Social Justice Report 2003: Executive Summary

Social Justice Report 2003

Executive Summary

Chapter 1: Overview

The Social Justice Report 2003 is
the fifth report by Aboriginal and Torres Strait Islander Social Justice
Commissioner, Dr William Jonas. It was tabled in federal Parliament, along
with the Native Title Report 2003, in March 2004.

Chapter two of the report
focuses on developments relating to reconciliation and ensuring accountability of government. It
highlights progress in addressing Indigenous disadvantage; initiatives of the Council of Australian Governments (COAG) such as the COAG national reporting framework on Indigenous
disadvantage, COAG whole-of-government community trials and ministerial action plans.

Chapter three focuses on
processes relating to Indigenous participation in decision-making and changing the relationship of Indigenous peoples
with government. It highlights capacity development and governance
reform, and proposals for ATSIC reform.

Chapter four analyses current
progress by governments in addressing petrol sniffing on the Anangu Pitjantjatjara Lands, with an emphasis on the implementation
of the recommendations of the South Australian Coroner and the progress
of the COAG whole of government community trial on the AP Lands.

Chapter five identifies
the responses of governments to issues of family violence in Indigenous communities.

Appendix One provides a statistical overview of the current circumstances
of the Aboriginal and Torres Strait Islander population in Australian
and, where possible, changes over the last five or ten years and international
comparisons. Appendix two provides an overview of the
COAG whole-of-government community trials.

Findings and recommendations

Overall, this report concludes that there are a number
of recent initiatives which are moving us in the right direction, as
well as small gains being made in some areas. Of particular note are
recent developments in implementing the Council of Australian Government's
commitments to reconciliation through the finalisation and first release
of the national indicators on overcoming Indigenous disadvantage and
the whole of government community trials ...

There is a level of optimism created by the determined
words of senior government members to pursue a changed approach, particularly
through their efforts in the eight Council of Australian Governments
whole-of-government community trial sites ...

This optimism that there might be change in the air
is accompanied, however, by a level of uncertainty for Indigenous peoples.
This uncertainty relates in large part to the upheaval that has centred
on the role of the Aboriginal and Torres Strait Islander Commission
(ATSIC) over the past year ... (p2)

Addressing this uncertainty, principally through renewing
the role of ATSIC, is a critical issue that is dealt with at length
in this report. It is a central feature of an agenda for change in Indigenous
policy.

These developments are also accompanied by serious
concerns that the pace of progress, where it exists, is too slow and
may not necessarily be sustainable into long term. The release of Census
data from 2001 shows that such progress is in fact minimal. Overall,
it is difficult to see any progressive trend towards reducing the level
of inequality experienced by Indigenous peoples compared to non-Indigenous
people (even in areas where there might have been some marginal improvement
in absolute terms).

There is an overwhelming sense that the crisis situation
that Indigenous peoples face is highly likely to worsen substantially
over the next decade due to the faster growth rate of the Indigenous
population (in other words, that government programs will not be able
to keep up with the growth of the Indigenous population with the result
that it will become increasingly difficult to maintain the status quo
or prevent a further deterioration in key areas of well-being). The
absence of a clear accountability framework for governments, including
benchmarks and targets, is a matter of great urgency in addressing this
situation.

Consequently, rather than having an overwhelming sense
of optimism that there is a consistent forward trend in addressing Indigenous
disadvantage and well-being, I feel apprehensive that the genuine efforts
being made by governments at this time may not be sufficient to overcome
the significant legacy of Indigenous disadvantage and marginalisation.

For a range of reasons that are outlined in this report,
there is not sufficient commitment by governments at any level to do
whatever it takes to progressively improve the life chances and opportunities
for Indigenous people, in terms of both absolute improvement in socio-economic
conditions and in terms of reducing the level of inequality that exists
compared to the life chances and opportunities for non-Indigenous Australians.
I am encouraged that there is recognition by government of the scope
of the issues faced, within the confines of practical reconciliation,
and some significant movement towards addressing these problems. But
ultimately, we are not progressing as well as we can or as well as we
need to. This needs to change ... (p3)

The report contains twelve recommendations directed to COAG and the federal government relating to:

• data collection issues to support COAG's national report
  on overcoming Indigenous disadvantage (recommendation 1, p31);
• the status of COAG's ministerial action plans for addressing
  Indigenous disadvantage (recommendations 2-5, p39);
• the progress of the COAG whole-of-government community
  trials (recommendations 6-9, p44, p48); and
• Capacity building and governance reform (recommendations
  10-12, p89).

Recommendations - Social Justice Report 2003

Recommendation 1 on reconciliation: Data collection

1. That the federal government request the
Australian Bureau of Statistics (ABS) to provide to COAG information on
the actions that need to be taken in order to improve Indigenous data
collection. The ABS should respond to the suggestions made by the Steering
Committee for the Review of Government Service Delivery in the Overcoming
Indigenous Disadvantage Report 2003, as well as identify actions that
they consider necessary to ensure the availability of relevant data on
a regular basis. In providing this information, the ABS should:

• identify those issues that could be addressed through
  improvements to its existing data collection processes, as well as those
  issues which would require additional one-off funding allocations and
  those issues which would require additional recurrent funding from the
  federal government or COAG;
• estimate the cost of any additional one-off and recurrent
  funding needs, including the cost of conducting the Indigenous General
  Social Survey on a triennial basis; and
• consult with the Steering Committee for the Review of
  Government Services, the Aboriginal and Torres Strait Islander Commission,
  and other relevant agencies.

Recommendations 2 -5 on Reconciliation: Ministerial
Council Action Plans

2. That the federal government, through
its leadership role in the Council of Australian Governments, ensure that
all Commonwealth / State Ministerial Councils finalise action plans on
addressing Indigenous disadvantage and reconciliation by 30 June 2004.
These action plans must contain benchmarks, with specific timeframes (covering
short, medium and long term objectives) for their realisation. Where appropriate,
these benchmarks should correlate with the strategic change indicators
and headline indicators reported annually by the Steering Committee for
the Provision of Government Services.

3. That the federal government, through
its leadership role in the Council of Australian Governments, request
the Aboriginal and Torres Strait Islander Commission (ATSIC) to advise
COAG whether it endorses these action plans and the benchmarks contained
within, following consultations through its Regional Councils. ATSIC should
be required to advise COAG of its endorsement or any concerns about the
action plans within a maximum period of six months after being furnished
with the action plans.

4. That the federal government ensure that
all Commonwealth / State Ministerial Council Action Plans are made publicly
available as a compendium of national commitments to overcoming Indigenous
disadvantage.

5. That COAG publicly report on progress
in meeting the benchmarks contained in each Commonwealth / State Ministerial
Council Action Plan on an annual basis.

Recommendations 6 - 9 on reconciliation: COAG Whole-of-government
community trials

6. That the federal government, through
the Department of Immigration, Multicultural and Indigenous Affairs, commit
to the existence of the Indigenous Communities Coordination Taskforce
for a minimum of the five year duration of the COAG whole-of-government
community trials and accordingly commit resources to the Taskforce until
2007.

7. That federal government departments participating
in the COAG whole-of-government trials increase their staffing commitments
to the Indigenous Communities Coordination Taskforce by placing additional
officers in the Taskforce's Secretariat.

8. That COAG request the Productivity Commission
(as Chair of the Steering Committee for the Review of Government Service
Provision) to provide advice on aligning the benchmarks and outcomes agreed
at the local level with COAG's National Framework for Reporting on Indigenous
Disadvantage. This advice should include any recommendations for adapting
the Indigenous Communities Coordination Taskforce Database to enable reporting
of outcomes against this National Framework.

9. That COAG agree and fund an independent
monitoring and evaluation process for the whole-of-government community
trials initiative. The Productivity Commission, Commonwealth Grants Commission
or ATSIC's National Office of Evaluation and Audit would be suitable agencies
to conduct this review.

Recommendations 10-12 on capacity building and governance
reform

10. That COAG adopt ATSIC's Integrated
framework on capacity building and sustainable development as a central
component of its Reconciliation Framework.

