Social Justice and Native Title Report 2015 ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER The Australian Human Rights Commission encourages the dissemination and exchange of information provided in this publication. All material presented in this publication is provided under a Creative Commons Attribution 3.0 Australia, with the exception of: • The Australian Human Rights Commission Logo • Photographs and images • Any content or material provided by third parties The details of the relevant licence conditions are available on the Creative Commons website, as is the full legal code for the CC BY 3.0 AU licence. Attribution Material obtained from this publication is to be attributed to the Commission with the following copyright notice: © Australian Human Rights Commission 2015. Social Justice and Native Title Report 2015 ISSN: 2204-1125 (Print version) Acknowledgements The Social Justice and Native Title Report 2015 was drafted by Kirsten Gray, Emily Collett, Susan Nicolson, Darren Dick, Andrew Gargett, Jack Regester and Roxanne Moore. The Aboriginal and Torres Strait Islander Social Justice Commissioner thanks the following staff of the Australian Human Rights Commission: Allyson Campbell, Amber Roberts, Loki Ball, Graeme Edgerton, Siobhan Tierney, Louise Bygrave, Angela Dorizas, Leon Wild and the Investigation and Conciliation Section. Special thanks to the following Aboriginal communities and organisations who feature in this report: The Murri School Brisbane, Yawuru and Noongar peoples. The Social Justice Commissioner also thanks interns Sophie Quinn, Avanithah Selvarajah, Vidya Ramachandran, Joshua Young and Ashwin Sivaratnam and all those who assisted with the preparation of this Report. A full list of acknowledgements is contained at Appendix 1. Design and layout The Aqua Agency Printing Paragon Printers Australasia Cover photography Photo: Phoenix Wunba Briscoe, a proud Ku Ku Yalanji descendant. Photograph by Luke Briscoe (2013). The photo was taken at ‘the Block’, Redfern – an urban iconic meeting place and a symbol of hope for Aboriginal and Torres Strait Islander peoples. Electronic format This publication can be found in electronic format on the website of the Australian Human Rights Commission: https://www.humanrights.gov.au/publications. ISSN: 2204-1133 (Online version) Contact details For further information about the Australian Human Rights Commission, please visit www.humanrights.gov.au or email [email protected]. You can also write to: Monitoring and Reporting Team Australian Human Rights Commission GPO Box 5218 Sydney NSW 2001 Please be aware that this publication may contain the names or images of Aboriginal and Torres Strait Islander people who may now be deceased. The Australian Human Rights Commission sits on the land of the Gadigal people of the Eora Nation. We acknowledge your ownership and we salute your Elders past, present and those yet to emerge. The Social Justice and Native Title Report 2015 was written on your lands and we honour you, the Gadigal people, by producing a record that advocates the human rights of Aboriginal and Torres Strait Islander peoples throughout Australia. 14 October 2015 Senator the Hon George Brandis QC Attorney-General PO Box 6100 Senate Parliament House CANBERRA ACT 2600 Dear Attorney Social Justice and Native Title Report 2015 I am pleased to present to you the Social Justice and Native Title Report 2015, in accordance with section 46C(1)(a) of the Australian Human Rights Commission Act 1986 (Cth) and section 209 of the Native Title Act 1993 (Cth). The Report examines the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples from 1 July 2014 to 30 June 2015. In doing so, it provides an overview of the year with respect to Social Justice and Native Title issues. The Report outlines major developments during the year, including the ongoing impact of the Indigenous Advancement Strategy, constitutional recognition, welfare and announcements regarding remote communities. It also reflects on progress in land and native title, including the findings of major reviews and the feedback of Aboriginal and Torres Strait Islander peoples about the need for a new process of engagement. These views were expressed during the Broome Roundtable on Indigenous property rights, which you attended in May 2015. This process also identified a number of major barriers in the enjoyment of our rights to land and native title, which are explored in depth. I also investigate two human rights issues facing Aboriginal and Torres Strait Islander peoples, namely that of disability and child protection. The Report details the nature and extent of disability in our communities as well as