Launch of the Social Justice and Native Title Reports 2012

Launch of the Social Justice and Native Title Reports 2012 - Keynote Address

Author: Geoff Scott
Chief Executive Officer
New South Wales Aboriginal Land Council

Venue: Australian Human Rights Commission
Sydney
Friday 30 November 2012

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Thank you Professor Triggs for your warm welcome and kind words.

I would also like to thank Michael West of the Metropolitan Local Aboriginal Land Council for the Welcome to Country.  I would also like to pay my respects to the Elders of the Gadigal People of the Eora Nation, both past and present, who are the traditional owners and custodians of the land that we meet on today.

My name is Geoff Scott and I have the privilege of being the CEO of the NSWALC, and I appreciate the opportunity to speak to you today.

I would like to acknowledge the members of Local Aboriginal Land Councils and also the group of Governance Students from Tranby College present today at the launch.

The Australian Human Rights Commission and specifically the work of the Aboriginal and Torres Strait Islander Peoples Social Justice Commissioner in advancing human rights for our Peoples is very important and as such the Annual Native Title and Social Justice Reports are a key tool in advocating for what every Australian citizen believes in and deserves –“ a fair go”.

I would like to thank Mick and his team for their dedication to advancing the truth and realities of being Aboriginal or Torres Strait Islander in today’s society and to the Australian Human Rights Commission for supporting Aboriginal and Torres Strait Islander Peoples in our pursuit for fair and just human rights.

Before I commence, I would like to point to the Commissioner’s Recommendation 1.1 contained in the Social Justice Report in relation to the Australian Government’s response to such reports and I call on the Minister for Indigenous Affairs, Jenny Macklin and the Attorney-General, Nicola Roxon to provide a response to the reports launched today and responses to subsequent reports, in Parliament directly following the Prime Minister’s Annual Report on “Closing the Gap”.

Today, I will talk about the role of Governance in our communities and the importance of resourcing our structures as a matter of recognition and self determination. 

Countless Aboriginal and Torres Strait Islander Organisations, including the New South Wales Aboriginal Land Council go about our business without recognition for the services and programs we provide for our people and without assistance from Governments.  I would like to say to those strong men and women working in our communities, thank you.

The Commissioner has highlighted a framework for effective governance in Aboriginal and Torres Strait Islander communities in his Social Justice Report – with the three key components of community, organisational and governments playing a major role in ensuring that strong governance outcomes are delivered in a respectful and meaningful way. 

Naturally, the United Nations Declaration on the Rights on Indigenous Peoples should underpin all levels and components of a strong and effective governance regime to enable sustainable economic, social and cultural outcomes. Sadly though, we are yet to see it’s full implementation domestically.

Governance is a must debated subject and I think complicated unnecessarily.

What need to made absolutely clear is that proper governance is essential for progress, but we need to be clear about what it is we a taking about and face some realities regarding the current position we are in generally.

It is a about accepting responsibility and demonstrating that fact.

I do not wish to infer that all is bad, there are many good, very good organisations and people in this sphere doing a very good job. But as yet we do not have the critical mass of people who possess the required level of skill, knowledge and aptitude, The challenge to us all is to recognise that reality and commence the process to provide that level of developmental rigour.

But that facts and reality speak for itself government and society are turning away from Aboriginal organisations and people to conduct programs, projects and services. Preferring to flight to risk adversity. To seek political safety and greater accountability in non aboriginal service delivery organisations.

Aboriginal people complain but we need to do more.

But this cannot be a process of shaming and blaming rather a united effort to change the current circumstances.

This requires a different mode of operation when compared to the more typical activities of investing in water supplies, health care , environmental protection, education and so on.

We must make people the centre of development approaches.

Governance cannot be a considered in isolation, it is closely linked with accountability, capacity and development.

The measure of the governance system is it’s credibility and legitimacy.  It is also not just a downwards model but also upwards.

People must be able to trust the structure, the organisation and the people running it and trust that it will meet the expectations and that it will produce the goods.

