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The role of local government in achieving social justice for Aboriginal peoples in the Northern Territory

Northern Territory Local Government Association Annual Conference: “Planning for the future” 

Darwin, Thursday 22 November 2007

 

Tom Calma,

Aboriginal and Torres Strait Islander

Social Justice Commissioner and

acting Race Discrimination Commissioner,

Human Rights and Equal Opportunity Commission

www.humanrights.gov.au/social_justice/

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SLIDE 1

Good Morning, Kerry Moir – President of the NT Local Government Association and acting  Darwin City Lord Mayor, distinguished guests, Mayors and Councillors, my Indigenous brothers and sisters, friends and colleagues.  It’s good to be back home and to catch up with friends and family here today.

I would like to begin by acknowledging the Larrakia people, the traditional owners of the land where we meet today, and to pay my respects to their elders and the ancestors.  Our Kungarakan lands share a common border with the Larrakia so I am doubly pleased to acknowledge good neighbours.

Thank you to Kerry Moir and Phil Maynard for inviting me to join you here today to talk about the social justice and human rights challenges facing local governments in the Northern Territory.

I will display a number of slides today to explain my role and mandate as the Aboriginal and Torres Strait Islander Social Justice Commissioner and also why I have an interest in local government affairs.  And while much of the presentation will focus on the “intervention”, the principles and practices I will talk about are applicable to all of the work you do at the local community level and they apply to all of your client base.

Let me begin by acknowledging that the challenges that you face in the coming years have perhaps never been so great. 

SLIDE 2

I see your role as critical to the smooth operation of communities and also in being change agents for a better future for Aboriginal peoples.

And over the coming year you will be at the frontline - having to deal with the impact and implementation of several concurrent reform processes that have the potential to impact significantly on the rights of Aboriginal people in the communities that you govern. 

These reforms range from the continued implementation of the Northern Territory ‘emergency intervention’ measures, which include:

• welfare reforms such as the lifting of remote area exemptions, introduction of income management schemes and the linking of welfare to school attendance;
• alcohol restrictions;
• changes to service provision, such as the policing presence in communities and measures to address infrastructure and housing problems and health issues; and
• changes to community stores.    

SLIDE 3

Of particular relevance to local government will be measures introduced through the intervention such as:

• the appointment of government business managers with wide discretion in communities – what will their role be, how will they relate to community councils and Territory government officials and what will their relationship be to Indigenous Community Coordination office managers?;
• the compulsory acquisition of townships and the acquisition of statutory rights in property for infrastructure improvements;
• any movement to 99 year leasehold arrangements to ‘normalise’ the housing situation in townships both as a consequence of the 5 year acquisition of leases and the general moves to individualise communally owned lands;
• changes to the permit system under the Aboriginal Land Rights Act;
• the abolition of the CDEP program and movement of Aboriginal people onto work for the dole and the STEP program; and
• any community planning processes that could result from the surveying of community needs that is being undertaken in the initial phases of the intervention and the potential increase of professional staff like teachers and nurses.

At a practical level, these changes will also see the widespread movement of bureaucrats and other individuals in and out of communities – which may also have a wider impact on those communities. 

These measures also take place within the context of other reforms that are due to commence shortly or which are already being introduced, such as:

• changes to the incorporation and regulation requirements under the Aboriginal Corporations system;
• recent reforms to the native title system, including those related to the operating processes for native title holding bodies such as Prescribed Bodies Corporate; and
• of course, the movement to amalgamated council structures.

Any one of these changes could raise significant issues relating to capacity for both councils and communities more generally.  So I acknowledge the enormous impost that the measures will be having on your staff and the difficulties and frustrations that they must be experiencing as a result. 

SLIDE 4

This truly is a daunting array of reforms occurring at the one time and impacting almost exclusively on Indigenous communities and individuals.

These reforms – individually and cumulatively  -  do also have the potential to impact positively on communities, by finally seeing the federal and Territory governments take the infrastructure shortages in these communities seriously. 

