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Reconciliation: whose rights, whose responsibilities? The Sir Wallace Kyle Oration, University of Western Australia, 25 October 2000.



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"Reconciliation: whose rights, whose responsibilities?" The Sir Wallace Kyle Oration, University of Western Australia delivered by Dr W Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, 25 October 2000.

I would like to acknowledge the Wajuk people, on whose traditional country we meet today.

I am honoured to present this distinguished lecture, which has been established as a tribute to the contribution of Sir Wallace Kyle to Western Australian society.

Given the enormous contribution made by Sir Wallace to the Western Australian community, it is quite appropriate that the theme of this lecture series is the motto of Rotary - 'service about self'. It is a theme that exemplifies the role that Rotary strives to play in the community by aiming to provide humanitarian service; set the highest ethical standards in all vocations; and help build peace and goodwill across the world.

I cannot imagine a topic of greater significance to the meaning of community in Australia, or more deserving of 'service above self', than the reconciliation process. There can be no challenge greater; no issue more important than the achievement of reconciliation between Indigenous and non-Indigenous Australians, and that is what I am going to talk about today.

Reconciliation goes to the very core of our national identity - of what it means to be an Australian. It challenges the very basis of our society. As I asked in May this year, upon the handing over of the Australian Declaration Towards Reconciliation to the people of Australia:

Will we, 'as a nation, take this opportunity to challenge the fundamental contradiction that lies at the heart of our society? For on the one hand we are a nation that prides itself as a defender of human rights and as a model democracy. Yet on the other hand we are a nation built on the exploitation and dispossession of Aborigines and Torres Strait Islanders.' [1]

This is the challenge of reconciliation. Today I am going to pose the following question, which draws out many of the issues relating to reconciliation: my question is simply, 'Reconciliation: Whose rights, whose responsibilities?'

We have had a formal process of reconciliation in this country for the past ten years. When the Council for Aboriginal Reconciliation was established in 1991, the objective of the Council was described in the 2nd reading speech of the Minister for Aboriginal Affairs as 'the transformation of Aboriginal and non-Aboriginal relations in this country'. It is trite to comment that such a relationship cannot be transformed unilaterally - it requires the participation and agreement of all people who are joined in the relationship, as members of Australian society.

We often hear from politicians that for reconciliation to be lasting it must live in the 'hearts and minds' of all Australians. No doubt this is true. But I place the success of the reconciliation process at a higher level. For it to be truly meaningful and lasting it must involve the full recognition and protection of the rights of all Australians -including those of Indigenous peoples.

The simple answer to the question 'whose rights, whose responsibilities' is that it is the rights of all Australians and the

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responsibilities of all Australians that are at issue in the reconciliation process.

What I intend to do over the next 45 minutes or so, is to explain the importance of the full recognition of and respect for the human rights of Indigenous peoples for the reconciliation process to be meaningful and lasting. I will then consider the issue of responsibility.

So, why is there a need for the rights of Indigenous people to be fully recognised today?

As the preamble of the Universal Declaration of Human Rights states, 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace'. Article 1 goes on to state that 'All human beings are born free and equal in dignity and rights.' The treatment of Indigenous people throughout Australia's history has not respected these basic principles of humanity.

Australia has been colonised, and indeed has flourished on the back of, the foundational myth of the racial inferiority of Indigenous peoples. This myth has been expressed in a variety of ways - most notably through the doctrine of terra nullius or 'land belonging to no one'. This doctrine held that Indigenous people were so primitive and 'low in the scale of social organization that their usages and conceptions of rights and duties (were) not to be reconciled with the institutions or legal ideas of civilised society.' [2] The assertion of our 'primitive' nature was the basis of our dispossession.

Since that time, this assumption of racial inferiority of Indigenous people has manifested in other forms - such as paternalistic policies of assimilation, and the devastating practices of forcibly removing Aboriginal and Torres Strait Islander children from their families. Forcible removal policies had at their core the belief that Indigenous culture was inferior to that of the mainstream society, and that the best interests of so called 'part-Aboriginal' children would be served by their removal from their families and separation from their Indigenous identity.

Unfortunately, the remnants of such assumptions continue today. It exists in recently reported comments by federal politicians that Indigenous people remain disadvantaged because they did not invent the wheel; and that they are disinclined towards education and would prefer to go hunting.