the experience of our people with the newly established National Disability Insurance Scheme. The chapter on child protection reveals what is one of the most challenging issues confronting our communities, including the value of reforms aimed at healing informed practice. I look forward to discussing the Report with you. Yours sincerely Mick Gooda Aboriginal and Torres Strait Islander Social Justice Commissioner Australian Human Rights Commission ABN 47 996 232 602 Level 3, 175 Pitt Street, Sydney, NSW 2000 General enquiries: 1300 369 711 GPO Box 5218, Sydney, NSW 2001 Complaints infoline: 1300 656 419 TTY: 1800 620 241 www.humanrights.gov.au Social Justice and Native Title Report 2015 • 1 About the Aboriginal and Torres Strait Islander Social Justice Commissioner The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was established in 1993. The office of the Social Justice Commissioner is located within the Australian Human Rights Commission. The Social Justice Commissioner: • reports annually on the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples, and recommends action that should be taken to ensure these rights are observed • reports annually on the operation of the Native Title Act 1993 (Cth) and its effect on the exercise and enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples • promotes awareness and discussion of human rights in relation to Aboriginal and Torres Strait Islander peoples • undertakes research and educational programs for the purpose of promoting respect for, and the enjoyment and exercise of, human rights by Aboriginal and Torres Strait Islander peoples • examines and reports on enactments and proposed enactments to ascertain whether or not they recognise and protect the human rights of Aboriginal and Torres Strait Islander peoples. Office holders • Mick Gooda: 2010-present • Dr Tom Calma AO: 2004-10 • Dr William Jonas AM: 1999-2004 • Zita Antonios: 1998-99 (Acting) • Professor Mick Dodson AM: 1993-98 About the Social Justice Commissioner’s logo The right section of the design is a contemporary view of traditional Dari or head-dress, a symbol of Torres Strait Islander people and culture. The head-dress suggests the visionary aspect of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The dots placed in the Dari represent a brighter outlook for the future provided by the Commissioner’s visions, black representing people, green representing islands and blue representing the seas surrounding the islands. The Goanna is a general symbol of the Aboriginal people. The combination of these two symbols represents the coming together of two distinct cultures through the Aboriginal and Torres Strait Islander Social Justice Commissioner and the support, strength and unity which the Commissioner can provide through the pursuit of social justice and human rights. It also represents an outlook for the future of Aboriginal and Torres Strait Islander social justice expressing the hope and expectation that one day we will be treated with full respect and understanding. © Leigh Harris 2 Mick Gooda Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda is a descendent of the Gangulu people of central Queensland and is the current Aboriginal and Torres Strait Islander Social Justice Commissioner. He is now in his 6th year in this position having commenced in February 2010. Mick has worked in Aboriginal and Torres Strait Islander affairs for over 30 years having worked in remote, rural and urban environments throughout Australia at the community, regional, state and national levels. As Commissioner, Mick builds on this experience to advocate for the human rights of Aboriginal and Torres Strait Islander peoples in Australia and to promote respect and understanding of these rights among the broader Australian community. For information on the work of the Social Justice Commissioner, please visit: http://humanrights.gov.au/social_justice/index.html Social Justice and Native Title Report 2015 • 33 Contents Executive summary 9 Recommendations 12 Chapter 1: The need for better engagement - Year in review 14 1.1 Introduction 16 1.2 Indigenous Advancement Strategy 17 (a) Background 17 (b) Grants process 18 (c) Incorporation requirements 21 (d) Inquiries into the IAS and related processes 22 1.3 Remote Aboriginal communities in Western Australia 24 (a) Response to the announcement of potential closures 24 (b) Benefits of remote communities 25 (c) Consultation process 26 1.4 Northern Territory paperless arrest powers 27 (a) Coronial inquest into the death of Kumanjayi Langdon 28 (b) Disproportionate impact on Aboriginal and Torres Strait Islander peoples 28 (c) Royal Commission into Aboriginal Deaths in Custody 29