Over the last thirty to forty years of providing aid and assistance involving tens of billions of dollars, countless organisations and individuals, and countless number of projects, coupled with major shifts in priorities, strategies and approaches, a substantial impact not been achieved on the scale of disadvantaged prevalent in Aboriginal communities.

This effort has not produced the desired outcomes and the current situation is an indictment on all of us. But we have to stop descending to blame as our response and work to resolve the dilemma.

Proper governance is a developmental and capacity building process, it involves an awareness of the responsibilities of stepping up and taking on the role of an executive or a Board member and a level of understanding and maturity to accept the inherent expectation and responsibility that involves.

 The governance agenda points in a direction which obvious potential advantages for aboriginal people,

• Arriving at a better governance situation should provide a number of positive effects
• Greater opportunity for involvement in policy decision making
• A higher likelihood of being treated equally by the law
• More room to associate and pursue interests
• A better chance of bureaucrats behaving responsibly toward you.

Accountability is central to democratic institutions whether in an Aboriginal or non- Aboriginal context.  Members grant sweeping powers to their political leaders without thought of traditional governance methods and ideals.  They entrust them with responsibility for critical decisions about design and implementation of policy and use of funds.

In turn, members want to guard against abuse of these powers.

On a more mundane level, they also want to ensure that their political leaders use there power wisely, effectively and efficiently, and that they will be responsive to demands by members to change the ways in which it carries out its functions.

Members expect, therefore, that their political leaders will be held accountable for their actions.  There are various means for doing so – the news, media, parliament and its committees, independent agents such as auditors general and ombudsmen, redress mechanisms and complaints procedures, the judiciary, non-governmental organizations and of course elections or other means of choosing leaders.

The primary accountability relationship is between political leaders and their members.

But why is such assistance needed, given the central importance of accountability to all democracies? Surely by now sound principles and procedures should be self-evident?

Unfortunately, accountability has an elusive quality to it. I put to you some reasons why:

• Political leaders and their officials are involved in a wide variety of accountability relationships, all of which are related and with some pulling in opposite directions.
• Accountability arrangements differ markedly from one system of government to another, be that all levels of government.

For example, approaches to accountability in the Westminster system – with its separation of powers, undisciplined political parties, and a “politicised’ public service –

• Accountability has a cultural aspect to it:  the attendant need to build cross-party consensus on policies – has influenced the nature of public sector accountability. Statutes are written in general terms on the understanding that political actors will negotiate implementation.
• Finally, accountability regimes must deal with conflicting values. Controls put in place to ensure financial probity, for example, may conflict with efforts to achieve efficiencies or innovation in the delivery of public services.

Accountability, therefore, is about achieving appropriate balance among potential conflicting objectives.

One compelling indicator of the elusive quality of accountability is the level of trust and confidence that citizens accord their governmental institutions.

Despite significant efforts on the part of all western democracies to add to or improve the array of accountability mechanisms, measures of trust and confidence in public institutions have declined dramatically.

Given the central importance but elusive nature of accountability, how might newly emerging Aboriginal governance attempt to shape their accountability arrangements?

Proposed approaches for shaping new accountability relationships among governments

1. Be clear on what accountability is trying to accomplish
Recent initiatives to improve accountability in the context of Aboriginal governance have been premised on achieving three objectives:

1. greater transparency,
2. more effective redress and
3. higher degrees of disclosure.

But surely these are only intermediate objectives.

What are ultimately at stake are longer term goals of sound governance:

1. trust and confidence;
2. legitimacy; equity and fairness;
3. quality programs.

The point here is that declining levels of trust should act as a red light – that something is wrong.

Could one explanation be poorly designed or poorly used accountability regimes?

2. Manage the relationship and be aware of the interconnections
Given the importance and elusiveness of accountability, it is not sufficient for one group simply to provide reports to another.

Rather, a serious effort is required is to manage fiscal arrangements on an ongoing basis.

For example, negative media coverage of the grievances of Aboriginal people, allegations of waste and inefficiencies, charges of misappropriation of funds – all of these factors will create political pressures to impose new accountability requirements or tighten existing ones.  

On the other hand, the reverse will also apply - the more onerous the conditions, the more difficult it will be to effect sound accountability regimes between Aboriginal governance bodies and their people. Balance and good judgement are needed and can best be achieved through ongoing management of these interrelationships.