It also manifests in the continuing debate over the stolen generations. While there is generally an acknowledgement of the harm caused by these policies, a significant feature of current debate is the assertion that the intention of the policy makers (and those implementing the policies) at the time was 'beneficial' or 'benign'.

The result is that attention has been directed to the bona fides of policy makers of the time, by asking 'did policy makers of the day believe that they were acting in the best interests of Indigenous children?' Policy makers of the time were, of course, operating wholly within the then existing cultural norms, which gave expression to the perceived racial inferiority of Indigenous people. The crucial inquiry, therefore, is correctly stated as whether removal policies were premised on a series of assumptions about the cultural inferiority of Indigenous people which predetermined that the best interests of the child, and of the wider society, would best be served by removing the child from their family, community and culture.

The current debate about forcible removal policies has meant that we have been unable to transcend a dialogue that is grounded in the morally wrong beliefs and assumptions that underpinned society at the time the policies were in place. It amounts to a continuation of the cultural assumptions of the past.

The current relationship of Indigenous and non-Indigenous Australians is built on these 'false assumptions'. As social research conducted for the Council for Aboriginal Reconciliation notes:

Many Aboriginal and Torres Strait Islander people live day after day with the awareness that they are a dispossessed people. It is shown to them in the racist

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way in which they perceive they are treated by many non-Indigenous people in a wide variety of circumstances, in the material poverty of their lives and the lives of their extended families and their general communities, and in the way they are discriminated against in employment, in the way they are housed and in their lack of access to health and education services as good as those available to non-Indigenous people.

For many, the sense of dispossession is reinforced by their own experience of being forcibly taken from their families, or by the stories that hear from their families of killings and other sufferings inflicted on them by those they call the invaders or the colonists.

Individuals within Indigenous community, as might be expected, have reacted in many ways to this sense of dispossession. Some have brushed it aside and got on with their lives. Some have been deeply wounded, and have fought a difficult fight to overcome its effects on them. Some have been permanently damaged. None has escaped untouched, except perhaps individuals who have buried their Aboriginality: yet the fact of denial of part of their heritage itself may be seen as a price they have paid. [3]

It is also reflected in the institutions of society, which reflect the cultures and values of the mainstream. As the Canadian Royal Commission into Aboriginal Peoples put it, 'in this way, the colonization of Aboriginal nations has become an institutionalised reality. [4]

I want to now pause for a moment to consider the 'populist' counter -viewpoint to what I have said already. This view suggests that the past is over and has nothing to do with the present. It is reflected in views that the current generation of Australians should not be required to accept responsibility for events of the past, or the more extreme argument that 'blaming' the past is a way for Indigenous people to avoid accepting taking responsibility for their own destiny.

I commented on this view of the past in my Social Justice Report 1999 as failing to recognise the broader, systemic nature of Indigenous disadvantage in this country and operating to absent the government from its position of responsibility. Deborah Bird Rose has also critiqued this view of the past as a manipulation of concepts of time, by attempting to create a disjuncture between the past and the present, which is designed to evade responsibility. She says:

Whether idealistic or complacent, the idea of disjunction can be deployed to evade responsibility. The logic is to declare the present disjunctive with the past, and then assert that all the unpleasant and demanding social facts of today really belong in the past, or to declare that the present is about to be transcended and that we will soon live in a period that is disjunctive with our 'now'. This practice of 'now'; deflects us away from the present. It allows us to turn our backs on current social facts of pain, damage, destruction and despair that exist in the present through our own agency, but that we will only acknowledge as our past.

For example, when politicians discuss the suffering by Aboriginal people today as a result of past policies of separating families, they assert that our responsibilities do not extend to the people of today because the wrongs exist only in the past. In declaring the past to be disjunctive, we declare it to be something finished and unchangeable, and therefore outside our responsibility. [5]

Such denialism, she warns, can amount to:

a facile manipulation of responsibility, which I refer to as 'tunnel vision': what we deplore is held to be almost already in the past, and what we desire is held to be almost already achieved… visions of the future

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enable us to sidestep present responsibility while understanding ourselves in an imaginary state of future achievement… [6]

Such an imaginary state of achievement is most clearly shattered by reference to the levels of Indigenous disadvantage in Australian society. One commentator, in deference to the comments of Benjamin Disraeli on the existence of 'two nations in one' in Victorian England - namely, the rich and the poor - has described Australia as 'three nations in one': the rich, the non-Indigenous poor and Indigenous Australia. I am sure that I don't need to familiarise you with the figures of disadvantage across indicators of health and well-being, education, employment, housing, contact with the criminal justice system and so forth. I will repeat just one statistic. At the beginning of the twenty first century, Indigenous life expectancy is approximately 20 years lower than non-Indigenous Australians.

