Social Justice Report 2011 Table of Contents a cause for cautious optimism: The year in review 13 1Introduction 13

1.4Giving full effect to the Declaration

The previous section of this Chapter has outlined some recent developments in light of the main principles of the Declaration. But as we can see, we still have some way to go before we give full effect to the Declaration. Significantly, the Special Rapporteur on the rights of indigenous peoples recommended that the Australian Government review all laws and policies for compliance with the Declaration.⁹⁹ This is a recommendation with which I strongly agree. I will now report on some of the specific actions related to the promotion of the Declaration that took place during the reporting period.

Raising awareness and building capacity

To give full effect to the Declaration we need to build the capacity of Aboriginal and Torres Strait Islander peoples and communities, governments, and other relevant players to enable them to effectively engage with the Declaration. This requires awareness-raising and capacity building. There have been three promising developments that my office has been involved with in the last year to increase awareness and capacity of people to engage with the Declaration.

The Community Guide to the Declaration

On 13 December 2010, my Office launched a set of plain language resources to help Aboriginal and Torres Strait Islander peoples better understand and protect their rights. The materials produced were:

• 
  a Community Guide to the Declaration
  
• 
  an eight page overview of the Declaration
  
• 
  a double sided poster that includes the full text of the Declaration.¹⁰⁰
  

The Community Guide to the Declaration uses real-life examples to explain the key principles of the Declaration and describe how communities can use it to promote practical action. These materials were produced with funding from the Christensen Fund and Oxfam Australia. A DVD version of the resource will be available shortly and further funding from the Christensen Fund for an interactive website has been secured.

Since being launched, there has been high demand for the materials from Aboriginal and Torres Strait Islander communities and organisations. Funding to print additional copies of the materials has been provided by FaHCSIA.

I believe these materials are a valuable resource to our communities and organisations to familiarise themselves with the Declaration and to develop ideas on how they can use the Declaration in their day-to-day business.

Our organisations can use the Declaration to bolster their lobbying and advocacy work in whatever sector they operate in. It is by using the Declaration and by quoting relevant articles that it will become the ordinary way of ‘doing business’. A quote from Professor Mick Dodson cited in the Community Guide to the Declaration reflects this view and is outlined in Text Box 1.5.

Text Box 1.5: Using the Declaration for change

Aboriginal and Torres Strait Islander peoples can use the Declaration for change, Mick Dodson argues that: I think people should use the Declaration at every opportunity. If you are writing to government quote articles of the Declaration. If you’re involved in health quote the health articles, if you are involved in native title or land rights quote the lands, territories and resources articles, if you are in education quote the articles about education and language. If you are on about political organisation talk about self-determination and our right to be autonomous and govern ourselves. For any aspect of Aboriginal or Torres Strait Islander life there is something in the Declaration that you can use and utilise to reinforce your arguments and what you and your mob are trying to do.^101

The Declaration can also be applied to the governance frameworks of our organisations to assist in measuring their success in achieving the rights outlined in the Declaration. For example, to advance our rights to participate in decision-making that affects us, our representative bodies should ensure they echo the voices of the Aboriginal and Torres Strait Islander peoples they represent. I expand on this in greater detail in Chapter 3 of this report.

I would encourage all Aboriginal and Torres Strait Islanders, organisations and communities to familiarise themselves with the Declaration and apply it to all of your work and day-to-day lives. The more informed the debate is, the more we will demystify what implementing it can look like, and the more we can provide constructive advice to governments.

Australian Public Service human rights training

The Australian Government’s Human Rights Framework recognises that human rights education – in schools, in the community and in the APS – is a critical step in improving and promoting human rights in Australia.

To support the focus on public sector human rights education, the Attorney-General launched the Public Sector Education Program on 7 September 2011. This program includes a series of human rights education materials and training on how human rights relate to the work of the public sector. Information about the Declaration is included in this education program as an important instrument that ‘informs the way governments engage with and protect the rights of Indigenous peoples’.¹⁰² Information about the Declaration is incorporated in the introductory booklet In Our Hands: A Guide to Human Rights for Australian Public Servants.¹⁰³ This publication is available to all Australian Public Servants and was the basis of human rights workshops for over 1 000 Australian Public Servants in 2011 organised by the Attorney-General’s Department.

The Declaration is also referred to in numerous ‘Guidance Sheets’ on the rights and responsibilities contained in each of the seven core international human rights treaties to which Australia is a party.¹⁰⁴

These are pleasing developments; however I am concerned they do not go far enough. I reiterate my concern that the Declaration remains on the margins of the Human Rights Framework generally and this human rights training for Australian Public Servants more specifically. Considering the Declaration is the international instrument that provides the most authoritative guidance to governments as to how their binding human rights obligations apply to Indigenous peoples, it must be front and centre of any human rights and Framework and associated training.