11. That COAG also provide funding for research
into best-practice models of governance reform and capacity building relating
to Indigenous peoples in Australia. Such research should be based on overseas
models such as the Harvard Project on American Indian Economic Development,
and build on the findings of existing work on governance reform in Australia.

12. That the Minister for Aboriginal and
Torres Strait Islander Affairs (Cth) ensure that reform of the Aboriginal
Councils and Associations Act 1976 (Cth) is treated as a high priority
of the federal government and ensure extensive consultation is undertaken
with Indigenous peoples about proposed amendments to the legislation.
Any proposed legislative reforms should be in accordance with the recommendations
of the 2002 review of the Act's operation. In particular, proposed amendments
should recognise the need for special regulatory assistance for Indigenous
organisations and maintain a distinct legislative framework for regulation
outside of the Corporations Act as a special measure.

Chapter 2: Reconciliation and government accountability

A 'highly controlled' commitment to 'practical'
reconciliation

There has been a high level of commitment
by the federal government to continuing to implement programmes in accordance
with its 'practical reconciliation' agenda. There have been significant
developments in implementing the commitments of the Council of Australian
Governments (COAG) to conduct a number of whole-of-government community
trials across Australia and to establishing an annual reporting framework
on Indigenous disadvantage. There has also been an increased focus on
debilitating problems affecting Indigenous communities such as family
violence.

The report does not suggest that there is
an absence of a commitment to reconciliation by the government. Instead,
the commitment is to a particular type of reconciliation around
which the boundaries are tightly proscribed.

The report identifies the following concerns about the government's
approach:

• the limited scope of the commitments that they make;
• the lack of a process for dealing with issues that fall
  outside the parameters set by the government;
• the derisive and somewhat arbitrary way that the government
  discards issues which it does not agree with as 'symbolic' and then
  simply ignores them; " the lack of a rigorous monitoring framework to
  hold the government accountable for its commitments; and
• the lack of progress in areas which it has chosen to
  ignore (pp 11- 12).

The continuity over several years of this
'highly controlled' approach of the government towards reconciliation
has inevitably seen policy debates shift towards the government's framework.
This was increasingly the case in 2003. Progressively each year has seen
less focus on issues that do not fall within the government's approach,
such as an apology, the plight of the stolen generations, the treaty debate
and native title. These issues have not gone away. Rather, those involved
in reconciliation have chosen to engage with the government where constructive
progress can be made. This reflects political reality rather than an endorsing
or embracing of the government's position (p12).

Progress in addressing Indigenous disadvantage

The government has emphasised time and again
that the key focus of reconciliation should be on practical and effective
measures that address the legacy of profound economic and social disadvantage
that is experienced by many Indigenous Australians. Newly released data
in 2003 provided the opportunity to establish whether we are progressing
towards this ultimate goal of the government's reconciliation agenda and
to determine whether the pace of such progress is adequate.

The government's view is that it is making
progress in addressing Indigenous disadvantage. However, there are number
of notable features about various statements made by members of government
that amount to a misrepresentation of progress being made (pp 14 - 16):

• First, there are almost no references to progress in
  reducing the gaps that exist between Indigenous and non-Indigenous Australians
  (p16).
• Second, there are significant omissions in the indicators
  that the government presents as demonstrating 'real improvement' in
  absolute terms (p17).
• Third, some of the measures of success are presented
  purely as raw numbers and as percentages of increases in raw numbers.
  The ABS cautions against such presentation of statistics as they do
  not account for changes in the accuracy of data collection or increased
  rates of identification of people as Indigenous. This can result in
  the presentation of the level of progress being misleading (p17).

Appendix one of the Report provides a statistical
profile of the Aboriginal and Torres Strait Islander population. It includes
information on the current status of Indigenous peoples on key measures
of socio-economic well-being including health status, employment, income,
education, housing, and contact with criminal justice and care and protection
systems. The main findings of the Appendix in terms of progress in addressing
Indigenous disadvantage across these areas are summarised below.

Of particular concern is the lack of achievement in relation
to improving the health status of Indigenous Australians.

These figures indicate that there are clear
disparities between Indigenous and non-Indigenous people, and limited
progress in reducing these disparities across many key areas of socio-economic
status (pp 18 -20).

[T]he claim of the government that 'the wellbeing of Indigenous people
is improving under this Government' cannot be verified across many
core areas of practical reconciliation. There are undoubtedly some
areas where improvements are being realised. Overall, however, there
is no consistent forward trend in improving the well-being of Indigenous
peoples, and particularly no forward trend towards a reduction in
the disparity between Indigenous and non-Indigenous Australians (p17) ... There is some evidence that in relation to key measures,
this situation may deteriorate further in the coming decade. The outcomes
being achieved by governments are not adequate on any measure of success
and despite the investment of significant resources by governments.
This situation needs to change (p24).

Implementing the commitments of the Council of Australian
Governments

There has been significant progress in implementing
the commitments made by the Council of Australian Governments (COAG) towards
reconciliation in 2003. The report reviews developments in relation to
the three main areas of commitment by COAG.

i) Overcoming Indigenous disadvantage - Annual report
against key indicators

In its communique of 5 April 2002, COAG
agreed to commission an annual reporting framework on key indicators of
Indigenous disadvantage which was released in November 2003. The reporting
framework was developed by the Steering Committee for Government Service
Provision (see pp25-30). A recurring theme of the framework is acknowledgement
that areas such as health, education, employment, housing, crime and so
on are inextricably linked. Disadvantage or involvement in any of these
areas can have serious impacts on other areas of well-being. The Steering
Committee published its first report against this framework, titled Overcoming
Indigenous Disadvantage - Key Indicators 2003, in November 2003.

The endorsement of the framework by COAG in August
2003 and the production of the first report by the Steering Committee
in November 2003 are both substantial achievements (p33).

There are two main issues relating to the
framework which have a bearing on how influential it will be in promoting
change to policy and program approaches by governments and ultimately
in improving the well-being of Indigenous peoples:

• First, a critical issue for the reporting framework is
  the availability of adequate and regular data. It is critical that the
  recommendations and suggestions of the Steering Committee in relation
  to improved data collection are addressed as a matter of urgency in
  order to ensure that the reporting framework is able to fully realise
  its potential and to be viable into the longer term (pp 30 -31). The
  report makes 1 recommendation on these issues.
• Second, how the framework is to be incorporated into
  policy design and programmes across governments and between government
  departments (pp 32 - 33).

If the reporting framework is not integrated
into policy development then the Steering Committee's report risks becoming,
in the words of the Chairman of the Steering Committee, 'an annual misery
index' which simply reminds us on an annual basis of continuing Indigenous
disadvantage without action to change this situation. (p32).

ii) Developing Ministerial Council action plans
and benchmarks

It has now been three years since COAG agreed
to the production of Ministerial Council action plans and benchmarks.
A summary of those that have been released is at pp35 -37 of the report.
Many of these action plans are rudimentary in scope and deal almost exclusively
with data collection and performance monitoring issues. Very few have
any benchmarks or targets.

Benchmarking is a critical aspect of ensuring
human rights compliance and accountability. Even the most sophisticated
of these action plans, in education, does not meet the attributes necessary
for adequate benchmarking (pp 36-38).

the establishment of benchmarks requires ...
an identification of an agreed rate of progress towards (the goal of
equality), within a short, medium and longer term context, and an evaluation
of issues relating to the prioritisation, resourcing and re-engineering
of programs and services that will be needed in order to achieve this.
The action plans and strategies adopted at the inter-governmental level
to date do not contain critical elements for benchmarking.

The absence of appropriate benchmarks is perhaps the most
significant failure of governments in implementing practical reconciliation
since the year 2000 (p38).

The report contains 4 recommendations aimed at addressing
the lack of government accountability through improved benchmarking and
action plans.

iii) The COAG whole-of-government community trials

In its communique of 5 April 2002, COAG
agreed to trial a whole-of-government cooperative approach in up to ten
communities or regions of Australia. Appendix 2 of the report provides
a detailed overview of the structure of the trials, and progress in each
trial site.

