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Harnessing the Mainstream: how much load can it bear?

Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner

and National Race Discrimination Commissioner

(Delivered on behalf of the Commissioner by Mr Glenn Pearson)

6 March 2007

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I would like to begin by acknowledging the traditional owners of the land we are meeting on, the Noongar people.

I’m sorry that I can’t be with you in person to deliver these remarks, but through my voice for the day, Mr Glenn Pearson, I am very pleased to be invited to talk about my perspectives on the new arrangements in Indigenous affairs. Glenn – I owe you one!

I would like to thank Lisa Fowkes and Job Futures for the opportunity to address you. It’s not often I get to speak to practitoners in the employment services sector and those of you who are working at the coal face implementing the government’s welfare to work arrangements with Indigenous clients.

I am sure that there is a lot of valuable information and insights that you will be exchanging during the conference about the particular challenges you and your Indigenous clients are facing as a result of all the changes of late. I look forward to hearing about these in due course.

First I want to briefly outline what I will cover this morning.

The key elements of my remarks are summarised on the powerpoint slides, which will be circulated after my presentation.

I think it will be useful to first outline the statutory functions I carry out as the Social Justice Commissioner, and the broader role of the Human Rights and Equal Opportunity Commission, of which I am a part.

That will lead into some general remarks on the government’s new arrangements in Indigenous affairs, and some of the major challenges that are evident after two years in the post-ATSIC, whole of government era. Here I will be focussing on my growing concern about the problems of axing Indigenous specific services and steering more Indigenous people into mainstream services, when there are significant problems with the appropriateness and adequacy of those services for Indigenous peoples.

I will also refer you to some international standards about how government should be engaging with Indigenous Australians – which would ensure that Australia had a human rights based approach to development.

In exploring these matters, I will refer to one impressive example in Australia that shows what good practice looks like when it comes to engaging Indigenous Australians in development projects. So I hope we end up on a positive note about how we can work towards achieving more economic independence and well-being in Indigenous communities.

Role and functions of HREOC

To begin – a brief overview of the legal and institutional framework I operate in at the Human Rights and Equal Opportunity Commission, or HREOC.

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 Commission is administered by a President who is assisted by three Commissioners, of which I am one. We are each appointed by the government, usually for a term of 5 years. Each Commissioner has two portfolio responsibilities which reflect the types of federal discrimination laws we administer – namely Sex, Race, Disability and Age Discrimination.

I my case, in addition to being the Aboriginal and Torres Strait Islander Social Justice Commissioner, I am also the Race Discrimination Commissioner.

Educating Australians about their human rights and the responsibilities that go with them is central to everything that HREOC does. Whether we are undertaking a national inquiry into a systemic human rights problem, investigating and conciliating human rights complaints, or pointing out the shortcomings of a new piece of legislation to a parliamentary committee of inquiry, we aim to improve ALL Australian’s awareness of their human rights in the process.

Although HREOC is funded by the federal parliament, it is an independent organisation. The Commission can and does criticise the government when it believes a breach of domestic or international human rights law has occurred. It has a statutory requirement to fulfil this independent ‘watchdog’ role and to make recommendations to the government about how it should improve laws and policies so they deliver fairer outcomes for all Australians.

Role and functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner

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 in to Aboriginal Deaths in Custody, and reflected that Australia was also embarking on a national 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 the broader community, and
• participate in international processes that will advance indigenous rights globally and domestically.

New arrangements in Indigenous affairs – challenges abound

Since I took on the role of Social Justice Commissioner in 2004, the management of Indigenous affairs has been in a constant state of flux.

There is an entirely new language, new departmental responsibilities, new Ministers, and a new whole of government approach to everything – as you all know.

One of the catchcries of the new arrangements is that they are aimed at ‘harnessing the mainstream.’ This is to be achieved by removing or reducing the barriers that prevent Indigenous peoples from accessing existing mainstream services on an equitable basis.