Let us reflect on this figure for a moment.

As the Australian Institute of Health and Welfare notes, this means that the life expectancy of Indigenous Australians is presently the same as that experienced by the non-Indigenous community in the year 1900. At the turn of the twenty-first century Indigenous people have yet to reach a standard that existed for the rest of Australia at the beginning of the twentieth century.

This disadvantage is historically derived. It is the result of dispossession. Of exclusion from mainstream society - it is often forgotten that Indigenous people were excluded from mainstream services until the late 1960s in many instances. As the Centre for Aboriginal Economic Policy have noted, this has created 'a significant legacy of inequality in areas such as education, health, housing and infrastructure'. This has been combined with the effects of recent inclusion: having left Indigenous people in a position unable to compete on equal terms, many Indigenous people have become trapped in poverty through reliance on welfare.

It is also the result of inter-generational poverty - with low income preventing the accumulation of capital and investment by most Indigenous people, carrying poverty forward to the next generation. And it is also reflected in the demographic characteristics of the Indigenous population, which is similar to that of a third world society. The result of this is that the Indigenous population is 'kinked' with an extremely young age structure - the median age for the Indigenous population is 20 years compared to 33 years for the non-Indigenous population. This creates the significant impact that in the next 10-20 years a vast number of Indigenous youth will enter employment age, leaving the very real risk that Indigenous unemployment - already at levels 4-5 times that of the non-Indigenous population - will dramatically increase. [7]

So how do we go about redressing this situation?

There are two key aspects of the past that must be overcome for a renewed relationship, based on true equality and partnership, to be forged in the future. These are redressing the power imbalance that currently exists in Australian society, including through redressing Indigenous disadvantage; and respecting Indigenous cultures, values and traditions. Human rights principles provide us with guidance in how we go about transforming this situation.

Indigenous people, as with every other member of Australian society, should expect no less than the full recognition of and respect for their human rights. Human rights standards constitute minimum acceptable standards of behaviour that Australia has committed itself to observe by signing these treaties or to which Australia is bound through our participation as 'good citizens' in the broader international community.

Importantly, in relation to redressing Indigenous disadvantage - for example - human rights standards makes it explicit that this is not merely something that is desirable, but is a matter of obligation in order to guarantee a free and equal society.

Two human rights standard are central to the discussion today -first, the principle of equality before the law; and second -self-determination and standards of effective participation.

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The principle of equality before the law is expressed in the Convention on the Elimination of All Forms of Racial Discrimination as follows:

States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law… [8]

The meaning of this principle is well established in international law.

The essential feature of the principle of equality is the understanding that the 'promotion of equality does not necessitate the rejection of difference.' [9] In his now classic statement of this, Judge Tanaka of the International Court of Justice explained this concept as follows:

The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equally and unequally what are unequal… To treat unequal matters differently according to their inequality is not only permitted but required. [10]

There are two approaches to equality contrasted in this passage. The first is often referred to as the substantive equality model, or the provision of equality in fact. This is the approach adopted by Judge Tanaka. This approach takes into account 'individual, concrete circumstances.' It acknowledges that racially specific aspects of discrimination such as socio-economic disadvantage, historical subordination and a failure to recognise cultural difference, must be taken into account in order to redress inequality in fact. [11]

It is an approach that acknowledges, in the words of the International Council on Human Rights Policy, that 'neither the formal declaration of equality nor the formal prohibition of racism or racial discrimination will by themselves eradicate racism, any more than the prohibition of other crimes leads to universal lawful behaviour.' [12]

Such an approach acknowledges, for example, that Indigenous people are disadvantaged in Australian society. In order to achieve equality in fact or in reality, this approach permits differential treatment of Indigenous people in order to redress this disadvantage. For only when this disadvantage is addressed will Indigenous people be equal in society.

The alternative approach - often referred to as formal equality -relies on the notion that all people should be treated identically regardless of their differing circumstances.