But they also have the potential to be significant in the detriment, and damage that they could cause into the longer term.

And while the reforms are primarily aimed at rural and remote communities, the impact is also likely to be significant in regional centres and urban locations such as Darwin, Katherine, Tennant Creek and Alice Springs with increased migration between communities.  Already in Darwin and Nhulunbuy, for example, there are anecdotal reports of increased long-grasser activity associated with disempowerment, confusion and alcohol and kava bans. 

So today, I want to canvass a range of issues to provoke thought and discussion about these challenges.  I believe that for all the significant challenges that you will be facing, you have the opportunity at the community level to work to make these changes as beneficial as possible and also to mitigate aspects of the changes that could be detrimental to communities.

So I make these comments not for the purpose of being critical for the sake of it, but to look to the potential for achieving social justice for Aboriginal people.  And this is something that I know that you all strive to achieve through the machinery of local government.

Now I have been quite vocal in expressing my views on the NT intervention legislation and process.  So let me begin by stating my position on the developments across the Northern Territory in the past six months.

I have consistently stated that there are two issues to be distinguished in the conduct of the NT intervention. 

First, is a matter of leadership from the government in ensuring that the protection of the rights of Indigenous children and women are treated as a matter of urgent priority? 

While I have some significant concerns about the NT intervention, which I will elaborate on shortly, I think that the federal government has put some of the biggest challenges facing us as Australians on the table, squarely and firmly.

HREOC has strongly and publicly supported the aims of the NT legislation, namely to improve the well-being of Indigenous people in the NT.  I believe it is important that all governments acknowledge the serious challenges that our communities face in dealing with child abuse and family violence.  To the extent that the NT measures put this issue on the table, and commit to addressing these issues within our communities – the measures are to be welcomed.

The great challenge we now have is to ensure that collectively we do not squander this opportunity.  For it won’t be the federal government that wears the blame and the consequences of such failure – it will again be Aboriginal people.

The significant resources – financial and manpower – that are being devoted to the Territory must be harnessed to achieve something valuable and sustainable.  We should all work to ensure that the funding is targeted as best as possible to achieving long term improvements. 

The inputs should not be seen as an end in themselves – as they too often are in Indigenous affairs.   

SLIDE 5

Ultimately, we should expect that the outcomes of this process will be reflected in improvements in life expectancy and health status in general, in reductions in the incidence of family violence and child abuse, and in achieving equitable access to primary health care and other services for Indigenous people.

The Prime Minister has indicated that it is fair to expect such outcomes from the intervention.  When he announced the Commonwealth government’s plans for the NT he stated that: 

the full power and resources of the Commonwealth will be directed to making lasting change, where we can, in the daily lives and future prospects of the most vulnerable fellow citizens in our nation.1

He also spoke of “the overriding responsibility and duty of care” that the government has “for the young of this country (which) justifies the scale, the breadth and the urgency of our response.”2

The extent of the government’s commitment was also made very clear by the Minister for Indigenous Affairs, Mal Brough, on ABC TV’s 7.30 Report on 27 June.  Kerry O’Brien asked the Minister about the implications of conducting health checks in communities.  He asked:   

If screening throws up eye disease, kidney disease, asthma, threat of diabetes, any one of a number of generic health problems throughout the Indigenous population you've undertaken to provide them all with on going treatment.  Is that right?

The Minister’s response was unequivocal.  He stated:  

That's absolutely correct….. We do understand the magnitude of this.  We are saying if Australian kids are not healthy, then we have a duty of care to make them healthy… we are prepared to do this and break the cycle once and for all and we have no illusions about (a) the cost or (b) the time lines.3  

We must hold the government accountable for these commitments.

It is perhaps the first time that a government has spoken of its duty of care towards Indigenous peoples.  And an optimist might say that this commitment is not far removed from my call to Close the Gap and commit to achieving health equality for Indigenous peoples within a generation!       

SLIDE 6

So let us remember that the government has indicated that this is a long term endeavour. 

The second issue about the NT intervention though, is about the process by which the intervention’s objectives are to be met. 

