HREOC Social Justice Report 2002: Chapter 3 - National progress towards reconcilation in 2002 - an equitable partnership?
Social Justice Report 2002
Chapter
3: National progress towards reconciliation in 2002 - an equitable partnership?
Indigenous
policy within the broader context of strategic leadership for AustraliaImplementing
practical reconciliation1)
'Changing Direction', the 5-point plan2)
'Agreement making and sharing common ground'3)
Expenditure on Indigenous-specific programmes4)
The Council of Australian Government's reconciliation framework5)
The Government's Response to the Commonwealth Grants Commission's
Report on Indigenous Fundinga)
A minimalist response to symbolic issues
b) The perceived divisiveness of self-determination
c) An emphasis on perceived areas of agreement
d) Misrepresenting progress towards practical
reconciliationConclusion
In launching the
Social Justice Report 2001 in May 2002, I asked the question 'whatever
happened to reconciliation?' The findings of the Report were endorsed
by Indigenous leaders at a series of regional launches across Australia
who expressed concern at the lack of progress towards reconciliation.
[1] The lack of any formal response by the federal Government
(or in fact by any state or territory government) to the documents of
reconciliation produced by the Council for Aboriginal Reconciliation (the
Council or CAR) and to the recommendations of the Social Justice Report
2000 on implementing a human rights approach to reconciliation were
noted as outstanding issues.
Since those launches
there have been some significant developments in relation to reconciliation.
The concerns expressed in the Social Justice Report 2001 were acted
upon by the Senate which established a Legal and Constitutional References
Committee inquiry into national progress towards reconciliation in August
2002. The Committee will hold public hearings in the first quarter of
2003 and release its report at the end of March 2003. Since the establishment
of this inquiry, the Government has provided a formal response to the
Council for Aboriginal Reconciliation's documents. It continues, however,
to maintain that it has no obligation or intention of responding to the
recommendations of the Social Justice Report 2001.
The Government outlined
its approach to Indigenous affairs through a range of documents - principally,
speeches at national conferences by the Minister for Aboriginal and Torres
Strait Islander Affairs; responses to the CAR documents and the Commonwealth
Grants Commission's Report on Indigenous Funding; and through the
agreement of actions to be undertaken by the Council of Australian Governments,
particularly a commitment to undertaking ten whole-of-government community
trials and the establishment of an indicative framework for measuring
Indigenous disadvantage. In November 2002, HREOC convened a workshop on
benchmarking reconciliation and human rights to consider the implications
of these developments.
As noted in the previous
chapter, despite suggestions from the Government to the contrary, the
year 2002 has been one of 'business as usual' with a continuation, and
indeed refinement, of its 'practical reconciliation' agenda. This chapter
discusses the limiting parameters set by the Government for Indigenous
policy development and identifies how these fit within the Government's
overall policy approach. It also considers how their approach undermines
the equitable participation of Indigenous peoples in pursuing their own
development and empowerment. This is advanced through the Government's
continuing minimalist response to the symbolic dimension of reconciliation,
its affirmation of basic citizenship rights to the exclusion of inherent
Indigenous rights, the misrepresentation of Indigenous self-determination
as divisive, and a disingenuous emphasis on perceived areas of agreement
at the expense of continuing debate on other outstanding issues.
Chapter 4 then looks
specifically at the framework currently being developed under the auspices
of the Council of Australian Governments to measure progress in addressing
Indigenous disadvantage. The importance of this framework, being developed
by the Steering Committee for the Review of Commonwealth / State Service
Provision, cannot be underestimated. A range of concerns about the process
were identified, however, at the workshop on benchmarking reconciliation
and human rights which are discussed in chapter 4.
An overview of progress
in partnerships and agreement-making across the states and territories
is then provided in Appendix 1 of this Report.
Indigenous
policy within the broader context of strategic leadership for Australia
In November 2002
the Prime Minister released an important document identifying the long
term strategic goals and approach of the Government. Titled Strategic
leadership for Australia - policy directions in a complex world, the
document identifies what the Government sees as the key strategic issues
facing Australia. Surprisingly, the document does not make a single reference
to Indigenous peoples.