As Dr Michael Wooldridge, the Minister for Health and Aged Care, has stated in relation to the delivery of health services to Indigenous Australians:

This is, of course, a false view of justice that offers those people who are disadvantaged nothing. Justice does not mean treating everyone the same…

Justice means giving people their due. A fair go means giving people what is their due and Aboriginal people are justly entitled to health care that addresses their needs…

All we are doing is catching up and to characterise Aboriginal people as somehow privileged is false and misleading. To rectify injustice is not to discriminate but is simply to 'set right'. [13]

In adopting a substantive equality or equality in fact approach, international law indicates that there are two types of differential treatment that are 'legitimate' and therefore not discriminatory. These are firstly, actions that constitute 'special measures' and secondly, those which recognise and protect the distinct cultural

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characteristics of minority groups.

Special measures recognise that the present enjoyment of human rights is determined by the extent to which they have been recognised and protected in the past. Where there has been on-going and systematic discrimination against a particular group, whether it be on the basis of the race, or sex, or religion, for example, there needs to be a period whereby such a group is given a chance to catch up. Otherwise mere formal equality of treatment will result in further entrenchment of the discrimination which such a group has inherited.

By definition, special measures are differential treatment specifically designed to provide targeted assistance to particular disadvantaged groups. Special measures are deliberately designed to differentiate between those who have been historically disadvantaged by discrimination and those who have not.

It is very ironic that many of the attacks that are made on the level of services for Indigenous people are based on a 'false view of justice.' It is argued, for example, that special programs for Aborigines should be abolished because everyone should be treated equally. Of course, such programs often constitute special measures that have been developed precisely because Indigenous people are not equal and have been the subject of discrimination for too long.

It remains a challenge for governments, and bodies such as the Human Rights Commission, to explain the legitimacy of taking steps (or special measures) to redress Indigenous disadvantage.

The case for the withdrawal of special measures is when they have done the job which they were established to do. This is when the cycle of discrimination is broken and the target group is no longer in need of special treatment. However, there is certainly no evidence that Indigenous Australians no longer suffer the effects of past discrimination.

As I said earlier the second type of treatment that is consistent with the principle of equality and is therefore not discriminatory is action that recognises the distinct cultural identity of a minority group. An example of this is native title.

The High Court in Mabo uncovered the discriminatory practices against Indigenous Australians that were veiled by the legal fiction of terra nullius. As Justice Brennan stated in that case:

It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land. [14]

The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal societies when sovereignty was acquired by the British in 1788. In deciding whether to recognise that Indigenous law, the Court considered that it was no longer necessary to find that the Indigenous relationship to land bore a resemblance to those already known to the common law. In fact to require as such would be discriminatory. As Justice Brennan continued:

The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principal to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher 'in the scale of social organisation' than Australian Aborigines whose claims were 'utterly disregarded' by existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not. [15]

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The choice in Mabo was thus between perpetuating discrimination of the past or in recognising the cultural identity of Indigenous Australians. The Court, consistent with the principle of equality as it exists in international law, chose the latter.

As Justice Peter Gray has noted, Mabo 'made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure, and possibly, with respect to other aspects of life and death as well.' [16] In this way, the Mabo decision - through providing recognition to the validity of Indigenous cultures and law - stands as a turning point in the relationship of Indigenous and non-Indigenous Australians by rejecting the foundational myth of Australia's settlement.

Unfortunately, legislative amendments and clarification in subsequent judicial decisions have greatly diminished the potential of native title since Mabo. The quest for certainty has limited it's transformative potential by more easily finding extinguishment of native title. But this by no means provides a finalisation of these issues. As Justice Peter Gray notes, the process of native title recognition is:

in truth, (an) inquiry… as to whether the non-Indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in Indigenous law, despite any 'extinguishment' or 'impairment'. [17]

Mabo identified the existence of a grave injustice, even if native title has since developed in ways that may ultimately prove incapable of providing appropriate redress.

The second set of human rights standards that are relevant to reconciliation are those of self-determination and effective participation. There are grave misunderstandings in Australian society about the scope of self-determination. It is viewed as a threat to our national cohesiveness and as the basis of Indigenous secession.

