Social Justice Report 2000: Chapter 4: Achieving meaningful reconciliation

Social Justice Report 2000

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Chapter 4: Achieving meaningful reconciliation

Introduction

Reconciliation
within a human rights framework

Indigenous
disadvantage and progressive realisation

An equality approach to overcoming Indigenous disadvantage

Developing
a national benchmarking framework and monitoring and evaluating progress

Processes
to implement a national committment to overcoming Indigenous disadvantage

Strengthening Indigenous governance

Regional
governance and progressing reconciliation in a human rights framework

Supporting
regional governance through agreements and partnerships

Implementing
greater regional autonomy and Indigenous governance

Recognising
and protecting Indigenous rights in a federal system

Improving
government accountability for human rights

Negotiating
with Indigenous peoples over 'unfinished business'

Conclusion

Recommendations

National
commitments to overcome Aboriginal and Torres Strait Islander disadvantage

Improved
data collection

Monitoring
and evaluation mechanisms

Negotiating
with Indigenous peoples

Protecting
human rights

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This report identifies the necessity to adopt a human rights approach
to reconciliation, as well as shortcomings in Australia's performance
on human rights issues as they relate to Aborigines and Torres Strait
Islanders. This chapter emphasises processes and mechanisms that enable
reconciliation to be implemented within a human rights framework. It identifies
crucial commitments and processes that governments must engage in to progress
meaningful reconciliation in the coming years. In accordance with my reporting
obligation under section 46C(1)(a) of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth), I have chosen to recommend actions that should
be taken to improve the level of enjoyment of human rights by Indigenous
Australians. These
recommendations specifically aim to increase the accountability and transparency
of governments in relation to Indigenous specific policies; facilitate
the effective participation of Aborigines and Torres Strait Islanders
in service delivery and policy development; and ensure adequate protection
of the human rights of Indigenous Australians.

Reconciliation
within a human rights framework

The following four
inter-related principles synthesise a range of human rights obligations
that must be addressed for reconciliation to be meaningful.

• No discrimination
  - A guarantee of equal treatment and protection for all. Equal protection
  extends to the recognition of distinct cultural characteristics of
  particular racial groups, where appropriate, and requires that temporary
  special measures be adopted to overcome inequalities between racial
  groups. Concerns about Australia's compliance with this principle
  include the introduction of racially discriminatory laws at the national
  level, such as the native title amendments; the maintenance of laws
  at the state or territory level which have a racially discriminatory
  impact, such as mandatory sentencing; and the lack of equality between
  Indigenous and non-Indigenous people across all measures of social
  and economic status.
• Progressive
  realisation - The commitment of sufficient resources through well-targeted
  programs to ensure adequate progress in the realization of rights
  on a non-discriminatory basis. Concerns about Australia's performance
  in meeting this principle include the inadequate targeting and benchmarking
  of Indigenous disadvantage, and insufficient progress in the reduction
  of the inequalities faced by Indigenous peoples. Related concerns
  include the continuing level of Indigenous over-representation in
  the criminal justice system; the inadequacy of the response of governments
  to Bringing them home, the reports of the Royal Commission into Aboriginal
  Deaths in Custody and the social justice package proposals.
• Effective
  participation - Ensuring that individuals and communities are
  adequately involved in decisions that affect their well being, including
  in the design and delivery of programs. Concerns in relation to this
  principle include the level of engagement of Indigenous people in
  the reconciliation process; changes in the role and functions of ATSIC
  which limit its ability to effectively represent Indigenous people;
  and the lack of effective participation of Indigenous people in the
  development of programs and policies relating to Indigenous people,
  such as in the development of the native title amendments and programs
  to overcome Indigenous disadvantage.
• Effective
  remedies - The provision of mechanisms for redress when human
  rights are violated. Concerns in relation to this principle include
  the ability in Australian law to override the guarantee of racial
  non-discrimination (and the actual overriding of this principle through
  the native title amendments and the removal of heritage protection
  at Hindmarsh Island); the failure of the Commonwealth to ensure compliance
  of the states and territories with human rights obligations; and the
  failure to provide adequate reparation for the impact of forcible
  removal policies.

This chapter focuses
on broader structural issues that facilitate the implementation of a human
rights framework. The issues discussed are intended to provide increased
accountability of governments for compliance with these obligations, and
to facilitate increased Indigenous participation. The actions discussed
are not exhaustive, and are intended to complement the actions proposed
in the four national strategies on reconciliation and the Roadmap to Reconciliation
released by the Council for Aboriginal Reconciliation. [1]
These issues are considered under the following headings:

• Indigenous
  disadvantage and progressive realisation;
• Strengthening
  Indigenous governance; and
• Recognising
  and protecting Indigenous rights in a federal system.

Indigenous
disadvantage and progressive realisation

The appropriate standard
for measuring progress in addressing Indigenous disadvantage is one of
equality between Indigenous and non-Indigenous Australians. A focus on
equality highlights that Government is obligated to progressively reduce
the inequalities faced by Indigenous people by targeting such disadvantage
and taking appropriate steps (or special measures) to the maximum of available
resources. Governments should be held accountable, in the words of Mrs
January-Bardill of the Committee on the Elimination of Racial Discrimination,
to doing more than simply manage the inequalities.

Current funding arrangements
do not meet these obligations. Despite the commitment of significant resources
to redress Indigenous disadvantage, there is very little to indicate the
priority that governments attach to reducing the inequalities. The 2000
budget paper on Indigenous policy notes the 'record amount of $2.3 billion ...
allocated to targeted Indigenous-specific programmes' and that 'as part
of its commitment to practical reconciliation between indigenous and non-indigenous
Australians, the Commonwealth government is determined to ensure improved
access for indigenous Australians to key government programmes and services'
. [2] At
no stage does it identify the reduction of the disparities in enjoyment
of rights between Indigenous and non-Indigenous people as the government's
purpose.

Also missing from
current funding and service delivery arrangements are adequate performance
targets, benchmarks and mechanisms to ensure government accountability
and transparency. This is demonstrated by a number of recent reports.
The House of Representatives Standing Committee on Family and Community
Affairs noted in its recent report on Indigenous health that:

• The planning
  and delivery of Indigenous health services are characterised by lack
  of direction and poor coordination;
• There is no
  clear delineation of responsibility for service delivery among the
  federal, state, territory and local governments;
• This lack of
  clear delineation of responsibility shifts costs between governments
  and sectors;
• There is little
  coordination between health services and other programs such as education
  and employment, despite the inter-related nature of these issues;
• The result of
  this piecemeal funding and coordination is fragmented policies and
  programs across governments, which lack consistency; and
• The lack of
  effort to integrate Indigenous community involvement into the planning
  and delivery of services is the biggest barrier to success. [3]
  

The Committee also
noted that a large proportion of health services for Indigenous Australians
are simply reactive and tend to involve general non-specific services
that are not designed to meet the special health and or cultural needs
of Indigenous patients; and that funding for such services is frequently
fragmented across a number of organizations in amounts that are insufficient
to provide services in an efficient manner. [4] Health
services provided by all levels of government are commonly vertical and
inflexible, relating to identifiable risk factors, specific activities
or diseases, and it is therefore difficult for funds allocated to individual
programs to be used for purposes which might better meet the holistic
needs of the relevant local Indigenous community. [5]

The Committee stated
that it is unlikely that the health of Indigenous Australians will improve
significantly until the fragmentation of services, cost shifting and lack
of agreement about responsibility for Indigenous health are resolved;
and until there is clear agreement among the states and the federal government
about their respective responsibilities, how they will act to meet these
responsibilities and the resources to be committed by all parties. [6]

This situation persists
despite the existence of framework agreements between the Commonwealth
and the states for health service delivery. These agreements were negotiated
in accordance with the Council of Australian Governments (COAG) 1992 National
commitment to improved outcomes in the delivery of programs and services
for Aboriginal peoples and Torres Strait Islanders (The COAG National
Commitment). The Committee noted that these framework agreements have
not been effective, as they have been seen as gentlemen's agreements that
apply in principle only and for which there is no recourse if breached.
[7]

Similarly, in its
draft report on the Indigenous funding inquiry, the Commonwealth Grants
Commission has noted that existing funding arrangements across health,
housing, infrastructure, employment, education and training do not:

(i) acknowledge
and adequately address the long-term disadvantage of the Indigenous
population;

(ii) help build
long-term capacity of Indigenous communities to plan and manage services;

(iii) encourage
Indigenous participation, priority setting and decision-making; and

(iv) deal effectively
with non-funding issues such as coordination, fragmentation and cross-functional
issues. [8]

The Commission emphasises
in its report that:

Indigenous disadvantage
has a long-term nature and government programs aimed at overcoming
it must take a long-term perspective ... many programs are not planned
or funded for a sufficiently long term. Some have been commenced with
guaranteed funding for only very short periods. Towards the end of
those periods, there is growing uncertainty which reduces the incentive
for people to invest energy in programs and increases community anxiety
about the continuity of the service, with the result that disadvantage
is not overcome ...

[I]t is also
essential that the processes are based on long-term social commitments
to reducing Indigenous disadvantage and involve clear commitments
to the continuity of funds, so long as they meet agreed outcomes.
[9]

The Commission also
notes that:

with the exception
of some programs in the housing and infrastructure area, many Commonwealth
and State government programs do not allocate funds on a needs basis.
Allocation mechanisms include direct response to demand, history,
submissions and formulae that may reflect population, needs, costs
of service delivery or capacity to benefit. [10]

ATSIC has also noted
in its report on regional autonomy that there is concern among ATSIC regional
councils that:

• Different spheres
  of government have failed to meet their responsibilities to Indigenous
  communities, particularly in the delivery of citizenship entitlements;
• State and territory
  agencies are not under any legal obligation to take responsibility
  for service provision to Indigenous constituents or to address longstanding
  inequities;
• States and territories
  refer their obligations for Indigenous issues back to the Commonwealth,
  usually through ATSIC; and
• Commonwealth
  monitoring mechanisms are ineffective and consequently, are unable
  to influence government agencies to target redressing Indigenous disadvantage,
  particularly in areas where there exists deeply entrenched racism.
  [11]

These reports highlight
the need for all Australian governments, led by the federal government,
to have clearly targeted, long-term plans which identify redressing Indigenous
disadvantage as a national priority and which measure progress within
an equality framework; to be transparent about the outcomes sought, with
adequate performance indicators and benchmarks; and to ensure ongoing
and independent monitoring and evaluation of outcomes.

An
equality approach to overcoming Indigenous disadvantage

It is insufficient
to measure achievement in redressing Indigenous disadvantage according
to the level of government expenditure on specialist programs for Indigenous
people. Aside from creating resentment among other parts of society about
'special treatment', such an approach lacks comparative and evaluative
components.

As the Commonwealth
Grants Commission notes in its Indigenous Funding Draft Report, special
programs for Indigenous people are there to serve a particular purpose:

In general,
mainstream services provided by the Commonwealth and the States are
intended to meet the needs of all Australians. We have termed these
'citizenship' services. For example, the Medical Benefits Scheme,
hospital services, schools education and public housing services are
intended to meet the needs of all Australians who meet the eligibility
criteria. However, for many reasons, mainstream services do not always
meet the needs of specific groups, especially Indigenous people. As
a result, governments have found it necessary to provide many supplementary
programs to increase the access of Indigenous people to services or
to meet their specific needs ...

[Special programs
are not] intended to meet the total needs of Indigenous people. They
are intended to supplement rather than replace mainstream programs
to help Indigenous people gain access to services. They are designed
to compensate for the disadvantage and particular needs of Indigenous
people - which stem from where they live, degree of poverty and particular
aspects of their history or culture. [12]

Specific programs
are intended to supplement citizenship services in order to enable Indigenous
people to enjoy their rights on an equal footing. An appropriate approach
to addressing Indigenous disadvantage is one that is clearly targeted
over the long-term, with short-term goals based on these targets. It is
an approach that seeks to measure progress by evaluating whether the disparity
between Indigenous and non-Indigenous people in the enjoyment of rights
is being reduced, and according to whether programs and services enable
Indigenous participation.

An equality framework
to addressing Indigenous disadvantage has begun to be implemented in other
countries. As discussed in chapter 2, the Canadian Royal Commission into
Aboriginal Peoples recommended a 20-year commitment to overcoming Indigenous
disadvantage and strengthening Indigenous governance mechanisms. It argued
that the social costs of simply 'maintaining the status quo', without
taking further steps to address current disadvantage, would see government
expenditures steadily increase over time with little prospect that it
would ever begin to decline. The Commission argued that a 20-year commitment
of programmes of renewal could lead to significant reductions in the level
of annual special programs expenditure required, and would represent 'a
good investment'.

The Canadian government
responded to the recommendations of the Royal Commission in 1997 with
Gathering strength - Canada's aboriginal action plan. [13]
Gathering strength commits the Canadian government to a long term, integrated
strategy to change the relationship between Indigenous and non-Indigenous
Canadians. Underlying the strategy is the recognition of the imperative
to address the discrepancies in living standards between aboriginal and
non-aboriginal people; and the complexity and difficulties associated
with this task. [14] Gathering strength is discussed
further below.

Another example of
an approach that adopts an equality framework is the New Zealand government's
'Closing the gaps' policy. This policy reflects a government commitment
to progressively close the 'gap' between the social and economic status
of M ori and non-M ori peoples. Integrally linked to this policy is the
facilitation of Indigenous participation and capacity building. The Honourable
Tariana Turia, Associate Minister of Maori Affairs, has explained the
policy as follows:

The closing the
gaps policy provides the Government with further impetus to focus
its attention on its own departments, strategies and systems, to produce
positive results for M ori. The Government expects its departments
to improve their contributions to make a positive difference to the
health, housing, education, employment, justice, welfare and business
and enterprise outcomes for M ori... this suggests departments will
need to be responsive to the needs, interests and priorities of M ori. ...
departments will have to be more rigorous in the development and implementation
of their strategies, policies, programmes and services in terms of
whether they work well for M ori. Closing the Gaps means there is
even more reason for departments to engage with wh nau, hap , iwi
and M ori organisations to deliver specified services to M ori communities.
However, it is a 'needs-focused' policy through which M ori are treated
as clients ...

