The Inquiry
Who should make a submission?
Making a submission
Suggestions for submissions
1. Key Points Summary
2. National leadership and cross-party support
3. Commonwealth's actions have encouraged community division
4. Government's Formal Response to CAR's Final Report
5. Additional points
Key Background Documents
Terms of Reference for the Inquiry

The Inquiry                                                           Back  toTop

Senate Legal and Constitutional References Committee:

Inquiry on progress towards national reconciliation, including the adequacy and effectiveness of the Commonwealth's response… (See Terms of Reference, below)

Submission deadline: 15th November 2002

Submissions can be posted, faxed or emailed:

The Secretariat
Senate Legal and Constitutional Committee
Room S1.61, Parliament House
Canberra ACT 2600
Fax: (02) 6277 5794
E Mail: legcon.sen@aph.gov.au

Who should make a submission?                  Back  toTop

Both organisations and individuals can make submissions to the inquiry. ANTaR is urging organisations in particular to make submissions. Individuals are also encouraged to make submissions.

Making a submission                                                       Back to Top

For best results submissions should be brief, clearly set out with appropriate sub-headings and include relevant references and, where appropriate, additional material as appendices. Longer submissions should include an executive summary. "Form letter" submissions are not recommended as they are unlikely to be given serious consideration.

Submissions should have a title page with the committee and inquiry name and date clearly marked, along with the name and contact details of the author/organisation.

Make sure you carefully read and keep to the terms of reference for the inquiry (reproduced below). Material which deviates from the terms of reference will not be considered.

Those wishing to make submissions are encouraged to read the key background documents (listed below) and make sure they are familiar with the issues.

Suggestions for submissions                                   Back to Top

In order to assist with submissions, below are some suggestions regarding key issues. These are mostly general and only a guide and the list is far from exhaustive so don't feel constrained to include any issues or information you feel relevant. Organisations and individuals with special expertise (such as in health, housing, heritage, for example) are encouraged to place particular emphasis on their areas of expertise. Information on reconciliation and many associated issues referred to below can be found on ANTaR's website: www.antar.org

1. Key Points Summary                                                  Back to Top

10-Points of failure by the Commonwealth on reconciliation: ·

• Failure to provide national leadership and coordination on reconciliation (see 2 below).
• Abandonment of bipartisan support for reconciliation (see 2 below).
• Failure to provide a continuing, adequately-resourced formal reconciliation process.
• Lack of long-term strategies, targets, benchmarks and monitoring.
• Encouraged community division on reconciliation and Indigenous affairs issues (see 3 below).
• Six years of practical reconciliation policies have failed to deliver significant improvement in Indigenous disadvantage.
• Failure to deliver a national apology and justice measures to the stolen generations.
• Enacted racially-discriminatory legislation on native title (1998 Amendments).
• Promoted an assimilationist view of equality and rights.
• Inadequate response to CAR's Documents of Reconciliation and Final Report and the Social Justice Reports (see 4 below).

Some encouraging signs:

• Strength of the people's movement for reconciliation.
• Increase in the number and quality of agreements being negotiated, such as Indigenous Land Use Agreements (ILUAs), other native title and land agreements, local government agreements, etc.
• Council of Australian Governments (COAG) initiatives, including trialing whole of government approaches in ten sample communities.
  

2. National leadership and cross-party support  Back to Top

The success of the work of the Council for Aboriginal Reconciliation (CAR) over its lifespan (1991-2000) owed much to the fact that it operated in the context of an adequately-resourced, formal reconciliation process with its functions mandated by Parliament; and because the Council and the reconciliation process received unanimous cross-party support.

None of these conditions apply today. The Howard Government has ensured that, following the winding-up of CAR, there is no longer a formal process of reconciliation with mandated objectives, monitoring powers and accountability occurring in this country. Further, its actions and position taken with respect to key reconciliation issues (such as an apology to the stolen generations, a treaty or agreements process, native title and Indigenous rights) have helped engender a climate of division rather than consensus about key reconciliation issues (see 3 below).

Taken in context with the massive reduction in Commonwealth funding for the reconciliation process (see 4.3 below), the Howard Government has signalled its withdrawal from a serious national leadership role in reconciliation. Reconciliation, in its formal context, has been effectively nobbled by the Howard Government.
 