These concerns reflect a poor understanding of the meaning and application of the principle of self-determination. Article 1 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, set out the scope of the right of self-determination. Australia is a party to both of these treaties. Article 1 provides that all peoples have a right to self-determination, and by virtue of that right may 'freely determine their political status and freely pursue their economic, social and cultural development'. In accordance with this right, 'All peoples may, for their own ends, freely dispose of their natural wealth and resources' and there is an obligation on the State that under no circumstances will they deprive a people 'of its own means of subsistence'.

Erica Irene-Daes, until recently the Chairperson of the United Nations Working Group on Indigenous Populations, explains the implications of the right to self-determination particularly well. Ms Daes prepared a commentary on the Draft Declaration on the Rights of Indigenous People in 1994, which Indigenous groups participating in the Working Group still consider to form the basis of Indigenous people's understanding of self-determination, and the basis for negotiation with governments about the recognition of Indigenous people's right to self-determination in the United Nations.

Ms Daes explains self-determination as follows:

Once an independent State has been established and recognized, its constituent peoples must try to express their aspirations through the national political system, and not through the creation of new States. This requirement continues unless the national political system becomes so exclusive and non-democratic that it no longer can be said to be "representing the whole people"... Continued government representivity and accountability is therefore a condition for enduring enjoyment of the

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right of self-determination, and for continued application of the territorial integrity and national unity principles…

On this view, self-determination could only result in secession in extreme circumstances. As Ms Daes notes:

The concept of "self-determination" has accordingly taken on a new meaning in the post-colonial era. Ordinarily, it is the right of the citizens of an existing, independent State to share power democratically. However, a State may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences. The international community and the present writer discourage secession as a remedy for the abuse of fundamental rights, but, as recent events around the world demonstrate, secession cannot be ruled out completely in all cases. The preferred course of action, in every case except the most extreme ones, is to encourage the State in question to share power democratically with all groups, under a constitutional formula that guarantees that the Government is "effectively representative". [18]

It is this issue of ensuring the effective representation and participation of Indigenous peoples that lies at the core of self-determination. As I have noted already, Indigenous people have never been able to participate as equals in Australian society. This is common to many other Indigenous peoples around the world. As Erica-Irene Daes notes:

They did not have an opportunity to participate in designing the modern constitutions of the States in which they live, or to share, in any meaningful way, in national decision-making. In some countries they have been excluded by law or by force, but in many countries that they have been separated by language, poverty, misery, and the prejudices of their non-indigenous neighbours. Whatever the reason, indigenous peoples in most countries have never been, and are not now, full partners in the political process and lack others' ability to use democratic means to defend their fundamental rights and freedoms.[19]

She argues that:

It would be inadmissible and discriminatory to argue that these peoples do not have the right to self-determination merely because they are indigenous. Such an argument would imply not only that they do not have the right to secede, but also that they do not have the right to demand full democratic partnership.

Self-determination, properly understood, is about accepting that Indigenous people have a right to demand full democratic partnership in Australian society. It is thus about recognizing the appropriate place of Indigenous Australians within Australian society. Such recognition creates responsibilities for Indigenous and non-Indigenous people alike. For Indigenous people, it creates a responsibility to try to reach agreement as to participation in the State in good faith; and on the broader community to accommodate the aspirations of Indigenous people into the fabric of society, including through constitutional reform if necessary.

Having just introduced the concept of responsibility, I will now make some further comments about its relevance to human rights.

In my view there has been a perhaps unfortunate development in debate about human rights in recent years. This has been the way that the phrase 'human rights' is barely uttered without the qualifier 'and responsibilities'. I say it is an 'unfortunate development' not because I think that the concept of responsibility is not relevant to human rights - as it is to all aspects of human endeavour - but because it has in many ways acted as a distraction from the central issue of human rights recognition and protection.

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It distracts us for the simple fact that all people - regardless of their race, sex or other characteristics - are entitled to enjoy their human rights equally and on a non-discriminatory basis. There are no qualifications on such enjoyment of human rights.

The focus on responsibility leaves us with an implication that people are perhaps only 'entitled' to rights if they earn them. The danger of this is how you judge whether someone is worthy or not. I have already discussed the existence, and continuation today, of cultural assumptions about Indigenous people. Talk about responsibility can act as code for a reinforcement of cultural biases as the basis of not recognising rights.

It also focuses solely on those who do not enjoy human rights -they are the people who must be responsible if they are to be allowed to exercise their rights.

But this overlooks a crucial factor in the recognition of rights, and the reconciliation process- and that is the concept of governmental responsibility and the notion of responsible democracy.