National Human Rights Institutions

The adoption of the Declaration has provided renewed impetus for examining the ways in which National Human Rights Institutions (NHRIs) can advance the rights of Indigenous peoples. The role of NHRIs, like the Commission, in advancing the rights of the world’s Indigenous peoples is being increasingly recognised.¹⁰⁵

The Special Rapporteur on the rights of indigenous peoples James Anaya has specifically acknowledged that the office of the Social Justice Commissioner is ‘an exceptional model for advancing the recognition and protection of rights of indigenous peoples’.¹⁰⁶

The Asia Pacific Forum of National Human Rights Intuitions (APF),¹⁰⁷ the peak body for NHRIs in our region, and the Office of the High Commissioner for Human Rights (OHCHR)¹⁰⁸ have identified great interest amongst NHRIs in relation to Indigenous peoples rights and the Declaration. However there is a need for capacity development. As such there is a strong desire for technical cooperation and the development of educative tools to assist NHRIs to promote Indigenous peoples rights and the Declaration at the national level.

In response the OHCHR has partnered with APF to produce a training toolkit NHRIs to support and strengthen the work that they are doing to advance the rights of Indigenous peoples. The Social Justice Unit, within the Commission has been engaged by the APF in July 2010 to draft the written component of these materials. It is expected that this tool kit will be published in 2012.

International mechanisms addressing Indigenous human rights

At the international level today there a number of mechanisms that provide guidance to governments as they implement their human rights obligations as they relate to Indigenous peoples. These include:

• 
  the treaty bodies monitor the implementation of human rights treaties¹⁰⁹
  
• 
  the United Nations Permanent Forum on Indigenous Issues
  
• 
  the Expert Mechanism on the Rights of Indigenous Peoples
  
• 
  the Special Rapporteur on the right of indigenous peoples.
  

Incorporating the recommendations of these mechanisms into government processes is an important way in which to give full effect to the Declaration.

National Action Plan for the Declaration

Giving full effect to the Declaration will require reform across the policy landscape and different levels. During the reporting period we have commenced discussions about the need for a National Action Plan for the Declaration. This is an area of work that I will be pursuing with the Australian Government and Aboriginal and Torres Strait Islander communities for the remainder of my term.

Strategic thinking has already begun around ways to give full effect for the Declaration. For example we could see:

• 
  legislative reform including:
  
  • 
    scheduling the Declaration to the Australian Human Rights Commission Act 1986 (Cth)
    
  • 
    incorporating the Declaration in the definition of human rights for the purposes of the proposed Parliamentary Joint Committee on Human Rights
    
  • 
    incorporating the Declaration (or the key themes outlined above) as a relevant consideration for the purpose of administrative decision-making that affects Aboriginal and Torres Strait Islander peoples
    
• 
  incorporating the Declaration into the Human Rights Framework including the National Human Rights Action Plan
  
• 
  the creation of dispute resolution and redress mechanism including administrative review
  
• 
  education and awareness raising
  
• 
  changes to the policy process from design through to implementation and monitoring
  
• 
  promoting cultural competency in the bureaucracy from a systems and individual perspective
  
• 
  influence the operation of national planning, priorities and agreements including the National Indigenous Reform Agreement, the COAG Targets and Building Blocks and National Partnership Agreements
  
• 
  incorporating into the reporting framework of the Overcoming Disadvantage Reports produced by the Productivity Commission.
  

This list is far from exhaustive, but it makes it clear that implementing the Declaration is not something that will simply happen with the stroke of a legislative pen, nor departmental policy. It requires institutional and cultural change, as well as institutional capacity building and importantly it will take time. A holistic approach is needed; a National Action Plan.

Of course, to be consistent with the Declaration, an Action Plan must be developed in conjunction with Aboriginal and Torres Strait Islander peoples. I am currently advocating that the Australian Government enter a process with Aboriginal and Torres Strait Islander peoples to negotiate and develop such an Action Plan to give full effect to the Declaration. This is particularly relevant because of the Australian Government’s Human Rights Framework which includes the development of a National Action Plan on Human Rights. Unfortunately, as already noted the Human Rights Framework does not explicitly acknowledge that the Declaration will guide how the Framework or Action Plan will be implemented as it impacts on Aboriginal and Torres Strait Islander peoples

I encourage the Government to commit in good faith to developing a strategy in partnership with Aboriginal and Torres Strait Islander peoples to ensure the principles of the Declaration are given full effect.