While reconciliation
had been identified by the Prime Minister as one of the Government's key
priorities during its second term of office, it is no longer identified
as a key priority or strategic direction for the Government. It is a very
telling omission.
The document identifies
the philosophical underpinning of the Government's approach to all policy
making as: self-reliance, equality of opportunity and equality of treatment
for all Australians, pulling together and having a go. [2]
It must be noted
that Indigenous peoples are not opposed to these four ideals. They share
them equally with the rest of society. They do so, however, as distinct
peoples with their own systems of law, culture and responsibilities. But
applied in an a-historical way, without acknowledging the systemic entrenched
marginalisation of Indigenous peoples, these values have the potential
to ferment intolerance towards the situation of Indigenous peoples.
This blind spot in
the Government's vision of an all-inclusive civil society has far-reaching
implications for Indigenous peoples. There is a very real danger that
the Government's strategic focus is moving towards issues which are of
marginal relevance to Indigenous peoples' circumstances, at the expense
of a more sustained focus on the distinct problems faced, perhaps uniquely,
by Indigenous communities.
A matter of grave
concern in this regard is the emphasis that the Government strategy places
on dealing with the consequences of an ageing population. It states:
The dramatic changes
in the structure and the composition of our population present many
challenges as well as opportunities for our country. The Intergenerational
Report, released by Peter Costello with the last Budget, was a very
important step in recognising and preparing for population ageing issues.
The report revealed that although Australia was relatively well placed
compared with other OECD countries we must act to ensure we maintain
this advantage. [3]
The fundamental importance
of dealing with an ageing population is indisputable. However, the lack
of attention to the implications of the most marginalised and disadvantaged
group in Australia facing a population explosion in young age groups is
a damning absence in this shift of focus to dealing with the consequences
of an ageing population.
This is a well-documented,
emerging crisis facing Indigenous policy design. The uniqueness and size
of the problem is demonstrated by considering the following information.
Since 1981, the number of deaths for the Australian population has increased
by an average of 1% per year, reflecting both the ageing and the increasing
size of the population. [4] In 2001, the median age at
death was 76 years for males and 82 years for females, an increase of
6 and 5 years respectively on the 1981 rates.
This compares with
the median age at death for Indigenous males of 52 years and 58 years
for females (i.e., 24 years less than their non-Indigenous counterparts).
[5] In addition not only is the Indigenous population
growing at a faster rate (2.3 per cent compared to 1.2 per cent annually),
but its median age is younger (20 years compared to 35 years) and nearly
twice as many Indigenous compared to non-Indigenous people are under 15
years of age (almost 40 per cent compared to just over 20 per cent). Similarly,
only 2.8 per cent of the Indigenous population are aged over 65 compared
to 12.5 per cent of the non-Indigenous population. [6]
This demographic
profile will make it difficult to maintain the current status quo of inequality
experienced by Indigenous people, yet alone prevent it from deteriorating
even further.
The lack of focus
on these issues is a disappointing and substantial omission from the Government's
strategic directions into the longer term. It is a matter of great concern
that a framework that focuses on individual empowerment, basic citizenship
rights and inclusiveness can so swiftly occlude the differences and inequities
experienced by the most disadvantaged group in Australia from the broader
policy making lens.
Implementing
'practical reconciliation'
The tone for government
policy on reconciliation over the past year was set when the Minister
for Aboriginal and Torres Strait Islander Affairs announced at the ATSIC
National Policy Conference in March 2002 that the Government was 'changing
direction' on Indigenous policy and proposed a '5-point plan' to underpin
Indigenous policy formulation. [7]
As noted in the previous
chapter, some of the key aspects outlined in this new agenda include:
- a rejection of
self-determination as the appropriate basis for Indigenous policy development; - an emphasis on
'inclusiveness', which is defined as 'sameness' and 'the freedom (for
Indigenous peoples) to make their own choices and to achieve the same
sorts of opportunities and outcomes as other Australians'; - support for Indigenous
peoples to have meaningful opportunities to exercise control over aspects
of their own affairs and to be engaged to the maximum extent possible
as partners in the design and delivery of services; and - the confinement
of such control within the context of citizenship entitlements and the
'same' benefits (or common rights) that all other Australians are entitled
to, and as not extending to anything that would result in any perceived
relinquishment of responsibility for and control over those aspects
of well-being over which the Government 'rightly has jurisdiction'.
