Wansbrough, Ann --- "Book Review - Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report 1997" [1998] IndigLawB 22; (1998) 4(9) Indigenous Law Bulletin 21

• Book Review Aboriginal And Torres Strait Islander Social Justice Commissioner, Fifth Report 1997

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Book Review

Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report 1997

by Mick Dodson

AGPS, Canberra, 1997

Reviewed by Ann Wansborough

This is the final report of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson. Together, his five annual reports, his four reports on native title, his report prepared for the Aboriginal and Torres Strait Islander Commission ('ATSIC') on deaths in custody, and his report on the Stolen Generations, Bringing them home, which he assisted the President of the Human Rights and Equal Opportunity Commission ('HREOC') in preparing, provide a formidable critique of Australia's human rights record with regard to its Indigenous peoples.[1] Whatever excuses politicians may wish to trot out for their predecessors who created the Stolen Generations and allowed native title to be ignored, they have no such excuses for the abuse of the rights of Aboriginal and Torres Strait Islanders which continues in Australia today. Neither do any of us who elected them including members of the legal profession, church leaders, members of Non Government Organisations and staff of government departments. Michael Dodson has made sure of this. If we do not know about the harm being done to Indigenous people, it is because we refuse to know. If we do not know where to start in changing the situation, it is because we fail to learn from his analysis of the system.

The first two chapters of this latest report contain a political and historical analysis of the government's failure to take seriously the issues of human rights with respect to native title, Stolen Generations, deaths in custody, and reconciliation. It ought to disturb all Australians.

Chapter One examines the way political debate and government policy have failed to embrace the concept of co-existence, which is basic to any possibility of reconciliation. It shows the inconsistency between the government's claim of concern for the well-being of Indigenous peoples, and its approach to policy questions which demonstrates no understanding of international human rights instruments or the historical struggle of Indigenous peoples. Only a failure of political leadership could allow this government's evaluation of history as 'black-arm band' and unpatriotic.

While being critical in his approach, the Commissioner is clearly trying to persuade rather than to condemn: to find shared values that enable us to respect one another's dignity and human rights. He points out, for example, that the separation of children violates 'family values', and that the extinguishment of native title destroys property rights.

The second chapter charts the changes in Aboriginal and Torres Strait Islander policies from 1967 to 1997. It examines the referendum and its aftermath and the politics of federalism - 'self-determination or the delegating of headaches', bureaucratic developments, politics, treaties-and is supported by detailed annual surveys of changes in Aboriginal and Torres Strait Islander policy.

While there have been some improvements in that time, the Commonwealth has, on the whole, failed to exercise the mandate it was overwhelmingly delivered in the 1967 referendum to use its powers to over-ride state policies where necessary. Preference has been given to protecting state 'rights' over the human rights of its Aboriginal and Torres Strait Islander citizens, in defiance of international obligations. The result has been a cynical, irresponsible policy tug-of-war which has ignored the needs of Indigenous peoples as the states seek control, but want the Commonwealth to fund all expenditure for Indigenous people. At the same time, ATSIC and other indigenous agencies have been maligned, accused of ailing to meet standards that neither government nor business manage to meet consistently, and have been generally scapegoated.

Drawing on the findings in Part 6 of Bringing then home and continuing a theme from the third and fourth reports, Chapter Three explores the relationship between Indigenous youth and the criminal justice system and some of the reasons for the too frequent appearances of Indigenous youth before courts and in juvenile detention centres (an over-representation which is demonstrated in the report with statistics).

Reasons for these statistics include social factors such as dispossession and marginalisation as we have known since the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC'). In some states, legislation is also at fault, requiring mandatory sentences for particular actions. The courts, the legal profession and the police, too, have to bear some responsibility, as they too frequently respond differently to Indigenous youth from the way in which they respond to non-Indigenous young people. The courts, for example, often impose harsher sentences on Indigenous youth than they do on non-Indigenous young people. All this has given rise to a new Stolen Generation, albeit in a different guise, and violates the rights of young people set out in international instruments such as the Convention on the Rights of the Child ('CROC').

Little has been done to alleviate this situation - changes following the recommendations of the RCIADIC have often been tokenistic. As the Commissioner argues, there is an urgent need for a new framework for juvenile justice, one consistent with CROC and the draft Declaration of the Rights of Indigenous People and one which has two components. The first would provide mechanisms for Indigenous communities to deal with youth offenders themselves rather than handing them over to alien institutions. The second would be preventative and empowering allowing communities to control local affairs and to tackle the social factors that lead young people into inappropriate behaviour in the first place.

Chapter Four sketches a national community education project plan ('NCEP') (see also' Tracking Your Rights', this issue). It raises basic questions which might be asked when individuals and communities feel their rights have been violated and suggests ways of identifying appropriate 'tracks' (individual, community or legal) and tools (knowledge, laws, evidence, rights etc) which might help. The results of consultations with communities and a list of the 'key rights issues' in each state is included. Problems in implementing the NCEP are related to narrow bureaucratic attitudes that fail to give priority to practical outcomes for Indigenous people.

The final chapter evaluates progress in the national indigenous legal curriculum project, which is the implementation of Recommendation 212 of the RCIADIC. This is intended to equip Aboriginal Legal Field Officers to serve their clients effectively.

The report proper ends less than two thirds of the way through the volume after which there are four supporting Appendices and a valuable statistical supplement. Appendix I provides a historical survey of events leading up to the Ministerial summit on Indigenous deaths in custody in May 1997. One can only wonder why, nearly ten years after the RCIADIC began, the ministers had so little to say in their final communiqué. They seem oblivious to the Commissioner's previous criticisms of ineffective implementation of the RCIADIC recommendations. Appendix 2 answers frequently asked questions about the national inquiry into the separation of children. The third appendix reports international developments, and the fourth lists some of the Commissioner's main speeches.

The appalling truth is that the themes visited by the Commissioner in each of his reports during his five year appointment have been visited time and time again-see, for example the Toomelah Report, 1988.[2] Unfortunately, mechanisms for implementing economic, social and cultural rights for Indigenous peoples in major policy areas are so poor that these reports are not impacting sufficiently on policy. The system must change-the failure to change is simply a form of institutionalised violence.

The Aboriginal and Torres Strait Islander Social Justice Commissioner has fulfilled his statutory obligation to provide a critical evaluation of policy. He would betray both Indigenous and non-Indigenous Australians if he did otherwise. Likewise, the government will betray all Autralians if they do not heed this and his other reports. This is not a report to read with academic disinterest, but one that should put fire in the belly. What will we do to hold government accountable and to bring about the necessary changes?

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[1] Aboriginal and Torres Strait Islander Social Justice Commissioner: First Report 1993 AGPS 1993; Second Report 1994 AGPS 1995; Third Report 1995 AGPS 1995; Fourth Report 1996, AGPS 1996; Fifth Report 1997 AGPS 1997. Aboriginal and Torres Strait Islander Social Justice Commissioner: Native Title Report January-June 1994 AGPS 1995; Native Title Report July 1994-June 1995 AGPS 1995; Native Title Report July 1995-June 1996 AGPS 1996; Native Title Report July 1996-June 1997 AGPS 1997. Aboriginal and Torres Strait Islander Social Justice Commissioner: Indigenous Deaths in Custody 1989-1996 AGPS 1996. National Inquiry into the Separation of the Aboriginal and Torres Strait Islander Children from their families Bringing them Home AGPS 1997.

[2] Human Rights Australia Toomelah Report: report on the problems and needs of Aborigines living on the NSW - Queenlsand Border AGPS 1988.