3. Take some of the ‘negativeness’ out of accountability
Accountability carries a negative connotation: control, blame, punishment, culpability are often words used in discussing the outcomes of accountability. Recent inquires reports appear to be deep-seated urges to fix blame rather than deal with causes.

Other accountability mechanisms such as audit reports and the annual reports of other ‘watch dog’ agencies, while not as extreme as commissions of inquiry in their tendency to highlight culpability, nonetheless come across as negative and critical.

These tendencies are aided to a significant degree by competing political parties and the media with their inclinations to amplify criticism.

Developing governing systems that are less adversarial is one possible direction to consider.

The role of the news media also warrants consideration. Typically three journalistic “reflexes” that are damaging the profession’s credibility and harming the quality of public life:

• Conflict: framing even complex issues in terms of conflict between distinctly opposed positions;
• Life as sport: sorting out winners and losers in every situation; and
• The reporter as adversary: going on the attack and assuming the worst about public figures and institutions.

Reporters should try more often to emphasize the middle ground – usually where conflict is resolved – rather than the extremes and should pay more attention to the line between healthy scepticism about public officials and outright cynicism; and should listen more carefully to more people – not just those who happen to be shouting.

Finally, a more positive, forward-looking connotation to accountability can be built into our definitions of the concept.

It would be useful to add the notion of “continuous improvement” to the list of intermediate objectives for accountability regimes.

4. Take some of the hierarchy out of accountability
The traditional notion of accountability – premised on the delegation of authority from one party to another – establishes a hierarchical and therefore an uneven relationship. Control, blame

Accountability Mechanisms

1. Parliament
2. Performance reports;
3. Audits;
4. Redress mechanisms;
5. Media

Intermediate Objectives

1. Transparency
2. Redress
3. Disclosure

Longer term Goals

1. Trust
2. Confidence
3. Legitimacy
4. Equity

Improved services and punishment tend to be natural outcomes of such a relationship.

“Accountability is a relationship based on the obligation to demonstrate and take responsibility for performance in light of agreed expectations”.

In the citizen to government context, taking some of the hierarchy out of accountability might mean in practice putting greater emphasis on citizen participation in all aspects of government from developing vision statements to delivering programs. Government becomes not just “for the people” but “by the people” through new forms of partnerships based on mutual obligations.

5. Ensure that Aboriginal governance regimes are fiscally prudent

The New South Wales Aboriginal Land Council has over the past several years, implemented a governance regime to become fiscally prudent.  We have constituted committees to advise the Council in the areas of Investment, Audit and Risk, Finance and Governance.  These committees are chaired by independent members and consist of experts including Council members.

It must also be noted that we have not received any government money for 16 years.  We have operated off our own investments to deliver services to the network of Local Aboriginal Land Councils.

We have also introduced a “spending rule” to smooth out costs versus income from investments.  This ensures that we do not go through the peaks and troughs or, if you like, a feast or famine cycle when it comes to supporting the network of Local Aboriginal Land Councils in New South Wales.

Like others, we are subject to Auditors and regulators but we ensure that our cultural ideals and ways of doing business are at the forefront.

I would like to add, being fiscally prudent does not excuse levels of Government from investing in Aboriginal governance structures.  For too long, Governments have acted as a vacuum and have sucked all funding for administration and governance from Aboriginal Organisations.  We have seen community controlled organisations being run on an oily rag and in most cases from volunteers in communities that do not necessary have the required skills but they have the drive and passion to make things work. 

Governments must reinvest in Aboriginal communities and Aboriginal people by providing training opportunities to build capacity and allocating administration costs to community controlled programs and services.

I fully support Commissioner Gooda in his recommendations relating to Aboriginal governance in Chapter Two of the Social Justice Report 2012 and Chapters 2 and 3 of the Native Title Report and call on the Australian Government to act swiftly and implement the recommendations immediately.

6. Develop effective dispute resolution mechanisms and prevention techniques

Accountability arrangements would be considerably enhanced with effective dispute resolution mechanisms.

