Collaborative indigenous policy development

Collaborative indigenous policy development

IQPC 6th annual conference

 

Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner and National Race Discrimination Commissioner

What makes good Indigenous Policy - Good, Better, Best - Policy Making for Indigenous Australians

1 May 2007

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I would like to begin by acknowledging the traditional owners of the land we are meeting on here today and pay my respects to their ancestors.

I would also like to thank the conference organisers for two things: – firstly for inviting me to present today, and secondly, for developing a conference on such a critical but very marginalised theme on the national stage – Indigenous policy development – and how we can all do it better.

I’ve entitled my speech: What Makes Good Indigenous Policy - Good, Better, Best – Policy Making for Indigenous Australians – in the hope that one day these will be the kinds of adjectives we’ll be able to use in the same context as a discussion about Indigenous affairs in this country.

Of course I think most people here know enough about what is really happening out on the ground in Indigenous communities in terms of health, housing, education and employment, to know that we are going from bad, to worse, to shameful.

But let me say at the outset – while my comments today are highly critical of the parlous state of affairs of the federal government’s policies in Indigenous affairs - I want to acknowledge the hard work, the will to succeed, and the sheer determination that is evident in Indigenous communities around Australia.

Indigenous people are not defeated. We are not throwing in the towel in disgust or sheer frustration at the constant state of flux and shifting goal posts that characterise the federal government’s new arrangements in Indigenous affairs.

I think many Indigenous Australians appreciate the reality that remains conveniently (if not wilfully) just outside of the government’s line of sight – and that is that we are a young population, growing at a rapid rate.

What the government might now regard as irritating policy problems involving less than half a million people, they look set to become serious and intractable crises that will overwhelm a number of communities across Australia  – and some within our lifetime.

Here I am referring to demographic projections that suggest that by 2050 the area north of Broome and Townsville will be populated by a majority of Indigenous peoples.

I’m sure the next speaker, Sally Goodspeed (ABS), will be able to give us some detail about the social and economic needs of a burgeoning Indigenous demographic. I cannot emphasis enough how we as policy makers, have a responsibility to factor the very particular needs of future generations of Indigenous Australians into our work.

Regardless of whether we are responsible for making sure Indigenous people get better access to quality primary healthcare, or their houses properly serviced by basic utilities, we have a professional and a moral responsibility to ensure that all Australians are given the best possible opportunity to enjoy a life that is lived with dignity and purpose.   

This is why human rights standards are so critical to the policy debate in Australia – and indeed essential if we are talking about improving the opportunities and quality of life that future Indigenous Australians are entitled to expect and to enjoy.

Another point I want to make in my remarks this morning, and one that I think this conference is designed to make as well, is that Indigenous Australians are out there developing best practice models all over the country.

As the conference program shows - it is often the case that business and the non-government sector are the ones working with us to breath new life into jaded terms like:

• ‘partnership’,
• ‘consultation’ and
• ‘agreement’.

Whilst these words have been co-opted into the double-speak lexicon of the government’s new arrangements – the innovative and visionary nature of some of the agreements and professional relationships that have been forged – serve as a reminder of what these words really mean when they are undertaken with good will, generosity of spirit and a capacity to learn from mistakes. This is what is missing from Indigenous policy making at the federal level.

Overview of speech

Before I get too much further into my remarks, I thought it might be useful to outline my role as Aboriginal and Torres Strait Islander Social Justice Commissioner – and why I am not going to talk about the contents of the 2006 Social Justice Report.

Parliamentary rules mean I am not at liberty to speak publicly about the contents of the Social Justice Report until it has been tabled – which is still a couple of weeks away.

But these rules don’t preclude me from making general remarks about the extent to which the federal government’s new arrangements in Indigenous affairs are impacting on the way Indigenous Australians are able to exercise their human rights – after all this is my main role as Aboriginal and Torres Strait Islander SJC.

Nor do they mean that there is any problem about me outlining what a human rights based approach to policy development would look like – if an Australian government were to break ranks and try to embrace such a radical approach.

Statutory functions

I am a member of HREOC, which was established by the Australian Parliament in 1986. The overarching goal of the Commission is to foster greater understanding and protection of human rights in Australia and to address the human rights concerns of a broad range of individuals and groups.

The legislation that established the Commission was amended in 1992 to create the position of Aboriginal and Torres Strait Islander Social Justice Commissioner. This position was in part a response to the Royal Commission into Aboriginal Deaths in Custody, and Australia’s road towards the reconciliation process.

I am required to monitor Indigenous peoples’ enjoyment of their human rights and native title rights, and to report annually to Parliament on these two matters.