While the trials remain in the preliminary
stages of development, rapid progress has been made during 2003 ... In
meetings and correspondence about the trials, I have noticed an air
of enthusiasm and optimism among government departments about the potential
of the trials. Government departments are embracing the challenge to
re-learn how to interact with and deliver services to Indigenous peoples.
There are no illusions among government departments that the trials
are as much about building the capacity of governments as they are about
building the capacity of Indigenous communities.

Through the active involvement of Ministers
and secretaries of federal departments in the trials, a clear message
is being sent through mainstream federal departments that these trials
matter and that government is serious about improving outcomes for Indigenous
peoples. Even at this preliminary stage, this is a significant achievement
for the trials. ATSIC have stated that to date 'there has been clear
success through improved relationships across governments at trial sites' (p42).

It is too early to determine whether the
trials will have a positive impact in improving government service delivery
to communities in each trial region in the longer term or whether transferable
lessons will be learnt which are able to more broadly benefit other
Indigenous communities. At this stage, the report makes the following
observations and concerns about the conduct of the trials and their
potential:

• First, it appears that the Indigenous Communities Coordination
  Taskforce (ICCT), the Commonwealth government's coordinating mechanism,
  is inadequately funded and it is not clear that it will exist for the
  full five years of the trials and if it does, in what form (pp 42-44).

  There is a clear need for the Commonwealth
  to commit to the existence of the ICCT for the full five years of
  the COAG trials and to increase staffing levels to ensure that the
  ICCT is able to be fully responsive and continue to make high quality
  contributions to the COAG trials (p43).

The report makes 2 recommendations relating
to this concern.

• Second, there are concerns relating to the use of the
  Flexible Funding Pool that has been established to support the trials,
  in particular, there is no commitment to any funding pool for the final
  two years of the trials (p45). The ICCT expects that funding will ultimately
  be provided in 'a more informal way' through the joining up of existing
  programs and changes to program approaches. This is an important goal
  for the trials and a way of ensuring that the outcomes of the trials
  are sustainable and able to be more broadly applied to other Indigenous
  communities. There will, however, need to be close attention paid in
  the implementation of the trials to the reality of this goal and a degree
  of flexibility from the government to allocate funding to the ICCT for
  the final two years of the trials should such funding ultimately prove
  necessary.
• Third, there is concern from ATSIC that it is not being
  sufficiently engaged in the trials (pp 45-46).
• Fourth, it is not clear at this stage that the performance
  monitoring framework for the trials will be sufficiently rigorous. It
  is anticipated that the first two years of the trial will be reviewed
  in mid-2004 and a further review conducted at the end of the 5 year
  trial phase. It is not clear at this stage how these reviews will be
  conducted, by whom or whether the results of the reviews will be made
  public (pp 46-48).

  The lack of a clear evaluation strategy is of great
  concern. It may be that the uncertainty in this regard is largely
  the product of the evolving nature of the trials and that there will
  be much greater clarity during 2004. I have previously, however, expressed
  concern at reliance by COAG on internal monitoring and evaluation
  strategies. In particular, I have expressed concerns about the lack
  of information that is publicly reported about such evaluations (thus
  limiting government accountability), the lack of appropriate consultation
  with Indigenous peoples and lack of independence in the monitoring
  process.

My concern about such processes is reinforced
by the failure in recent years of the Ministerial Council on Aboriginal
and Torres Strait Islander Affairs to complete two significant evaluations
on COAG's behalf and in a timely manner. The first is the review of
progress by all levels of government in implementing the recommendations
of the Bringing them home report. The second is an audit of family
violence programmes to guide the response of COAG to this crisis issue.
Approximately three years after these reviews were announced, neither
has been presented to COAG nor made public (p46).

A related issue is the existence of adequate
data to contribute to the monitoring and evaluation process. In the initial
stages of the trials, there has been a significant focus on developing
local level priorities, outcomes and benchmarks. It is not, however, clear
how the local level data will be able to be matched up to the national
level.

It is quite likely that it will not be
possible to match up local level indicators with the national reporting
framework, other than through the provision of case studies which can
illustrate links between particular types of policy interventions and
outcomes. This will, of itself, be valuable information. The concern
is that the trials have set objectives for data analysis and performance
monitoring that will not be able to be achieved because of the existing
limitations in data quality and collection (p47).

The report makes 2 recommendations relating
to this concern.

• Fifth, it is not clear how the lessons learnt from the
  trials will be transferable and contribute to broader reform of program
  design and service delivery for Indigenous peoples. Concerns identified
  by ATSIC in this regard include that:

• there is limited experimentation of new approaches
  by Lead Agencies in the trials;
• there is a blurring in some instances of Commonwealth
  and state responsibilities, 'attracting the possibility of cost shifting
  between parties'; and
• initiatives in one trial are not being identified as
  having potential application in other trials.

Ultimately, the transferability of outcomes
from the trials in the longer term will depend on whether the trials are
able to more broadly change the status quo of service delivery and program
guidelines. A significant challenge will be ensuring that the adoption
of more holistic, whole-of-government approaches is not a transient feature
and that departments do not simply slip back into their usual ways of
doing things once the trials have ended. Factors that will need to be
addressed to ensure that this is not the case include the following:

• Continued engagement of mainstream
  departments and programs: It is clear that a significant factor
  in the early success of the trials has been the high level involvement
  and commitment of ministers and departmental secretaries at the federal
  level in taking responsibility for particular communities (as the
  lead agency) and harnessing the services and programs of mainstream
  departments. The lead agency approach is not sustainable beyond a
  limited number of communities in its current format. Mechanisms such
  as the Minister's group and the Secretaries group may be more sustainable,
  so long as departments continue to have a significant investment in
  promoting improved coordination of services.
• Coordinating funding of proposals
  in non-trial sites: The identification of a region or community
  as a trial site has naturally elevated the priority with which the
  service delivery needs of that community or region are dealt with.
  Governments and departments have been able to look to how they can
  relax program guidelines or join up funding from different programs
  and areas for more holistic solutions. A significant challenge is
  identifying how proposals in non-trial sites can also benefit from
  this approach where such proposals do not enjoy such priority attention.
• Resource constraints: While
  the emphasis of the trials is not on new money but on better coordinating
  and getting value from existing money, there is a broader context
  of significant under-funding of key areas of Indigenous disadvantage.
  The focus on a limited number of communities, and the availability
  of a short term funding pool, shields the trials from this broader
  issue. Funding restrictions will become a significant issue when seeking
  to more broadly implement the lessons learnt from the trials. This
  will be complicated further by an emphasis on addressing relative
  need and reallocating funding towards those areas and issues of greatest
  disadvantage.
• Capacity development of Indigenous
  communities: Each of the trials has built on local Indigenous
  initiatives that were already under development to improve service
  delivery to their communities. The trials have undoubtedly greatly
  advanced processes that were previously underway in these and other
  trial areas. However, the broader concern is how transferable lessons
  will be drawn from the trials for those communities which experience
  a high degree of dysfunction and which are not, at least at this stage,
  capable of organising themselves so that they can better interact
  with governments. In other words, how do we avoid the situation where
  governments focus their attention on improved coordination of service
  delivery to those communities that are relatively organised? It is
  critical that in the longer term other communities do not get left
  behind because they do not have such capacity.

There are also a number of processes available
to ATSIC and Indigenous peoples to build on the achievements of the trials
and more broadly inform policies and programs. There are three significant
processes which ATSIC currently utilises which provide ATSIC with some
leverage for advancing inter-governmental coordination and improved service
delivery:

• ATSIC has entered into a number of partnership agreements
  with states and territories, as well as agreements and compacts with
  federal government departments.
• through the operation of ATSIC's Regional Councils and
  the development of their regional plans. Regional plans offer a significant
  opportunity for coordinating government activity within regions.
• ATSIC leads the Community Participation Agreements (CPA)
  initiative under the Australians Working Together package. The
  CPA process provides ATSIC with a significant tool for advancing the
  objectives of Indigenous communities or regions as they relate to aspects
  of government service delivery.

