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By Default: Lessons Learned from the Scrutiny of Indigenous Affairs

Address to the Australian Public Service Commission’s

2007 Government Business Conference

Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner

and National Race Discrimination Commissioner

23 February 2007

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

I would also like to thank the organising committee for the invitation to address the APS’ 2007 Government Business Conference.

We are on Aboriginal land – and as a mark of respect to the traditional owners of this country – I want to recognise their culture and their law because they are integral to what we now call Coogee.

Acknowledging Aboriginal protocols and incorporating them into official occasions is a very simple way of showing cultural respect and inclusion. Other countries show that they value their Indigenous heritage in similar ways. In New Zealand all public servants open their conference or official functions in the Maori language.  While this is not practical in Australia, the respect and recognition of traditional owners by public servants, not just in Indigenous functions, is a good first step and I urge you to do so at your next function.

In my role as the Aboriginal and Torres Strait Islander Social Justice Commissioner, I spend a lot of time monitoring the policies and practices that you and your staff develop and implement for Indigenous communities. It is not often that I get the opportunity to address you directly to raise issues from my perspective and to make some constructive suggestions about overall directions and approaches. Usually I am facing a bunch of politicians and all the constraints of a parliamentary committee of inquiry or Estimates hearing, that you all know only too well!

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

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.

As you would expect, I also want to talk about public policy development and implementation, given that this is the core business of the APS.

There are numerous documents that set out the do’s and don’ts of how you should approach your work as policy designers and implementers, which I know you are all familiar with. What I want to do today is explore the application of these guidelines in contemporary Indigenous communities, and from the conceptual basis of a human rights based approach to development.

In exploring these matters, I want to refer to some concrete examples of where ‘whole of government’ policy development and implementation could be done better. I also want to highlight some of the obvious pitfalls that are wholly avoidable, providing leadership is exercised responsibly and consistently throughout the design, implementation and evaluation phases.

And finally I want to alert you to documents like the Morgan Disney Report on eliminating red tape in Indigenous funding arrangements, which might assist in your work.

Role and functions of HREOC

To begin – a brief overview of the 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, currently the Hon. John von Doussa QC. The President is assisted by three Commissioners with portfolio responsibilities relating to Sex, Race, Disability and Age Discrimination; plus a Human Rights Commissioner, and myself as the Aboriginal and Torres Strait Islander Social Justice 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, 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.

By raising people’s awareness about human rights, HREOC aims to encourage people and institutions to change their attitudes and behaviour because they want to, not just because the law requires it.

HREOC’s ability to receive and conciliate human rights complaints is also a very important function. We receive about 1,400 complaints every year and over a third of them are successfully conciliated. Anyone can lodge a complaint with HREOC if they believe their rights under federal anti-discrimination legislation or human rights laws that the Commission administers have been breached. If conciliation is not possible or not successful, the claimant has the option of taking the matter to the Federal Court for determination.

As federal bureaucrats you are obliged to lodge complaints with HREOC rather than through one of the state equal opportunity commissions and equally if anyone has a complaint relating to a commonwealth agency or service they do likewise.

Although HREOC is funded by the federal parliament, it can and does criticise the government when it believes a breach of domestic or international human rights law has occurred. The Commission has a statutory requirement to fulfil this independent ‘watchdog’ role and when we make recommendations to the Executive, we have an expectation that the government will act on those recommendations in good faith.

The Commission also takes the view that we have to work constructively with the government, the parliament and the bureaucracy so that they can improve their laws and policies to make them consistent with human rights standards, and ensure that 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 into Aboriginal Deaths in Custody, and Australia’s embarkation on 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 you 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.

And the challenges look set to get even greater in the next 40 years given the Indigenous population boom that is occurring in regional and remote Australia. Demographers are predicting a sharp increase in the Indigenous population in the north that will result in the majority of Australians living north of Townsville and Broome by 2050 being Indigenous.1

At the same time, economists point to a distinct lack of jobs, skills and education in Indigenous communities.

You may also be aware of my recommendation, which is now supported by a national coalition of Australia’s leading health, human rights, aid and development organisations, that all Australian governments need to commit to a plan to achieve health equality for Indigenous Australians within 25 years.

But it is important to keep these challenges in perspective.

We are currently talking about improving the social and economic well-being of less than 3 percent of the population – less than half a million people.

And 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.

