and Torres Strait Islander peoples and their enjoyment and exercise of human rights.

Discussion includes:


  • machinery of Government changes

  • the 2014 Budget

  • leadership, representation and engagement

  • recognition of Australia’s First Peoples in the Constitution

  • Indigenous Jobs and Training Review

  • Closing the Gap.

I am concerned about the lack of clarity in relation to some of these key issues and the impact of this uncertainty on our peoples.

I also report on other developments during the year, including:



  • the Collard Stolen Generations test case in Western Australia

  • international developments

  • complaints received by the Australian Human Rights Commission from Aboriginal and Torres Strait Islander peoples during this reporting period.

Chapter 2: Racial Discrimination Act - Proposed changes to racial hatred provisions

In this chapter, I explore the proposed changes to the racial vilification provisions in sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) (the RDA). I discuss the operation of the RDA in its current form and the reasons for retaining its effective protections for Aboriginal and Torres Strait Islander peoples. I outline principles to guide any future amendments.

Beyond legal protections, I also highlight the role that education and awareness can play in addressing racism.

Chapter 3: Native title - Year in review

In this chapter, I provide an overview of the significant issues that have arisen in native title. I consider the impact of these events on the exercise and enjoyment of our human rights as Aboriginal and Torres Strait Islander peoples.

There are a number of reviews currently underway into the operation of the native title system. These include:


  • the Australian Law Reform Commission’s Inquiry into Commonwealth native title laws and legal frameworks3

  • the review of the roles and functions of Native Title Organisations by Deloitte Access Economics4

  • the review by the Taxation of Native Title and Traditional Owner Benefits and Governance Working Group of existing arrangements for holding, managing and distributing land-related payments, and to identify options to strengthen governance and promote sustainability 5

  • the review of Indigenous Land Corporation and Indigenous Business Australia by Ernst & Young.6

These reviews provide the opportunity to look at the functioning of the system, and to consider necessary changes which will deliver better outcomes for Aboriginal and Torres Strait Islander peoples. It is my hope that once these changes are identified, ways to implement them will be forthcoming.

I also note some concerning native title developments in Queensland and a positive legal outcome in South Australia.



Chapter 4: Creating safe communities

The overrepresentation of Aboriginal and Torres Strait Islander peoples as both victims and offenders in the criminal justice system is one of the most urgent human rights issues facing Australia.

Chapter 4 reflects on the statistics of rates of imprisonment, and highlights the need to create safer communities to address this overrepresentation as both victims and offenders.

I showcase a number of developments towards justice reinvestment in Australia, including ground-breaking community initiatives in Bourke and Cowra, and highlight some of the challenges for implementing justice reinvestment based on the Australian context and international experience.

This chapter reports on the development of the National Justice Coalition and its priorities. Just as the Close the Gap Campaign for health equality has gained broad-based support and government action, I am optimistic that the National Justice Coalition can be a similar circuit breaker in advocating for safer communities.

Chapter 5: Nations - Self-determination and a new era of Indigenous governance

Since the beginning of my term as Aboriginal and Torres Strait Islander Social Justice Commissioner, I have raised the need for stronger and deeper relationships. The United Nations Declaration on the Rights of Indigenous Peoples7 (the Declaration) can be used to improve relationships between Aboriginal and Torres Strait Islander peoples, the broader community and governments.8 I highlight the need for leadership in building and supporting effective Indigenous governance, and set out a framework for approaching this issue.9

In this chapter, I discuss Nations and ‘Nation building’ – that is, enhancing the capacities of Indigenous nations for self-governance and self-determined economic development. I present research which shows that where local Aboriginal and Torres Strait Islander nations, communities, authorities and organisations have power and control over decision making and resources, real change is achieved in a more sustainable way.

My view is that Nation building guided by the Declaration will lead to the realisation of Aboriginal and Torres Strait Islander rights, stronger communities and more meaningful engagement.



Chapter 6: Giving effect to the Declaration

This chapter sets out a path for advancing the implementation of the Declaration within Australia, and the benefits that will result from this.

It reflects on the Declaration Dialogues that have been held by the Australian Human Rights Commission and the National Congress of Australia’s First Peoples in Aboriginal and Torres Strait Islander communities across the country over the past year.10

This chapter also highlights the need for improved engagement and concrete action to embed the Declaration in activities by all sectors of society: by governments, civil society, the private sector, and by Aboriginal and Torres Strait Islander communities.


Recommendations

Recommendation 1: The Australian Government revises its current position on targets as part of Closing the Gap, to include holistic justice targets aimed at promoting safer communities.

Recommendation 2: The Australian Government actively consults and works with the National Justice Coalition on justice related issues.

Recommendation 3: The Australian Government takes a leadership role on justice reinvestment and works with states, territories and Aboriginal and Torres Strait Islander communities to identify further trial sites.

Recommendation 4: The Australian Government:

  • acknowledges that effective local community governance is central to achieving sustainable development in Aboriginal and Torres Strait Islander communities

  • acknowledges the Nation building efforts to date and engages with those Nations as a means of linking with local Aboriginal and Torres Strait Islander peoples

  • continues to resource and support research into the concept of nationhood, such as the Indigenous Nation Building Collaboration.

Recommendation 5: The Australian Government agrees to engage with the National Implementation Strategy to give effect to the United Nations Declaration on the Rights of Indigenous Peoples.

Recommendation 6: The Australian Government amends the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) to include the United Nations Declaration on the Rights of Indigenous Peoples in the definition of human rights.

Chapter 1: Social justice - Year in review



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