My Social Justice Reports in 2004 and 2005 have expressed concerns at the lack of progress in ‘harnessing the mainstream’ and the existence of structural problems within the new arrangements that work against this objective.

For example, the new arrangements have not delivered:

• processes for systemic engagement with Indigenous peoples locally, regionally and nationally.
• Nor are there appropriate monitoring and evaluation mechanisms. And
• both SRAs and the new whole of government machinery are under-performing in their goals of improving mainstream accessibility for Indigenous Australians.

In other words, the rhetoric of the new arrangements is strong, but the outcomes remain elusive.

I wonder whether the government would be so silent or defensive of the lack of progress if the new arrangements were administered by an Indigenous organisation?

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 the policy activity is not translating into real improvements on the ground.

• Lack of Indigenous consultation and participation: abolition of CDEP & housing assistance in urban areas

First and foremost is the marginalisation, and often complete absence, of Indigenous peoples from the policy development, implementation and evaluation process.

The first element of a human rights based approach to development, as defined by the United Nations Development Program is that:

People are recognised as key actors in their own development, rather than passive recipients of commodities and services.

But following the abolition of ATSIC, there is no representative Indigenous body at the national level.

Similarly, there are no Indigenous regional representative structures to partner governments in region-based planning and in determining appropriate service delivery arrangements.

Their absence constitutes a significant flaw in the administration of the new arrangements to date.

Constructive engagement with Indigenous communities and good faith negotiations are critical to the successful implementation of the principle of mutual obligation.

It appears from the government’s own guidelines for public servants on how to develop public policy that it does appreciate this point. Government just seems to have difficulty in implementing its own Better Practice Guide on Policy Implementation1 when it comes to Indigenous communities.

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, that is, without any or little consideration of what we think.

As you all know only too well – this was the case in relation to the changes to the CDEP scheme:

• A discussion paper issued in November last year.
• A series of 30 back to back community consultations in the space of just 2 weeks.
• Less than a month for written submissions to be lodged.
• And the Minister’s announcement by mid February that the abolition of some CDEP and all IECs will go ahead – as set out in the discussion paper – without a single change.

I was provided with a copy of Job Future’s submission to the government about the CDEP changes. It is a very good submission, clearly written by an organisation with years of expertise and genuine concern for the well-being of its Indigenous clients. I have referred to its content in my 2006 Social Justice Report that will be transmitted to the parliament in the coming weeks.

I share the concerns raised in that submission about the social and economic consequences of cutting off CDEP payments overnight for 7,000 Indigenous people. That really means cutting off money to families and children, without developing a proper transitionary program – or even really explaining to people on CDEP how the changes will impact on them.

I agree wholeheartedly with the recommendations Job Futures made to the government about:

• the need for an intermediate labour market program for Indigenous job seekers, particularly if they have been unemployed for a significant time and need help to get job ready.
• I also agree with the need to tailor Indigenous employment services so they address the needs of the job seeker – rather than putting all our eggs in the demand-led approach – which is what the STEP brokerage scheme is all about.

I think we all know that strong demand for labour does not mean that employers will take on long-term job seekers, whether they are black or white.

I am sure that you are also aware of the concerns from the community welfare sector about the disproportionate number of Indigenous people who have been breached under the new compliance arrangements of the Welfare to Work scheme.

The National Welfare Rights Network alleges that in the three months from July to September 2006 when the scheme was introduced, 140 Aboriginal people were subject to the 8 week no payment period. For a group that constitutes less than 3% of the Australian population, Indigenous people made up over 7% of the breaches.

The National Welfare Rights Network has expressed its concern to HREOC that the number of breaches experienced by Indigenous job seekers will increase considerably following the abolition of CDEP in urban and regional centres. This is now a matter that HREOC will need to monitor closely.

Although it is by no means meant as a consolation – the changes to the CDEP scheme are not the only case of the mainstream horse being overloaded.

