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Opening statement to the Senate Select Committee on the Administration of Indigenous Affairs

By Mr Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
at the Public Hearing for their Inquiry into the ATSIC Bill and the Administration
of Indigenous Programs and Services by Mainstream Departments, Wednesday 2
February 2005

Thank you for the invitation to appear before the committee. I would like to acknowledge that we are meeting on Gadigal land, and pay my respects to the Gadigal people.

I would like to take this opportunity to provide you with a brief update of my activities over the past six months that relate primarily to your second term of reference - namely, the proposed administration of indigenous programs and services by mainstream departments and agencies.

As Social Justice commissioner, my role is to monitor the impact of government activity on the enjoyment of human rights by Indigenous peoples. I am required to report to Federal Parliament annually on this through the Social Justice Report. Since commencing my term in July 2004, I have indicated to all governments and to Indigenous peoples that my office will closely monitor the implementation of the new arrangements for the Administration of Indigenous Affairs. I intend this monitoring to be ongoing, given the scope of the change being introduced.

The new arrangements have the potential to impact significantly on the enjoyment of rights by either leading to improved performance and outcomes by government, as well as improved engagement with Indigenous peoples, or by undermining the enjoyment of human rights by Indigenous peoples.

At this stage, it is not possible to tell which will be the eventual outcome or whether it will be a mix of good and bad for different communities. This is because the new arrangements are complicated and wide-ranging, and were only introduced from 1 July 2004. It is clear that the new arrangements are still evolving. It will be some time before these machinery of government changes are fully in place and it will be longer still until the changes impact at the community level.

In September 2004, I requested information on issues related to the new arrangements. I wrote to each federal government department, state and territory government and ATSIC regional council as well as to the national board of commissioners of ATSIC to seek their views in relation to a number of issues about the new arrangements. I also conducted consultations across Australia with a variety of indigenous communities, organisations and community councils, ATSIC regional councils and commissioners, as well as with ministers and senior bureaucrats at the state, territory and federal level, and with staff of the new regional coordination centres who will be implementing the changes.

The results of this work makes up the core of my first Social Justice Report to Parliament. That report is likely to be tabled in the March sittings.

Because of the preliminary nature of the new arrangements, I have used this Social Justice Report to identify the key challenges that are raised by them. I will be making a number of recommendations to the government where there are preliminary matters that require clear guidance, and i will be indicating a range of actions that my office will specifically undertake to monitor the new arrangements over the coming twelve months and beyond.

In general, I have the following twelve comments about the new arrangements:

First, the new arrangements contain a number of significant innovations for the delivery of federal programs and services - these include the use of processes to compel engagement on indigenous issues at the most senior levels of the government and public service; the establishment of mechanisms to coordinate government activity in a whole of government way; and the focus on improving the performance of mainstream programs.

Second, the new arrangements involve the making of significant commitments to Indigenous peoples by the government - these are set out in the ministerial taskforce"s charter on indigenous affairs and through the adoption by COAG of national principles for service delivery to indigenous people in June 2004.

Third, the new arrangements are based on lessons learned from the COAG trials. These lessons are preliminary and require ongoing consideration - the COAG trials have provided valuable guidance on the key issues that must be addressed in implementing a whole of government approach. But they do not provide solutions or proven approaches that can be applied to indigenous communities across the country - the trials, for example, are resource intensive and this cannot be replicated in every community. The trials have not been formally evaluated, and there have been some problems identified with them which need to be addressed.

Fourth, the new arrangements are based on administrative procedures, not legislative reform - proceeding through administrative procedures provides the government with great flexibility in how it implements the new arrangements. It also makes the new arrangements less transparent and more difficult to scrutinize. It has the potential, particularly over time, to make it more difficult for the government to be held accountable for its performance.

Fifth, from consultations I have observed a lack of information about the new arrangements in indigenous communities - it is difficult to see how the new arrangements can succeed without a broadly based campaign to inform indigenous peoples of the changes as well as of their role in the new processes, such as through shared responsibility agreements.

Sixth, the transition to the new arrangements appear to have created financial difficulties for some communities - through consultations i have been informed of Indigenous communities or organisations that have suffered in the transition of grant management processes from ATSIS to mainstream departments by not receiving all their funding on time. It is uncertain whether this has created ongoing financial problems for those communities, but I intend to follow this closely.

Seventh, there is a clear challenge for the new arrangements to ensure that Indigenous peoples can effectively participate in decision making processes that affect their daily lives - there are proposed mechanisms for supporting regional bodies and negotiating with local communities, but this has not yet happened and the links between the local and regional levels to the national level are not clear. Human rights standards require that Indigenous people be able to "effectively participate in decision making that affects them". This can be achieved through a mix of local, regional and national processes. We need to wait and see what is put in place at the regional level to ensure that this participation happens - the mechanisms that are in place now are not sufficient on their own.

I would note, however, that the clear view of the regional councils that i have consulted is that they are not being involved in the current process and that there has also been very little progress in advancing alternative regional structures for indigenous peoples.

Eighth, there is also an issue of the effective participation of Torres Strait Islanders on the mainland.

Ninth, there are issues relating to the increased emphasis on the role of shared responsibility agreements on indigenous people meeting mutual obligation principles. I would be concerned if SRAS became less of a community development / capacity building model and more of a punitive funding agreement model that seeks behavioural change or that is discriminatory in impact. I actually think it is too early to conclude that this is the case and think that it will not be until mid-2005 at the earliest that there will be sufficient information to express a view about the actual approach being adopted by the government to reflect mutual obligation requirements in SRAS. I intend to monitor this closely, particularly to determine whether I should utilise specific powers that I have as race discrimination commissioner in issuing guidelines on the application of the RDA to the SRA approach.

Tenth, I consider that there have been some disturbing trends in the public sector relating to the new arrangements. In particular, I have identified:

A lack of commitment to using identified criteria by the OIPC, meaning that skills relating to communicating with indigenous peoples and understanding indigenous cultures are not considered mandatory skills for key national policy determining positions in the new arrangements;

A lack of cultural awareness training or training in community development or capacity building practices for staff entering the OIPC or regional service delivery roles through ICCS; and

A decline in the employment and retention of indigenous people in the Australian Public Service, particularly at the executive and senior executive levels, since the introduction of the new arrangements.

I have raised these concerns with the public service commissioner and the secretary of the department of prime minister and cabinet.

Eleventh, there are challenges for mainstream agencies in providing services and coordinating activity. Consultations have revealed concerns about stricter interpretation of guidelines for programs, and teething problems in establishing coordinated inter-agency working patterns in regional ICCS.

And finally, there needs to be appropriate monitoring processes for the new arrangements. There are some important mechanisms in the new arrangements, such as the annual report of the secretaries group and the role of the office of evaluation and audit. These processes, however, need to be directed to both the efficiency and operation of commonwealth programs and service delivery and also more broadly to the systemic issues of how the mechanisms that make up the new arrangements fit together. It is too early to tell whether the mechanisms, as set out above, are sufficiently broad to address both of these perspectives.

There is also a substantial challenge in establishing clear links between monitoring processes and the commitments of the government through COAG. Previous Social Justice Reports have indicated that efforts to achieve this have been very limited to date.

Senators, this provides a snapshot of some of my preliminary views of the new arrangements. As I said, they will be detailed fully in the forthcoming Social Justice Report. My intention is to maintain a focus on the implementation of these new arrangements to ensure that essential components of the new arrangements are not cast aside due to the complexity and scope of the changes being implemented. I also intend to work collaboratively with the government and have already raised a number of these issues with them.

Thank you.