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Keynote address: ‘The Right to Health of Indigenous Australians’

 Inaugural course on Health, Development and Human Rights

University of New South Wales

Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner

Human Rights and Equal Opportunity Commission

Monday 16 July 2007

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I would like to begin by acknowledging the Gadigal people of the Eora nation, the traditional owners of the land where we meet today and to pay my respects to their elders. I would also like to thank the University of NSW and Professor Daniel Tarantola for organising this event, and the Chair; and to acknowledge my eminent fellow speakers – Sofia Gruskin, Paul Hunt, Justice Michael Kirby and Daniel Tarantola again. It’s an honour to be speaking with such a distinguished group.

Part 1: My role

In July 2004, I took up my appointment as the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission or HREOC. This role was created in 1992 to provide an ongoing monitoring agency for the human rights of Indigenous Australians.

I undertake this role in a number of ways. In particular, I am required to report annually to the federal Parliament on the status of enjoyment and exercise of human rights by Indigenous Australians. This is called the Social Justice Report. The 2006 report was tabled in Parliament in June. It is also available on the HREOC website. I also produce a community guide that outlines the salient points in the Social Justice Report and a second annual report I produce called the Native Title Report.

Part 2: Indigenous health and the right to health

Going back one year, the 2005 report spoke at length to the poor state of Indigenous health and health inequality (when compared to the non-Indigenous population) and the right to health, and it will be this that will be the subject of my presentation today, building on some of the more technical detail about the right to health set out by my fellow presenters.

As my fellow speakers have noted, human rights, and specifically the right to health, have very detailed content that ought to be guiding the development of policy and the delivery of programmes to Indigenous peoples. And I have argued in the 2005 Social Justice Report, the right to health ought to form the cornerstone of policy development and programme design for Indigenous health. And I set out a model approach for Australian governments based on the right.

I am sure that many of you have some knowledge of Indigenous health inequality in Australia. In fact, significant inequality exists across a range of health indicators – from life expectation to chronic and communicable diseases, and across all age groups. Now what relevance does the right to health have to this situation?

(a) Equality of opportunity

Of particular relevance to Indigenous peoples in Australia is that the right to health – among the many other things it encompasses -- is the right to have opportunities to be as healthy as possible provided to you by the state. And it is this aspect of the right that I am going to focus on in my presentation.

What this means, in practice, is that the state provides two things:

• The first is the foundation for good health provided by safe drinking water, hygienic conditions (with sewerage and garbage safely disposed of), healthy housing, and a supply of healthy food for a start. I refer to this as ‘health infrastructure’ in shorthand.

• The second are health goods and services. That is, hospitals and medicines for when people are ill and primary health care services that aim to prevent ill health or detect it at an early stage so that ill health is nipped in the bud. Health education and promotion is also vital. How many of us remember the famous ‘Life Be in It’ campaign or the anti-smoking drives of the past 2 decades? The impact of these campaigns has been of enormous benefit to the health of the overall population. Without this, individuals are not empowered to make health-supporting choices for themselves and their families.

Further, the right to health obliges a state to ensure that everyone – regardless of sex, race, age, sexuality and so on – has an equal opportunity to be healthy. And this is where the right to health is of direct relevance to Indigenous people in Australia.

• It means that from a health perspective, communities across Australia (whether Indigenous or non-Indigenous) should enjoy a similarly healthy standard of drinking water, can access roughly the same standard of fresh vegetables, fruits and meat, and have their sewerage and garbage removed. It also means that they enjoy a similar standard of housing – from a health perspective. Now this doesn’t mean that we all should live in a mansion in Point Piper. What it does mean is that we should all be able to take a shower, wash our clothes, keep our food refrigerated, and not live with 5 or 10 people to a room - conditions where diseases can spread rapidly.
• Further, it means that all people and communities should have equal access to health services. Access means:
• Physically accessible or reachable services,
• Affordable services,
• Culturally accessible – services, for example, in the language you speak.
• Non-discriminatory services.

And of particular importance in relation to equality of opportunity to be healthy, is primary health care with its preventative emphasis. Since the Declaration of Alma Ata was made by the World Health Organisation in 1978, it has been universally recognised that ensuring health equality among the various groups in a population will, to a great degree, depend on the access those groups have to primary health care services, as well as health education and promotion.

Now in case you are not already aware, Indigenous peoples in Australia do not enjoy the same opportunities to be as healthy as the non-Indigenous population in relation to primary health care, medicines and health infrastructure.