3. Commonwealth's actions have encouraged community division                                                                                       Back to Top

An alarming trend for reconciliation over the past 6 years has been the Howard Government's preparedness to play a divisive role in its approach to key Indigenous affairs policy issues. Its position has frequently placed it in direct conflict with long-held aspirations of Indigenous leaders and communities, particularly with respect to the recognition of Indigenous rights and cultures and the addressing of past injustices. Significantly, of particular relevance to this inquiry, the Howard Government's position is also in substantial conflict with the Documents of Reconciliation produced by CAR. The Howard Government has actively sought to turn public opinion against key goals and standards identified by CAR through extensive consultation with both Indigenous and non-Indigenous Australians.

Some examples of issues in which the Government's position or role has helped engender conflict rather than understanding and respect are:

An apology: · The issue of a national apology to the stolen generations, recommended in the Bringing Them Home Report, has been actively opposed by Prime Minister Howard and his government, resulting in community division over the issue. Howard appears to have deliberately encouraged negative community attitudes about an apology through his misrepresentation that a national apology would imply the guilt of current generations not involved in the policies of forced removals. However, this implication was never suggested in Bringing Them Home and has not been an issue in apologies subsequently made by every state and territory parliament in Australia.

'Practical reconciliation': · 'Practical Reconciliation', the Government's central approach to reconciliation, has been cynically devised to counter Indigenous Australians' desire for comprehensive, negotiated approaches which incorporate social justice and cultural rights in addressing Indigenous disadvantage. The Government's public statements have wrongfully attempted to distinguish 'practical' and so-called 'symbolic' issues as mutually exclusive, based on the misrepresentation of the nature and role of rights. Practical reconciliation presents an assimilationist 'formal equality' standard (see Rights and Equality below) and disparages the recognition of cultural difference as counter-productive. Consequently, practical reconciliation has encouraged a polarisation in community attitudes.

Declaration Towards Reconciliation: · The Government opposed CAR's Declaration Towards Reconciliation, proposing it's own "Revised Declaration" apparently reflecting the attitudes of the Prime Minister. Media coverage and debate was thus focussed on the Prime Minister's divisive opposition to elements in CAR's Declaration - itself the product of an extensive and lengthy national consultation process undertaken by CAR, a body made up of a wide and representative cross-section of Australian society.

Rights and Equality: · On the issue of rights, the Government vigorously promotes a 'formal equality' standard, with such statements as it is "committed to common rights for all Australians" and "neither the Government nor the general community…is prepared to support any action which would entrench additional, special or different rights for one part of the community" . Its position has served to undermine community understanding of and support for the recognition of Indigenous cultural rights and is fundamentally assimilationist. Recognition of difference, enshrined in the internationally-accepted standard of 'substantive equality' (ie, that sometimes 'special rights' are necessary to deliver an equality of outcomes for differently-situated sections of the community, such as Indigenous groups), is necessary for genuine reconciliation and justice for Indigenous Australians. The UN and our own official human rights body, HREOC, have repeatedly emphasised this to the Government.

Self-determination: · The Howard Government has actively opposed the right of self-determination for Indigenous peoples, claiming it would result in a separate Indigenous state. It even argued for the removal of the term from the UN Draft Declaration on the Rights of Indigenous Peoples. However, the creation of a separate Indigenous state is not part of the term's meaning under international law, nor is it a political objective of Indigenous Australians. But it has been a common prejudice associated with such issues as land rights and native title within sections of the non-Indigenous community from which the Government has been seeking to garner political support, and the Government has repeatedly used it as a wedge issue.

Native Title: · The Government has promoted racially-discriminatory attitudes and policies with respect to native title, helping to inflame community division with alarmist rhetoric about a 'crisis' in land management and by legitimising racist views in the community. It subsequently sought to deflect criticism of the racially-discriminatory nature of its 1998 Native Title Act Amendments by a number of UN Committees by arguing that the Committees were compromising Australia's national sovereignty. The UN criticisms remain unaddressed.

Preamble to the Constitution Referendum: · In handling the proposal for a Preamble to the Constitution, the Government ignored proper consultation processes, particularly with Indigenous interests, and imposed its own wording in committing the initiative to a referendum. Considering the difficulty of passing referenda in Australia, the Government's approach effectively ensured the referendum would fail (see also 4.4 below).

Motion of Reconciliation: · The Government ensured that its Motion of Reconciliation made in the House of Representatives was a divisive issue by ignoring the need for broad community consultation and support, particularly from the Indigenous community. (In comparison, CAR spent years on careful and extensive community consultation in producing its Draft Declaration Towards Reconciliation). The deficiencies of the resulting motion resulted in it being opposed by many Indigenous and non-Indigenous Australians, lessening its value as a meaningful reconciliation initiative.