There are two aspects to this which I will discuss today - first, the obligation on government to recognise and protect the human rights of all Australians, and of those within our shores. In this sense, responsible government does not mean simply majoritarian rule. It creates an obligation - a responsibility - to protect the most vulnerable in society, by ensuring that you protect their human rights. This shouldn't be so scary to people - as one commentator once noted, human rights merely protect 'the rock bottom of human existence'.

The second layer of government responsibility is to explain this government obligation regarding human rights to the general public. This must necessarily include explaining why particular actions, programs or special measures are warranted, or indeed required, in order to ensure full guarantees of human rights. Higher expenditure of Indigenous health, for example, should be explained as necessary in order to ensure that over time Indigenous people are not discriminated against and are able to enjoy equal standards of health to all other Australians. This stands in contradiction to views that such spending amounts to 'special treatment'.

I want to conclude my talk today, by discussing an event that happened in my hometown recently, which I think offers some parallels to the reconciliation process.

When Sydney hosted the Olympics, a truly amazing thing happened. People in Sydney appeared to be genuinely happy. People were talking to each other in the streets. In the very tall building where I work people were talking to each other in the lifts -and that is unheard of! There were planned and spontaneous parties and events taking place across the city and there seemed to be a general feeling that all was well with the world. At the games events the crowds cheered loudest for the Australian competitors, of course, but the performances of other people were also normally recognised and acknowledged.

I have to admit that I was very nervous, even resentful, about what I saw as the disruptiveness, which would be caused, to personal and work activities by the Games. And there were disruptiveness and inconvenience. But I think that the overall feeling of goodwill more than compensated for this. And this situation has prompted some thoughts for me in my role as a member of the Human Rights and Equal Opportunity Commission.

The first thought goes something like this: Australia has hosted a superb international event and Australians did very well in the face of strong international competition. Factors which helped make it a superb event included financial and other resources, planning, government and private support, volunteers and local and overseas competitors and spectators. And what this list of things tells us is that these successful Olympic Games didn't "just happen". They involved an enormous effort and part of that effort involved building on the past and importing people and ideas and skills from overseas. And this is indeed the case with all of our successful endeavours and activities.

We would not have developed an economy and our wealth in isolation from the rest of the world. We could not have developed

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our political system of democracy in isolation from the rest of the world. We could not have developed those wonderful Olympics in isolation from the rest of the world. AND, part of this relationship with the rest of the world involves one exchange of ideas, which may include criticism of Australia. And, for better or worse, this criticism helps us get things right. This is because constructive criticism is healthy and, when we take it on board, constructive criticism helps make us strong in every field of endeavour.

Consequently, I have been extremely disappointed this year by Australia's reaction to criticisms from three of the United Nations Treaty Committees. If ever there was acknowledgement that we cannot develop as a country and a nation in isolation it is through our acknowledgement of the United Nations and our becoming a party to the various treaties. We agree, voluntarily, to abide by a system of values, which we regard as being right for our citizens, and we accept that on-going dialogue and international scrutiny help us to do that. And, as with economies, and politics, and sport, we can expect from time to time that these may be some criticism. We may not always agree with the criticism but surely some of the knee-jerk reactions, some of the shooting of the messengers, and some of the blaming of the processes that we have seen this year are as parochial and as short-sighted as if we neglected the rest of the world in terms of trade and sport.

For example, our dollar is currently at historically low levels, especially against the Russian dollar (11.42). One of the international explanations being given for this, and it is an explanation based in constructive criticism, is that Australia is regarded as being a backward economy because of our failure to develop in the area of information technology. The explanation, the criticism, may or may not be valid, but we ignore it at our peril. How stupid it would be to say: "We don't like that criticism so we will not trade with the rest of the world anymore" or "we don't like that criticism so we demand that the entire international system of trade and foreign exchange be altered." Similarly, when Sydney was awarded the Olympic Games it agreed to abide by certain conditions, eg, of environmental friendliness of the venues, and there were international criticisms of the venue development from time to time over the last few years. How silly and short-sighted it would have been if the New South Wales Government had said "We don't like your criticisms so we don't want any International Olympic Officials coming here and we may not even participate in the games."