Arguably Australia is in an optimal financial position to make real inroads into improving the status of Indigenous Australians. The OECD recently reported that the global boom in mining commodities has put our terms of trade at a 32 year high, and business investment, especially in mining and associated infrastructure, is growing at double digit rates.2 This has delivered Australia in the vicinity of an extra $17 billion a year to the budget bottom line.3

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.4

Australia is not alone in the world when it comes to experiencing difficulty in addressing Indigenous disadvantage. Indeed, 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 phenomena a name, labelling it ‘the implementation gap.’

In his 2005 report, the Special Rapporteur stated:

All the indicators suggest that the main problem is not a lack of suitable legislation … but shortcomings in terms of implementation … and the procedures and mechanisms for the full realization of human rights [for indigenous peoples].5

Priority outcomes in new arrangements in Indigenous affairs

COAG has also recognised that Australia’s policy chickens are coming home to roost and has made a number of commitments to address Indigenous disadvantage.6

In 2002 COAG announced its three priority outcome areas:

1. Safe, healthy and supportive family environments with strong communities and cultural identity,
2. Positive child development and prevention of violence, crime and self-harm, and
3. Improved wealth creation and economic sustainability for individuals, families and communities.

To achieve outcomes in these three areas, COAG has emphasised the need for partnerships and shared responsibility between governments and Indigenous communities, as well as flexible, whole of government cooperation.

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.

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 year.7

An entire chapter is devoted to ‘stakeholder management’.8 Particularly pertinent here are questions like:

Will the information obtained through stakeholder engagement be acted on?

Helpful quotes from APS staff scattered in the margin of this chapter include:

You have to get an understanding of the clients and their needs.

Engage with those affected by the initiative at an early time.9

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 this week that he will be seeking Cabinet approval to withdraw funding for 600 Indigenous community housing organisations in urban areas is a case in point.

Last week it was an announcement that the government would definitely proceed with the abolition of the CDEP scheme in urban and major regional centres.

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 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.10 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,
• Sentencing provisions in the Cth Crimes Act
• Access to Aboriginal Land under the Northern Territory Land Rights Act

Although the government has provided assurances that the feedback from its CDEP consultations will ‘be used to shape the future direction of CDEP,’11  I question the extent to which the government will take on board any Indigenous or employment industry feedback.

The government has already identified which CDEPs it will abolish, it has set a deadline of 1 July 2007 for the commencement of the STEP brokerage scheme to replace CDEPs, and there simply is not the time to rethink the model in any substantive way.

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.’12

• Capacity of Indigenous peoples to participate

Examples such as the changes to CDEP raise serious concerns about the ability of Indigenous communities to negotiate as equal partners in the many agreement making processes that have been introduced with the new arrangements – including SRAs, RPAs, REIAs, and ‘intensive interventions’ for communities in crisis.

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 to so engage.

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

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.

Of particular importance in the context of policy design and implementation that relates to Aboriginal peoples and Torres Strait Islanders, are the following:

• Indigenous peoples have the right to full and effective participation in decisions which directly or indirectly affect their lives;

• Their participation should be based on the principle of free, prior and informed consent.

• Governments and the private sector (amongst others) need to support efforts to build the capacity of Indigenous communities … so that they can participate equally and meaningfully in the planning, design, negotiation, implementation, monitoring and evaluation of policies, programs and projects that affect them.  

• Governance within and between agencies – the Wadeye COAG trial

I would like to refer briefly to another section of the Better Practice Guidelines – which deals with governance – and to do so in the context of the Wadeye COAG trial.

This chapter is highly relevant to any agency that is involved in the delivery of whole-of-government responses to address Indigenous disadvantage.

It recognises that policy implementation at this level of complexity has far more potential for things to go wrong.

Above all it emphasises the need for there to be ‘clear senior management ownership and leadership in order for implementation to succeed.’

It also emphasises the need for ‘reporting and monitoring arrangements … to be robust enough so that ‘bad news’ is not filtered out of reports to the executive and senior responsible officers.’14

This need for the APS to provide ‘frank and fearless advice’ to itself is, according to Dr Peter Shergold, at the very heart of the Better Practice Guidelines.15

Reading through the checklist of the governance chapter, with the policy failure of the Wadeye COAG trial in mind, is an educative undertaking. I encourage you to read the report from this perspective when it is made public. For example, it asks senior officers to consider:

1. Has a lead agency been identified and its role articulated and accepted by other relevant agencies?

2. Is the cultural environment supportive of successful implementation?

3. Have dispute resolution procedures been put in place?

4. Is there clear recognition of accountability arrangements?

5. Do the governance arrangements provide for adequate reporting and review mechanisms, including escalation of significant issues and ‘bad news’?