It would be a good starting point for other negotiating tables.
In addition to formal dispute resolution systems, governments can enhance their relationships and ensure more effective accountability – based on more positive, less hierarchical approaches – by adopting a number of preventive measures.

These might include the following:

• The inclusion in the Financing Agreement of an approach for handling an extraordinary event or circumstance that impairs the financial ability of the indigenous bodies to provide agreed-upon public programs and services;
• The use of joint teams to do research or technical assessments. One area that requires considerable work is developing a series of measures for determining what comparable services might mean in a variety of program areas.

 Capturing the promise of accountability in crafting new arrangements among groups – arrangements that will lead to trust and the achievement of other longer term goals of sound governance – should rely on the following six approaches:

Building sound accountability arrangements are

1. Be clear on what accountability is trying to accomplish;
2. Manage the relationship and be aware of the interconnection;
3. Take some of the ‘negativeness’ out of accountability;
4. Take some of the hierarchy out of accountability;
5. Ensure that Aboriginal institutions are fiscally prudent and adequately resourced; and
6. Develop effective dispute resolution mechanisms and prevention techniques.

The governance agenda is vital for progress and it is a challenge to us  not all just in the Aboriginal arena it continues to be a challenge for all of society.

The governance agenda is vital for progress and it is a challenge to us  not all just in the Aboriginal arena it continues to be a challenge for all of society

The Self Determination Principle

There has been much debate surrounding the principle of “self-determination”, what it means and the merits of self-determination as a policy approach, as a practical pragmatic way of doing business.  

Self-determination cannot be labelled a failure; despite the principle being a part of government policy since the early 1970’s until supplanted under the Howard Regime, I would contend that it has yet to be implemented, yet to be given practical effect.

One useful approach is to also focus on what Self Determination is not, to provide some context to the current practices.

To expand this I would like to explain the difference between self-determination and self-management. It is fundamental, and one, which has been blurred by emotive, and dishonest rhetoric.

1. self-determination is a right; and
2. self-management is not.

The former is empowerment, the latter control.

Self-determination is a fundamental human right to enjoy the right to make a choice limited by ones own options.  

Whereas, self-management which is based on a conditional arrangement between a governing party and another (often through a prescriptive agreement which has limited options) is more about extended privilege and recruitment of the recipient party to an arrangement whereby their right to autonomous decision making is severely impeded.

We have had a form of self-management, communities allowed to manage within an externally determined series of programs policies and guidelines, which bear little resemblance to what the true needs of indigenous communities and individuals are.

Self-management as I have just described I feel is a fairly honest description of successive governments approaches or attempts but these policies and practices cannot in any way be considered self-determination.

Self Determination imposes requirements of participation and consent such that the end result in the political order reflects the collective will of the people governed.

But today is an opportunity to offer some advice or perspectives or just provide food for thought.

Initially some thoughts on human rights per se,

One defining characteristic of “human rights” which is too often overlooked is that they are by necessity:

1. active in that it requires the participation of individuals and groups; and
2. practical, in that they must be capable of application in the daily lives of people.

A human right is not premised on government largesse, it is not discretionary and it establishes a very different relationship between the individual and or group and the state.

A right confers power.

A human right enables even the most marginalised and ostensibly powerless person or group to make a claim against the state.

A claim made under international law and custom that is sustainable.

I would hope to convey here today the notion, the fact that self-determination is not only an entitlement but just good business.  

A process by which the policy objectives of many governments would be given practical, positive and sustainable effect, if an affirmative policy of realisation of self-determination was to be implemented.

One additional point which is vital to any debate on this principle and policy makers must acknowledge is best articulated by quoting Abraham Lincoln (paraphrased)

“a person’s mind changed against their will is of the same mind still”

That is, it is possible to coerce or force an individual or a group to accept a position, a policy or a program, but that can never be taken as agreement or acceptance.  This practice pervades the development and implementation of policies and programs from all levels of government, but it is neither sustainable nor good business, it could be best described as indulgent and knowing what is best for others.

We must jettison the project mantra and embark on a process of disciplined trust and true participation and partnership.

We can and we must do better.
We must focus on facilitating and enabling.

Thank you.