A further tool which is available to Indigenous
communities to build on the advances of the COAG trials are the Indigenous
Land Use Agreement provisions of the Native Title Act 1993 (Cth).

Overall, the COAG whole-of-government
community trials have advanced significantly during 2003 and offer much
potential for reforming inter-government and whole-of-government approaches
to service delivery to Indigenous peoples. There have already been a
number of achievements from the process. There remain a number of challenges
and some structural issues (particularly relating to monitoring and
evaluation) that remain to be addressed. The long term success of the
process will, however, depend on how the trials promote structural change
in the way that governments go about delivering services to Indigenous
peoples (p54).

Conclusions - Government accountability for reconciliation

During 2003, the government's approach to
reconciliation has continued to be restricted to measures that fall within
its 'practical' reconciliation approach. This has the consequence of there
being a partial framework for progressing reconciliation with significant
issues of unfinished business left in abeyance. The report establishes
that progress in advancing 'practical' reconciliation over the course
of the year has been variable.

The statistical data indicates that there
has been limited progress over the past five years in achieving the
central purpose of practical reconciliation, namely improved Indigenous
well-being. Of particular concern is the fact that the disparities that
exist between Indigenous and non-Indigenous Australians have remained
substantially the same, or have widened over the past five and ten years.
Indigenous Australians also presently endure health standards worse
than those in some so-called 'third world' countries. The lack of progress
in achieving substantial improvement in Indigenous well-being is also
in marked contrast to outcomes in similar settler countries such as
the United States of America, Canada and New Zealand (p54) ...

The year 2003 saw the development of significant
measures for advancing reconciliation within the framework of the Council
of Australian Governments. The national reporting framework on Indigenous
disadvantage and whole-of-government trials under COAG are in fledgling
stages and there are a number of issues that remain to be addressed before
success is assured.

These initiatives have not, however,
been backed up by a range of other commitments and processes that are
necessary to ensure the long term sustainability of improvements in
the well-being of Indigenous peoples. There remains an absence of an
appropriate national commitment to redressing Indigenous disadvantage,
sufficiently rigorous monitoring and evaluation mechanisms, and benchmarks
with both short term and longer term targets agreed with Indigenous
peoples. There are also critical issues relating to the depth of inequality
experienced by Indigenous people, the size and growth of the Indigenous
population and under-resourcing of services and programs to Indigenous
peoples that cannot continue to be ignored if there is to be any genuine
improvement in Indigenous peoples' circumstances.

Ultimately, the process of practical reconciliation
is hampered by its lack of a substantive action plan for overcoming
Indigenous disadvantage in the longer term, with short term objectives
to indicate whether the rate of progress towards this goal is sufficient.

The failure of the government to address these factors
as part of its practical reconciliation approach reflects a fundamental
flaw in the process. By committing to provide full access to citizenship
entitlements and nothing more, practical reconciliation is a 'blank
cheque' and amounts to a commitment into the foreseeable future to pay
the increased economic and social costs associated with Indigenous disadvantage.
In relation to employment alone, this cost is estimated by the Centre
for Aboriginal Economic Policy Research to rise to the vicinity of 0.5
to 1% of gross domestic product within the decade.

At this stage, it is not possible to foresee
a time when 'record levels of expenditure' of the Commonwealth on Indigenous
services will not be necessary. It is also not possible to foresee a
time when a continuation of the current approach will result in significant
improvements in the lives of Indigenous peoples. Practical reconciliation
does not have a plan for overcoming rather than simply managing
Indigenous disadvantage.

Ultimately, deficiencies in monitoring
and evaluating processes for reconciliation indicate that there are
problems of accountability of governments for their contribution to
reconciliation. This lack of accountability allows governments to unilaterally
establish the boundaries of issues that they will address in the first
place and then to avoid public scrutiny when material improvements in
Indigenous well-being are not achieved and sustained. A number of recommendations
have been made throughout the course of this chapter to address this
situation (pp55-56).

Chapter 3: Indigenous participation in decision
making - Transforming the relationship between government and Indigenous
peoples

There has been increased attention over
the past year to the nature of the relationship between government and
Indigenous peoples. There has been a lot of talk from governments about
the need to change the way they interact with and provide services to
Indigenous peoples and communities. This has largely occurred as a result
of the significant policy focus of Indigenous peoples and governments
on capacity building and governance reform in recent years, progress in
2003 in advancing the whole-of-government community trials by the Council
of Australian Governments.

Debates during the year about the relationship
of Indigenous peoples and government have identified three key, inter-connected,
issues. First, the need to change the way government interacts with Indigenous
peoples. For governments, the emphasis here has been on the need to change
the way services are provided to Indigenous peoples, including through
improved coordination between governments and among government agencies.
Second, the need to build the capacity of Indigenous communities, coupled
with demands for improved corporate governance among Indigenous organisations.
Third, the need to review the structures and operations of ATSIC, such
as through introducing improved corporate governance mechanisms and by
making ATSIC more representative and participatory. Indigenous peoples
and governments alike have focused on the importance of these issues during
the past year. There are, however, differences on how to best address
these issues.

A relationship of dependence - Challenging the existing
service delivery approach

Indigenous peoples seek to challenge the
underlying basis of their relationship to governments in Australia. Indigenous
peoples have increasingly come to realise that the current system perpetuates
a cycle of dependency and is also not contributing to or promoting sustainable
improvements in Indigenous communities and individual well-being.

There are two levels of dependency:

• First, of Indigenous organisations to government agencies.
• Second, of Indigenous people to these organisations.
  The activities of Indigenous organisations are substantially defined
  and controlled by government decision making processes over which Indigenous
  peoples exercise minimal, if any, control. As a result, such organisations
  are based on non-Indigenous models of governance and do not necessarily
  reflect the priorities and needs of Indigenous communities.

Concerns about dependency on permanent government
service delivery are accompanied by concerns that this service delivery
model is not delivering long term and sustainable improvements in Indigenous
communities ... The current approach reduces the idea of development 'to
one of 'community development' devoid of any economic dimension' and provides
'little encouragement to Indigenous economic development since the resourcing
of Indigenous organisations does not increase with increases in economic
activity in their local area'. Service delivery of itself brings few economic
benefits (p61).

Indigenous people seek to move from a position
of dependency on government service delivery to being active participants
in governing their own communities. This requires a changed approach by
governments and Indigenous organisations and communities.

Overall, it requires two main but inter-related
changes. First, it requires changes to the approach of government to funding
in order to increase Indigenous participation and control. Second, it
raises challenges for Indigenous people to develop structures that are
capable of interacting with governments while also being representative
of and accountable back to Indigenous communities and people. This requires
building the capacity of Indigenous communities to be self-determining
as well as reforming the structures of ATSIC to provide effective representation
within government at the regional, state and national levels. It is this
second set of challenges that this chapter focuses on.

Facilitating Indigenous participation and moving beyond
welfare dependency - The government's 'shared responsibility' approach

[T]he government's approach, and their
efforts to date to engage Indigenous peoples, do not seek to transform
the existing model of service delivery to Indigenous peoples. Instead,
they focus on improving the effectiveness of the existing approach and
consequently, the outcomes achieved by it in relation to Indigenous
disadvantage ( p66).

The report notes that although government
has made a series of commitments in relation to the 'shared responsibility'
approach, it appears reluctant to relinquish any control over decision
making or resource allocation (pp 64 - 65). Other observations are that:

• The primary focus of the government is not on transforming
  the current approach, rather engaging Indigenous to make the system
  more responsive to their needs.
• It is not based on recognising Indigenous jurisdictions
  (and in turn on distinct Indigenous identities) or on sharing power.
• the government's focus in on achieving greater efficiency
  in service delivery, not radical change to existing financial commitments
  (p66).