For M ori, the
main point of the closing the gaps policy is to ensure M ori are not
prevented from having the best possible chance to lead, manage and
control their own development. Until now, the disparities between
M ori and non-M ori have had the potential to be seen as a record
of the failings of M ori people. This is neither sustainable nor appropriate.
Closing the Gaps does signal, however, how much of the Government's
authority, expertise and resources need to be brought to bear to make
a substantial difference to socio-economic outcomes for M ori. [15]

A central aspect
of the policy is a bi-annual report by Te Puni Kokiri (the Ministry of
Maori Affairs). This reporting mechanism establishes benchmarks against
which to measure progress towards closing the social and economic gaps;
to 'assist government and mainstream agencies to maintain a focus on the
status of Maori in their work and decision-making'; [16]
and to assist in setting priorities for policy development. The findings
of the report 'highlight the cumulative effect of government policies
and individual action'. [17] As the benchmarks measure
progress at a whole-of-government level they cannot be used as a performance
indicator to hold individual government departments accountable.

Until the release
of the first 'Closing the gaps' report in 1998:

it had been difficult
to assess the overall social and economic position of M ori, or to gauge
whether or not improvements had occurred across the relevant sectors ...
The 1998 Report acted as a benchmark against which the Government could
measure progress towards achieving the strategic objective for M ori development.
The report used key statistical indicators to assess changes in the education,
employment, economic and health status of M ori. It was based on data
collected by state sector agencies, either through their administrative
data collections or through regular surveys. The Closing the Gaps report
pulled together historical data across each of the key sectors and provided
an assessment of progress made over time. [18]

The findings of the
report were not unexpected:

There was no denying
that M ori had experienced and continue to experience poorer educational
outcomes, higher unemployment, lower income levels, lower rates of home
ownership, and poorer health than non-M ori. However, up until the Closing
the Gaps report, it was difficult, if not impossible, to assess whether
disparities were improving or getting worse. Overall, the report findings
indicated that the gaps between M ori and non-M ori education, employment,
economic and health status were significant, and were either stabilised
or widening. [19]

The second 'Closing
the gaps' report, released in May 2000, found that:

M ori continue to
experience poorer health status, lower income levels, higher unemployment,
higher rates of prosecution and conviction, lower educational status and
lower rates of loving in owned homes than non-M ori. The report demonstrates
that disparities exist for M ori of all ages ... Overall, there have been
few reductions in disparity since the last report, and in those areas
where M ori rates have been improving, corresponding improvements in the
status of non-M ori mean that gaps between M ori and non-M ori are not
closing. [20]

The report also considered
the causes of the disparities:

the causes of disparities
are the cumulative effects of events that are experienced throughout a
lifetime. Historical events experienced by the M ori population, such
as asset loss, land alienation, and rapid urbanisation may have played
some part in contributing to the disparities evident today. However, ongoing
inter-generational interactions in outcomes make it somewhat difficult
to separate out cause and effect. Te Puni Kokiri is currently expanding
its capability to undertake analyses into the causes of disparities. [21]

In Australia, the
need to adopt a nationally coordinated, long-term, equality framework
for addressing disadvantage has recently been acknowledged by the House
of Representatives Standing Committee on Family and Community Affairs.
In its Indigenous health report the Committee recommended that the federal
Minister for Aboriginal and Torres Strait Islander Affairs be required
to produce an annual report to Parliament on the progress of government
actions across all portfolios to improve indigenous health and well-being.
This report should provide a benchmark to monitor improvements in the
disparity between Indigenous and non-Indigenous people in relation to
health, education and employment status. It should not simply be a reiteration
of budget figures. The purpose of the report would be to highlight achievements
in addressing Indigenous disadvantage against short and long term goals,
and on changing priorities as goals are met. The Committee also recommended
that the states and territories adopt a similar approach, and that it
become a standing item on the agenda of the Council of Australian Governments.
[22]

The Committee stated
that there ought to be:

long term bipartisan
support for the process ... The Indigenous community needs to be assured
that this matter is a high priority for government, irrespective of which
party is in government. [23]

The government had
not responded to the report at the time of writing.

Various state governments
are in the formative stages of adopting more coordinated, long term, whole-of-government
strategies to Indigenous policy development and service delivery. The
Western Australian government currently reports in ways consistent with
an equality framework. The Aboriginal Affairs Department (WA) reports
annually on a whole of government basis on the outcome of 'better social,
cultural and economic outcomes for Aboriginal communities'. [24]
The Department uses the following performance indicators:

• Improvised
  dwellings (percentage of);
• Home ownership
  or home being purchased (percentage of);
• School participation
  rates (6-12; 13-17 years);
• Unemployment
  rate;
• Median income;
• Health measures
  (mortality ratio);
• Criminal justice
  (adult apprehension rate);
• Planning (percentage
  of communities with plans regarding their needs); and
• Environmental
  health factors - housing; power; water; solid waste disposal; sanitation;
  and dust. [25]

Each indicator is
reported on a regional basis, noting the disparity between indicators
for Indigenous and non-Indigenous people, and shows whether there has
been improvement since the previous year. [26]

The Queensland government
has begun to implement a policy framework on a whole-of-government basis,
with the Department of Aboriginal and Torres Strait Islander Policy and
Development responsible for developing and implementing Towards a Queensland
Government Aboriginal and Torres Strait Islander Ten Year Partnership.
This outlines key strategic directions to be pursued in partnership with
Indigenous people, including improving performance indicators and enabling
community-initiated reporting on the meeting of these indicators.

The Victorian government
finalised the Victorian Aboriginal Justice Agreement with ATSIC and the
Binjirru and Tumbukka Regional Councils in 1999. The agreement notes:

Currently, there
is no integrated, long-term plan or strategic framework for the provision
of whole-of-government and cross-portfolio services to the Aboriginal
community. This has meant strategies, programs and services are fragmented
and uncoordinated ... the government will work with the Aboriginal community
to develop a strategic framework ... [which] will outline responsibilities
and provide linkages across the whole-of-government, and coordinate
a range of proposed and existing policies and programs ... The strategic
framework should be developed by 30 June 2000. [27]

Developing
a national benchmarking framework and monitoring and evaluating progress

Fundamental to the
establishment of an equality framework for addressing Indigenous disadvantage
in Australia is the existence of a sufficient statistical base at the
national level, agreement on a national benchmarking framework and effective
monitoring and evaluative mechanisms. The United Nations Development Programme,
in its Human development report 2000 - Human rights and human development,
emphasises the importance of developing an adequate statistical basis
in order to measure progress in the realization of human rights. The UNDP
emphasises the importance of developing indicators for:

• Making better
  policies and monitoring progress;
• Identifying
  unintended impacts of laws, policies and practices;
• Identifying
  which actors are having an impact on the realization of rights;
• Revealing whether
  the obligations of these actors are being met;
• Giving early
  warning of potential violations, prompting preventative action;
• Enhancing social
  consensus on difficult trade-offs to be made in the face of resource
  constraints; and
• Exposing issues
  that have been neglected or silenced. [28]

While statistics
alone cannot measure the full dimension of rights, they can 'open the
questions behind the generalities and help reveal the broader social challenges'.
[29] They can allow human rights to be more concretely
relied upon in designing and evaluating policy.

The UNDP has provided
a framework for what the statistics should measure so that they adequately
assess progress in the realization of human rights. The UNDP suggests
that statistics must address the following three perspectives, simultaneously:

• An average
  perspective: What is the overall progress in the country, and
  how has it changed over time?
• A deprivation
  perspective: Who are the most deprived groups in society, disaggregated
  by income; gender; region; rural or remote location; ethnic group;
  or education level, for example. How have the most deprived groups
  progressed over time?
• An inequality
  perspective: Measuring the disparity between various groups in
  society, and whether these disparities have widened or narrowed over
  time. [30]

This statistical
base must facilitate the development of benchmarks [31]
to measure whether adequate progress in addressing disadvantage is being
made:

Setting benchmarks
enables civil society and government to reach agreement about what
rate of progress would be adequate. The stronger is the basis of national
dialogue, the more national commitment there will be to the benchmark.
The need for democratic debate and widely available public information
is clear. If benchmarks are to be a tool of accountability - not just
the rhetoric of empty promises - they must be:

• Specific,
  time bound and verifiable.
• Set with the
  participation of the people whose rights are affected, to agree
  on what is an adequate rate of progress and to prevent the target
  from being set too low.
• Reassessed
  independently at their target date, with accountability for performance.
  [32]

At present, there
is neither an adequate statistical base (particularly in reporting on
an inequality perspective) nor an adequate national benchmarking framework
in Australia.

Some progress has
been made in the past five years, particularly in relation to reporting
on health issues. The Australian Bureau of Statistics (ABS) and the Australian
Institute of Health and Welfare, for example, have begun to produce a
biennial report titled 'The health and welfare of Australia's Aboriginal
and Torres Strait Islander Peoples', the next report of which is due in
2001. Similarly, the National Aboriginal and Torres Strait Islander Health
Information Plan was introduced in 1997 by the ABS. The plan focuses on
developing appropriate infrastructure for the collection and maintenance
of Indigenous data; technical improvements required to support the collection
of high quality statistics on Indigenous health; and leadership and coordination
processes to progress issues and strategies across jurisdictions. [33]
There have also been recent developments in collection on Indigenous housing
issues, but progress has been slow on other areas such as community services
information. [34]

As the Commonwealth
Grants Commission notes in its draft report of the Indigenous Funding
Inquiry:

Despite the 1992
(COAG) National Commitment to a planning framework which 'identifies
needs, and establishes clear and measurable objectives, agreed outcomes
and performance indicators' and 'nationally consistent statistical
reports with a policy orientation', comparable and reliable data are
still difficult to obtain.

There has been much
activity in the areas of health, housing and education aimed at defining
performance indicators and standardising data definitions and collection
processes. However, improvements are occurring very slowly. Greater priority
will need to be given to implementing the agreements and publishing data ...
[35]

While identifying
some developments, the Commission notes that:

Progress on producing
reliable data has generally been slow, suggesting insufficient commitment
to the tasks, a lack of coordination and the tendency for these 'data
tasks' to be given lower priorities when resources become scarce ...

Other data issues
that must be considered in attempting to measure needs include the
following.

i) Much of
the available data (such as that on hospital inmates) reflect needs
that are being met, and do not include the 'unmet' needs. As such,
the data measure the wrong thing ...

ii) Data may
not accurately reflect what was intended. For example, in the education
area, there are some concerns that the processes used to measure
literacy and numeracy are unsuitable for some areas and some students,
and may underestimate their educational progress ...

iii) The use
of regions as the basis of comparisons can mask variations in needs
between locations within the region. [36]

Consequently, the
Commission has suggested that the initiatives required by the Commonwealth,
states and other service providers to improve data availability and benchmarking
include:

i) The establishment
of comprehensive, objective measures of the needs of Indigenous people
for each functional area;

ii) The definition
of each data item and data collections using uniform processes;

iii) The preparation
of clearly measurable objectives so that defined performance outcomes
can be measured and evaluated at both a national and regional level;
and

iv) A higher
priority being given by service providers to the collection and evaluation
of data. [37]

The Council for Aboriginal
Reconciliation also suggests in its strategy to overcome disadvantage
that:

Territory, state
and federal governments and ATSIC, with respect to their mainstream
and Indigenous specific education, health, employment, housing, law
and justice programs and services:

- where they
do not currently exist, set national, state, territory and regional
outcomes and output benchmarks that are measurable, include time-lines
and are agreed in partnership with Indigenous peoples and communities;

- ensure that
they have appropriate identifiers, administrative collections, tracking
systems and integrated information systems to enable accurate and
consistent output and outcome reporting for mainstream and Indigenous
specific programs; and

- publicly
and annually present an outputs and outcomes based report to their
parliaments, on a whole-of-government basis, against these agreed
benchmarks. [38]

The House of Representatives
Standing Committee on Family and Community Affairs has also recommended
in its Indigenous health report:

• The establishment
  of an independent National Council for Indigenous Health Affairs.
  One of the purposes of the Council would be to work with the Australian
  Bureau of Statistics (ABS) and other relevant portfolios to establish
  baseline measures, across all areas that impact on Indigenous health,
  and against which progress in improving the health of the Indigenous
  population might be measured over time. The Council should report
  to Parliament annually on progress in improving Indigenous health
  (Recommendation 5).
• The incorporation
  of the provisions of Indigenous framework agreements on health into
  the next Health Care Agreements negotiated with the states and territories,
  creating a more direct link between Commonwealth funding for Indigenous
  health, the national policy role of the Commonwealth, the service
  delivery roles of the states and territories and the role of community
  controlled services (Recommendation 7).
• The pursuit
  by the Commonwealth of initiatives to improve the collection of data
  on Indigenous health as a matter of urgency, with additional resources
  allocated if necessary to support the process and encourage the states
  and territories to resolve the issue (Recommendation 33).
• Funding the
  ABS to repeat the 1994 National Aboriginal and Torres Strait Islander
  Survey on a regular ongoing basis, to provide an adequate measure
  of changes in the level of Indigenous disadvantage over time (Recommendation
  34).