Treaty process: · The Government dismissed out of hand consideration of and community debate about, a treaty or agreements process - a central recommendation of CAR's Final Report. Arguments used included the furphy that treaties can only be struck between sovereign states - again pitched to non-Indigenous prejudice and fear concerning a separate Indigenous state.

Black Armband history arguments: · The Prime Minister has publicly supported criticisms by those who have sought to deny or obscure the history of murder, violence and exploitation of Indigenous peoples in Australia, of what they have pejoratively termed the 'black armband' view of Australian history.

The examples above demonstrate how the Howard Government has placed itself in direct conflict with key aspects of the reconciliation agenda of Indigenous Australians, particularly with respect to rights issues, in an attempt to impose its own political agenda on the community. In doing so it has consistently employed arguments based on or seeking to connect with pre-existing prejudices and fears in the non-Indigenous community. The recognition of past injustices is acknowledged as a fundamental requirement for reconciliation, making the Government's attempts to sanitise and contest this history particularly significant. The overall result has been to reinforce negative attitudes and prejudices in the broader community and increase conflict and polarisation in community debate - exactly the opposite of the mission of CAR and the reconciliation process. In many respects we have gone backwards as a nation as a result of such actions by the Howard Government.
 
4. Government's Formal Response to CAR's Final Report                                                                               Back to Top

The Federal Government finally released its formal response to CAR's Final Report in September 2002 - almost two years after CAR's report was handed to the Government. Both its tardiness in responding, and the incomplete and inadequate nature of the response would seem to confirm the Government's lack of priority on reconciliation. Main sub-headings below which refer to 'recommendations', refer to the recommendations from CAR's Final Report. (A copy of the full recommendations can be accessed at: http://www.austlii.edu.au/au/other/IndigLRes/car/2000/16/text10.htm ).

4.1 General comments
Selective and inadequate response ·
•  The Government's response to CAR's Final Report is selective and inadequate, with most of CAR's recommendations receiving virtually no substantive response and prominence being given to generalised statements of commitment to reconciliation. ·
•  The Government has provided no detailed program of implementation for reconciliation and the limited 'practical reconciliation' agenda that it has adopted has no long-term strategy, targets, benchmarks or performance monitoring frameworks.

4.2 Recommendation 1 - Council of Australian Governments (COAG) role
•  The Council of Australian Governments' initiatives in addressing disadvantage, including initiatives for trialing whole of government approaches in ten sample communities, are welcome. However, it is concerning that the performance benchmarks and time-lines that COAG and MCATSIA (Ministerial Council on Aboriginal and Torres Strait Islander Affairs) are developing are not yet in place. ·
•  The Federal Government's figures for improvements in addressing disadvantage are ad hoc and misleading, reflecting the lack of national strategies and benchmarks for addressing disadvantage. Some figures are totally misleading, such as those for land ownership; or offensive, such as those for the 1998 Native Title Amendments, which in reality effected racially-discriminatory extinguishment of and exclusion from valid native title rights of Indigenous Australians.