I remain concerned about the absence of participation and consultation with Indigenous people in the intervention process, and concerned at the disproportionate nature of the government’s approach.  I also see no justification for discriminatory measures to be utilised to achieve the important objectives of the intervention.  In fact, I consider discriminatory measures to be counter-productive into the longer term.  They amount to a denial of human dignity by treating a group, based on race, differently to the rest of society.



The Human Rights and Equal Opportunity Commission has emphasised that the intervention legislation, and the action taken under it, must seek to achieve its objectives consistent with fundamental human rights, and in particular the right to racial equality.   

And I must remind all of us here today that human rights are for all peoples of the world irrespective of where you live, your ethnic origins or your social and economic status.  This is important to remember as the non Indigenous members of your community would expect to have their rights respected and they would expect to be treated with dignity - so why should we not treat Indigenous people the same way.

I am concerned at the suggestion that by stating that the measures are intended to advance the rights of the child, this somehow makes it permissible to discriminate on the basis of race.

There can never be a justification for racial discrimination.  It is a peremptory norm of international law, meaning that it is a principle that cannot be violated under any circumstances.   

The government has addressed the issue of how the legislation for the intervention measures interacts with racial discrimination protections in two ways.

The first is that they have argued that the legislation constitutes a special measure under the Racial Discrimination Act (RDA).  A special measure is an exception to the prohibition of racial discrimination that allows a racial group to receive beneficial treatment in order to address an existing inequality in the enjoyment of rights. 

HREOC has noted that the mere fact that you state that something is a ‘special measure’ does not make it so.  You must justify that you meet criteria laid out in the International Convention on the Elimination of All Forms of Racial Discrimination. 

This requires that the measure be necessary, has the sole purpose of providing a benefit to a group of people defined by race, be in order to achieve equality, and not be continued beyond such a time as the objective has been met.

Negative or invidious discrimination cannot be excused as a special measure as the measure must provide a ‘benefit’.  So the different aspects of the intervention must be able to be characterised as beneficial for this legal test of a special measure to be met. 

HREOC has noted that for the measures to constitute ‘special measures’, effective consultation with Indigenous people is required.  This is particularly where aspects of the package involve introducing negative restrictions on peoples’ rights.  Such consultation has clearly been lacking in the formulation and introduction of the measures. 

SLIDE 7

I am also concerned that on an ongoing basis there has not been genuine engagement with communities  –  including the ability for communities to have their concerns and issues taken into account in the design and delivery of the intervention measures.

Given the measures are intended to last for up to five years, there remains a pressing need for such consultation to take place and on an ongoing basis.

It is also difficult to see how aspects of the intervention meet the special measures criteria.  The introduction of restrictions on the property rights of Indigenous peoples – through compulsory acquisitions without recourse to the existing Northern Territory compensation process and the exclusion of permits in some circumstances  – is not in my view, necessary or justifiable.

But the government has also added other provisions in the intervention legislation that state that the NT measures are exempt from the RDA.  In other words, in implementing any aspect of the intervention, the protections of the RDA and Northern Territory anti-discrimination law, are excised and do not apply.

HREOC’s position on this is simple:  if the government cannot justify the measures as non-discriminatory, or a special measure, then the proposed actions are inappropriate and should not be enacted.  There is never justification for removing such protection, especially in relation to a group of people who historically have suffered discrimination more than others.

The Government’s intervention in the NT has led a lot of people to go back to the Constitution, and to think hard about what the change to section 51(26) – the so-called races power – has really delivered for Indigenous Australians forty years on.   

Even though the objective of the 1967 Referendum was to remove discriminatory references to Aboriginal people from the Constitution and to allow the Commonwealth to take over responsibility for our welfare – arguably it didn’t do justice to either.   