The ABS has also
recently adopted 'a broad strategy for providing regular statistical information
on the Indigenous population across all areas of social concern'. [39]
The main focus of attention will be on the quality of data collection
in the 2001 Census; as well as continuing to provide population estimates
and projections [40] ; improve administrative data
collections; and to continue a range of surveys obtaining information
from the Indigenous community. In particular, the ABS has developed an
Indigenous Survey Strategy that they will run in parallel to the Household
Survey Program Review. This includes the conduct of an Indigenous General
Social Survey (IGSS) in 2002 and then at 6 yearly intervals. This will
be conducted in conjunction with the General Social Survey (GSS) of all
Australians, which is conducted every 3 years, allowing for an inequality
perspective. [41] Unfortunately, the ABS funding
does not extend to conducting the IGSS at the same intervals as the GSS;
and the ABS is not intending to repeat the 1994 National Aboriginal and
Torres Strait Islander Survey . [42]

Processes
to implement a national commitment to overcoming Indigenous disadvantage

To provide sufficient
government accountability for the outcomes of Indigenous affairs policies,
through greater transparency in policy formulation and scrutiny; and to
integrate a human rights approach to redressing Indigenous disadvantage
into the economic policy making process, the following five, integrated
requirements must be addressed.

• Making an unqualified
  national commitment to redressing Indigenous disadvantage;
• Facilitating
  the collection of sufficient data to support decision-making and reporting,
  and developing appropriate mechanisms for the independent monitoring
  and evaluation of progress towards redressing Indigenous disadvantage;
• Adopting appropriate
  benchmarks to redress Indigenous disadvantage, negotiated with Indigenous
  peoples, state and territory governments and other service delivery
  agencies, with clear timeframes for achievement of both longer term
  and short-term goals;
• Providing national
  leadership to facilitate increased coordination between governments,
  reduced duplication and overlap between services; and
• Ensuring the
  full participation of Indigenous organizations and communities in
  the design and delivery of services. [43]

The federal government
must acknowledge that a significant barrier to the full participation
of Indigenous peoples in Australian society is the level of deprivation
experienced by Indigenous people across all social and economic indicators,
and the disparity in the enjoyment of human rights compared to the rest
of the Australian community. This situation is historically derived.

The government must
identify overcoming Indigenous disadvantage as a national priority and
clearly target the reduction of such disadvantage (from both a deprivation
and inequality perspective). Agreement on this issue should be reached
with the states and territories, and formalised by COAG through re-committing
to the principles of the 1992 COAG National Commitment. The government
should also identify overcoming Indigenous disadvantage as a key national
priority for improving compliance with our international human rights
treaty obligations. Accordingly, it should be prominently reflected in
Australia's National Action Plan on Human Rights.[44]

But simply committing
to this goal is not enough. Similar commitments have been made in the
past, as demonstrated by the COAG National Commitment of 1992, and service
delivery framework agreements on health, housing and infrastructure concluded
variously between ATSIC, state, territory and federal governments. Yet
there has not been any noticeable improvement in the enjoyment of rights
by Indigenous people and little progress in addressing the duplication
and lack of coordination of services between governments and departments.
In essence, governments have made these commitments without developing
nationally consistent mechanisms by which they can be held accountable.

An essential step
to improve accountability is to identify the level of needs of Indigenous
people (this meets what the UNDP terms an deprivation perspective) as
well as the disparity in the enjoyment of rights (an inequality perspective).
The Commonwealth Grants Commission is ideally placed to meet this requirement,
through the conduct of regular inquiries into absolute need and Indigenous
funding. The Commission is currently finalising its inquiry into the more
limited issue of relative need and Indigenous funding. As they note:

The issue of
absolute needs was raised in all our consultations, no matter who
they involved. The general theme was that given the high absolute
needs, redistribution of existing levels of funding on the basis of
relative Indigenous needs was of limited relevance. [45]

A focus on relative
need limits the Commission's ability to report on an inequality perspective
and hampers the usefulness of the inquiry's outcomes for developing and
improving national benchmarks. It also has the potential to skew the findings
of the report in favour of addressing needs in rural and remote regions,
despite the fact that the majority of Indigenous Australians reside in
urban areas.

Despite the limitations
imposed by the scope of the inquiry, the Commission's inquiry has been
an important one, vividly demonstrating the value of an independent evaluative
mechanism. The draft report of the inquiry provides detailed consideration
of Indigenous funding issues and identifies a range of suggestions to
improve performance, including through changes to existing Commonwealth-state
arrangements by introducing and/or reinforcing additional conditions on
Special Purpose Payments (SPPs); moving to insert regional needs based
allocation requirements into Indigenous specific SPPs; and seeking conditions
on general SPPs to direct expenditure to aspects of services that are
important to Indigenous people. [46]

The Commission has
also worked with the Australian Bureau of Statistics (ABS) to prepare
an experimental index of Indigenous socio-economic disadvantage. Having
determined that it is feasible to construct such an index, the second
stage of the work by the ABS will examine the feasibility of sub-dividing
the index according to broad functional lines to produce a habitat index
(reflecting disadvantage relating to health, housing and infrastructure)
and an economic index (reflecting disadvantage relating to education,
training and employment), as well as sub-dividing the index along geographical
lines to produce an urban and rural/remote index.

It can reasonably
be expected that through conducting broader inquiries into absolute need
on a regular basis, the Commission would - through such collaborative
work with the ABS - be able to provide ever-increasing sophistication
in data analysis and reporting. Crucially, it will also be able to examine
in increasing detail mechanisms for allocating funding to address Indigenous
disadvantage, with the following purposes:

• Clarifying
  the links between needs and funding;
• Identifying
  mechanisms for the Commonwealth to tighten the connection between
  funding and both the reporting and achievement of service delivery
  outcomes by the states and territories; and
• Identifying
  mechanisms for directly funding Indigenous organizations to deliver
  services on a regional basis (in accordance with the fiscal equalisation
  principle).

The Commonwealth
Grants Commission should be empowered and funded to conduct such broader
inquiries, on a regular ongoing basis. Such inquiries would build on the
achievements of the Commission's current inquiry, which will no doubt
identify mechanisms for improving the sufficiency and quality of national
data necessary to identifying Indigenous needs. At the conclusion of the
Commission's current inquiry, the federal government should also request
the Commission, along with ATSIC and the Australian Bureau of Statistics
(ABS) to advise it on mechanisms to improve Indigenous data collection
(taking into account the ABS' broad strategy for improving data collection);
as well as the feasibility of the ABS repeating the National Aboriginal
and Torres Strait Islander Survey of 1994 on a regular basis; proposals
for increased coordination and consistency of data collection at the national,
state and territory level; and the cost implications of improved data
collection.

Proposals for improved
coordination and standardisation of data collection by the federal, state,
territory governments and other service providers (such as ATSIC) should
be formalised by COAG through framework agreements under the 1992 COAG
National Commitment.

State and territory
governments should also agree to report to COAG and their respective parliaments
on a biennial basis as to progress in addressing Indigenous disadvantage,
and the measures taken to implement the COAG National Commitment. The
federal government should also initiate mechanisms for biennial reporting
of progress in overcoming disadvantage to the federal Parliament, and
ensure regular, parliamentary and inter-governmental scrutiny of these
reports.

To commence this
process, the Commonwealth, state and territory governments should report
to COAG, and to the public through Reconciliation Australia, [47]
by the end of 2001 indicating their support for the recommendations and
actions proposed by the Council for Aboriginal Reconciliation in its four
national strategies and final report to Parliament; and outline actions
that they intend to take to implement these.

The federal government
should also coordinate negotiations between federal government departments
and agencies, state and territory governments, ATSIC and service delivery
agencies to develop benchmarks across all areas of service delivery, where
such standards do not currently exist. [48] Targets
should be developed that reflect the long-term nature of the process,
but with short-term targets that are verifiable, measurable and agreed
with Indigenous communities and organizations. Given this long-term agenda,
it is necessary that there be bi-partisan commitment to targets for reducing
the level of disadvantage and the disparity in the enjoyment of rights.

The targets should
be culturally appropriate. As the Council for Aboriginal Reconciliation
(CAR) has noted, there is concern that some of the targets and desired
outcomes may be:

based on western
assumptions about disadvantage and that they have limited cultural
relevance to Indigenous peoples. Where this is the case, it may be
unrealistic to expect full statistical equality to be achieved with
the wider community, even in the long term. However, it would be wrong
to describe as disadvantage those specific statistical differences
that arise directly from cultural obligations and self-determination.
[49]

Issues concerning
the cultural appropriateness of benchmarks are more likely to arise at
the stage where the disparity in enjoyment of rights by Indigenous people
has been significantly reduced from its current levels. In no way can
the current lack of equality in the enjoyment of rights be seen as the
result of cultural obligations or self-determination. As CAR notes, dealing
with the potential for cultural bias in the setting of benchmarks (as
well as to ensure regional flexibility) requires full involvement of Indigenous
people in agreeing on appropriate standards. [50]
'Bottom up' processes for the development of benchmarks at the local and
regional levels should be preferred.

Strengthening
Indigenous governance

If programs are
to be effective, Indigenous people should have the authority to make
decisions about the services they receive at both the State level
and at the local level. Ideally, this would be accompanied by control
over the funds necessary to provide those services. While this is
much easier to visualise in circumstances of discrete Indigenous communities
(subject to the development of the necessary community capacity),
the principle applies equally to other circumstances. Indigenous people
need also to be involved in decision making for mainstream services,
if these are to be effective and provided in a culturally sensitive
way. [51]

Addressing disadvantage
is a precondition for Indigenous people to be able to enjoy basic citizenship
entitlements in Australia. The previous section has emphasised that Indigenous
participation in decision-making is crucial to achieve this. But reconciliation
must go beyond simply providing equality of opportunity in terms of 'sameness'.
It must provide for the acceptance, recognition and celebration of the
unique, distinct societies and cultural characteristics of first Australians.
Consequently, an approach such as 'practical reconciliation', that does
not extend past the realisation of measures that allow for citizenship
participation in society, is deficient.

Implementing measures
to overcome Indigenous disadvantage, while certainly a great challenge,
requires no great innovation from an institutional or constitutional perspective
and is 'fully consistent with the public philosophy of liberal egalitarianism'
. [52] The more difficult part of the process is
changing decision-making and service delivery processes to accommodate
Indigenous cultural characteristics and aspirations, including through
supporting and rebuilding the capacity for Indigenous self-government
and autonomy. As Peter Russell notes:

Autonomy is the
dimension of reconciliation that requires inventiveness, imagination
and moral courage - on both sides. To find mutually acceptable ways
of facilitating the self-determination of indigenous peoples within
settler states is the greatest challenge in moving to a relationship
that is truly post-colonial. Much of the challenge involves solving
practical problems of institutional design and cultural adaptation ...
[53]

There is a commonly
held view that for genuine change to occur it must involve participation
from the 'bottom up'. One of the observations from the consultations ATSIC
conducted on greater regional autonomy in 1999 was that '[p]eople would
be able to exercise greater accountability over funds once they had some
input into their deployment'. [54] More effective
accountability at the community level is a consequence of greater autonomy.
This principle is recognised by the House of Representatives Standing
Committee on Family and Community Affairs when they note, in relation
to health services, that the 'key to achieving an effective regional approach
is engaging the Indigenous community. Without their participation and
cooperation no approach will work'. [55]

Such participation
is necessary to developing greater community control of services and programs,
and consequently, greater responsibility and accountability for outcomes.
Such participation would also provide greater responsiveness to Indigenous
need, as well as for Indigenous people's cultures and traditions to be
reflected in the programs and services that intimately affect their lives
on a daily basis. Through such involvement Indigenous people and communities
would be able to begin moving from being, in the words of Noel Pearson,
victims of 'passive welfare' towards being re-empowered through the exercise
of greater control over their lives. ATSIC note that:

Ownership of,
or at least partnership in, delivery of services to communities suggests
a means of breaking the cycle of poor health, education, employment
and housing outcomes and the subsequent 'anti-social' behaviour and
migration to larger regional centres which often results from poor
service delivery. [56]

In the broader context
of recent debate on social policy reform, the McClure Committee's Report,
Participation Support for a More Equitable Society (the 'McClure Report'),
has proposed greater use of 'mutual obligations' and 'social partnerships'
as ways of preventing welfare dependency and increasing avenues of economic
participation. However, the application of these principles is concentrated
largely within a model of 'individualised service delivery', the implications
of which for Indigenous communities remain largely undeveloped in the
McClure Report. [57] The Commonwealth Grants Commission
in its Draft Report on Indigenous Funding, ATSIC in the Report on greater
regional autonomy, and the House of Representatives Standing Committee
on Family and Community Affairs report into Indigenous health all flag
the development of mechanisms and structures for self-governance and greater
regional autonomy as the next stage and natural progression from facilitating
greater Indigenous participation in decision-making.