Every year I produce a Social Justice Report and a Native Title Report, which contain recommendations for the Parliament about actions it can take to improve Indigenous peoples’ human rights.

Other aspects of my role are to:

• Promote discussion and awareness about the human rights of Indigenous Australians,
• Undertake research and educational programs related to the rights of Indigenous Australians; and
• Review legislation to make sure it is consistent with international and domestic human rights standards.

These functions give me considerable scope to advocate for Indigenous peoples’ rights in a variety of ways. For example, I can:

• undertake original research on critical issues,
• hold a national human rights inquiry
• make submissions to parliamentary inquiries
• develop educational programs for schools, and
• participate in international processes that will advance indigenous rights globally and domestically.

New arrangements in Indigenous affairs – challenges abound

As a long-serving member of the public service before taking on the role of Social Justice Commissioner, I am the first to acknowledge that policy makers routinely have an imposing and thankless task.

I also acknowledge the challenges of working in Indigenous affairs at a time of completely ‘new arrangements’. There is an entirely new language, new departmental responsibilities, new Ministers – and a new whole of government approach to everything.

But it is important to keep these challenges in perspective.

We are talking about all levels of government and all government departments, sharing in that task.

For the first time in Australia’s history, there is also growing private sector investment and philanthropy going into Indigenous communities to foster development and economic independence.

With the commodities boom, Australia is in an optimal financial position to make real inroads into improving the status of Indigenous Australians. The OECD recently reported that our terms of trade are at a 32 year high, and business investment, especially in mining and associated infrastructure, is growing at double digit rates.¹ This has delivered Australia in the vicinity of an extra $17 billion a year to the budget bottom line.²

For all the commitments to overcoming Indigenous disadvantage that have been made over the years, I leave you to ponder whether we really are doing everything possible to give Indigenous Australians a fair go.

The ongoing damage of policy error

One person who clearly does not think that governments have been doing nearly enough to address Indigenous disadvantage is the Secretary to the Treasury, Ken Henry. In a speech late last year he reminded us that

… Indigenous disadvantage diminishes all of Australia, not only the disfunctioning and disintegrating communities in which it is most apparent. Its persistence has not been for want to policy attention. Yet it has to be admitted that decades of policy action have failed.³

Australia is not alone in the world when it comes to experiencing difficulty in addressing Indigenous disadvantage. The UN Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people has identified this as an international problem.

He has even given this phenomenon a name, labelling it ‘the implementation gap.’ As the name suggests, the problems lies not with the development of legislation – it’s the fact that all too often governments don’t go on to implement it.

A prime example from the Australian context is the Aboriginal and Torres Strait Islander Act 2005 (Cth), the legislation that forms the foundation for the new arrangements in Indigenous affairs. Its objective is to:

ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them.

Yet a full two years on from its enactment – and despite all the rhetoric of regional partnership agreements and regional Indigenous engagements agreements – next to nothing has happened to ensure that Indigenous Australians are participating in decision-making process that impact on our lives.

Four Regional Partnership Agreements have been signed since 2005 with two of the four being specifically set up to enhance Indigenous governance - the Murdi Paaki and the Ngaanyatjarra RPAs. These are agreements with governments to work with Indigenous people to establish meaningful representative arrangements with the aim of improving services, reducing red tape, and developing a vision for each region. The other two RPAs come from existing mining agreements that now include the input of governments in Port Hedland and the East Kimberley.

Even though Indigenous communities (with assistance from ICCs) convened local and regional meetings back in 2005 and came up with 18 new models for regional representative arrangements – OIPC has not progressed those proposals.

It is very disappointing that this initial momentum towards Indigenous engagement at the regional level has since been allowed to dissipate. But what I find particularly galling, is OPIC’s inference that this was due to Indigenous peoples having lost interest in the process!

In my view, a better explanation is that the federal government has had its own change of heart. Its initial support for Indigenous regional representative structures appears to have been replaced by its current interest in regional processes and agreements, particularly RPAs. In other words, the government has taken a permanent step back from engagement with regional Indigenous representative bodies.

While I am the first to acknowledge that the inclusive, more comprehensive and longer-term approach of RPAs has real potential to improve the lives of Indigenous peoples – that is, if it’s done right - it’s important to also put this latest silver bullet in the wider context.

The trends that are emerging at the federal level after the resounding failure of the COAG trials are particularly worrying.

On the one hand there are some positive moves by Minister Brough to devolve power down to ICC managers so they have discretionary funding to step in at the local level and address basic problems in service accessibility or delivery.