Instead the Referendum put in place the legal ambiguity about whether federal or state governments are ultimately responsible for providing Indigenous Australians with adequate housing, quality education for our kids, and access to primary healthcare.   This has allowed decades of buck-passing between the various levels of government, and the only ones to lose out here have been Indigenous Australians.  The legacy we carry is the 17-year life expectancy gap as compared to non-Indigenous Australians and the experiences of the plethora of short term measures, punctuated with constant changes, that Indigenous Australia have endured.

The Referendum also left Australia with the dubious distinction of being perhaps the only country in the world whose Constitution contains a ‘races power’ that allows the Parliament to enact racially discriminatory laws.4  In other words, in 1967 we missed the opportunity to insert a non-discrimination clause into the Constitution, or to at least ensure that any laws made for Aboriginal people would have to be for our benefit and not to our detriment.   

For the Northern Territory, this situation is compounded by the fact that the separate plenary power in section 122 of the Constitution provides potentially unlimited power to the Commonwealth in relation to the Northern Territory – including potentially exempting it from the requirement to pay just terms compensation as well as the limited protections of rights.  And remember, these are rights that all Territorian should enjoy equally.

These are important issues for the Territory, especially in the context of debates on Statehood and a Bill of Rights that arise from time to time.

So there is no argument with the objective of eliminating child abuse and family violence to create safe environments for Indigenous children, women and men in the Northern Territory.  But I dispute the means and cannot agree with the sidestepping of the Racial Discrimination Act and the safeguards of non-discriminationto achieve that end.  In fact, I would suggest that the intended endpoint is jeopardised because of the means.

Short term, expedient solutions that potentially involve violations of fundamental human rights such as the prohibition on racial discrimination are in fact likely to work in ways that undermine the overall well-being of these communities in the longer term.

Development and human rights experience, both in this country and worldwide, shows that unless communities have the opportunity to take some level of ‘ownership’ of the solutions to the problems they face, the best intended initiatives will fail.

Governments must ensure that the human rights of every Indigenous man, woman and child are respected in a mutually reinforcing and coherent way.  We cannot build a healthy nation on discrimination and division.     

SLIDE 8

Ultimately, governments must work in partnership with Indigenous peoples and Indigenous leaders to identify and implement strategies that address family violence.  Governments must also show respect and be willing to listen and take guidance from Indigenous communities about the kinds of programs and responses that they regard as priorities.

Governments must then be willing to adequately fund and resource the organisations and individuals who have the experience and expertise needed to successfully deliver these programs. 

I believe that many Indigenous communities are increasingly being empowered to ‘own’ the problem of family violence and abuse.   However, many are not, due to a range of issues including ignorance, environment and capacity.  When given the opportunity, Indigenous peoples have valuable suggestions about what would constitute a ‘humane solution’.  Our communities should be equal partners in the process of addressing the scourge of violence and abuse in communities, and this must be on a basis of mutual respect and good faith. 

No matter who is elected to government this weekend, these are some of the fundamental challenges that exist in moving forward in the NT and that will have to be faced in the coming years of the ‘intervention’. 

I will be doing my part to seek the best possible approach – and by this I mean an approach that is consistent with human rights and fully participatory - being adopted for the Territory.  And I would be happy to work with LGANT to realise this objective.

We have heard commitments of a bi-partisan nature to work through these issues into the longer term.  They are on the table and in the public eye in ways that they have never been, and the timing is right to make these commitments work.

So I am treating this as an unprecedented opportunity that we now have to ensure that the longstanding inequality faced by Indigenous peoples across the Territory is met once and for all.

And I think that local government has a big role to play in the success, or otherwise, of this process.     

You are at the front line of community contact, you have heard the concerns and aspirations of your communities and you must find a way to communicate this to the Governments.  You can and must lead by example.   

SLIDE 9

So when I talk about the importance of participatory processes at the local level, it is critical that local government ensures that it is representative of the communities that you govern and that you engage fully with Indigenous people.  This will be an increasing challenge for you as the council amalgamation process unfolds with less councils covering greater geographic regions. 

Ensuring that this does not lead to a disconnect between local communities, and the representativeness of local government for Indigenous peoples, will be a challenge that you face.