4.3 Recommendation 2 - Support for the Documents of Reconciliation
Australian Declaration Towards Reconciliation
•  Australian Declaration Towards Reconciliation (see also above) is an example of where the Government has ignored the need for widespread community consultation, particularly with Indigenous interests, and imposed its own agenda by issuing a 'revised' document. Thus key issues such as the recognition of customary law, self-determination and a formal apology to the stolen generations were expunged from the original document. As a result, there is now no nationally-agreed aspirational and guiding document on reconciliation.
National Strategy to Overcome Disadvantage
•  The Federal Government's figures for improvements in addressing disadvantage are ad hoc and misleading, reflecting the lack of national strategies and benchmarks for addressing disadvantage.
•  The Government's claim of record Indigenous-specific funding levels as a measure of its record in addressing Indigenous disadvantage is misleading. Firstly, it has included all expenditure in any way related to Indigenous affairs, whether relevant to disadvantage or not, or even of detrimental impact. Thus it includes funding of broad community benefit (such as museums, reconciliation etc) and funding clearly detrimental to Indigenous interests (such as funding for pastoralists and governments opposing native title claims). In the last budget, such spending also included monies redirected from other programs. Secondly, the emphasis should be on outcomes, not expenditure, and in this respect the Government's lack of strategies and benchmarks means it is effectively unaccountable.
National Strategy for Economic Independence
•  The Government's response to this strategy reflects the lack of national strategies and benchmarks for achieving economic independence, and indicates no intention to remedy this shortcoming.
National Strategy to Sustain the Reconciliation Process
•  The Government claims to be demonstrating its commitment to reconciliation by one-off funding of Reconciliation Australia to the tune of $5.6 million and providing it with tax deductibility status. However, this represents a massive de-funding of reconciliation, being approximately equivalent to about 6 months operational costs for CAR, or the amount the Government was considering subsidising a doctor's lobby group to build a new office in Canberra! What's more, Reconciliation Australia is now saddled with an additional primary role of fundraising for its programs, thereby burdening its already over-stretched staff resources.
•  The Government appears to be trying to transfer responsibility for the reconciliation process to Reconciliation Australia. However, Reconciliation Australia is not an appropriate body for this role, being a private body without a broadly representative governing structure, having no legislated mandate, no formal powers for implementation and monitoring, and grossly insufficient funding.
•  The Motion of Reconciliation, far from reflecting continued bipartisan commitment to reconciliation, is a prime example of how reconciliation initiatives are currently being undermined or squandered by the lack of a formal process, national strategy and genuine commitment for reconciliation.
•  The Government's response claims that Reconciliation Place in the Parliamentary Triangle will provide a "prominent public symbol" of the nation's journey of reconciliation. In reality the project has been accompanied by bungled and inadequate consultation, particularly with members of the stolen generations, and has drawn such negative reaction from sections of the Indigenous and non-Indigenous communities that the public launch of the project was conducted hurriedly and with little fanfare.
•  "Acknowledgment of the special place of Indigenous people in the life and history of the nation on certain occasions" is a positive step, however the Government should not seek to dictate the circumstances and occasions for such acknowledgment.
National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights.
•  The Government's response is a clear statement of its assimilationist 'formal' equality view of rights (see also Rights and Equality in 3 above).

4.4 Recommendation 3 - Constitutional reform: preamble and section 25
Preamble to the Constitution
•  The Government's response concerning the proposal for a preamble recognising Aboriginal and Torres Strait Islander peoples as the first peoples of Australia is a cynical exercise in dispensing with an initiative it was never committed to. In reality it was the Government's bad judgement, its failure to institute a proper process for consultation, and its 'take-it-or-leave-it' approach to the wording that ensured a divisive environment in which the referendum was bound to fail. The preamble should not be dispensed with on the basis of the referendum's failure, as suggested by the Government.
Removal of section 25
•  While the Government's support for removal of the racially-discriminatory section 25 of the Constitution is welcome, it's lack of a plan or time-line for a referendum to remove section 25 is disappointing.

4.5 Recommendation 4 - Sustaining the Reconciliation process
• see above under recommendation 2 (4.3 above).

4.6 Recommendation 5 - Recognition of lack of treaties or agreements
Recognition of settlement without treaties or consent
•  The Government's claims to have recognised that settlement occurred without treaties or consent in its "Revised Declaration" neglects the fact that this document has no formal or community legitimacy in the reconciliation process. · see also below under recommendation 6 (4.7 below)

4.7 Recommendation 6 - Legislation for a treaty or agreements process
Draft legislation
•  Recommendation 6 is a key recommendation because it proposes draft legislation which details processes to "identify, monitor, negotiate and resolve unresolved issues for reconciliation", including the substantive measures outlined in the other 5 recommendations.
•  In rejecting CAR's draft legislation, the Government comments it "would impose a potentially divisive, protracted (at least 12 years) and inconclusive process on the nation." However, elsewhere the Government acknowledges the long timeframe that reconciliation will require, and the advances that have come from the 10 year formal process led by CAR - so objection to a long timeframe cannot be taken seriously. Given that the Howard Government itself has been one of the most divisive players during its time in government, concern over divisiveness also cannot be taken seriously. Finally, concern over potential "inconclusiveness" of the CAR's proposed processes seems odd from a government proposing no formal processes of its own and being unwilling to even sit down and negotiate with Indigenous people about the agenda of unfinished business. It appears that it is the Government's current approach, rather than CAR's, which is designed to be inconclusive.
Treaty process
•  The Government's dismissal of the recommendation for a treaty or agreements process as inappropriate and divisive is an attempt to shut down debate on the issue. Its argument that a treaty process "would undermine the concept of a single Australian nation" is pitched to unfounded fears of a separate Indigenous state and uncertainties over sovereignty and land ownership issues. However, there are a number of examples of successful treaty processes between sovereign states and Indigenous peoples. Moreover treaties are about reaching agreement, not division, and can help to provide legal certainty and dispute resolution mechanisms - conditions which clearly do not pertain in the current climate of uncertainty and conflict concerning the many matters of 'unfinished business'.