Capacity building in Indigenous communities and governance
reform

The report identifies four main features
of the developments over the past few years relating to capacity building
and governance reform:

• The identification of significant capacity in
  Indigenous communities

The first is that much capacity at the community
level has been identified. A key challenge of reform is therefore to identify
existing capacity in Indigenous communities and to understand and deal
with the circumstances that prevent this capacity from being fully utilised
(pp 67-71).

• The importance of capacity building in building
  a more effective service delivery framework

There is a growing realisation of the integral
role that capacity building plays in addressing the deficiencies of the
existing service delivery approach. It is only when effective governance
strategies are in place that economic and other development projects have
the chance of becoming sustainable. In developing capacity, international
best practice and research suggests it is more productive for Indigenous
communities to focus on issues over which they already exert a high level
of control, rather than get embroiled in issues over which they have little
control (p72) .

• The importance of corporate governance standards

It is estimated that there are nearly 3000
associations incorporated under the Aboriginal Councils and Associations
Act (the Act). Whole Indigenous communities may be dependent on the
services provided by a corporation. The standard of corporate governance
thus has a major impact on service delivery and accessibility of programs
for Indigenous peoples. The recent review of the Act concluded it is out
of date and has now itself become a source of disadvantage for Indigenous
people (p73).

The corporation is not always a culturally
appropriate structure for Indigenous organisations. This cultural mismatch
is significant because incorporation is often 'involuntary', being a requirement
of legislative provisions and government policy. This:

• exposes Indigenous people to technical requirements they
  may not understand;
• forces together Indigenous groups which would not otherwise
  have joined together;
• can result in confusion as to proper roles as members
  of the community or group and as members of the corporation;
• has led to organisations being 'dominated by larger families'
  (pp 74-75).

Ultimately, incorporation had not contributed
to social capital and undermined existing capacities such that 'the effects
of this history now have to be 'undone'. On 15 January 2004, the Minister
for Immigration and Multicultural and Indigenous Affairs announced that
the government was shortly to introduce proposed legislative reforms to
the Act. The report supports such amendments, and recommends that amendments
must be subject to broad consultation into order to achieve an appropriate
'cultural match' with the needs of Indigenous people (p76).

• Definitions of capacity building and a reform
  agenda

[D]espite the convergence of views on the need for capacity
building and governance reform, there is no commonly agreed definition
of what capacity building is, nor an agenda for progressing capacity
building and governance reform in a whole of government and holistic
manner (p76).

The report notes there is no commonly agreed
definition of what 'capacity building' is and what a reform agenda based
on 'capacity building' should be. The lack of a common understanding promotes
policy confusion and has the potential to render commitments by governments
to support such processes meaningless. It also raises the possibility
that the emphasis of governments on capacity-building could amount to
nothing more than a bureaucratisation of what was formerly called community
development (pp 76-77).

ATSIC has developed an integrated framework
for progressing capacity building and promoting sustainable development
in Indigenous communities. There are three defining features of ATSIC's
approach:

• First, it is a people-centred approach focused
  on building the human and social capital necessary for Indigenous participation
  in programs.
• Second, it emphasises process elements such as access
  to choice, participation in planning, and access to decision making.
• Third, is a focus on sustainability, continually re-assessing
  whether a program or project can become self-sustaining (pp 82-85).

This framework highlights that there are
three levels of interventions for capacity development - the community
level; Indigenous organisations; and government level (including ATSIC).
There are different approaches needed for each level (pp 86-88). The report
recommends that this framework be adopted by COAG as part of its reconciliation
framework. The adoption of this framework would provide a focus to overcome
the concerns raised above.

Overall, ... there have been significant advances
in the past three years in relation to capacity building initiatives.
There is a broader acceptance of the need for capacity building and governance
reform within Indigenous communities and to changing the way that governments
go about delivering services. There is also a broader acknowledgement
of the breadth of initiatives currently underway to address the overall
circumstances of Indigenous peoples. This is let down, however, by the
lack of a consistent understanding of what capacity building entails which
promotes a more limited focus purely on the operations of existing service
delivery mechanisms.

The proposal of an integrated capacity development
approach by ATSIC demonstrates the potential for transforming the
relationship of Indigenous peoples and government through a focus on governance
reform and capacity building. It provides a holistic, whole-of-government
approach that serves as an agenda for change. The adoption of this framework
would not only provide a long term framework and vision for improving
Indigenous well-being, it would also ensure that all governments proceed
in addressing capacity development issues with a consistent understanding
of the goals and objectives of such a process. Many current initiatives
of governments - such as the COAG whole-of-government trials, proposals
to reform corporate governance standards relating to Indigenous corporations,
and agreement making with ATSIC - fit within or is consistent with this
integrated framework (p88).

The report makes 3 recommendations relating to capacity building and governance reform (recommendations 10-12).

Strengthening the role of the Aboriginal and Torres
Strait Islander Commission

In 2003, an ATSIC Review Team made 67 recommendations
which broadly address the reform of ATSIC and issues of the relationship
between ATSIC and Indigenous peoples, the federal government, the states
and territories, and between its elected and administrative arms (pp 94
- 95).

The Report supports the following recommendations
of the Review Team:

• to retain ATSIC's 35 Regional Councils and accord higher
  priority to the Regional Council planning process as the basis of national
  policies;
• to reunify ATSIC and ATSIS in one organisation;
• to retain the conflict of interest directions within
  ATSIC (p95).

In supporting the reunification of ATSIC
and ATSIS, I support the retention of the conflict of interest directions
within ATSIC by which ATSIC's elected representatives would continue
to set policy priorities and to decide the broad program allocation
of funding but not have any involvement in making individual funding
decisions. The reunification of ATSIC's structure would overcome a potential
tension that has been created through the creation of ATSIS whereby
it is required to 'take all reasonable steps to ensure that ATSIS conforms
to the policies and strategic priorities established by ATSIC' on the
one hand, and 'coordinate its activities to achieve effective synergies
with overall Government policies and priorities as well as have appropriate
regard to overall Government policies and priorities' on the other hand. (p95).

The report also identifies significant problems with the
proposals of the ATSIC Review Team:

I also have reservations about the Review
Team's proposals for the creation of a national body and national executive
in the format that they propose. I also consider that the Review Team's
model does not provide adequate support to ATSIC's national structure
and consequently would not provide ATSIC with sufficient leverage or
powers to undertake a broader role of monitoring performance by other
government agencies (at all levels) and in setting priorities to apply
across government.

I am also concerned that there are also
significant gaps in the Review Team's analysis which overlook issues
relating to the broader service delivery environment in which ATSIC
operates, as well as deficiencies in the model that it proposes. (pp95-96)

The report also notes the following concerns:

• The Review Team had on the one hand acknowledged that
  ATSIC has wrongly been used as a scapegoat for failures by governments
  in addressing key areas of Indigenous disadvantage yet on the other
  hand replicated this scape-goating itself (p96).

• The Review Team's report does not acknowledge the broader
  framework of government policy making and service delivery in which
  ATSIC operates. This includes recognition of the significant under-funding
  in key areas of Indigenous marginalisation, which is a key factor in
  preventing needs-based funding from being implemented (p96).

• The ATSIC Review Team fails to acknowledge a number of
  recent initiatives undertaken by ATSIC to reform the way that it operates
  and to advocate for changes to the way the existing service delivery
  environment operates (for example, ATSIC's Integrated framework for
  capacity building and sustainable development discussed earlier
  in this chapter).

• The Review Team's final report contains no detailed discussion
  and recommendations relating to supporting more flexible structures
  at the Regional Council level.

The Review Team's discussion paper devoted
significant attention to proposed reforms to strengthen ATSIC's Regional
Council structure. The ... final report contains no recommendations relating
to including provisions in the ATSIC Act to allow regional council structures
to evolve over the longer-term in accordance with the aspirations of
Indigenous peoples within the various council regions. Such proposals
have now been under discussion since the conduct of ATSIC's Section
26 review in 1998 and the regional autonomy consultations of 1999
and 2000 without result.