Yet, this is precisely what has happened with our attitude towards the treaty system and the treat committees of the United Nations. After receiving constructive criticism from the Committee for the Elimination of Racial Discrimination Australia decided to review its position in relation to the treaty system, and then after receiving similar constructive criticism from the Human Rights Committee, three Ministers issued a joint statement in which they said that our reports to the United Nations treaty committees would not be more economical and selective; we will only agree to requests for the treaty committees to visit Australia where there is a compelling reason to do so; we will reject unwarranted requests from treaty committees to delay removal of unsuccessful asylum seekers from Australia; and we will not sign or ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women.

This, along with posturing statements such as threats to give the United Nations "a bloody nose" reflect a novelty, and arrogance, and ultimately an isolationist position which can only take Australia backwards in the eyes of the world and in terms of our citizens rights. And this comes at a time when just the reverse is so desperately needed. The need for such recognition of rights in Australia has been the focus of my discussion today.

And this brings me to my second Olympic thought. I said before that people in Sydney appeared to be happy and getting on well together. Indigenous and non-Indigenous Australians, and visitors of many races from many countries enjoyed, TOGETHER, the Olympics and associated festivities. Which raises the question will this last? Will this seeming racial harmony continue? Will there be reason for the celebrations by all Australians to endure. Well, I'm afraid I have to say, and I know you will agree with me, that the answer to that question is NO. How do we know this? Well, we have history, for one thing, to teach us. After all, in 1956,

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Melbourne hosted what are still affectionately known as the Friendly Games but, unfortunately, much of that friendliness failed to continue after the games. The failure of the friendliness to endure, the failure to achieve true racial harmony, and many of the problems related to difference which we see today are the result of systemic racism and social INJUSTICE which are so profound, deep and enduring that far more than a four yearly fluting explanation can hope to overcome.

But we can hold up the Olympic experience as an ideal for relations between Indigenous and non-Indigenous people in this country. Wouldn't be wonderful if rather than just celebrating the truly great success of athletes such as Cathy Freeman, we could celebrate the achievements of Indigenous Australians across all areas of civil society? This is not to say that the successes are not there to be celebrated - clearly they are: just not in the numbers that exist for the rest of society.

The Olympic experience, from this perspective, can be seen as a utopian vision of a reconciled Australian society.

We are not there yet.

The basic underlying framework to get there is the recognition and respect for the rights of all Australians.

Concluding comment / sentence etc

Thankyou

Jonas, W., 'Practical makes imperfect', The Australian, Thursday 25 May 2000. 1.

In re Southern Rhodesia (60) (1919) AC 211, at p233-34, as quoted by Justice Brennan in Mabo v Queensland (No.2) (1992) 175 CLR 1.

2.

Saulwick & Associates, and Muller & Associates, Research into issues related to a document of reconciliation - Report No.2: Indigenous qualitative research, Council for Aboriginal Reconciliation, Canberra, May 2000, www.reconciliation.org.au, p6.

3.

Royal Commission into Aboriginal Peoples, Volume 1: Looking forward, looking back, Minister of Supply and Services, Ottawa 1996, pp607-08.

4.

Rose, D.B, 'Hard times: An Australian study' in Neumann, K, Thomas, N, and Ericksen, H (Eds), op.cit, p7. 5.

ibid. 6.

See Hunter, B and Taylor, J, The job still ahead - Economic costs of continuing Indigenous employment disparity, CAEPR, ANU, Canberra 1998.

7.

CERD, Article 5. 8.

Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, ibid., p31. 9.

South West Africa Case (Second Phase) {1966} Rep 6, pp303-304, 305. 10.

Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, op.cit, pp31-32. 11.

International Council on Human Rights Policy, The persistence and mutation of racism, Versoix, Switzerland 2000, p7.

12.

The Hon. M Wooldridge, Minister for Health and Aged Care, Aboriginal health: The ethical challenges, op.cit., pp2-3. 13.

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Mabo (1992) 175 CLR 1, p39. 14.

Ibid, p40. 15.

Gray, P., 'Do the walls have ears? Indigenous title and the courts in Australia' (2000) 5 AILR 1, p1. 16.

Gray, P., 'Do the walls have ears? Indigenous title and courts in Australia', op.cit., p1. 17.

Daes, Erica-Irene, Discrimination against Indigenous people - Explanatory note concerning the draft declaration on the rights of Indigenous peoples, Un Doc E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, paras 20-21.

18.

Ibid, para 24. 19.

 

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