• For example - based on a national survey - it was estimated that in 2004, Indigenous peoples enjoyed only 40% of the per capita access of the non-Indigenous population to primary health care provided by general practitioners. Further research – based on Indigenous peoples’ use of Medicare - indicates that the primary health care shortfall in communities can be quantified at between $250 - $570 million per year. There are also identified gaps in relation to health promotion and education.
• Further, health infrastructure in many Indigenous communities, particularly remote communities, does not provide the same foundation for good health as in the rest of the country. Historically, contaminated drinking water supplies – situations where sewerage, garbage and water supplies were mixing - was a big cause of disease in communities. While I am happy to report real improvements to this situation over the past 15 years, there are still some areas of concern. For example, where hard water from bores is impacting badly on the kidneys of people suffering diabetes. However, perhaps the most pressing areas in this regard remain food supplies and housing.

Now I hope it is becoming clear as to how the right to health has immediate relevance to this situation. From a human rights perspective, enabling Indigenous peoples to equality of opportunity in relation to health is identified as the challenge facing Australian governments. While special measures in relation to certain diseases are also required by the right to health, providing equality of opportunity provides the foundation for sustainable, long-term improvements to health status to the point of equality.

(b) Towards equality of opportunity – progressive realisation

But the right to health does more than simply allow us to identify the problem. It also speaks as to how the inequality gap could be closed and it is this aspect of the right to health upon which the health equality campaign proposed in the 2005 Social Justice Report is based.

In the short time I have, the principle I want to highlight here is the progressive realisation principle and how it applies to achieving equality of opportunity in relation to health. Broadly speaking, this is the obligation to ‘take steps’ (in the words of article 2 of the International Covenant on Economic, Social and Cultural Rights) towards equality of opportunity. Now these are not steps in an unqualified sense. For example, the current response of governments – the National Strategic Framework for Aboriginal and Torres Strait Islander Health and associated programs -- could be characterised as  ‘steps’, but as I will set out these do not count as a steps in terms of progressive realisation.

Steps towards equality in terms of progressive realisation. They require a state to:

• create a plan to provide equality within an ‘ambitious yet realistic time frame’ – that is, a plan that sets equality as a target, and the attainment of that target within a set time frame;
• commit sufficient resources to the plan; and
• be accountable to the plan by setting benchmarks. That is, if your overall time frame for equality is ten years, a benchmark might be to have reduced inequality by 50% within 5 years and have mechanisms in place to measure achievement, or not, of that benchmark . In that way, benchmarks allow governments to be made accountable and facilitate the maintenance of a focus on achieving equality over the long term.

In fact it is these very elements that are striking in their absence from the current response. From a right to health perspective, it is unacceptable to continually state – as happens in Australia -- that poorer Indigenous health  is tragic and ought to be treated with urgency, and then fail to put into place bold targets to focus policy making over the short, medium and longer term or to fund programs so they are capable of meeting these targets. A plan that is not adequately funded to meet its outcomes cannot be considered an effective plan. The history of approaches to Aboriginal and Torres Strait Islander health reflects this:  Australian governments have proved unwilling to fund programs based on need and, as a result, plans have failed.

A rights based approach would help ensure that commitments are accompanied by targets and benchmarks over the short, medium and long term. And I note that the Overcoming Indigenous Disadvantage Framework,for example, provides appropriate foundations for establishing achievable targets and benchmarks, for example. So we are not talking here about reinventing the wheel, or starting from zero. It is simply a matter of adjusting existing monitoring capacity.

(c) Other rights issues

Engagement

In part, the failure of the existing commitments and strategies to address Indigenous health is because of the failure of Australian governments to engage appropriately with Indigenous peoples and develop strategies and programs with the full participation of Indigenous communities.

Governments must ensure that Indigenous peoples have the opportunity to participate effectively in all aspects of policy development and service delivery that impact upon their communities.

Principles relating to self-determination, non-discrimination, equality before the law and minority group cultural rights have been interpreted as requiring this. It is also set out in the Declaration on the Rights of Indigenous Peoples that was adopted by the UN Human Rights Council in June 2006, and – although its future is unclear – maybe be adopted by the General Assembly in late 2006.

The requirements for participation have been expressed as the principle of free, prior and informed consent. At the international level, this is gaining wide acceptance. United Nations agencies are guided by what is known as the Common Understanding of a Human-Rights Based Approach to Development Cooperation. This integrates policy and program development for human rights, development and poverty eradication. It is based on the recognition that people are key actors in their own development, rather than simply being passive recipients of services.