• The Review Team's proposals for ATSIC's national representative
  structures are flawed.

I note however that in general, there
is much potential in the Review Team's proposal that there be a new
mechanism such as the proposed 'national body' to involve Regional Council
Chairs in establishing national priorities and policies. It is desirable
that such a 'national body' determine ATSIC policy, primarily through
the development of a national plan which would be drawn from ATSIC Regional
Council plans.

It is fanciful, however, to suggest that
a national body comprised of such a membership and charged with such
responsibilities could effectively acquit their responsibilities to
Indigenous peoples through the national body, particularly when the
national body would only be meeting once every two years.

The infrequency of meetings of the proposed
'national body' combined with the reduced size of the national board
(or new 'national executive') could significantly impact on the ability
of ATSIC to advocate for reform at the national level, and on its ability
to develop national policies. This would consequently affect its ability
to influence the approach of other government departments and different
governments (pp98-99).

The report suggests that consideration
could be given to an intermediate position whereby the ATSIC Board of
Commissioners or equivalent 'national executive' is retained and charged
with the day to day responsibilities of advocating ATSIC's position
at a national level. Such a body would need to address issues of representativeness.
Such a body could then be supported by a national congress or 'national
body' made up of all Regional Council Chairs which meets with the Board
of Commissioners on a regular basis (perhaps 3 to 4 times per year)
to determine ATSIC's national policies and priorities (p99).

The report then proposes how ATSIC could
be reformed to meet the key objectives identified by the ATSIC Review.
This requires change to their powers at each of the national, state/territory,
and regional levels.

• Reform to ATSIC at the national level

There must be sufficient attention paid
to the importance of ATSIC maintaining a strong voice at the national
level. Any diminution of ATSIC's role at the national level will ultimately
affect its ability to influence the national policy agenda and will lead
to less effective advocacy for Indigenous peoples. This will be the case
even where a diminution of the national focus is accompanied by an enhanced
role for regional councils (p100).

ATSIC's existing powers should be enhanced by strengthening
the scrutiny role of ATSIC over service delivery and program design by
other government departments. This could be achieved through amendments
to the ATSIC Act which:

• empower ATSIC to set the objectives and guiding principles
  for service delivery to Indigenous peoples across all issues (which
  they can do under the present legislation), but also to empower them
  to be able to develop legally binding directions for service delivery
  agencies that accord with these principles;
• require the Minister to table in Parliament all such
  directions set by the ATSIC Board;
• provide that all directions issued by the ATSIC National
  Board and subsequently tabled in Parliament have the status of legislative
  instruments (or delegated legislation);
• require all government departments to include in their
  annual reports to Parliament information as to how they implement the
  directions of the ATSIC Board in delivering relevant services and programs;
• empower ATSIC to evaluate how government departments
  and agencies (at all levels) comply with these directions in delivering
  services;
• provide for regular scrutiny of compliance with these
  directions by the Australian National Audit Office or through an enhanced
  Office of Evaluation and Audit within ATSIC; and
• provide for scrutiny processes by the Parliament, including
  through ATSIC reporting to Parliament about deficiencies in department's
  complying with directions and for parliamentary committees to scrutinise
  the actions of departments through specific inquiries or senate estimate
  processes. (pp100-101)

• Reform to ATSIC at the state / territory level

The report supports enhancing the structure
of ATSIC for interface with state and territory government through improved
support for ATSIC's State Advisory Committees. In particular, the report
proposes a role for ATSIC's Office of Evaluation and Audit (OEA) in monitoring
state and territory level service delivery (p102).

• Reform to ATSIC at the regional level

The report supports the ATSIC Review report's
emphasis on the need for enhanced powers at the regional level and for
input from the regional and local levels to inform policy development
and decision-making processes at the state / territory and national levels
(p 103). The following issues must be addressed:

• The provision of the ability for regional councils to
  enter into agreements.
• The need to enhance the profile of ATSIC representatives
  at the state level to ensure that regional needs are prioritised.
• The creation of flexibility for regional councils to
  adapt to their local needs through developing alternative governance
  arrangements (p104).

The report highlights the need for flexibility
in developing new forms of governance and the unworkability of 'one-size-fits-all'
models (p104).

Overall, the report concludes on the need
for ATSIC reform that:

The ATSIC Review goes part of the way
to identifying an agenda for change to ATSIC ... There is, however, a need
to go beyond what the Review Team have proposed and ensure that there
is no relative weakening in ATSIC's national structure while also increasing
the focus on supporting innovation at the regional level. Reform of
ATSIC is a critical aspect in achieving the effective participation
of Indigenous peoples in decision making processes and supporting sustainable
development. The extent to which the government supports ATSIC over
the coming year to more effectively drive an agenda for change, including
by providing it with sharper legislative powers, will be the litmus
test of their commitment to achieving sustainable improvements in Indigenous
communities (p105).

Chapter 4: Responding to petrol sniffing on the
Anangu Pitjantjatjara Lands: A case study

[G]iven the smallness of the Anangu population, and
the proportion of petrol sniffers within it, why has there been so little
progress in addressing these problems, despite the plethora of governmental
service delivery agencies and committees already in existence? (p152).

Over the past year, there has been significant
concern expressed about petrol sniffing in Aboriginal and Torres Strait
Islander communities at the national level. The phenomenon of petrol-sniffing
is, however, not well-understood and there is no reliable national data
on the number of people involved and the extent of resulting damage to
individuals and communities.

There are, however, reported instances of
petrol sniffing being a significant issue in several Indigenous communities
across Australia. The limited research also suggests that there are different
patterns of use of petrol and other volatile substances by Indigenous
people compared to non-Indigenous people.

It has been argued that there are structural
problems in the way governments address issues of petrol sniffing in Indigenous
communities. Because of the lack of reliable data and the absence of any
powerful lobby groups or other agencies with the capacity to ensure that
petrol sniffing remains on the public agenda in anything more than a transient
manner, petrol sniffing as a public issue owes almost everything to media
outbursts. Petrol sniffing is, consequently, unlikely to become the subject
of a long-term, sustained policy focus.

In these circumstances, it is difficult
to consolidate an evidence base, to build and sustain links with existing
expertise, or to maintain extensive corporate knowledge on the subject.
By identifying petrol sniffing as an 'Indigenous problem' it has also
been marginalised as a policy issue, with the result that it has not received
the attention and resourcing that it may have if it had been positioned
within mainstream substance misuse policy frameworks.

Petrol sniffing on the Anangu Pitjantjatjara Lands:
A case study

In September 2002, the South Australian
Coroner brought down his findings in the inquests into the deaths of three
Anangu who were chronic petrol sniffers and lived on the Anangu Pitjantjatjara
Lands (AP Lands) of South Australia. Data collected in 2000 indicates
that, despite an overall decline in the 1990s, the number of people engaged
in petrol sniffing on the AP Lands has begin to increase in recent years.
Approximately 6% of the total Anangu population and 12% of the population
aged between 10 and 35 years of age were sniffers in 2000. Petrol sniffing
had caused at least 35 deaths in the last 20 years in a population of
between 2,000 and 2,500 (pp 118-120).

This report examines the implementation
of the Coroner's recommendations for addressing petrol sniffing issues
on the AP lands.

The findings and recommendations of the
Coroner can be grouped into two key issues:

• Coordination, funding and action by Government: Concerns were expressed about the failure of governments to
  consult appropriately and significant delay in implementing programs,
  with a need for governments to move beyond the 'information gathering'
  stage. The Inquest highlights the need for governments to re-assess
  their coordination of policy and funding approaches to service delivery
  on the AP Lands;

• Specific interventions for addressing petrol
  sniffing: The Inquest identifies the need to adopt a combination
  of primary, secondary and tertiary interventions relating to health
  and justice issues in order to combat petrol sniffing, combined with
  strategies to address the significant disadvantage and lack of services
  on the AP Lands, which forms the environment in which petrol sniffing
  takes place.