The establishment
of Indigenous governance structures is not a new idea, and varying degrees
of Indigenous autonomy already exist through structures such as ATSIC,
land councils, native title representative bodies (and emerging prescribed
bodies corporate) and community-controlled organisations. The Minister
for Aboriginal and Torres Strait Islander Affairs, in the government's
1998 election policy statement Beyond welfare, also provides support for
the development of regional autonomy mechanisms, committing the government
to:

Accept[ing]
the recommendations of the ATSIC Board in relation to providing greater
regional autonomy [and] ... working with the indigenous community and
ATSIC to develop appropriate regional models, and to devolve, where
possible, decision making and management to the local level . [58]

Regional governance
mechanisms were also central to proposals for the Social Justice Package
in 1995. [59] ATSIC note that the issues raised
in their consultations on regional autonomy proposals in 1999 are markedly
similar to those envisaged as being the subject of a 'makarrata' in 1987,
and as such 'highlight the lack of progress in achieving genuine self-determination
for Indigenous peoples over the past decade or so'. [60]

As ATSIC note, autonomy
'is not confined to local government or the provision of services'. [61]
Rather, 'it may embrace self-governance in the broader sense of decision
making to maintain identity including cultural matters, languages, customary
law, definition of group membership and ownership and use of land'. [62]

The ATSIC discussion
paper on regional autonomy, released in 1999, lists four main reasons
for consideration of why greater autonomy should be available to Indigenous
peoples at the regional and local level:

a) The cultures
and traditions of Indigenous peoples are best safe-guarded in the
decision-making processes possible at the local level .... There is a
possibility of ensuring through service delivery that services are
consistent with cultural values;

b) The taking
of responsibility for decisions at the regional level is more likely
to result in the development and achievement of goals ...;

c) Greater regional
involvement in decision-making is likely to lead to better program
coordination as local decision-makers are more likely to identify
duplication or a lack of services and respond more appropriately than
agencies operating from a distance;

d) The regional
focus may make it easier for agreement making at that level with State/Territory
and local governments and to establish partnerships with all agencies
in service and other provision. [63]

Regional governance
mechanisms are also better able to address the great regional variation
in the circumstances of the Indigenous population. The Commonwealth Grants
Commission notes that at present, funding mechanisms do not account for
the fact that various Indigenous communities are differently placed in
terms of capacity to self-manage. More efficient communities, with better
management and infrastructure, and most able at writing submissions, are
often most successful in securing funds. The Commonwealth Grants Commission
stresses the need for resources and services to be directed where need
is greatest, although it maintains that if a community's measured needs
are reduced by better efforts or efficiency, it should not have its share
of resources reduced.

A focus on Indigenous
governance emphasises the need for greater coordination of services; the
collective nature of the solutions required to the current problems faced
by Indigenous people; and the necessity to adopt a holistic approach to
addressing Indigenous need. It also allows for the renewal of Indigenous
societal structures. It must be recognised, however, that Indigenous societies
are not static. They have changed greatly over time, no doubt including
during the period prior to contact with Europeans. The reference to 'renewal'
of Indigenous societal structures and governance mechanisms absolutely
does not refer to the reconstruction of societies as they existed over
two hundred years ago.

Regional
governance and progressing reconciliation in a human rights framework

The development
of governance structures and regional autonomy provides the potential
for a successful meeting place to integrate the various strands of reconciliation.
In particular, it is able to tie together the aims of promoting recognition
of Indigenous rights, with the related aims of overcoming disadvantage
and achieving economic independence.

Unfortunately, during
the reconciliation debate so far, there has been insufficient acknowledgement
of the inter-related nature of these processes, which has been demonstrated
by the failure to identify the crucial nature of recognising and building
Aboriginal and Torres Strait Islander governance capacity to achieving
these goals.

The Council for Aboriginal
Reconciliation's strategy for achieving economic independence, for example,
focuses on how governments and peak private sector organizations can apply
affirmative action and culturally sensitive initiatives in the areas of
education and training, employment, access to capital, access to markets
and trades, challenges in regional and remote areas, and promoting partnerships
and joint ventures. [64] The strategy is more directed
towards channelling private sector support into the development of Indigenous
economic independence, in some instances with the encouragement of Government
agencies, rather than developing more economically viable Indigenous governance
structures.

The Council for Aboriginal
Reconciliation's national strategy to overcome Indigenous disadvantage
has as an objective 'Building stronger communities and equal partnerships'
and includes the following actions:

• Service providers,
  ATSIC, and local, Territory, State and Federal governments involve
  Indigenous communities and peoples as partners in the design, development,
  delivery and evaluation of policies, programs and services.
• Service providers,
  ATSIC, and local, Territory, State and Federal governments design
  and deliver their programs and services in a way that is driven by
  local Indigenous peoples, strengthens local communities, forges partnerships,
  makes links with the corporate sector and draws on the resources within
  the community to achieve agreed outcomes.
• Service providers,
  ATSIC, and local, Territory, State and Federal governments build the
  skills base of Aboriginal and Torres Strait Islander peoples so that
  they are able to sustain the infrastructure and deliver the services
  to their communities.
• To ensure equal
  partnerships, local, Territory, State and Federal governments support
  and fund Indigenous community organisations to participate in policy
  development, planning, service delivery and monitoring processes.
  [65]

These actions are
constrained within a service delivery environment. They do not identify
or give priority to building the capacity of or recognising Indigenous
community structures as the basis of sustainable Indigenous communities
into the future. As such, they place insufficient emphasis on the pivotal
issue of maintaining distinct Indigenous identities and cultures.

They are also separated
from the Council's objective of providing 'formal recognition of the right
of Aboriginal and Torres Strait Islander peoples to self-determination
within the life of the nation' as identified in the national strategy
to recognise Aboriginal and Torres Strait Islander rights. [66]
As that strategy notes:

Self-determination
is much more about the process of decision-making ... It also reflects
the kind of autonomy and decision-making that is already being exercised
by communities who take responsibility for the delivery of services
and programs. That is, self-determination is reflected in the recognition
by governments of Aboriginal and Torres Strait Islander peoples right
to exercise a sphere of authority and responsibility and the communities'
exercise of that right.

In international
law self-determination is 'the right of all peoples to freely determine
their political status and to pursue their own economic, social and
cultural development'. It has its origins in the theory of self-government
- that a society should be able to determine for themselves how they
are to be governed and to make the decisions that directly affect
them. [67]

As James Anaya notes,
'[s]elf-government is the political dimension of continuing self-determination'.
[68] Governance mechanisms illustrate the point
that self-determination does not necessarily entail secession or the creation
of separate states but can be articulated through the restructuring and
renewal of existing relations between Indigenous organizations and Government
to create arrangements to reflect and support a diversity of Indigenous
circumstances.

A recent study of
the situation of Indigenous peoples in Australia, Canada and the United
States of America considers the connection between Indigenous governance
and achieving improved socio-economic conditions. The study compared health
and housing conditions for Indigenous people in all three countries. It
notes that, compared to Indigenous peoples in Canada and the United States,
Indigenous Australians have much lower life expectancy, educational levels,
home ownership rates, and higher levels of unemployment and overcrowding
in housing conditions. [69]

The explanations
for these disparities identified by the author include that lower rates
of socio-economic status experienced by Indigenous Australians contribute
to poorer health outcomes; that the direct, bilateral arrangements between
the federal government and Indigenous organizations in Northern America
has led to greater effectiveness of programs; and that in Northern America
there exists 'a higher level of Indigenous governance, ownership and empowerment,
at individual, community, regional and national levels'. [70]

These factors led
the author to acknowledge the necessity of moving from a welfare approach
to a rights-based approach:

There should be a
shift in existing attitudes, policy and programs in Australia away from
implied assumptions of dependence, towards greater community control and
economic empowerment. This applies not only to the rhetoric and 'value-adding'
of existing programs, but also to the intricacies of household life and
the encouragement, opportunities and power that permit day-to-day choices.
The experience of Indigenous people in North America suggests that such
a shift should contribute to the improved health of Indigenous Australians.
[71]

The insufficient
emphasis on developing Indigenous governance structures in Australia can
be contrasted with policies to address the historical legacy of colonisation
in other countries. The facilitation of Indigenous governance is central
to the New Zealand government's Closing the gaps policy, as discussed
above. Indigenous governance is also pivotal to the process of renewal
currently underway in Canada.

As noted in chapter
2, Gathering strength - Canada's aboriginal action plan, builds on the
principles of mutual respect, mutual recognition, mutual responsibility
and sharing. It expresses a vision of a shared future for aboriginal and
non-aboriginal people with the following four inter-related objectives:

• Renewing
  the partnerships - bringing about meaningful and lasting change
  in the relationship with aboriginal people;
• Strengthening
  aboriginal governance - supporting aboriginal people in their
  efforts to create effective and accountable governments;
• Developing
  a new fiscal relationship - arriving at financial arrangements
  with aboriginal governments and organizations which are stable, predictable
  and accountable and which foster self-reliance; and
• Supporting
  strong communities, people and economies - focusing on improving
  health and public safety, investing in people and strengthening aboriginal
  economic development. [72]

The fourth strategy,
'Supporting Strong Communities, People and Economies', covers issues of
effective citizenship participation similar to those referred to in CAR's
national strategies on overcoming disadvantage and achieving economic
independence. But Gathering strength goes further than the CAR strategies
and provides precedents for developing Indigenous self-government that
could be adapted to the Australian context.

In 'Developing a
New Fiscal Relationship', Gathering strength gives extensive treatment
to the issues of improving both fiscal relations at the federal level
and intergovernmental relations with Indigenous people. The Canadian government
commits to:

work in a partnership
with aboriginal governments and organizations to develop a new fiscal
relationship which provides more stable and more predictable financing,
is accountable, and which maximizes the internal generation of own-source
revenue. [73]

At present, 'financing
is to be negotiated and is [the] shared responsibility of governments
and aboriginal people', [74] and is delivered through
a federal framework for transferring programs and services to First Nations
in accordance with the goal of strengthening aboriginal governance. Aboriginal
groups are encouraged to raise their own revenues where possible. Multi-year
funding arrangements are available, enabling greater flexibility for program
design and allocation of funds according to community priorities. [75]

In addition to such
initiatives as the creation of funding formulas to 'provide a more stable
and predictable flow of revenue to facilitate program and financial planning'
and the development of transfer arrangements to 'provide fair, stable
and equitable transfers commensurate with responsibilities and circumstances',[76]
the Canadian government intends to develop a process for renewing funding
agreements with its aboriginal partners that ensures commensurability
between programs and services provided in aboriginal and non-aboriginal
communities.

The Canadian government's
related strategy for strengthening aboriginal governance involves working
closely with aboriginal peoples, and provincial and territorial governments
to ensure that:

aboriginal governments
and institutions have the authority, accountability mechanisms and
legitimacy to retain the confidence and support of their constituents
and of other governments and institutions, to govern effectively.
[77]

To date, 80 tables
to negotiate self-government arrangements have been established, and First
Nations organizations or governments are delivering more than 80 per cent
of the programs funded by the Department of Indian Affairs and Northern
Development (DIAND). DIAND outlines the features of a 'good agreement'
about self-government as follows:

• Governance
  - Governance structures for groups of First Nations which are legitimate
  and democratically accountable;
• Jurisdiction
  - Clear description of First Nations law-making powers, with application
  of the Charter of Rights and Freedoms and overriding laws of national
  importance (eg. criminal law);
• Fiscal arrangements
  - Shared responsibility for self-government through generation of
  own-source revenue, including taxation, and more First Nation control
  over spending decisions with fiscal accountability to members;
• Programming
  - Capacity for effective, affordable delivery of programs, harmonised
  with surrounding communities, and meeting appropriate standards; and
• Implementation
  - Provides resources for transition to self-government and contains
  principles for future intergovernmental relations. [78]
  

'Strengthening Aboriginal
Governance' also includes a commitment by the Canadian government to working
with aboriginal peoples, other levels of government and other partners
to improve on the existing federal policy and negotiation process with
particular regard to building governance capacities. It is acknowledged
that 'many aboriginal groups and nations require support in order to assume
the full range of responsibilities associated with governance, including
legislative, executive, judicial and administrative functions.' [79]
Part of the Government's commitment is an initiative to explore with aboriginal
people the possible establishment of government resource centres to assist
aboriginal people with developing models of governance, providing guidance
on community consensus building and dispute resolution, and serving as
a resource on best practices. They might also play a role in helping identify
skills and supporting capacity development in the areas of administrative,
financial and fiscal arrangements. Other areas of capacity building include
initiatives to involve aboriginal women in self-government processes;
to design and implement culturally relevant and equitable community-based
justice programs; and to develop professional strategies for management
of land, environment and resource management.

There are clearly
differences between the Australian and Canadian contexts. [80]
However, the Canadian approach identifies some key objectives that are
of broad relevance in the development of cooperative partnerships between
Indigenous peoples and government in Australia. These include:

• Identifying
  mechanisms for Indigenous people to exercise control over their own
  affairs, through program and service delivery;
• Delineating
  a clear role for all levels of government, including Indigenous structures;
• Committing to
  building the financial and administrative capacity of Indigenous communities
  with a view to economic independence;
• Providing incentives
  to Indigenous organisations and communities to raise own-source revenue;
  and - Recognising and protecting Indigenous rights.

Supporting
regional governance through agreements and partnerships

The Council for Aboriginal
Reconciliation proposes, in the national strategy to overcome Indigenous
disadvantage, that Commonwealth/State fiscal relations with Indigenous
people could be improved by governments employing mechanisms to ensure
adequate funding; offering supplementary funding incentives for meeting
benchmarks agreed with Indigenous organizations (such as through federal
Special Purpose Payments grants); pooling funds across agencies and levels
of government; developing a joint agency approach to coordination of services
and programs; creating flexible funding arrangements; ensuring geographic
distribution of funds; and through prioritising the allocation of funds
to community controlled services. [81]

These actions are
not targeted to developing governance mechanisms, although they could
appropriately be adapted towards meeting the goal of developing regional
governance processes.

For example, in ATSIC's
consultations on greater regional autonomy, problems were identified about
the inflexibility and short-term nature of funding arrangements to Indigenous
community organisations. At present, the majority of funds received by
ATSIC Regional Councils are 'tied' ? that is, already marked for expenditure
in national programs such as CDEP, and Housing and Infrastructure. [82]
It was suggested that there should be more flexible funding arrangements
at the regional level by adopting an outcomes approach where targets and
accountability requirements are set locally. This would involve establishing
priorities and deploying funds appropriately at the regional and local
levels rather than relying on parameters set, often through rigid and
generic program guidelines, at the national or state level. The Report
on greater regional autonomy states that such an approach would be better
able to respond to regional variations in needs and programs, and:

If current tied funding
arrangements were relaxed and an outcomes-based approach to accountability
was fully implemented, Councils would be able to channel funds to deal
more effectively with local issues - in particular, housing, youth and
domestic violence were issues cited in this context. [83]

The availability
of funding on only a short-term basis also limits the ability of Regional
Councils to tackle issues that are deeply entrenched and systemic in nature.
In accordance with recommendations that had been made in the Royal Commission
into Aboriginal Deaths in Custody in 1991, block funding and funding over
triennial periods were noted by ATSIC 'as means of improving planning
possibilities and outcomes for communities.' [84]

Related to the need
to develop longer-term and more comprehensive funding strategies for targeting
Indigenous disadvantage is the development of Indigenous community capacity,
in terms of both financial and human resources. As the House of Representatives
Standing Committee on Family and Community Affairs states in Health is
life:

[I]t is not simply
enough to say that the community should be allowed to determine the
nature of their health services, if they do not have the capacity
to do so. Frequently communities rely on outside professional advice
and expertise. When these people leave, services deteriorate until
such time as another person can be found ...