I think this is a good move. It is an acknowledgment that adopting a whole-of-government approach can initially create more bottlenecks and duplicate red tape than it does away with. Some people at critical junctures in the system, like solution brokers, who are supposed to have the commanding view of the policy structure as well as the local know-how, need to be empowered to make executive decisions.

But on the other hand, there are countervailing trends emerging that look set to lock Indigenous peoples out of any role in policy development, and re-institute a decidedly top-down approach to Indigenous affairs.

You might have heard Minister Brough talking about places like Wadeye in the NT as communities ‘in crisis’ – where strategic interventions are required. The government has identified about 7 other communities that are in need of strategic intervention. What they all have in common (apart from their acute need and history of government neglect) is their remoteness.

This approach puts strategic decision-making solely in the hands of government. It appears that ‘strategic intervention’ in fact means ‘restricted Indigenous participation’ at a governmental and priority-setting level. Priorities are determined by outsiders (governments), then the insiders (the community) are invited to participate in the planning and implementation, only if they agree to conform to the Government’s agenda.

The exclusion of Indigenous input into setting policy priorities has also been replicated in the bilateral agreements that the federal government has negotiated with its state and territory counterparts.

In general terms, these agreements commit each government to work in partnership and in accordance with agreed COAG principles related to overcoming Indigenous disadvantage. They also include schedules of priority actions which are agreed solely by governments without Indigenous participation.

Although each agreement does commit the Australian Government and the relevant state or territory government to ensure Indigenous participation in the implementation of the agreement, it is unclear how any engagement arrangements agreed at the state level will link to the federal level.

It remains to be seen whether federal government cooperation will be forthcoming once the engagement models – freely chosen by Indigenous peoples – have been revealed.

These interventionist, top-down approaches to policy development are not consistent with the various commitments made by government through COAG relating to Indigenous participation, or with the government’s own legislative commitments in this regard.

They are also wholly inconsistent with Australia’s human rights obligations to Indigenous peoples.

A human rights based analysis of the problems with the new arrangements

From a human rights perspective – there are some very obvious reasons why all this policy activity is not translating into real improvements on the ground.

• Lack of Indigenous consultation and participation: abolition of CDEP & ICHOs in urban and regional areas

The first element of a human rights based approach to development is that people are recognised as key actors in their own development, rather than passive recipients of commodities and services.

The marginalisation, and often complete absence, of Indigenous peoples from the policy development, implementation and evaluation process constitutes a significant flaw in the administration of the new arrangements to date.

Recently I reflected on the Better Practice Guide on Implementation of Programme and Policy Initiatives that was put out by PM&C and the ANAO in October last year⁴

An entire chapter is devoted to ‘stakeholder management’.⁵ Particularly pertinent here are questions to policy makers like:

• Will the information obtained through stakeholder engagement be acted on?

• Have you got an understanding of your clients and their needs?⁶

But what I observe with the government’s new arrangements in Indigenous affairs is a tendency to deliver important policy decisions as a fait accompli.

Minister Brough’s announcement in March this year that the government will proceed with the abolition of the CDEP scheme in urban and major regional centres is a case in point.

This announcement followed DEWR’s release of a discussion paper proposing the CDEP changes in November 2006. It is no small policy change, given that on 1 July 2007 some 7,000 people will lose their CDEP wage overnight.

The public consultation phase consisted of a total of 30 face-to-face meetings in urban and regional centres over a two week period in November 2006. Each meeting ran for only three hours.

Interested parties had at most, one month to submit written comments.⁷ It seems that this is becoming the norm in terms of so-called ‘public consultation’.

In the period from mid September to the end of 2006, Indigenous organisations were also being asked to make detailed submissions to more than 5 parliamentary committees of inquiry – with similar reporting times. These included matters as complex as:

• Native Title Act,
• Indigenous stolen wages,
• Radioactive waste management on Cth lands
• Management in national parks, conservation reserves and marine parks,
• Indigenous arts and crafts sector,
• Bail and sentencing provisions in the Cth Crimes Act; and
• Access to Aboriginal Land under the Northern Territory Aboriginal Land Rights Act. (permits system)

Although the government has provided assurances that the feedback from its CDEP consultations will ‘be used to shape the future direction of CDEP,’⁸ I question the extent to which the government will take on board any Indigenous or employment industry feedback.

I note with some irony that the Better Practice Guidelines on Policy Implementation acknowledges that ‘[o]verly ambitious timeframes are among the most common difficulties in implementation.’⁹

• Capacity of Indigenous people to participate

This back-to-back consultation – with impossibly short deadlines – borders on offensive – particularly when you take into account the consultation protocols that apply in Indigenous communities across the country.