[8]
It is ironic that
while promoting this agenda the Government has continually emphasised
its commitment to developing partnerships and to agreement-making with
Indigenous peoples. There is little evidence to suggest that the Government
is prepared to implement any measures to ensure equity of treatment for
Indigenous people as partners in these processes. Indeed, one of the distinguishing
features of the Government's policy approach over the past year has been
the clear lack of substantiated research and thorough consultation with
Indigenous people with negotiated outcomes.
The Government's
position on reconciliation can be identified from the following six main
processes and documents.
1) 'Changing
Direction', the 5-point plan
The 5-point plan
outlined by Minister for Aboriginal and Torres Strait Islander Affairs
reinforces the Government's minimalist policy agenda on practical reconciliation.
It is notable that the 'new' agenda announced in the speech was not based
on any consultation or negotiation with Indigenous people, apart from
the Minister's report of his own ad hoc discussions with Indigenous communities.
While the Minister claims he is putting forward his policy perspective
in 'a spirit of frank and honest debate, not a pre-determined prescription',
[9] he severely proscribes the parameters for discussion
to basic citizenship entitlements as they relate to the individual.
The Minister asserts
that the emphasis of the new agenda for Indigenous rights must be on the
achievement of individual citizenship rights in the domain of education,
health, housing, employment and a safe environment for families. The rights
to culture, to own land for cultural, economic and social purposes and
to contribute to environmental preservation are mentioned secondarily
to these. There is no acceptance of the importance of recognising inherent
rights such as native title and self-determination as the foundation for
protection of Indigenous property rights, culture and society. The focus
is effectively narrowed to delivery of outcomes in the context of citizenship
rights:
We must aim for
a future in which Indigenous people can share equitably in the social
and economic opportunities of the nation. But to make better gains we
need a far stronger focus on encouraging and supporting families to:-
- Become self-reliant;
- Take responsibility
for themselves and their families;- Contribute constructively
to their communities and the wider society. [10]
As discussed in the
previous chapter, self-determination as it occurs within the Minister's
model of an 'inclusive society' [11] is defined in
terms of individual rather than collective rights - that is, 'individuals
being able to determine their own destiny'. [12]
This approach admits
little difference between the exercise of rights promoted for Indigenous
and non-Indigenous Australians. The rights available to Indigenous Australians
are inflected with the same values that drive the Government's agenda
of policy reform across all sectors - those of self-reliance, equality
of opportunity and treatment, pulling together as a community, and having
a go. [13] Essentially these values permit an approach
to Indigenous policy development based on formal equality with only limited
recognition of cultural difference.[14]
This emphasis on
individual self-reliance and citizenship rights is clear in the Minister's
5-point plan. The five points are:
- A need to shift
the Indigenous policy focus to individuals and families; - Replacement of
welfare dependency with economic independence; - A need to recognise
a partnership of shared responsibility between governments and Indigenous
people; - An emphasis on
substance abuse; and - Targeting of
Indigenous-specific programme resources to areas of greatest need.[15]
Thus the Minister
explains that the goal of replacing welfare disadvantage with economic
independence is 'to liberate the individual from poverty and disadvantage'.[16]
Problems of corporate governance within Indigenous community organisations
become the rationale for a shift to individual and family rights. This
emphasis on the individual is pivotal to the Government's mutual obligation
approach to welfare reform, which also emphasises self-reliance and the
individual's relationship to the State as a locus for change and is a-historical
in its approach, giving little attention to the underlying causes and
socio-economic context of Indigenous disadvantage.[17]
The individualist
emphasis of practical reconciliation lays the foundation for the dilution
of anything that is particularly distinctive about Indigenous culture
within the context of capacity-building and governance. While family is
integral to Indigenous culture, and is a more appropriate focus than that
of the individual and in some respects, the community,[18]
there are little grounds for confidence that the Government's policy approach
to Indigenous affairs, as embodied in this speech and elsewhere will take
the specific family structures of Indigenous societies into account. The
Minister claims to endorse the Five Rights which form the basis of the
ATSIC Board's Indigenous policy and advocacy approach. These are headed
by the right of Indigenous peoples in Australia 'to maintain their distinct
identities as Aboriginal and Torres Strait Islander peoples'.[19]
But the Government's individualist agenda does not indicate any basis
for sustaining these identities or for participation in terms other than
those set by the western liberal democratic state.