There needs to
be a commitment to developing mechanisms which work within Indigenous
autonomy, but which provide the tools to develop such autonomy, without
developing a dependence. [85]

The Committee identifies
the need for an agreed long-term strategy, with appropriate resources,
to move to community control; processes that balance accountability requirements
against 'developing a core of commercial and management expertise in funded
organizations and communities' ; [86] and for the
development of mechanisms to improve the way funding bodies respond when
organizations get into financial difficulties. The Commonwealth Grants
Commission similarly emphasises that given the capacity to self-manage
is necessary for resources to be targeted most effectively, '[r]esources
must be invested over time to increase that capacity before full community
control will be a workable approach.' [87]

Another approach
to creating more flexible arrangements for addressing disadvantage that
has been suggested is the pooling of funds. This involves 'broad-banding'
available funds from Commonwealth and state bodies to meet priorities
set at the regional level, 'to result in more efficient and effective
use of funds by reducing administrative burdens and better matching initiatives
with local conditions'. [88] Perceived benefits
of this approach include less fragmentation of funds and services to ensure
that 'an adequate level of funding ...can be linked to an improved regional
planning process', identification of long-and short-term goal for the
community and the development of a partnership with mainstream services
in 'determining how best to meet those needs with the available resources'.
[89] This approach also seeks to address issues
such as the wastage, inefficiencies and inappropriateness of funding available
that occur through duplication and lack of coordination of services.

Strategies such as
the pooling of funds; increasing the flexibility of funding at the regional
and local levels; developing longer term, cyclical funding options; capacity
building and providing management support could all assist in the development
of Indigenous governance structures. They can all be progressed through
the negotiation with Indigenous people and communities of agreements and
partnerships.

There are several
different types of agreement-making currently in operation. While few
of these have been in operation long enough to assess properly, it is
clear that:

regional-type
arrangements have the potential to move decision-making closer to
the grassroots Indigenous communities and to promote further community
control of service provision. [90]

One form of agreement-making
is bilateral agreements between the Commonwealth and a state or territory
to pool resources and joint manage projects in a particular service delivery
area, such as health, housing and infrastructure. An example of this is
the Bilateral Housing Agreements between ATSIC, the Aboriginal Rental
Housing Program and Community Housing. Agreements are currently in place
in New South Wales, Western Australia, South Australia and the Northern
Territory, and also between the Queensland Government and the Torres Strait
Regional Authority. Through these agreements, it is possible to achieve
'greater control of the Indigenous housing sector by Indigenous people
and [to] improve the co-ordination of streams of resources for housing.'
[91]

These housing agreements
have been largely successful, although the Commonwealth Grants Commission
warns that 'it is also necessary to ensure that Indigenous people continue
to have adequate access to mainstream public housing and that their needs
are not diverted to the Indigenous specific programs'. [92]
As a matter of equity it is also important to ensure that such agreements
are not used by States to buck-pass their responsibilities for service
delivery by using Commonwealth monies to 'top up' State funds or to require
Commonwealth monies to be offered as an incentive to get States to the
bargaining table.

A further example
is the Aboriginal Coordinated Care Trials in the Northern Territory. These
have been directed at 'developing a funding pool for health services to
be used for any client need and ...directed irrespective of program or institutional
boundaries'. [93] These trials recognise difficulties
many Indigenous communities face in accessing mainstream health services,
with contributions to the pooling fund made on the basis of an estimate
of the amount that would otherwise have been made available to the community
through the Medicare Benefits Schedule (MBS), Pharmaceutical Benefits
Schedule (PBS), State health services and Home and Community Care (HACC)
services.

The community is
involved on an intensive basis in the consultations prior to the trial
and decision-making on health services delivery during the trial. While
it is too early to draw any comprehensive conclusions about the trials,
Health is life suggests that a similar approach to funding primary health
care services for Indigenous Australians should be introduced into all
regions to support the current regional planning processes. Recommendation
8 proposes that:

In conjunction
with the Indigenous community over the next two years, the Commonwealth
develop a revised approach to funding primary health care services
for Indigenous Australians, based on:

• the use of
  funds pooling at a regional level, determined by reference to a
  nominal per person Medicare Benefits Sschedule[sic](MBS) /Pharmaceutical
  Benefits Scheme(PBS) contribution, which takes into account not
  only the national average costs of MBS/PBS usage by non-Indigenous
  Australians, but should also be weighted for the higher costs of
  servicing specific communities and the poorer health status of indigenous
  Australians;
• the combination
  of these funds with an amount from the State or Territory, representing
  the cost of hospitals and other health services; and
• the community
  to be supported in taking responsibility for these funds and determining
  the use of the funds pool in delivering services to the community
  which best meet the health needs of each community. [94]
  

The Commonwealth
Grants Commission also suggests the development of state level regional
structures to coordinate funding and service delivery. It suggests that
such regional arrangements:

could emerge
as a means of linking State level decision making with local community
control over service delivery matters. In some circumstances regional
decision making might even develop as an alternative to State level
processes. [95]

The Commission suggests
the consideration of regional arrangements in which Commonwealth Indigenous
specific funds would be 'allocated to State level Indigenous-controlled
bodies that would include representatives of Commonwealth and state governments
and, where relevant, local government'. [96] In
addition, State funds could be 'combined with the Commonwealth funds and
distributed through this mechanism'. [97] Collaborative
decision-making could occur at the state level between government and
Indigenous people, as well as the oversighting of additional needs to
be met at the regional level. The Commission nominates the Aboriginal
Housing Authority in New South Wales and the Indigenous Housing Authority
in the Northern Territory 'as approximate working examples of such arrangements'
for the function of housing. [98] Defining features
of these arrangements would include:

• a commitment
  in line with the 1992 National Commitment to self-management by Indigenous
  people in the planning, decision-making, management and evaluation
  of service provision;
• long-term collaboration
  between the Commonwealth and State Governments and Indigenous people
  to build the capacity of communities for such self-management;
• co-ordination
  of related streams of funds for each key function, possibly including
  pooling of relevant funds from all sources, and distribution according
  to regional needs; and
• data gathering
  and reporting mechanisms which enable informed decisions to be made
  and provide public accountability to outcomes. [99]
  

One of the perceived
advantages of using a state-based approach is that it 'could provide a
balance between the States' responsibilities and the Indigenous peoples'
aspirations to control their own affairs ... [s]uch regional level collaborative
decision-making arrangements might be established by building on the present
ATSIC structure'. [100]

Despite these proposed
advantages, the development of state level regional structures should
be considered with great caution. The distribution of state and territory
funds for Indigenous service delivery is the area where there exists the
least transparency and greatest cost shifting. Accordingly it is an area
that requires great attention before introducing further administrative
structures.The
Commission's proposal is also too ambiguous and unclear as to how these
new institutions might fit with ATSIC's regional council and state advisory
committee structures.

The issue of building
on the ATSIC structure to increase Indigenous peoples' control over decision-making
at the regional level was the focus of ATSIC's recent Report on greater
regional autonomy. This report followed from the 1997/98 Section 26 review
of the operation of the Aboriginal and Torres Strait Islander Commission
Act 1989, in which the need to strengthen ATSIC's regional focus and pursue
greater autonomy emerged as a key area of interest. The Report on greater
regional autonomy found that there was strong support to increase the
power of Regional Councils, particularly through the capacity to make
agreements, and some support, particularly in northern and remote areas,
for the creation of independent governance structures such as regional
authorities, of which the Torres Strait Islander Authority (TSRA) is an
example.

The Report on greater
regional autonomy considers the strategic use of regional agreements,
particularly in the context of regional planning. In some areas, Indigenous
people have given consideration to the development of a coalition of communities
and organisations - such as 'regional advisory groups', 'community working
parties', and 'regional forums' or 'interfaces' ? as alternatives or precursors
to the establishment of a governance structure. [101]
These arrangements can play an important role in representing the needs
and aspirations of communities to government and non-government agencies.
The NSW Murdi Paaki Regional Council Plan and the Cape York Peninsula
Partnerships Plan are two models of this type that have been put forward.

Murdi Paaki Regional
Council is currently developing a model involving 'a fairly sophisticated
regional plan underpinned with regional agreements to target better outcomes
for service delivery'. [102] Through this model,
the Regional Council aims to increase its profile and decision-making
power at regional and state levels by providing an interface with government
and community sectors. Central to the model is the establishment of community
working parties to facilitate consultation with and participation by Indigenous
communities across the region. Consultation with community working parties
is to provide the major means of targeting local needs and priorities,
avoiding problems of under-representation of some community groups on
Council. [103] The consent of the community working
parties is also necessary for the development and implementation of any
further approaches to autonomy.

The model seeks to
build on the existing Murdi Paaki Aboriginal Housing and Infrastructure
Regional Agreement by developing a framework for coordinating programs,
services and funding for Indigenous communities across the region. Agreements
would be set in place with the relevant funding bodies regarding the objectives
and outcomes of various programs, and funding allocations would be negotiated
with, and managed by, the Regional Council. It is envisaged that the Council
would ultimately become a purchaser of services, in effect directing funds
and services to target needs and priorities identified by the community
working parties.

Murdi Paaki Regional
Council perceives a broad spectrum of approaches to the issue of increasing
autonomy with enhancement of the Council's regional plan through a series
of agreements at one end and the establishment of a regional government
at the other. The Council's perspective is 'outcome'-based, meaning that
they may not progress the model to a full-scale authority if they can
achieve the required results via comprehensive regional planning. Problems
attaining the position the Council desires as a purchaser of services
could be posed if governments and government agencies do not make adequate
changes to current funding arrangements. For example, if ties on ATSIC's
funding to Councils remain unchanged and only bodies such as regional
authorities are able to receive direct funding from Commonwealth and state
agencies.

The Cape York Partnerships
Plan was developed by the Aboriginal leaders and community members of
Cape York Peninsula and regional organizations, and suggests the effective
devolution of power to local Indigenous peoples at a community level.
Noel Pearson's paper, 'Our right to take responsibility', provides the
impetus for the plan and seeks to address the power differentials between
government and Indigenous communities. [104]

Pearson posits a
four-point plan for developing a real economy for Aboriginal society on
Cape York Peninsula in place of the 'passive welfare' paradigm that has
plagued Indigenous governance since the 1970s. The four components of
this plan are: access to the enjoyment of traditional subsistence resources;
changing the nature of welfare programs to reciprocity programs; developing
community economies; and engaging in the real market economy. [105]

Pearson's four-point
plan is informed by the concept of 'mutual obligations', which has been
promoted in recent debates on welfare policy reform as a potential catalyst
for community capacity building through capitalising on 'partnerships'
between government, business, communities and individuals. Pearson has
played an influential role in translating this concept into an Indigenous
context, identifying precedents for 'mutual obligations' in traditional
Indigenous social structures in contradistinction to dependency on a right-based
welfare support system.

Many of the initiatives
proposed under the rubric of 'mutual obligations' by 'Third Way' and other
welfare reform commentators focus on the individual's relationship to
government as the context for change, such as the recent McClure Report's
key proposal of 'a model of individualised service delivery'. [106]
The McClure Report is accordingly limited in its approach to Indigenous-specific
issues, especially given the systemic nature of Indigenous disadvantage,
its basis in 'historical exclusion, marginalisation, and now welfare dependency',
[107] and diverse circumstances of Indigenous people.
While the Report recognises the severe social and economic disadvantage
experienced by Indigenous people and the need to develop more culturally
and locationally appropriate models for Indigenous people, [108]
these issues do not receive any sustained analysis (apart from an isolated
case study on the Gwydir Valley Indigenous Employment Strategy as an example
of successful collaborative partnerships). The specific difficulties faced
by Indigenous people in developing effective social partnerships require
further attention, particularly in reference to areas where business is
non-existent (especially remote); government is embedded in community
organizations; government is perceived as reneging on meeting legitimate
needs-based support; individuals are embedded in networks not contingent
on economic participation; communities are divided for a range of reasons.
[109]

Pearson's four-point
plan bases the development of effective social partnerships in the creation
of a regional governance structure (specifically in the context of the
Cape York Peninsula) that re-engages Indigenous social structures and
economic participation with the 'real economy'. Central to the plan is
the notion of a 'partnership interface' between Aboriginal communities
and organizations in Cape York Peninsula and Commonwealth and state Governments,
and ATSIC.