I also have grave concerns about the ability of Indigenous communities and individuals to negotiate as equal partners in the many agreement making processes that have been introduced with the new arrangements – whether it’s an SRA, an RPA, or an ‘intensive intervention’.

A human rights based approach to overcoming Indigenous disadvantage would recognise that constructive engagement with Indigenous peoples can only be meaningful if the capacity exists in communities and with individuals to so engage.

In designing program delivery, capacity building always needs to be considered and resources made available appropriate to the circumstances.

Government policies should support good governance in communities, and work to build the capacity of communities to be self-determining.

Although I don’t have the time to refer to them in detail, I would like to refer you to the Guidelines for engagement with indigenous peoples that is based on international human rights standards. They were produced in 2005 at the International Workshop on Engaging with Indigenous Communities that HREOC co-hosted with the UN Permanent Forum on Indigenous Issues and are available in the 2005 Social Justice Report.¹⁰

In applying these guidelines; the new arrangements should:

• recognize and accommodate the cultural distinctiveness and diversity of Indigenous Australians;

• adopt a people-centred approach which values the full participation of Indigenous peoples in the process, from the very beginning of policy development, through to service delivery and monitoring and evaluation;

• involve the development of agreed targets and benchmarks, so we have a clear picture of what it is exactly that is trying to be achieved; and

• be supported by an evaluation framework to assess whether the rights of Indigenous peoples are being ‘progressively realised’, so that we can be confident that government efforts are effective, well targeted and taking place at the maximum level possible.

Furthermore, a human rights based approach would respect the principle of free, prior and informed consent. 

This principle has emerged as a central concept in a human rights based approach to development at the United Nations level.

It is not a newly created right for indigenous peoples. Rather it brings together, or synthesises, the legal obligations of States that already exist in international law, including:

• the right of self-determination,
• cultural and minority group rights,
• non-discrimination, and
• equality before the law.

The principle of free, prior and informed consent is important so that:

• Indigenous peoples are not coerced, pressured or intimidated in their choices of development;
• Their consent is sought and freely given prior to the authorization and start of activities;
• Indigenous peoples have full information about the scope and impacts of development on their lands, resources and well-being; and
• Their choice to give or withhold consent over developments affecting them is respected and upheld. 

Unfortunately, current policy approaches don’t come close to these standards. 

In fact, there are increasing perceptions that in some instances, the government’s application of the principle of mutual obligation has slipped into a coercive mode with Indigenous communities and territory administrations alike.

The example of the so-called SRA ‘negotiations’ between the Minister and Indigenous communities in the Tiwi Islands over 99 year leases on their communally owned lands is a perfect case in point.

The initial sweetener offered by the Minister to the traditional owners for signing over the headlease on their land for the next four generations at least, was the funding for a school. In other words – they were being offered access to education, which is a basic entitlement of citizenship and something that other communities are not required to bargain for. While the Minister has backed down on this requirement following significant agitation from myself and other advocates, he is still pressuring communities to do it his way or the government will not fund housing infrastructure and capacity building initiatives.

Such requirements should not fall within the scope of an SRA. The government’s own definitions of SRAs specifically preclude ‘essential services’ like education from being addressed through this agreement process.

Wisely, the traditional owners across the country are taking their time to consider their options and not allowing themselves to be rushed.

Undeterred, the Minister has recently wheeled out his take-it-or-leave-it approach with Indigenous communities in Alice Springs, regarding 99 year leases on town camps – which are also under communal ownership – through special purpose leases.

Essentially these communities have been offered a $60 million carrot to ‘normalise’ the town camps – which translates into putting demountable houses on some town camp land so that there is temporary accommodation for people visiting family. The development of a mainstream subdivision in town camps is proposed where town camp residents can buy on a competitive basis with the wider community.

The NT Government has ignored community opposition to the proposed sites for the demountables – which might have something to do with tens of millions of federal dollars that is up for grabs.

The federal Minister has rejected the Tangentyere Council’s proposed lease model which would achieve the federal government’s objectives, but allow local management of the town camps to continue – potentially in collaboration with the NT government (rather than forfeiting this responsibility soley to the NT Government).

Minister Brough has also rejected outright the request from Tangentyere Council for an additional 3-6 month negotiation period to get agreement across the 18 affected town camps. To quote the Minister:

I do not require agreement from all town camps. If some choose to participate they will be funded to do so, if other[s] choose not too [sic], as is their right, they will not be funded.¹¹

It’s hard to misinterpret a message like that.

• Monitoring and review

This brings me to the final element of a human rights based approach – namely effective monitoring and review.