It is worth remembering that the regional council model has had its genesis in the Indigenous policy sphere.  The bilateral agreement on Indigenous affairs between the Northern Territory Government and the Australian Government identifies this as a key priority area for joint action.  And this bilateral agreement underpins federal – Territory cooperation to 2010.

The Bilateral Agreement states:

The Australian and Territory Governments will take a coordinated approach to working with Indigenous people to determine arrangements for Indigenous consultations and representation at the regional or local level.

As part of this coordinated approach, the Australian Government will support the Northern Territory Government’s current strategy of pursing voluntary amalgamations of local councils and establishing strong Regional Authorities.  These Authorities will be a key mechanism for Indigenous representation and service delivery at the regional level.

The parties acknowledge that local government bodies cannot be the only mechanism for engaging with Indigenous interests in the Northern Territory.  Key organisations such as the land councils and service delivery organisations (particularly in urban areas) will continue to be sources of information and advice for both governments.

However, with nearly 30% of the population of the Northern Territory being Indigenous, and the majority of Indigenous Territorians residing outside municipal centres, it is clear that local government bodies will play a key role in the governance and representation of local/ regional communities.

This makes clear that any amalgamation process should have issues concerning the representation of Indigenous peoples, at the forefront.

Local councils can also play a critical role as an ‘enabler’ in communities in fostering community development and social enterprise.  The CDEP scheme provides a good incubator for this process – although successes for this have been uneven across communities, with some working better than others.  The loss of CDEP is a major blow to communities with consequences that I don’t think are fully understood by the current government.

“Fully understood” is in terms of understanding the importance of CDEP to communities; the likely inappropriateness and difficulties of replacement programs such as STEP and Job Network; and the difficulties of applying activity testing and breaching provisions. 

I also believe that a community development model would be a more appropriate and active system for addressing problems relating to financial literacy and nutrition.  Why?  because the quarantining of welfare process currently involves others managing the money and does not create the skills transfer necessary for this to be sustainable and it does not empower people to manage their own lives and affairs.

Local government are well placed to hold the federal government accountable for their commitments through drawing on your expertise and harnessing the voices of community members, as well as expanding the planning frameworks within which you operate in communities. 

The health checks and the survey work being undertaken in communities as part of the intervention provides a valuable opportunity for local government to assist in setting into place a generational plan for the sustainability of Indigenous communities across the Territory.

As an example of how you can lead this planning, I refer to the audit that you completed in August 2006 of employment opportunities in remote Aboriginal communities in the Northern Territory.

The individual community profile reports which were prepared as part of that audit ought to be a core document in the implementation of the NT intervention, given that the audit identifies the employment positions that exist within the communities and the realistic potential opportunities for Indigenous employment.  As you no doubt are aware, the report for each of the 52 communities covered provides an overview of the demographics, housing, council structure, education and training, health, infrastructure resource associations, and local businesses in each community.

The overall report also makes some important findings that go to the workability of the intervention measures.  In particular, the finding that there were 2,955 “real jobs” across the 52 communities.

These positions were allocated across a reported population of 37,070 persons of which 2,722 were non-Indigenous, and 44% of the positions were held by Indigenous persons (although these were mainly in the non-professional areas).  In addition, there were a further 5,500 CDEP positions across the communities.5

It is not hard to work out that if you take CDEP out of the equation, as the intervention does by abolishing CDEP, then the job opportunities within communities becomes even more limited.

I would strongly encourage you to consider how your community planning processes might be able to be utilised to underpin the framework for the intervention, into the longer term, to ensure that the outcomes are sustainable.

The intervention, perhaps perversely, provides a once in a lifetime opportunity for councils to achieve what you have been advocating for, for some time.  There has never been a better time for hard evidence about the infrastructure needs of communities to be clearly articulated publicly and for the shortfalls in service provision to be addressed. 

The challenge is going to be for the necessary infrastructure to be developed in a manner that is sustainable into the longer term and that builds the capacity of Indigenous peoples and creates employment and economic development opportunities at the community level.  This is not happening to date with the intervention.