Agreements would
be made between Government agencies and Indigenous representatives in
regard to provision of resources (that is, all government 'inputs', such
as funding, services and programs). It is envisaged that the decision-making
process would be characterised by a greater degree of autonomy and flexibility
for the community and local groups, and that the partnership interface
would be supported by state and Commonwealth legislation, particularly
in its 'holistic and de-welfarised' aspects. While this interface is not
to be an independent bureaucracy, but 'a meeting place, a forum for planning,
consultation, negotiation and decision-making, there has been some discussion
by organizations on the Cape of the ultimate extension of this model into
a regional authority. [110] Some reform of current
community governance structures is also advocated. [111]

The Queensland government
responded to the Partnerships Plan in July 1999, by making a commitment
to developing partnerships with Indigenous communities in Cape York as
an alternative to current service delivery arrangements. The Queensland
Cabinet endorsed such principles as improved partnership arrangements
between the State Government, business leaders and Cape York communities
to better address the disadvantage experienced by Cape York Indigenous
people; integration and enhancement of existing planning processes between
State Government, business leaders and Cape York Aboriginal communities
to identify and implement trials of new operating practices; and encouragement
of the Commonwealth Government to participate in the process at an appropriate
stage. [112] In October 1999, 400 Aboriginal elders
and community leaders expressed support for the partnerships idea and
passed a motion for continuing dialogue on the issue. A facilitation process
was established at government level in December 1999, with the establishment
of Director Generals Steering Group and a Cairns Based Implementation
Group, both of which comprise representatives from government agencies
and Indigenous organizations. Community consultations on the partnerships
plan have been in train during 2000.

Another potential
approach is the development of regional authorities by ATSIC. A regional
authority would have greater powers than an ATSIC Regional Council, such
as the authority to negotiate and reach agreements with Government and
other funders and service providers, and the ability to undertake functions
normally performed by other services providers . [113]
Currently, the Torres Strait Regional Authority is the only regional authority
in operation in Australia. It was established as an independent statutory
authority in 1994 in response to the findings of the 1993 review of the
operation of the ATSIC Act. It includes such features as the capacity
to liase directly with both the Queensland and Commonwealth Governments
in developing bilateral agreements on infrastructure, health, housing
and education, and to negotiate its budget directly with the Minister.
[114] The TSRA receives block funding directly
from both governments, the 'goal being to devolve maximum authority to
the Regional Assembly to determine the priorities for the allocation of
funds consistent with appropriate Commonwealth or Queensland accountability
requirements'. [115]

The Report on greater
regional autonomy notes that ATSIC regional councils received the concept
of an authority with 'cautious or qualified support', and that greater
support was recorded from 'discrete and remote communities ... [rather]
than from those in settled urban and rural centres where communities have
often been dispersed'. [116] It was also 'generally
conceded that authorities were more appropriate to those in remote and
northern regions, and that ... it was easier to form a regional authority
over remote areas where Indigenous peoples formed a majority.' [117]
An additional consideration here is the better access experienced by those
living in settled areas to mainstream services, in comparison to those
in remote areas who are often reliant on a patchwork or services. Regional
authorities for those in remote and northern areas in particular suggest
a means of 'finding the appropriate type of social and infrastructure
program to suit people whose distinct culture alienates them from the
demands of some institutions in which they are governed.' [118]

A further dimension
of authorities that has some appeal is their capacity to provide a vehicle
for Indigenous aspirations such as those expressed by the Aboriginal Nations
of Central Australia in the Kalkaringi Statement, that is, 'the rights
of self-determination and self-government, including recognition of the
role of Indigenous governance structures and the direct Commonwealth funding
of Indigenous communities and organisations, and recognition of customary
law'. [119]

At present, the Kimberley
Executive, a reference group comprising the ATSIC Zone Commissioner and
Regional Council Chairs plus major Indigenous organisations across the
Kimberley, and Miwatj Regional Council in East Arnhem land are participating
in ATSIC funded projects for modelling regional authorities. Both are
still in initial phases of consultation with Indigenous communities in
the proposed regions and have acknowledged that the establishment of authorities,
or other structures and approaches for progressing autonomy, will be a
lengthy process. [120]

ATSIC has emphasised
that there must be Indigenous ownership of the development of any forms
of regional governance or their goal of ensuring Indigenous control and
participation in decision-making will be seriously compromised. In part,
this is a reaction to earlier suggestions following the 1997/98 Section
26 review of the Aboriginal and Torres Strait Islander Commission Act
1989 that Regional Councils be converted into a series of independent
'regional authorities', which would amount to a somewhat arbitrary and
top-down application of 'autonomy' that does not take the needs and circumstances
of specific regions into account. Concerns have also been expressed about
the potential for 'top-down', quick-fix solutions for rationalisation
of services to override Indigenous aspirations for self-government. A
recent example of this is the Northern Territory's Department of Local
Government's proposal to improve co-ordination of service delivery to
councils and outstations through reduction in the number of Municipal,
Community Government and Association Councils. While the need for more
effective services to communities in the Northern Territory is recognized,
concerns have been raised because of the limited amount of consultation
planned with the communities regarding these reforms and the stated intention
of the Northern Territory Government to initiate legislation for the reforms
in any case without the necessary compliance of the Councils. [121]

Implementing
greater regional autonomy and Indigenous governance

Greater regional
autonomy and improved governance mechanisms do not necessarily mean the
establishment of new structures and authorities. There is also no 'one
size fits all' model that will suit the circumstances of all Indigenous
people and communities. It is essential that a range of strategies and
mechanisms be considered to develop and facilitate improved governance
and autonomy.

Regional governance
mechanisms also do not obviate the need for a strong national Indigenous
voice such as ATSIC. Indeed, in consultations for the Report on greater
regional autonomy it was noted that there was 'wide support for the retention
of a representative and democratically-elected body at the national level
to address government and to coordinate Indigenous advocacy'. [122]

The tendency for
government to over-regulate Indigenous people, by imposing burdensome
and inflexible structural arrangements for organization, must also be
borne in mind. The Aboriginal Councils and Associations Act 1976 (Cth),
for example, has been described as 'a classic piece of over-regulation'
[123] and there is concern that the prescribed
bodies corporate provisions of the Native Title Act 1993 (Cth) are too
elaborate and may create a situation where 'a really free and spontaneous
people become people governed by legal regulation'. [124]
Indigenous people should design regional governance and autonomy mechanisms
that are suitable to their needs and aspirations with government providing
the necessary support for such structures.

All levels of government
should acknowledge that facilitating Indigenous people's efforts to achieve
such autonomy and improved Indigenous governance is vital to achieving
improvements in Indigenous disadvantage and the recognition of Aboriginal
and Torres Strait Islander rights. Government efforts should be focused
on negotiating governance arrangements with Indigenous peoples, including
through the provision of appropriate support (including technical support
to build capacity, long term funding arrangements and legislative backing).

This is consistent
with the key finding of ATSIC's regional autonomy report, which recommends
that there should be 'prioritisation of agreement-making to inform partnerships
with Government and other agencies as a means of progressing autonomy
from the "bottom up" in preference to further governance structures at
this point in time'. [125]

It is also consistent
with the recommendations of the Social Justice Package proposals made
by CAR, HREOC and ATSIC in 1995. ATSIC proposed that the Commonwealth
accept 'the concept of regional agreements as a framework for establishing
a range of formal relations and settling of outstanding social justice
issues on a regional basis'. [126] Recognition,
rights and reform outlines the following role for the Commonwealth government
in setting the environment and facilitating arrangements for regional
agreements:

• Underpinning
  the financial costs of negotiations;
• Leverage/incentives
  in respect of other negotiating parties, e.g. funding leverage on
  state or local government;
• Further empowerment
  of indigenous negotiating interests, e.g. control of block funding
  for service provision;
• Willingness
  to legislate where necessary to provide an effective basis for enforcement
  of agreements;
• Consideration
  of constitutional reform to make provision for and give protection
  to regional agreements (e.g. similar to s.105A of the Constitution);
  [127] and
• General facilitation
  and support. [128]

Governments should
agree to negotiate mechanisms to facilitate greater regional autonomy
through the design and delivery of programs and services. Negotiations
should include matters such as developing flexible funding arrangements
with Indigenous organizations, including transfer of funding, block funding
and arrangements for pooling funds across governments and on a regional
basis; Indigenous participation in developing service delivery priorities,
setting benchmarks and targets on a regional basis, and in monitoring
and evaluating progress.

Recognising
and protecting Indigenous rights in a federal system

Failures to observe
or to protect human rights cannot be justified by reference to Australia's
internal jurisdictional arrangements. We need to develop ways to overcome
the structural difficulties in protecting human rights that arise from
Australia's federal system of government. Actions are required to guarantee
the adequate protection of Indigenous rights across all levels of government,
and especially in the following key areas:

• Improving government
  accountability for human rights; and
• Negotiating
  with Indigenous peoples over 'unfinished business'.

Improving
government accountability for human rights

By becoming a party
to several human rights treaties, successive Australian governments have
confirmed to all Australians, others within our shores (whether here legally
or otherwise), and to the international community that we intend to treat
all people in a manner that respects their human dignity and accords with
a series of minimum standards. But our system of government operates in
a way that a commitment of this kind does not, of itself, guarantee compliance
with these obligations. There are two main reasons for this - first, international
law must be incorporated into our domestic legal system for it to take
effect, and second, the responsibility for particular matters is often
split between different layers of government.

The recent scrutiny
of Australia's compliance with human rights obligations has shown that
we need to consider ways to improve accountability for human rights at
all levels of government. The examples of native title and mandatory sentencing
laws, discussed in chapter 3, reveal the problems that exist in current
protection of rights in Australian law.

Mandatory sentencing
reveals that while the Commonwealth has the constitutional power to override
state and territory laws, it is reluctant to use this power. This reluctance
is based on the view that state and territory governments are democratically
elected and ought to be left to make laws as they see fit. The situation
concerning the native title amendments is different: the Commonwealth
government actively provided states and territories with the authority
to introduce racially discriminatory laws, thereby removing human rights
protection that would otherwise exist. These examples suggest that adequate
protection of human rights in Australia requires actions that will bind
the states and territories and the Commonwealth.

It is easier to introduce
mechanisms that bind the states and territories. An ordinary enactment
of the federal Parliament - such as a legislated Bill of Rights ? could
incorporate Australia's obligations under international human rights treaties
and accordingly provide protection to human rights standards. A legislated
Bill of Rights could, for example, include protections such as guarantees
against arbitrary detention; requirements for proportionality in sentencing
offenders and the right to a fair trial; guarantees of equality before
the law and non-discrimination; prohibitions of torture or cruel, inhuman
or degrading treatment; and so forth. Such protections would clearly remove
the ability of the states or territories to introduce laws such as mandatory
sentencing.

In conjunction with
section 109 of the Commonwealth Constitution, a legislated Bill of Rights
would operate to invalidate state or territory laws that conflict with
these minimum standards of observance and protection. Such an approach
would confirm that state and territory governments have an important,
indeed primary, role in setting laws. They would remain free to pass whatever
laws they chose, subject to the constraint that those laws met minimum
core standards. This is consistent with the purpose of a federation -
in which no one level of government has unfettered power to make any laws
that it chooses. Other constraints are already placed on the law making
capacity of states and territories (and the Commonwealth) across a range
of areas.

But the principle
of parliamentary sovereignty means that such an approach would still not
prevent the Commonwealth from introducing laws, such as the native title
amendments, which either breach human rights or which allow the states
and territories to breach human rights. The only way that the Commonwealth
can be bound to protect rights is through constitutional mechanisms.

One option is to
provide constitutional protection to a Bill of Rights. While this is the
preferred option, it would take a considerable amount of time to achieve
the necessary support to pass at a referendum.

A second option,
which is more immediately achievable and provides adequate protection,
is to amend the Constitution to include a guarantee of equality and non-discrimination.
Such a guarantee would reflect the fact that the principles of non-discrimination
and equality before the law have the status of jus cogens, or put differently,
that they are standards from which no deviation is permitted at international
law. It would place the commitment of government to these principles at
the highest possible level, and guarantee that such commitment could never
be put aside for more expedient political purposes.

A third alternative
is to introduce a legislated Bill of Rights so that the public are able
to understand more fully, through its operation, the purpose of a Bill
of Rights and its benefits. People could then become more comfortable
with the concept of a Bill of Rights, thereby building support in the
long term for a Referendum to constitutionally enshrine it. A legislated
Bill of Rights would also provide moral authority for successive federal
governments to demonstrate a commitment to human rights, by passing laws
that are consistent with the provisions of the Bill of Rights. It would
also more closely link Australia's international obligations and domestic
practice.

The government's
response to the dialogue with the CERD also demonstrates the need for
improvements to the international accountability of the Australian government.
The United Nations Development Programme (UNDP) has developed a human
rights international accountability index. [129]
The UNDP note that members of the United Nations are held accountable
for human rights through three routes:

• Acceptance
  of international human rights treaties, through accession or ratification;
• Cooperation
  through submission of periodic reports to committees established under
  these treaties and through cooperation with requests and visits by
  special rapporteurs of the United Nations; and
• Responsiveness
  to the views and conclusions of various United Nations treaty committees.
  [130]

A country's level
of international accountability can be measured through each of these
routes as follows:

• Acceptance:
  Has the country ratified or acceded to all human rights treaties,
  and all associated individual communication mechanisms?
• Cooperation:
  Has the country submitted periodic reports in good time; provided
  requested information to special rapporteurs and thematic missions;
  and cooperated with monitoring missions and other visits?
• Responsiveness:
  Has the country responded adequately to the recommendations and final
  views of treaty committees in relation to periodic reports and individual
  communications, and the recommendations of special rapporteurs and
  thematic missions? [131]

When considered against
this index, Australia's international accountability can be seen to be
less than perfect. Following the government's decision not to ratify the
Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) earlier this year, Australia does
not have universal accession or ratification to individual communication
mechanisms. [132] The significance of this cannot
be underestimated. Ratification of individual communication mechanisms
demonstrates a country's willingness to be fully accountable and open
to international scrutiny. It reflects a confidence that a country has
a good human rights record, by demonstrating a preparedness to be scrutinised.

Australia's periodic
reports under all six human rights treaties have also been submitted significantly
late. Much of this backlog has now been addressed, following the consideration
of Australia's periodic reports by four committees over the past year.
Unfortunately though, it is a trend that has continued with the latest
periodic report under ICERD that was due in October 2000. At the time
of finalising this report, the periodic report was already late and the
government had not commenced any consultations on the preparation of the
report.