Overall, the report finds that:

The Coronial Inquest identified the need for 'prompt,
forthright, properly planned, properly funded action' and the importance
of effective inter-governmental coordination to achieve this and sustain
it into the longer term. In the year since the Coronial Inquest, there
has been some movement in this direction but overall not enough (p150).

There is no lack of inter-departmental and
inter-governmental forums for tackling issues relating to petrol sniffing,
with the existence over the past few years of the APLIICC (Tier One Committee
and Task Forces), CBRG, Petrol Sniffing Task Force (now submerged within
APLIICC Tier One Committee) and Tri-Jurisdictional Justice Group. The
COAG whole of government community trial is also now super-imposed over
these structures.

There have been some positive initiatives
emerging from these committees, such as the agreement to conduct a study
of demographics on the AP Lands and to explore coordination and sharing
of facilities and programs across the NT, SA and WA; the creation of an
Office of the APY Lands within the South Australian Indigenous affairs
department; the allocation of additional funding by the SA government
to address related issues on the AP Lands; and the creation of an Allocation
Committee to coordinate funding on the AP Lands. The decision to conduct
the COAG trial on the AP Lands is also a positive acknowledgement of the
urgent needs of the area and of the importance of governments changing
the way they work with the Anangu.

The establishment of these committees has
also been met favourably by communities on the AP Lands in general. However,
communities on the AP Lands have expressed concerns about the continuing
piecemeal approach to petrol sniffing and a reluctance to act by governments
in the twelve months following the Coronial Inquest. Governments cite
the intractable nature of the issue and the need for appropriate consultation
as reasons for the slow progress to date.

There is significant concern that the discrete
focus on petrol sniffing is potentially being obscured by the level of
bureaucracy. There is concern that petrol sniffing will be submerged within
a sea of other significant issues and not receive the focussed attention
called for by the Coronial Inquest and communities on the AP Lands.

Concerns that have emerged in the initial
twelve months since the Coronial Inquest include that the COAG trial might,
in the name of being more 'streamlined', in fact be distancing key representative
bodies on the AP Lands from service delivery and decision making as it
relates to substance misuse. This is particularly due to concerns about
the over-reliance on the APY Executive as the 'gateway' and peak body
representing all Anangu interests. This seems to extend beyond its community
acceptance and expertise. Significant concerns about its corporate governance
and service delivery performance have also been raised as related concerns.

There are also concerns that the emphasis
of the COAG Trial and these processes on community ownership obscures
the bigger picture of a lack of adequate and appropriate service delivery
and funding. The expectations that appear to be placed on the APY Executive
to take carriage and responsibility for issues, beyond coordinating consultations
and participating in priority setting, is indicative of this. The Coronial
Inquest makes clear the need for outside assistance and improved government
performance. This may be being obscured by the emphasis on joint responsibility.

There is also, however, optimism that the
COAG trial may ultimately breakthrough and achieve improved inter-governmental
and inter-agency coordination where it has not been achieved in the past,
and that it may result in greater accountability for all levels of government.
There is also hope that the involvement of the Commonwealth may also provide
greater leverage and ultimately achieve more effective outcomes. It is,
however, too early to say whether these potential benefits will be realised.

A barrier to achieving such results remains
the clear under-resourcing of service delivery on the AP Lands. The allocation
of nearly $12 million by the SA government specifically to petrol sniffing
related issues over the next 4 years is a welcome announcement. Concerns
have been expressed that this quantum may not be enough. There is a need
for ongoing assessment of the resourcing need, and for funding to be ongoing
beyond the 4 year budget cycle. In particular, there is concern at the
failure to date to fund projects beyond the pilot stage. The Coroner's
suggestion of moving to block funding on a triennial basis is aimed to
addressing this concern.

It remains of great concern that alongside
the establishment of the various committees and inter-governmental forums,
there is no clear, long term commitment to do whatever it takes to overcome
the petrol sniffing problem or movement towards establishing benchmarks
and targets towards this end. It may be that the Commonwealth government's
community participation agreement process (coordinated by ATSIC) may provide
a way forward in this regard.

At a practical level, there has been variable
progress in implementing initiatives at the primary, secondary and tertiary
intervention stages, relating to both health and justice issues. There
have been practical problems in placing youth-workers and a youth work
coordinator, with differing views as to the potential role of the CDEP
scheme, where such workers are placed and whether more part time appointments
would be more appropriate to the needs of communities. Significant issues
relating to homelands / outstations, a changed approach to child protection
issues and the provision of appropriate disability services and a secure
care facility for offenders remain under consideration or subject to feasibility
studies.

There have been positive developments relating
to service delivery with an increased presence of correctional services
officers, police and expansion of the community constable scheme as an
interim measure. This has resulted in an improved response time from police.
These issues require much greater attention, but there is greater optimism
about the ability of police to have a more effective presence on the AP
Lands, with consequent benefits for community safety.

The police continue, however, to face pressures
of being heavily relied upon in the absence of other necessary forms of
service delivery. Overall, there also remains a significant challenge
of balancing law and order responses with adequate provision of services,
particularly those which are health related.

Chapter 5: Addressing family violence in Indigenous
communities

There is no issue currently causing more
destruction to the fabric of Indigenous communities than family violence.
This has been acknowledged by all levels of government in recent years,
with a number of significant inquiries and initiatives undertaken or commenced
at the federal, state and territory level to address its impact.

Recent initiatives such as the Prime Minister's
family violence roundtable in July 2003 and subsequent commitment of $20
million as a 'down payment' to address family violence issues, the response
of the Western Australian government to the Gordon Inquiry's findings,
and the focus on family violence issues in several of the COAG whole-of-government
community trials, demonstrate a genuine commitment from governments to
address family violence issues. The report notes, however that:

The intensive scrutiny and public awareness of this
issue has not, however, led to sufficient commitments of resources and
effort to date. Nor has it led to continuous support for innovative,
community led solutions to address the violence or the adoption of an
holistic, coordinated approach to it. Overall, there is still not enough
action being taken to address this issue with the priority and urgency
that it requires (p155).

Indigenous perspectives on family violence

Indigenous concepts of violence are much
broader than usual mainstream definitions of domestic violence. Many current
approaches to family violence derive from a model of 'domestic violence'
- violence against women, underpinned by western models of female oppression.
These do not 'fit' Indigenous experience. The identity of many Indigenous
women is bound to their experience as Indigenous people. Rather than sharing
a common experience of sexism binding them with non-Indigenous women,
this may bind them more to their community, including the men of the community.
Indigenous people may also have a negative perception of police and welfare
authorities.

Indigenous women's experience of discrimination and
violence is bound up in the colour of their skin as well as their gender.
Strategies for addressing family violence in Indigenous communities
need to acknowledge that a consequence of this is that an Indigenous
woman 'may be unable or unwilling to fragment their identity by leaving
the community, kin, family or partners' as a solution to the violence (p159).

Liberal feminist approaches to domestic
violence also tend to emphasise the experience of the victim, as opposed
to the experiences of the perpetrator. This differs from an Indigenous
community-based perspective, which includes the issues of both perpetrator
and victim. Indigenous women are saying that men's issues must also be
addressed if real solutions are to be found and lasting changes are to
happen.

Of particular concern is that the typical
'western' response to family violence is to criminalise such behaviour
through specific domestic violence legislation, with the strong possibility
of imprisonment being the outcome for those convicted of offences. An
emphasis on criminal justice responses to family violence poses two main
concerns for Indigenous women. The first is that the system is generally
ineffective in addressing the behaviour of the perpetrator in the longer
term. The effect of imprisonment is to remove them from the community
and then, without any focus on rehabilitation or addressing the circumstances
that led to the offending in the first place, to simply return them to
the same environment.

The second is that there are a range of
barriers in the accessibility and cultural appropriateness of legal processes
which discourage Indigenous women from using the criminal justice system
in the first place.