Just a week after the CDEP announcement, Minister Brough flagged a new proposal for Cabinet. This time it is the withdrawal of funding for 600 Indigenous community housing organisations in urban and regional areas.

It concerns me that in making this announcement, the Minister tarnished all community housing organisations with his allegations of rampant fraud and nepotism across the entire sector, when he only referred to four instances of malpractice.

The Minister has made no public disclosure about the fate of the 2,0002 plus employees of the 600 Indigenous housing associations; nor about their families. When major retrenchments are made in mainstream industries the government comes good with re-training packages and severance pay support – will they do the same for our housing association employees and how are mainstream employment services going to cope?

Another of my concerns is that many community housing organisations do not just provide housing. In order to survive in the brave new world of Indigenous funding arrangements, many have had to become multi-functional community organisations that provide a range of services – whether it be in relation to health and hygiene, waste removal, and so on.

The Minister didn’t provide a list of which 600 community housing organisations will have their funding cut – so there is no way of knowing what other community services might be put in jeopardy if Cabinet supports his proposal. There is also no indication of what the government might do with the $100M it will save in the process.

I agree with the Minister that there is a crisis in Indigenous housing, and that the housing shortage is most acute in remote communities. But the Minister’s decision seems to ignore the fact there is a population boom going on in Indigenous communities and the majority of these people will not be living in remote communities, but in regional and urban centres, where 47% of the Indigenous community housing organisations are currently located.

These new generations of Indigenous Australians are going to need adequate housing - and by that I mean housing with enough bedrooms and bathrooms for the extended family and friends that will be living there.

They are also going to want housing that suits their lifestyle and their cultural practices. This is likely to mean they’d prefer housing in a particular suburb where other Indigenous families live, that has good public transport, that might be on their traditional country and so. Hardly criteria that is compatible with the vagaries of public sector housing lists where you have to take what’s on offer or go to the bottom of the queue.

But if you go and take a look at the government’s Indigenous housing policy that was adopted at the Housing Minister’s Conference in 2001 – there is a very different picture of the future of Indigenous housing.

It would have you believe that one of the three key planks of the government’s vision is to have, and I quote,

A vigorous and sustainable Indigenous community housing sector, operating in partnership with the Commonwealth and State, Territory and Local Governments.

This policy U-turn in the housing sector is not an isolated case.

And this is at the heart of my concerns with government’s new arrangements:

Not only are they not consulting with Indigenous peoples about fundamental policy changes; there is frequently little or no data or rigorous research undertaken to underpin the policy changes that are being made.

Evaluations, where they are occurring, are often far from transparent and rigorous. The fact that the evaluations of the centre-piece of the new whole-of-government process, the 8 COAG trials, were so damning that they were held back from public release for over two years, is a good case in point.

Unfortunately the government does not appear to be open to learning from the serious policy errors that occurred in too many of the trial sites. A comment from the Associate Secretary of FaCSIA at Senate Estimates hearings in February speaks volumes in this regard, and I quote:

… [FaCSIA’s] response to the evaluation report [for the Wadeye COAG trial] predated our receipt of the report.3

To make matters more difficult, the government also 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.4

• Capacity of Indigenous peoples to participate

A further concern I have with the way the whole of government process is unfolding is whether Indigenous peoples have the capacity to negotiate as equal partners in the many agreement making processes they are now required to be involved in.

This is particularly important when you consider that in the Northern Territory, changes to the Aboriginal Land Rights Act 1976 last year means that some communities are now negotiating with the federal government to lease-back Aboriginal owned land for up to 99 years.

Although I wholeheartedly support the overarching objective of helping Indigenous peoples generate capital and the ability to undertake economic development in their own communities – as I have highlighted in my last two social justice and native title reports, we need to be able to make informed decisions about matters that are going to impact on our children and grandchildren’s lives.