Similarly, the government's
response to the concluding observations of the various treaty committees
has not been adequate. This is demonstrated in chapter 3 of this report,
as well as by the fact that the Committee on the Rights of the Child recommended
in 1997 that mandatory sentencing laws be repealed - some four years before
similar recommendations were made by the CERD and the Human Rights Committee.

These issues can
be dealt with quite easily. The Commonwealth government should ratify
the Optional Protocol to CEDAW; and increase the priority with which it
handles the periodic reporting obligation under all human rights treaties.
It should also ensure, consistent with its obligations under the treaties,
wide dissemination of the views of the treaty committees. It could also
provide for parliamentary scrutiny of the recommendations and observations
of human rights treaty committees.

Negotiating
with Indigenous peoples over 'unfinished business'

These government
commitments help build a framework for the protection of rights into the
future. They do not address historical injustices or inequalities in society
today. Accordingly, they must be accompanied by efforts to overcome Indigenous
disadvantage, strengthen Indigenous governance and provide recognition
of Indigenous rights.

There is only one
way of addressing the historical violation of Indigenous peoples rights
- by negotiating with Indigenous peoples. I have already discussed the
importance of agreement-making with Indigenous peoples with respect to
service delivery and funding arrangements. Alongside these processes should
be the negotiation of a framework agreement (or treaty) at the national
level, and negotiation of agreements at the regional and local levels
recognising Indigenous rights and dealing with 'unfinished business'.

The federal government
should commit to a process of agreement-making with Indigenous peoples
to address these issues. Such agreement-making should be supported through
a two-stage process.

The first stage is
the introduction of framework agreements legislation, which recognizes
the need to negotiate with Indigenous peoples about a range of matters
and sets out protocols and a negotiation framework within which negotiations
will take place. It should provide legislative force to agreements with
Indigenous organizations on a local, regional and national level.

The necessity to
negotiate with Indigenous people has been identified for some time. The
most extensive and notable expression of this in recent years has been
the social justice package proposals put to Government in 1995 by ATSIC,
CAR and the Social Justice Commissioner. Following extensive consultation
with Indigenous organizations and people, ATSIC recommended the negotiation
of regional agreements with Indigenous peoples and the adoption of a series
of social justice principles to form the basis of relations between Government
and Indigenous peoples at the local community and regional levels. These
principles emphasised the importance of entering into negotiations with
Indigenous peoples and recognising their distinct cultural characteristics:

Principles for Indigenous
social justice and the development of relations between the Commonwealth
government and Aboriginal and Torres Strait Islander Peoples

1. The relationship
between the Commonwealth Government and the Aboriginal and Torres
Strait Islander peoples of Australia is founded in full acceptance
and recognition of the fundamental rights of Aboriginal and Torres
Strait Islander peoples to:

a) recognition
of indigenous peoples as the original owners of this land, and of
the particular rights that are associated with that status;

b) the enjoyment
of, and protection for, the unique, rich and diverse indigenous cultures;

c) self-determination
to decide within the broad context of Australian society the priorities
and the directions of their own lives, and to freely determine their
own affairs;

d) social justice
and full equality of treatment, free from racism; and

e) exercise and
enjoy the full benefits and protection of international covenants.

2. In the formulation
of policies and delivery of programs that affect Aboriginal and Torres
Strait Islander peoples, the Commonwealth, pursuant to powers in relation
to indigenous peoples overwhelmingly granted it by the people of Australia
in the 1967 Referendum:

a) shall ensure
that policies, the delivery of programs and services, and the effective
improvement of service quality is achieved through processes which
are negotiated with and which protect the rights of indigenous peoples;

b) recognises
the diversity of the Aboriginal and Torres Strait Islander peoples;

c) accepts the
importance of empowerment for decision making and planning at the
community and regional levels, and the need for Government at all
levels to cooperate and negotiate with Aboriginal and Torres Strait
Islander communities and organisations;

d) requires that
indigenous peoples have full access to, and equitable outcomes from
participation in, all relevant mainstream programs;

e) shall ensure
processes of accountability to Aboriginal and Torres Strait Islander
peoples and especially shall ensure their involvement in review and
evaluation processes;

f) requires that
collaboration and coordination between Government agencies providing
services to Aboriginal and Torres Strait Islander people shall be
significantly improved;

g) shall establish
a genuine and productive partnership with indigenous peoples through
representative bodies at local, regional, State and national levels;

h) shall provide
quantifiable data and other forms of information on the objectives
and outcomes achieved, for all programs which impact on Aboriginal
and Torres Strait Islander well-being; and

i) shall ensure
that the interests of indigenous peoples transcend existing conventions
about the division and compartmentalisation of the functions of the
various spheres of Government ... [133]

ATSIC recommended
that these principles be enshrined in legislation. There is much similarity
between ATSIC's recommendations in 1995 and those of the Council for Aboriginal
Reconciliation in its Final Report in 2000. The Council recommends the
adoption of framework legislation that includes the negotiation by Indigenous
peoples and Government of protocols to underpin negotiations on matters
of unfinished business.

The social justice
principles form the appropriate starting point for negotiating these protocols.
The Commonwealth government should legislate framework agreement legislation,
providing for the negotiation of agreements at the national, regional
and local level, and including provision for protocols to underpin negotiation.
Negotiations based on the social justice principles should commence immediately,
and the federal government should take the lead in seeking commitments
to the protocols from all levels of government through the processes of
COAG.

Having introduced
such framework legislation, and provided appropriate resources for agreement
processes to be entered into, the second stage of the process is a commitment
to work towards amending the Commonwealth Constitution along similar lines
to the current section 105A to provide the Commonwealth with the power
to make agreements with Indigenous peoples. Section 105A of the Constitution
provides that the Commonwealth may make agreements with the States with
respect to the public debts of the States. It further provides that the
federal Parliament has power to legislate any matter contained in the
agreement; that such agreements can be varied or rescinded by the parties;
and that agreements, and any variations, are to bind all levels of government.

This would be a long-term
approach and has the benefit of protecting documents of consensus (therefore
reflecting both the aspirations of Indigenous people, and being acceptable
to the broader community). By approaching such reform in two stages, the
mainstream society is able to come to a deeper appreciation of the need
for such agreements and to have a more detailed understanding of the issues
involved.

Conclusion

In this chapter I
have drawn together many disparate and complicated issues. The complexity
is compounded by the fact that the many issues facing Indigenous people
and governments are inter-related and deeply entrenched. Underlying the
discussion throughout this chapter, however, is the simple message that
Indigenous peoples must be able to participate in Australian society requires
that their human rights be fully recognised. This requires that all efforts
be made to overcome the disadvantage faced by Indigenous peoples; to facilitate
Indigenous participation in such efforts and to promote Indigenous governance;
to put in place stronger mechanisms to prevent future breaches of the
human rights of Indigenous Australians; and to ensure increased accountability
of governments for policy making, from a human rights perspective.

Under section 46C(1)(a)
of the Human Rights and Equal Opportunity Commission Act 1986 I am able
to make recommendations as to actions that should be taken by governments
to improve the recognition of the rights of Aborigines and Torres Strait
Islanders. Accordingly, I have chosen to make the following recommendations,
which reflect the discussion in this chapter. Given that they address
issues that are of national significance I have targeted all the recommendations
towards the Commonwealth government.

Recommendations

National
commitments to overcome Aboriginal and Torres Strait Islander disadvantage

1. That the federal
government adopt, on a whole of government basis, long-term policies that
identify overcoming Aboriginal and Torres Strait Islander disadvantage
as a national priority. That the government take steps to target the progressive
reduction of such disadvantage (from both a deprivation and inequality
perspective) and negotiate with the opposition parties in the Parliament
for cross-party support for a long-term strategy and commitment.

2. That the federal
government, through the processes of the Council of Australian Governments
(COAG), seek the agreement of the states, territories and local government
to identify as a national priority measures to overcome Aboriginal and
Torres Strait Islander disadvantage. That such agreement be formalised
by COAG renewing the 1992 COAG National commitment to improved outcomes
in the delivery of programs and services for Aboriginal peoples and Torres
Strait Islanders, after negotiation with ATSIC.

3. That the federal
government, through the processes of COAG, seek the agreement of the states,
territories and local government, and ATSIC, service delivery agencies
and Indigenous organizations on benchmarks for Indigenous service delivery
at the national, regional and local levels.

4. That the Commonwealth,
states and territory governments report by 30 September 2001 to COAG and
publicly through Reconciliation Australia on their responses to: - The
recommendations of this report; - The recommendations of the Council for
Aboriginal Reconciliation's final report to Parliament; and - The actions
identified in the Council for Aboriginal Reconciliation's four national
strategies for reconciliation.

5. That the federal
government update Australia's National Action Plan on Human Rights so
that it commits to addressing Aboriginal and Torres Strait Islander disadvantage
(from both a deprivation and inequality perspective). To the maximum extent
possible, the National Action Plan on Human Rights should identify benchmarks
and targets for overcoming Aboriginal and Torres Strait Islander disadvantage,
and monitoring and evaluative mechanisms.

Improved
data collection

6. The federal government
request the Commonwealth Grants Commission, Australian Bureau of Statistics
(ABS) and ATSIC to provide advice within three months of the finalisation
of the Commonwealth Grants Commission's current inquiry into Indigenous
funding on:- Mechanisms for improving the sufficiency and quality of national
data necessary to identifying Indigenous needs, on an absolute basis.
This advice should consider the ABS' strategy for improved data collection
as outlined in Directions in Australia's Aboriginal and Torres Strait
Islander statistics (March 2000); - The feasibility of the ABS repeating
the National Aboriginal and Torres Strait Islander Survey of 1994 on a
regular basis, or undertaking the Indigenous General Social Survey on
a triennial basis; - Proposals for increased coordination and consistency
of data collection at the national, state and territory level; and- Cost
implications of improved data collection.

7. That the Australian
Bureau of Statistics address deficiencies identified in national data
collection processes relating to Aborigines and Torres Strait Islanders.

8. That the federal
government coordinate the negotiation of framework agreements under the
COAG National Commitment to improve coordination and standardisation of
data collection between the federal, state and territory governments,
ATSIC, Indigenous organisations and service delivery agencies.

Monitoring
and evaluation mechanisms

9. That the federal
government amend the Commonwealth Grants Commission Act 1973 (Cth) to
require: - The Commonwealth Grants Commission to conduct a biennial inquiry
into Indigenous funding (from an absolute needs perspective); and- A joint
committee of the federal Parliament to examine the Commission's report
and, following consultation with Indigenous organizations, recommend any
actions required to improve Commonwealth service delivery to Indigenous
people. Adequate funding should be provided to the Commission in order
to undertake the inquiry. The scope of the CGC inquiry should include
mechanisms for the Commonwealth to encourage states and territories to
report on and meet benchmarks; and proposals for the direct funding of
Indigenous organizations (in accordance with the fiscal equalisation principle).

10. That the Commonwealth,
state and territory governments agree to report to their respective parliaments
and COAG on a biennial basis as to progress in addressing Aboriginal and
Torres Strait Islander disadvantage, and the measures taken to meet the
commitments made in the COAG National Commitment. That governments report
to the biennial Reconciliation Conventions proposed by the Council for
Aboriginal Reconciliation in the Reconciliation Bill 2000.

Negotiating
with Indigenous peoples

11. That the federal
government introduce framework legislation providing legislative support
for the negotiation of agreements with Indigenous peoples at the national,
regional and local levels. The Council for Aboriginal Reconciliation's
proposed Reconciliation Bill 2000 is an appropriate legislative model.

12. That the federal
government and COAG adopt the Principles for Indigenous social justice
and the development of relations between the Commonwealth government and
Aboriginal and Torres Strait Islander Peoples as proposed by ATSIC in
Recognition, rights and reform, as forming the framework for negotiations
about service delivery arrangements, regional governance and unfinished
business.

Protecting
human rights

13. That the federal
Parliament establish a joint parliamentary committee inquiry into an appropriate
model for a Bill of Rights. The inquiry's terms of reference should include-
International models for a Bill of Rights;- Appropriate ways to incorporate
Australia's human rights obligations under all six United Nations human
rights treaties to which we are a party;- Any specific provisions required
in a Bill of Rights to recognise and protect the unique status of Indigenous
Australians;- Processes for seeking constitutional endorsement of the
Bill of Rights at a later stage; and- The feasibility of seeking, within
a four-year period, the entrenchment of a guarantee of equality before
the law and non-discrimination in the Constitution.

14. That the Commonwealth
government ensure universal ratification of individual communication processes
under international human rights treaties by ratifying the Optional Protocol
to the Convention on the Elimination of All Forms of Discrimination Against
Women.

---

1.
The four strategies are on redressing Indigenous disadvantage; achieving
economic independence; recognising Aboriginal and Torres Strait Islander
rights; and sustaining the reconciliation process. The four strategies
and the Roadmap to Reconciliation ? which summarises their main aims -
are available at: http://www.reconciliation.org.au.

2.
Minister for Aboriginal and Torres Strait Islander Affairs, The future
together - Indigenous specific measures in the 2000-01 budget, Statement
by Senator the Honourable John Herron, Commonwealth of Australia, Canberra,
9 May 2000, p1.

3.
House of Representatives Standing Committee on Family and Community Affairs,
Health is life, Parliament of Australia, Canberra 2000, (Herein Health
is life). paras 1.1-1.10.

4.
ibid, paras 2.35-36.

5.
ibid, para 1.2.

6.
ibid, paras 1.11-12.

7.
ibid, para 2.56.

8.
Commonwealth Grants Commission, Indigenous Funding Inquiry - Draft Report,
Commonwealth of Australia, Canberra 2000, p53.

9.
ibid, p42.

10.
ibid, p29.