Now I know that LGANT has been seeking to address the drastic shortage of funding for local government across the Territory for some time.

For instance, I am aware of the concerns regarding the impact on the Northern Territory of the formula that determines the distribution of Financial Assistance Grants to local government councils through the Commonwealth Grants Commission. 

Indigenous local government councils in the NT receive less than half the national average of funding, and the entire Territory receives less money than the councils for the city of Wollongong, or Geelong, or Lake Macquarie.6

To ensure that the objective of the NT intervention is met into the longer term it is critical that these funding disparities are addressed. 

We should remember that in the landmark report in 2001 on Indigenous funding by the Commonwealth Grants Commission, the majority of the Northern Territory was identified as the most disadvantaged in terms of socio-economic status.  So it is perverse that through local government funding arrangements these regions receive significantly less funding than relatively advantaged communities, such as those along the eastern seaboard.7

Fixing this structural problem would significantly increase the capacity of local government across the Territory.  And in the scheme of the overall federal budgetary process, the cost of addressing this problem is miniscule and clearly affordable.8  Indeed, addressing this issue could be labelled ‘normalisation’ – which is one of the theoretical underpinnings of the current government’s approach in the NT.

Reports such as Little Children are sacred also make clear the huge challenges in service provision that exist across the Territory. 

It is incumbent of all governments to put party politics aside and to sit down at the table to strategically and collectively work through the issues and identify the best path through the bureaucratic maze that plagues Indigenous affairs.

In conclusion, as a Nation we pride ourselves on being the ‘lucky country’ and on giving everyone a ‘fair go’.  Yet as a Nation we remain largely unconcerned that the basic facilities for good health, for good education and for an acceptable standard of living, do not exist for many Indigenous people.

At present there is not a level playing field  -  an Indigenous child born today does not have the same life chance as a non-Indigenous child.   And this is no more so than in remote Aboriginal communities in the Northern Territory.

The current situation cannot be allowed to simply drift along without accountability and without targeted action.  It is time to stop being disappointed at our lack of achievement on Indigenous health and dare to dream about a positive future for all Australians.

The NT intervention has blown out of the water the fallacy that the funding that is required cannot be made available.  There is no longer any excuse for not acting, as we have tangible evidence that action is possible, if Government thinks it is important enough.

This is the opportunity that is provided by the Northern Territory intervention measures introduced by the federal government.  Our challenge is to shape the intervention into a more workable and sustainable endeavour so that it embraces and values Indigenous people as part of the solution and not just the problem to be fixed.

Local government has a big role to play, and I hope to continue engaging with you on these important challenges.    

SLIDE 10

To close, I would like to take this opportunity to inform you of a campaign that is of great importance to me and one that I am an Ambassador for.  November 25 is the International Day for the Elimination of Violence Against Women and this day is marked by Australia as the White Ribbon Day, where all are encouraged to wear a white ribbon as a personal pledge that the wearer does not condone violence against women.

The statistics of violence against women are shocking and Nicole Kidman, a United Nations Goodwill Ambassador, has recently stated that not only is domestic violence a violation of human rights but it is “becoming a pandemic…….it is perhaps the most widespread human rights abuse violation.”

Violence against women is shaped by poverty and community disintegration, alcoholism and drug abuse, and mental illness.  It affects many women, of all ages and backgrounds.  The latest statistics reveal that one in 20 women, or over 440,000 of our women were victims of violence.  We must all remember that violence has a profound and damaging impact on its victims, the family and the community as a whole.    

SLIDE 11

The White Ribbon Campaign is the first male led campaign to end violence against women in the world.  As an ambassador I advocate for positive, non-violent relationships with women and to build a strong culture in the Australian community that there is no excuse for violent behaviour.

My intention is to urge you all to wear a white ribbon to demonstrate your opposition to violence against women and commitment to equality between men and women.  It is also your responsibility as council members, and council employees, to assess your Council’s policies and programs to ensure that they proactively prevent and address violence against women.        

Thank you.

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