Although I don’t have the time to mention them in detail, I would like to refer you to the Guidelines for engagement with indigenous peoples that are 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.5

The Guidelines recognise that along with involving Indigenous peoples in decisions that will impact on their lives, it is also necessary to ensure that their participation is based on the principle of free, prior and informed consent.

It follows that capacity building has to occur if Indigenous peoples are to participate equally and meaningfully in the planning, design, negotiation, implementation, monitoring and evaluation of policies, programs and projects that affect them.  

And governments and the private sector (amongst others) have a responsibility to support capacity building efforts in Indigenous communities. In order to address Indigenous unemployment, it is necessary to do more

Conclusion – positive economic developments in Indigenous communities  

There are encouraging signs in Australia, particularly in the mining sector, that some corporations understand and are prepared to honour their corporate social responsibilities in relation to Indigenous Australians.

Of course there are also obvious commercial reasons why it makes sense for mining companies to take advantage of the largely untapped labour resources that exist in most remote Indigenous communities. After all, most companies are experiencing skill and labour shortages in the current commodities boom which looks set to continue – so why wouldn’t they want to build up the capacity of future generations of local workers?

Today I don’t have the time to paint a very detailed picture of some of the innovative and in many ways, visionary agreements, that several communities and corporations have forged for their mutual economic benefit. The 2006 Native Title Report that I hope to transmit to the Parliament in a few weeks will provide you with a lot more detail and analysis about these best practice examples if you are interested.

I will however, briefly refer to one example that I think is particularly significant. The Argyle Diamond Mine Participation Agreement was concluded in 2005 after three years of negotiation, but a very chequered history of relations between the mine and the local community that stretches back about 20 years. Arguably it is the most comprehensive arrangement ever made between a resource company and traditional owners in Australia.

I only want to refer to one half of the Agreement, namely the Management Plan Argyle Agreement. This consists of 8 individual management plans, which set out how the company and traditional owners will work together to:

• look after country,
• assist in the recruitment and retention of Indigenous employment in the mine, and
• develop new Aboriginal businesses that will be sustainable after the mine.

One of the 8 plans relates to training and employment for local Aboriginal people.

Argyle Diamonds has made a commitment to support and preference local Aboriginal people for jobs and training at the mine. For example, it will put in place a 40% local Aboriginal employment quota when the underground mine commences in 2008, and this will be in place for the life of the mine.

Argyle Diamonds is also backing a number of education support programs to address some of the barriers to Aboriginal people gaining employment. These include an accelerated learning program, mentoring, and leadership camps – all aimed at providing pre-employment entry points.

In terms of mining opportunities, the company will provide flexible apprenticeships, traineeships, career planning and alternative employment programs.

Another key part of the management plan is to set up a Business Development Taskforce that will scope viable business opportunities for traditional owner businesses, and advise them about business development. Half of its members will be from the Argyle Mine and half traditional owners. The idea is to help traditional owner businesses to compete for site-based contracts. Current projects include earthmoving, transport, manufacturing, horticulture and tourism.

Argyle Diamonds has also agreed to give preference to traditional owners and traditional owner businesses for contract work relating to the provision of services at the mine site worth more than $250,000. The company has also agreed to give preference to the non-traditional owner businesses that provide the greatest benefits to traditional owners.

One of the respected Aboriginal leaders summed the significance for the local community of negotiating the Argyle Participation Agreement up perfectly when he said:

It’s been empowering, it has empowered us to make decisions on our own terms. We determine what happens in our area. We set the terms and goals and we are achieving them also. As an Aboriginal man I can finally walk around with my head held high. This process has bought unity between the elders and the young. The young bring the education and the elders bring the knowledge. 6

I hope we see more governments, more companies and more Indigenous Australians reaping the benefits of this kind of agreement making in the very near future. We need you all to stand strong and be diligent in working for the advancement of our people.  If we have a job we have money to look after our families and this will give us strength and a prosperous future.

Thank you

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