5. Additional points                                                           Back to Top
Assimilation
•  The Government's actions, focused on 'practical reconciliation' and a discriminatory notion of rights (see Rights and Equality in 3 above), has effectively brought back assimilation as the key objective of Indigenous affairs policy at the Commonwealth level.
The people's movement
•  One of the very few areas in which the Government has (unintentionally) helped advance the reconciliation process has been in relation to the 'people's movement' for reconciliation. This is because the outrage and despair about the backward-looking agenda of the Government has helped galvanise individual Australians on the need to support the reconciliation process.
Take-it-or-leave-it approach
•  Under this Government the agenda on reconciliation is a closed one - with Indigenous people being dictated to as to what is open for consideration and negotiation. Reconciliation can never be achieved under these conditions.
Need for binding outcomes
•  In short, the Government's actions in effectively impeding the reconciliation process is the strongest proof of the need for a formal reconciliation process which will lead to binding outcomes which are secure against future governments hostile to Indigenous interests.

Key Background Documents                                     Back to Top

Reconciliation: Australia's Challenge: Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, December 2000 ·
http://www.austlii.edu.au/au/other/IndigLRes/car/2000/16/

Roadmap for Reconciliation and the associated National Strategies to Advance Reconciliation; Council for Aboriginal Reconciliation, 2000 ·
Roadmap and Strategies: http://www.austlii.edu.au/au/other/IndigLRes/car/2000/10/ ·
Declaration Towards Reconciliation: http://www.austlii.edu.au/au/other/IndigLRes/car/2000/12/pg3.htm

Social Justice Report 2000 and Social Justice Report 2001, Aboriginal and Torres Strait Islander Social Justice Commissioner, HREOC (parts relating to reconciliation). ·
SJR 2000: http://www.humanrights.gov.au/social_justice/sj_report/index.html ·
SJR 2001: http://www.humanrights.gov.au/social_justice/sjreport_01/index.html

Commonwealth Government Response to the Council for Aboriginal Reconciliation Final Report - Reconciliation: Australia's Challenge. September 2002 ·
Response:
http://www.minister.immi.gov.au/atsia/media/reports02/index02.htm ·
Minister's media release:
http://www.minister.immi.gov.au/atsia/media/media02/r02056.htm

Websites

Senate Legal and Constitutional Committee http://www.aph.gov.au/Senate/committee/legcon_ctte/reconciliation/index.htm

HREOC
http://www.humanrights.gov.au/social_justice/index.html#senate · (Includes speeches from the regional forums on the SJR 2001 by Bill Jonas, Marcia Langton, Patrick Dodson, Sen Aden Ridgeway, Prof Lowitja O'Donoghue and others, + other links).

Council for Aboriginal Reconciliation http://www.austlii.edu.au/au/other/IndigLRes/car/

ANTaR
http://www.antar.org.au

Terms of Reference for the Inquiry                  Back to Top

Terms of reference for the inquiry are set in the motion passed by the Senate:

(1) That the following matter be referred to the Legal and Constitutional References Committee for inquiry and report by March 2003:

Progress towards national reconciliation, including an examination of the adequacy and effectiveness of the Commonwealth Government's response to, and implementation of, the recommendations contained in the following documents:

(a) Reconciliation: Australia's Challenge: Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament;

(b) the Council for Aboriginal Reconciliation's Roadmap for Reconciliation and the associated National Strategies to Advance Reconciliation; and

(c) the Aboriginal and Torres Strait Islander Social Justice Commissioner's social justice reports in 2000 and 2001 relating to reconciliation.

(2) That, in examining this matter, the committee have regard to the following:

(a) whether processes have been developed to enable and require government agencies to review their policies and programs against the documents referred to above;

(b) effective ways of implementing the recommendations of the documents referred to above, including an examination of funding arrangements;

(c) the adequacy and effectiveness of any targets, benchmarks, monitoring and evaluation mechanisms that have been put in place to address Indigenous disadvantage and promote reconciliation, with particular reference to the consistency of these responses with the documents referred to above; and

(d) the consistency of the Government's responses to the recommendations contained in the documents referred to above with the needs and aspirations of Indigenous Australians as Australian citizens and First Nation Peoples.