In brief:

•    Free - requires no coercion, intimidation or manipulation;

•    Prior - requires that consent has been sought sufficiently in advance of any authorization or commencement of activities, and respects time requirements of Indigenous consultation and consensus building processes;

•    Informed - requires that information is provided that addresses the purpose, scope, obligations and impact of any proposed activity, and;

•    Consent - requires that consultations be undertaken in good faith; on a basis of mutual respect; and with full and equitable participation. It also requires that Indigenous peoples can participate through their own freely chosen representatives and customary or other institutions, and ultimately it must allow the option for Indigenous people to withhold their consent.

The principle of free, prior and informed consent has recently received important international endorsement by the United Nations General Assembly. In adopting the Program of Action for the 2nd International Decade of the World’s Indigenous People, five key objectives were agreed for the Decade. They include:

Promoting the full and effective participation of Indigenous peoples in decisions that directly or indirectly affect them, and to do so in accordance with the principle of free, prior and informed consent.

In fact – legal obligation aside - it is common sense that governments risk failure if they develop and implement policies about Indigenous issues without engaging with the intended recipients of those services. Bureaucrats and governments can have the best intentions in the world, but if their ideas have not been subject to the  ‘reality test’ of the life experience of the local Indigenous peoples who are intended to benefit from this, then government efforts will fail in the medium to long term.

And we need look no further than the intervention currently underway in the Northern Territory, and the threats made to compulsorily check all Indigenous children for sexual abuse as an example of what not to do in this regard. But time dictates that I not dwell on that here.

Empowerment

And best practice - and indeed human rights law (the principle of self-determination as it applies to Aboriginal and Torres Strait Islander peoples) indicates that as many primary health care services as is possible should be community controlled services.

And you only have to look at the shining success of the Mums and Babies program operated by the Townsville Aboriginal and Islander Health Services to see what a positive impact the community control of health services can have on health – and there are many other examples that I could cite and are set out in the 2005 Social Justice Report.

Community controlled services are culturally, physically, and economically accessible. Crucially, they empower Indigenous communities and people to look after their own health. They literally speak the language of the community, know the communities problems and are best placed to work out solutions – for example, choosing to invest more of its funds into integrating drunk and alcohol counselling or mental health programs into its practice.

(d) The Campaign for Indigenous health equality

Since I released the 2005 Social Justice Report, I have been working with a growing coalition of organisations who are determined to make a difference on Indigenous health. Thirty of these organisations signed an open letter to governments in December last year highlighting the Indigenous health crisis.

We will continue to work together and are determined that this issue be treated as a national priority. This means putting it on the top of the agenda of the Council of Australian Governments – something that is currently not the case.

I have also worked to forge a national Indigenous health leadership body – the first meeting of which was on July 2, to forge a common position and work more effectively with Australian governments.

I believe that we have a unique window of opportunity at the moment to achieve Indigenous health equality. In fact, as a nation we have perhaps never been as well placed as we currently are to turn the health crisis faced by Aboriginal and Torres Strait Islander peoples around.

• We have the necessary commitments and mechanisms for whole of government coordination. Now, as many of you will know, since the National Aboriginal Health Strategy of 1989, this capacity for a coordinated government response has been identified as crucial to any effective response to Indigenous health inequality.
• We also have a historically large budget surplus, just a small fraction of which could lead to dramatic improvements in Aboriginal and Torres Strait Islander peoples’ health status; and
• We also have programs in place that provide a sound programmatic response to the situation. The campaign I am proposing would simply link these policy responses to identified need and place them within a framework of targets and benchmarks. In short – again I repeat – we are not talking about reinventing the wheel, simply aligning what is already in place with the right to health.

The 40th anniversary of the 1967 referendum occurred in May this year. Given that one of the main purposes of the referendum was to enable the Commonwealth to address the poor state of Indigenous health, I believe that the health inequality that is still with us; is unfinished business. This anniversary year is the ideal time to advance the health campaign that is underway.

And if we do not rise to the occasion, things could get worse. The Indigenous population is younger and growing faster that the non-Indigenous population. Unless we act now, there is the risk that this generation will inherit the burden of ill-health that fell to their parents and grandparents generations.

Now, in finishing, can I highlight that I have tonight only touched on the main features of the campaign set out in the 2005 Social Justice Report. I would urge you to read the Social Justice Report to see the work that is underway to promote health equality for all Australians.

Thank you.