11.
Aboriginal and Torres Strait Islander Commission, Report on greater regional
autonomy, ATSIC National Policy Office, Canberra 2000, pp 11-12.

12.
Commonwealth Grants Commission, op.cit, pp18-19.

13.
Minister of Indian Affairs and Northern Development, Gathering strength
- Canada's aboriginal action plan, Ottawa 1997, http://www.inac.gc.ca/strength/change.html.

14.
Aboriginal
people in Canada face similar issues to those in Australia: particularly
the rapid growth and young age structure of the Indigenous population.

15.
The Hon Tariana Turia, Associate Minister of Maori Affairs, Closing the
gaps & capacity building, Speech, 7 June 2000, http://www.tpk.govt.nz/press/gaps.htm.

16.
Te Puni Kokiri, Progress toward closing the social and economic gaps between
M ori and non-M ori, Government of New Zealand, May 2000, http://www.tpk.govt.nz/reports/gaps.htm.,
p11.

17.
The Hon Tariana Turia, Closing the gaps & capacity building, op.cit.

18.
ibid.

19.
ibid.

20.
Te Puni Kokiri, Progress toward closing the social and economic gaps between
M ori and non-M ori, op.cit.p10 See also: Minister of Maori Affairs, Closing
the gaps 2000, Press Release, Auckland 2000, http://www.tpk.govt.nz/publish/gaps.htm.

21.
ibid..

22.
Health is life, op.cit, paras 1.60-73, Recommendation 6.

23.
ibid, paras 1.71-72.

24.
Aboriginal Affairs Department, Annual Report 1998-99, Perth Western Australia
1999.

25.
ibid, pp 51-56.

26.
NB: The quality of these statistics may not be adequate, given that statistics
such as Indigenous unemployment, home ownership and median income are
not available nationally on an annual basis, yet alone on a regional basis.

27.
Department of Justice and Department of Human Services, Victorian Aboriginal
justice agreement, Government of Victoria, Melbourne 1999, p19.

28.
United Nations Development Programme, Human development report 2000 -
Human rights and human development, UNDP New York 2000, http://www.undp.org/hdro/HDR2000.html,
p89.

29.
ibid, p90.

30.
ibid, p108.

31.
The Council for Aboriginal Reconciliation has defined a 'benchmark' as
an agreed standard or target that reflects the community aspirations that
either have been met or are desirable to be met: Council for Aboriginal
Reconciliation, Towards a benchmarking framework for service delivery
to Indigenous Australians, CAR and Centre for Aboriginal Economic Policy
Research, ANU 1998, p16.

32.
UNDP, Human development report 2000, op.cit, p99.

33.
See further: Australian Bureau of Statistics and Australian Institute
of Health and Welfare, The health and welfare of Australia's Aboriginal
and Torres Strait Islander peoples, ABS / AIHW, Canberra 1999, pp 172-175.

34.
ibid, pp176-177.

35.
Commonwealth Grants Commission, op.cit, p35.

36.
ibid, p37.

37.
ibid, pp38-39.

38.
Council for Aboriginal Reconciliation, Overcoming disadvantage, CAR Canberra
2000, http://www.reconciliation.org,au/overcoming_disadvantage/index.htm.

39.
Australian Bureau of Statistics, Directions in Australia's Aboriginal
and Torres Strait Islander statistics, ABS Canberra 2000, see paras 1-4.
For the complete breakdown of surveys intended in the 2001-2011 period
see Appendix one of this paper.

40.
These estimates and projections demonstrate the difficulties faced in
collecting and maintaining comparable data over a long term period. There
has been, for example, a 200% increase in the official Indigenous count
between the 1971 and 1996 Census - a growth rate of 8% per annum. Similarly,
there is an increasing trend for Indigenous people to report unions with
non-Indigenous partners, meaning that statistics that focus solely on
Indigenous people may not reflect fully the social reality for the majority
of Indigenous Australians. See further: Taylor, J, Indigenous enumeration
in the late twentieth century: Emerging issues for population analysis,
CAEPR, ANU 2000.

41.
ibid, paras 29-31.

42.
The IGSS may be sufficient to replace the NATSIS Survey, if conducted
at sufficiently regular intervals.

43.
This requirement is discussed more fully in the next section.

44.
A National Action Plan is lodged with the United Nations Commission on
Human Rights as a statement to the rest of the world of how a country
is progressing in implementing its human rights obligations in a practical
sense. National Action Plans serve as an evaluation tool for a country's
vision on human rights; an instrument for evaluating a country's performance
in relation to their human rights obligations; a record of a government's
performance with regard to the protection and promotion of human rights;
a tool for setting human rights goals and priorities within achievable
time frames, and for planning the management of resources for the promotion
and protection of human rights; and as a statement of strategies and measurable
targets with regard to the promotion and protection of human rights: See
further, Department of Foreign Affairs and Trade, National Action plan
on human rights, http://www.dfat.gov.au/hr/nap/natact_plan.html.

45.
Commonwealth Grants Commission, op.cit, p xii.

46.
ibid, p58.

47.
The foundation established to carry on the work of the Council for Aboriginal
Reconciliation.

48.
Note that the recent COAG communique adopted on 3 November 2000 refers
to the development of indigenous action plans, performance monitoring
strategies and benchmarks by ministerial councils of COAG over the next
twelve months. See further: http://www.pm.gov.au/news/media_releases/2000/media_release531.htm.

49.
Council for Aboriginal Reconciliation, Overcoming disadvantage, op.cit.

50.
ibid.

51.
Commonwealth Grants Commission, op.cit, p34.

52.
Russell, P, 'Corroborree 2000 - A nation defining event' (2000) 15 Arena
Journal 25, p30.

53.
ibid, p31.

54.
ATSIC, Report on greater regional autonomy, op.cit, p20.

55.
Health is life, op.cit. para 3.29.

56.
ATSIC, Report on greater regional autonomy, op.cit, p20.

57.
McClure, P., Participation Support for a More Equitable Society: Final
Report of the Reference Group on Welfare Reform, July 2000, Department
of Family and Community Services, Canberra, 2000.

58.
Minister for Aboriginal and Torres Strait Islander Affairs, Beyond welfare,
as cited in ATSIC, Regional autonomy for Aboriginal and Torres Strait
Islander communities, op.cit, p7.

59.
See ATSIC, Recognition, rights and reform: Report to Government on native
title social justice measures, Canberra, ATSIC, 1995, pp55-62; Aboriginal
and Torres Strait Islander Social Justice Commissioner, Indigenous social
justice strategies and recommendations, Office of the Aboriginal and Torres
Strait Islander Social Justice Commissioner, Sydney, 1995, pp19-31.

60.
ATSIC, Report on greater regional autonomy, op.cit, p15.

61.
ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander communities,
Discussion paper, ATSIC Canberra 1999, p9.

62.
ibid.

63.
ibid, pp9-10.

64.
CAR, 'Strategy for achieving economic independence', CAR, Canberra 2000,
http://www.reconciliation.org.au/economic/pg4.htm
(24 November 2000), p5.

65.
Council for Aboriginal Reconciliation, Overcoming disadvantage, op.cit.

66.
Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres
Strait Islander rights, op.cit, p20.

67.
ibid.

68.
ibid, p13.

69.
Moran, M 'Housing and health in Indigenous communities in the USA, Canada
and Australia: The significance of economic empowerment' (2000) 7 Aboriginal
and Torres Strait Islander Health Bulletin 1.

70.
ibid, p6.

71.
ibid, p8.

72.
Minister of Indian Affairs and Northern Development, Gathering strength
- Canada's Aboriginal action plan, op.cit, p2.

73.
Department of Indian and Northern Affairs (DIAND), 'Aboriginal self-government:
the government of Canada's approach to implementation of the inherent
right and negotiation of Aboriginal self-government', Department of Indian
and Northern Affairs, Ottawa, 1995, p14.

74.
ibid, p7.

75.
ibid, p14.

76.
ibid.

77.
INAC, op cit, p9.

78.
Hanson, E., Self-Government: a fundamental change in the relationship,
March 2000, Department of Indian and Northern Affairs, Ottawa, 2000, pp13-14.
For a more thorough discussion of the components of this self-government
policy, see Behrendt, L, The protection of Indigenous rights: contemporary
Canadian comparisons, Parliament of Australia, Parliamentary research
paper 27, 1999-2000, http://www.aph.gov.au/library/pubs/rp/1999-2000rp27.htm
(19 July 2000).

79.
INAC, op cit, p10

80.
See Behrendt , op.cit, for an overview of the contrast between the Australian
and Canadian contexts. One difference of note is that while the Canadian
federal government has had responsibilities for aboriginal affairs from
the beginning, the federal government in Australia was excluded from such
a constitutional role until 1967.

81.
CAR, Overcoming disadvantage, op.cit.

82.
For further discussion see ATSIC, Report on greater regional autonomy,
op cit, p13.

83.
ibid, pp10-11.

84.
ibid, p20.

85.
Health is life, op cit, paras 3.42 - 3.44.

86.
Commonwealth Grants Commission, op cit, p42.

87.
ibid, p34.

88.
ibid, p43.

89.
Health is life, op cit, para 2.67.

90.
Commonwealth Grants Commission, op cit, p61.

91.
ibid, p89.

92.
ibid.

93.
Commonwealth Grants Commission, op cit, p42.

94.
Health is life, op,cit, para 2.95.

95.
Commonwealth Grants Commission, op cit, p61.

96.
ibid, p60.

97.
ibid.

98.
ibid.

99.
ibid.

100.
ibid, p61.

101.
ATSIC, Report on greater regional autonomy, op cit, p16.

102.
ibid, p22.

103.
ibid, p9.

104.
Pearson, N, Our Right to take Responsibility, Noel Pearson and Associates,
Cairns, 2000, pp42-3.

105.
ibid, p83.

106.
McClure, P, op.cit, p.10.

107.
Martin, D., 'Community development in the context of welfare dependence',
The Indigenous Welfare Economy and the CDEP Scheme: Autonomy, Dependence,
Self-Determination and Mutual Obligation, CAEPR Conference, ANU, 7 - 9
November 2000 http://www.anu.edu.au/caper/iwepapers/Martin.pdf
, p3.

108.
McClure, P., op.cit, p17.

109.
Altman, J., 'Mutual obligation', the CDEP scheme and development: Prospects
in remote Australia', The Indigenous Welfare Economy and the CDEP Scheme:
Autonomy, Dependence, Self-Determination and Mutual Obligation, CAEPR
Conference, ANU, 7 - 9 November 2000 http://www.anu.edu.au/caper/iwepapers/Altman.pdf
, p5. Altman also critiques Pearson's strategies for economic development,
finding them 'too light on practical, culturally-informed strategies',
ibid, pp5-6.

110.
ATSIC, Report on greater regional autonomy, op cit, p22, 24.

111.
Pearson, N, op cit, pp72-3. Another prospect for addressing the difficulties
experienced by remote regions is to transform an existing institutional
model, the Community Development Employment Projects (CDEP) scheme, a
longstanding precedent for mutual obligations models in Australia, into
a development agency; see Altman, op.cit, pp6-9.

112.
Cape York partnerships, Cape York partnerships, Cairns, July 2000; Government
of Queensland, Cape York partnerships: Some practical ideas, Department
of the Premier and Cabinet, Brisbane 2000.

113.
ATSIC, Report on greater regional autonomy, op cit, p14.

114.
ibid, p30.

115.
House of Representatives Standing Committee on Aboriginal and Torres Strait
Islander Affairs, Torres Strait Islanders: a new deal, AGPS, Canberra,
1997, pp.xvii, xxi.

116.
ATSIC, Report on greater regional autonomy, op cit, p16

117.
ibid.

118.
Fletcher, C, 'Aboriginal Regional Australia: the hidden dimension of community
governance', Regional Australia Summit paper, Parliament House, Canberra,
27-29 October 1999, p1.

119.
ATSIC, Report on greater regional autonomy, op cit, p17.

120.
See ibid, pp22-7.

121.
Department of Local Government, Local Government: the next step, Department
of Local Government, Northern Territory, September 1999. For discussion,
see ATSIC, Report on greater regional autonomy, op cit, pp31-2.

122.
ATSIC, Report on greater regional autonomy, op cit, p10. The principle
of self-determination remains a key element of ATSIC's corporate vision.
Cf. ATSIC Corporate Plan 1998-2001: 'We have set ourselves three broad
goals over the next three years: to provide an effective voice for our
communities, organisations and people: to strengthen our people and organisations;
and to protect, promote and pursue our collective rights.' ATSIC, 'ATSIC
corporate plan 1998-2001', Commonwealth of Australia, Canberra, http://www.atsic.gov.au/default_ie.asp
(30 November 2000).

123.
Nettheim, G., 'Discussion paper 7: Governance bodies and Australian legislative
provision for corporations and councils', Govenance structures for Indigenous
Australians on and off native title lands, University of New South Wales,
Sydney, 1999, para 2.14, http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/arccrp/dp7.html.

124.
Burke, P, Constructing an appropriate legislative framework for PBCs',
Presentation to Governance structures for Indigenous People workshop,
Canberra, 31 March 2000, unpublished, p2. See also Mantziaris, C, and
Martin, D, Native title corporations: A legal and anthropological analysis,
Federation Press, Sydney, 2000.

125.
ATSIC, Report on greater regional autonomy, op.cit, p36.

126.
ATSIC, Recognition, rights and reform, op.cit, p57.

127.
This is discussed further below in relation to recognising and protecting
Indigenous rights in a federal system.

128.
ATSIC, Recognition, rights and reform, op.cit, p57.

129.
United Nations Development Programme, Human Development Report 2000, op.cit,
p107.

130.
ibid.

131.
ibid.

132.
Australia has also not ratified the Convention on the protection of the
rights of all migrant workers and their families.

133.
ATSIC, Recognition, rights and reform, op.cit, pp9-10.