It is not being suggested that incidents of family
violence in Indigenous communities should be condoned or that responsibility
of perpetrators be diminished. Instead, these barriers, highlight a
failure to acknowledge the unique characteristics of Indigenous family
violence has the potential to render approaches for dealing with this
violence ineffective, with the consequence that Indigenous women ultimately
do not enjoy the protection of the law. Accordingly, responses to family
violence in Indigenous communities need to be cognisant of these broader
issues and responsive to them (pp160-161).

The extent of family violence in Indigenous communities

There are significant deficiencies in the
availability of statistics and research on the extent and nature of family
violence in communities. An overview of recent statistics and research
into the extent and nature of Indigenous family violence is provided in
the report (pp161-168). What data exists suggests that
Indigenous people suffer violence, including family violence, at significantly
higher rates than other Australians do. This situation has existed for
at least the past two decades with no identifiable improvement.

Government Responses to Family Violence in Indigenous
communities

Addressing family violence is a shared responsibility
between all levels of government with prime responsibility resting with
health and community service agencies in federal, state and territory
governments. The report provides an overview of recent developments in
programs for family violence at the federal level and in all states and
territories. It particularly notes:

• the funding for 1000 CDEP placements in 2003-04;
• the Prime Minister's national roundtable on Indigenous
  family violence in July 2003;
• the development of ATSIC's National Family Violence Policy,
  which has since been endorsed progressively by regional councils and
  is intended to be supported by regional plans of action;
• Putting People First, the WA Government's implementation
  plan in response the Gordon Inquiry;
• developments in COAG trial sites, such as the focus of
  the Northern Tasmanian site on family violence issues.

The report also notes that failure of MCATSIA
to complete an audit of existing family violence strategies that it committed
to undertake in 2001 (p174).

Improving the programmatic responses to family violence
in Indigenous communities - Future challenges

• Promoting greater coordination and an holistic
  approach to family violence programs

There are a patchwork of programs and approaches
to addressing family violence in Indigenous communities among federal,
state and territory governments. There remains a lack of coordination
and consistency in approaches to addressing these issues between governments
and among different government agencies. Significant gaps also exist.

Existing family violence programs that are
available to Indigenous peoples are limited in number, ad hoc and
often of limited duration. Due to the inter-connections between family
violence and other issues faced by Indigenous peoples, work being done
at a grass roots level may also be overlooked and programs may not necessarily
be identified or identify themselves as violence prevention programs.
Proposed programs may also have difficulty obtaining funding, on either
a pilot or ongoing basis, due to the overlap in jurisdictional and departmental
responsibilities.

Three recurring strategic aspects need to
be present to address family violence in Indigenous communities, namely
that programs be community-driven; that community agencies establish partnerships
with each other and with relevant government agencies; and that composite
violence programs are able to provide a more holistic approach to community
violence (pp 183 - 184).

Review of existing approaches identifies
a critical need to adopt an holistic approach to the problem of family
violence and identifies the crucial importance of engagement with Commonwealth
and State government agencies and communities to work in partnership on
family violence strategies, as well as supporting and strengthening the
capacity of ATSIC Regional Councils to develop, implement and monitor
family violence action plans.

• Ensuring access to justice for Indigenous women

A matter of great concern in relation to
current debates about addressing family violence in Indigenous communities
is the lack of attention paid to issues of access to justice for Indigenous
women. ATSIC note that Indigenous women have been identified as the most
legally disadvantaged group in Australia. A matter of particular concern
is the limited ability of ATSIC/ATSIS, through its funding role of Aboriginal
and Torres Strait Islander Legal Services (ATSILS) to provide access to
justice for Indigenous women through legal representation and family violence
services.

ATSIC have introduced the Family Violence
Prevention Legal Service Program (FVPLS) as a response to Indigenous women's
lack of access to Legal Aid services. However with only 13 services across
Australia, they do not provide coverage to all regions. ATSIS notes that
'This relatively small and under-resourced program is unable to address
the barriers Indigenous women face in accessing Indigenous Legal Aid services,
nor to provide the range of legal services available through ATSILS'.

ATSIC/ATSIS note further that while they
and the ATSILS that it funds are committed to stamping out family violence,
the prioritising of scarce resources to criminal matters means that 'in
practice, victims are not assisted while those responsible, are'. Accordingly,
constraints of existing resources for legal support limits the capacity
of ATSIC/ATSIS 'to give its own policies concrete substance. This contradiction
will be overcome only through additional resourcing of ATSILS and Indigenous
women specific legal service providers'.

In the context of the increased focus
on family violence in recent years coupled with the lack of progress
in reducing the over-representation of Indigenous people in custody
in general, it is a matter of great concern that there is not a greater
emphasis on the legal needs of Indigenous women.

There is an urgent need to ensure appropriate
funding levels for ATSILS in order to provide a greater focus on the
legal needs of Indigenous women as well as a greater focus on preventative
action and community education. At the very least, there is also an
urgent need for the federal government to allocate additional, quarantined,
funding to expand the Family Violence Prevention Legal Service Program.
Such funding needs to be new money as there is clearly no capacity for
ATSIS/ATSIC, through its support for ATSILS, to re-allocate existing
resources (p186).

• Community justice responses to family violence

The criminal justice system is extremely
poor at dealing with the underlying causes of criminal behaviour and makes
a negligible contribution to addressing the consequences of crime in the
community. One of the consequences of this, and a vital factor that is
often overlooked, is that Indigenous victims of crime and communities
are poorly served by the current system.

Accordingly, the current system disadvantages
Indigenous people from both ends - it has a deleterious effect on Indigenous
communities through over-representation of Indigenous people in custody
combined with the lack of attention it gives to the high rate of Indigenous
victimisation, particularly through violence and abuse in communities.
Reform to criminal justice processes, including through community justice
initiatives, must be responsive to these factors.

The past decade has seen an increased emphasis
on restorative justice mechanisms for addressing criminal behaviour in
Indigenous communities to address the needs of victims (including of family
violence) as well as to make the system more meaningful to offenders.

There are numerous new initiatives in Australia
developing community based justice mechanisms for Indigenous people which
are based on restorative justice principles. Some of these processes,
such as Law and Justice Committees in the Northern Territory and Community
Justice Groups in Queensland incorporate an holistic response to family
violence into strategies for addressing offending in communities (pp 188
- 191).

The last two years has also seen the development
of community justice mechanisms for involvement of Indigenous peoples
in sentencing. Examples include the Ngunga Court and Ngunga Youth Court
in South Australia; the Murri Court in Queensland; the Koori Court in
Victoria and circle sentencing in New South Wales. Generally, these processes
seek to incorporate an Aboriginal traditional customary law approach to
the sentencing of Aboriginal offenders within the framework of existing
legislation. While there are variations between the various models, they
all involve Aboriginal Elders sitting alongside the magistrate to advise
on sentencing options, with members of the offender's family, the victim,
the victim's family and other interested community members participating
in the sentencing process.

These processes have been extremely successful
in their initial years. Currently, however, they are limited to dealing
with particular non-violent offences. Accordingly, offences relating to
violence and sexual offences cannot be addressed within these sentencing
processes.

Examples such as the Northern Territory
Law and Justice Committee and Queensland Community Justice Group approaches,
the roles and services established under ATSIC's Family Violence Prevention
Legal Service Program, and Canadian models for addressing sex offending
by Indigenous people suggest that the full potential of community justice
mechanisms for addressing family violence has not been explored sufficiently,
and may provide an appropriate way forward for addressing some aspects
of need (p191).

Conclusions

Overall, the report concludes:

[The] commitments and recent initiatives
by all governments ...are welcome and long overdue. As yet, they are not
sufficiently wide-ranging in their scope or effectively funded. There
are also significant gaps in service provision, including through a
general paucity of programs and lack of legal assistance to Indigenous
women in many areas. As a consequence, there remains a need for ongoing,
continuous support for innovative, community led solutions to address
family violence and the adoption of an holistic, coordinated approach
by governments. ATSIC's Family Violence Plan provides a platform for
improving this situation, with the development of regionally targeted
programs and action plans. The escalating and debilitating affects of
family violence on Indigenous people and communities requires urgent
attention (p191).