As we move into post-COAG trial arrangements for Indigenous affairs, there is a pressing need for transparent and rigorous evaluation processes if serious errors of policy and judgement are to be avoided. And by transparent and rigorous I mean governments have a responsibility to ensure that:

• service delivery occurs within a deliberate, concrete and targeted strategy;
• that the strategy includes specific, time-bound and verifiable benchmarks and indicators; and that
• people’s enjoyment of their human rights progressively improves over time.

Indigenous perspectives and concerns should be front and central to any evaluation process that is worth its weight.

Instead, I have grave concerns that evaluation of the new arrangements is only occurring on an ad hoc basis and with minimal Indigenous input.

It is time that Indigenous Australians benefited from a culture of implementation and government accountability.

And it is time that governments learnt to take responsibility and face up to their own policy failures, instead of continually sheeting home the blame to Indigenous people.

I for one found Minister Brough’s recent tirade about the CHIP Indigenous housing program being an ‘ATSIC basket-case’ –particularly riling in this respect.

Not only did CHIP’s establishment pre-date the birth of ATSIC in 1992 by some 30 years – the independent evaluation of the program prepared for the government found that there had never been a single, accurate set of expenditure and outcome information available for CHIP during its operation!

Yet we have been given assurances from the government that they develop policies within a ‘learning framework’.

Sadly, when it comes to the new arrangements in Indigenous affairs, we seem to be trapped in our own ground hog day – destined to repeat the same mistakes.

Even where the effort is made to undertake evaluations – as was the case with the COAG trials – there is a hasty transition from the findings to new or different policy settings without sufficient time to reflect on what lessons should be learnt and acted on. And in fact the “spin” that is placed on the reporting of the evaluation findings does not necessarily provide for “real learning from the lessons”.

A comment from the Associate Secretary of FaCSIA at Senate Estimates hearings earlier this year speaks volumes, and I quote:

… [FaCSIA’s] response to the evaluation report [for the Wadeye COAG trial] predated our receipt of the report.¹²

Furthermore, the government knows that it does not yet have the ability to collect sufficiently detailed data that will enable performance and progress reporting. Even the Secretaries’ Group on Indigenous Affairs has acknowledged that;

… it will take some years to be able to report comprehensively on the impact of the new arrangements for Indigenous Australians.¹³

Conclusion – the need for a cultural change

There has been too much emphasis on process and compliance under the government’s new arrangements in Indigenous affairs – and not enough on outcomes.

We need to see things changing for the better in peoples’ day to day lives – which is the true test of good policy.

This is a view shared in a recent independent report to OIPC which looked at the extent to which the new arrangements were reducing red tape for Indigenous communities.

The Morgan Disney report is available online and I encourage you to look at it closely.¹⁴

To address both the actual and perceived burden of red tape on Indigenous communities, the report recommends a ‘paradigm shift’ at the federal level to bring about organisational and cultural change.¹⁵

In particular, the reports identified the need for the focus of funding Indigenous programs to change from one of ‘rigid compliance’, to one that is measured by beneficial outcomes in Indigenous communities.

I am also optimistic that the current Australian National Audit Office investigation of the Whole of Government approach will determine whether the Australian Government is achieving appropriate outcomes for Indigenous people and has appropriate performance measures.

The aim of the audit is to express an opinion on whether there are appropriate and co-ordinated performance measures in place to assess whether the Government’s new delivery arrangements are achieving the outputs that lead to the advancement of Indigenous Australians. 

This should lead to a report that accurately provides guidance to the Ministerial Task Force and the Secretaries Group on what needs to be addressed as a priority to realise real and positive outcomes in Indigenous affairs.

I hope you will also take the time to look at the Social Justice Report 2006 and the Native Title Report 2006 when they are publicly released – because the recommendations and the analysis they contain are directed at policy makers at all levels of government.

While some politicians, senior bureaucrats and Indigenous affairs commentators ridicule human rights and lay the blame for the poor state of Indigenous affairs on Indigenous peoples, I believe that integrating a human rights perspective into the sometimes grinding wheels of the bureaucracy is essential. And while it is not an easy undertaking – and there will be significant obstacles in your path if you take up this challenge – in the long term it will realise fair and just rewards.

And we should be mindful that 40 years ago, Australia took the big symbolic and legal step forward by amending the Constitution to enable the federal government to make laws for Aboriginal people.

A lot of us were around to usher in that era of hope, and experience the pride that that level of recognition brought to all Indigenous people.

I hope you see your way to make a difference in the lives of Indigenous people in your area of work, and to do your part in reviving that sense of optimism amongst both black and white Australians.

Thank you

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