Wadeye seemed a good choice for one of the 8 COAG trials. It is the NT’s largest Aboriginal community, and a community with many acute needs.

Wadeye has appalling health statistics, serious overcrowding, and significant crime and violence which at times render the community virtually dysfunctional.

As part of the trial, an SRA was signed between the Australian Government, the Northern Territory Government, and Thamarrur Aboriginal Regional Council in March 2003. The SRA identified three priority areas for action:

• Women and families;
• Youth and Housing; and
• Construction.

In 2006 the government engaged Bill Gray AM, a highly regarded former senior government official, to evaluate the Wadeye trial.

The evaluation report indicates an almost total failure of the Wadeye trial to achieve its objectives.

There was no identified leadership of the trial.

Contrary to the trial’s objective of a reduction in red tape, the burden on the community in terms of administering funds actually increased, and quite dramatically.

Effective communications within and between governments got progressively worse as the trial progressed.

The government’s objective of improving engagement with Indigenous families and communities was not achieved.

There was a significant breakdown in relations with Thamarrur Council.

The community’s expectations of improvements in infrastructure and services were not realised.

In particular, nothing was done about the priority area of ‘youth’. The community had expected that gang violence and safety would be addressed and resolved at an early stage of the trial. Instead this agreed priority area was allowed to ‘fall between the cracks.’ If anything, things became worse causing considerable disappointment and anger within the community.

Provision of more housing at outstations was seen by the community (and still is) as the only sustainable solution to serious overcrowding at Wadeye. It is therefore very difficult to understand the thinking behind the federal government’s recent announcement of a moratorium on new funding for housing on outstations and similar communities, which will only exacerbate Wadeye’s housing and health problems.

Not surprisingly, the government has recently named Wadeye as one of the first Aboriginal communities to be the subject of an ‘intensive intervention’ – it clearly fits the bill of a community in crisis.

• Monitoring and review

Last but not least, the Better Practice Guidelines also address the challenge of 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.

As I mentioned earlier, it is also critical that the full and effective participation of Indigenous communities is facilitated in any evaluation processes. 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.

Furthermore, there appears to be a hasty transition from the evaluation findings to new or different policy settings underway without sufficient time to reflect on the lessons of the evaluations. 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 month speaks volumes, and I quote:

… [FaCSIA’s] response to the evaluation report [for the Wadeye COAG trial] predated our receipt of the report.16

Although the COAG trial evaluations remain important in their own right, they are something of a proxy for evaluation of the new arrangements in their entirety. Significant problems in respect of the trial sites would suggest that the system as a whole may be in difficulty, and there should be urgency to put the findings out in the public domain.

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.17

In the meantime, it is not acceptable that scrutiny of progress in Indigenous affairs continues by default.

Although entities such as parliamentary committees of inquiry provide important checks and balances in our democracy, they are no substitute for a proactive, consultative, inclusive, ethical and accountable public service.

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 any public service.

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.18

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.19 The major objective of this paradigm shift is to move the focus of funding Indigenous programs from one of ‘rigid compliance’, to one that is measured by beneficial outcomes in Indigenous communities.

Reinforcing my earlier point, this report also emphasises the importance of the bureaucracy and Indigenous organisations working in equal partnership to progressively build up the capacity of Indigenous organisations and communities.

The Morgan Disney report doesn’t see this cultural change as being expensive. In fact, many of the government’s current overarching policy strategies in Indigenous affairs would be consistent with, and quite critical to the success of this paradigm shift. Here I am thinking of the whole of government approach, and principles relating to mutual responsibility and accountability.

One point that the Morgan Disney report makes, which I want to emphasise, is the need for this paradigm shift to be led by senior elements of the bureaucracy.

Although the report makes specific recommendations to the Secretaries Group, its call for leadership is also targeted at senior officers such as yourselves.

To start taking steps in this direction, there are programs already on offer by the APS Commission for SES, such as the Aboriginal and Torres Strait Islander Policy in Practice Program.

A new part of this program currently being developed is for participants to take on a mentoring role of an Indigenous APS Employee at the conclusion of the program. This initiative will provide a valuable support mechanism to Indigenous employees, and also promote more widely the whole-of-government responsibilities for Indigenous affairs.

Sometimes even the ‘old dogs’ can learn a new trick or two – and in the process someone will benefit from your hard-won lessons.

If you are an Australian committed to reconciliation, I encourage you to think beyond the parameters of your office and support Australia’s First Peoples with honestly and empathy.

Thank you

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Last updated 12 February 2006