This is evident in
the Minister's discussion of capacity-building and governance. Difficulties
with governance in Indigenous communities are related to the effects of
cultural disruption, alcohol and welfare dependency. Implementing change
requires:
Community partners
with sound local leadership and effective community management for the
reality to match the rhetoric. Today there are many Indigenous communities
where that capacity just isn't there. Tragically, all too often, community
capacity has been misappropriated in the pursuit of personal power and
advantage. Meeting these challenges is broadly defined as building community
capacity.[20]
This approach to
building community capacity presents a negative and reductive view of
Indigenous people which defines their communities and social organisation
in terms of poor management. The antidote put forward is an Indigenous
leadership involved 'not simply in terms of advocacy for their people,
but just as importantly as advocates to their people' who 'have recognised
the importance of acting on and emphasising personal responsibility'.[21]
Once again the mandate
is for individuals to be self-determining. There is no space permitted
for anything specifically Indigenous as the grounds for capacity-building
such as inherent rights to land, political status and the pursuit of economic,
social and cultural development. While good governance is integral to
any form of political, social or economic organisation, Indigenous or
non-Indigenous, corporate governance is not the only aspect of Indigenous
governance that needs to be taken into account. Corporate governance must
be accompanied by political, community and cultural factors. The respect
for individual autonomy at the expense of cultural autonomy in the Minister's
speech erodes the basis for Indigenous self-government in self-determination.
The place for the recognition and protection of Indigenous social and
cultural structures and the capacity for Indigenous people to determine
their own forms of governance is immediately sidelined. The Government's
policy position on Indigenous affairs remains one of assimilation into
the mainstream population.
This approach is
underscored by a skeptical allusion to the potential for the rights agenda
to support Indigenous self-government. The Minister states: 'When some
people talk about rights, they talk about structures, they talk about
bureaucracy, they talk about separate entitlements'.[22]
As I discuss below in regard to the Government's Response to the CGC Report,
fiscal responsibility is essential to Indigenous self-determination and
self-government - and for that matter, to any serious agenda of self-management
and empowerment. The rights agenda presented by the Minister's speech
effectively strips away the right of Indigenous Australians to define
their own destiny, governance and culture as autonomous peoples and promotes
their absorption within rather than their co-existence with the Government's
neo-rationalist conception of society as an 'aggregation of individuals'.[23]
2) 'Agreement
making and sharing common ground'
In his speech at
the ATSIC National Treaty Conference in August 2002, titled 'Agreement
making and sharing common ground', the Minister refuted claims that the
Government's approach to Indigenous policy was underpinned by notions
of assimilation. He argued instead that his agenda was sourced in the
ideal of an inclusive society:
Australia can only
claim to be a truly inclusive society when Indigenous Australians have
the freedom to make their own choices and to achieve the same sorts
of opportunities and outcomes as other Australians. When I have used
the term inclusiveness before, some commentators have confused this
with the old assimilation policies of the past. That is not what I am
saying at all. The Government recognises the special place that Indigenous
people occupy in this country as the 'first Australians'. We believe
that Indigenous Australians must be able to enjoy the same rights and
responsibilities as other Australians. Indigenous Australians should
have the opportunity to enjoy their own culture and to share the benefits
and responsibilities that this country offers to all citizens. By inclusiveness
I mean embracing and celebrating differences because it is those differences
that determine what we are as a nation.[24]
While this argument
emphasises the citizenship rights available to Indigenous Australians
it does not elaborate what recognition of the special place that Indigenous
peoples occupy as the 'first Australians' or recognition of Indigenous
culture might entail. Indigenous Australians are permitted to enjoy and
celebrate their culture but there is no clear indication that their culture
will be recognised as a source of legitimate rights that can provide the
basis for the recognition and protection of Indigenous land and heritage,
Indigenous use of resources, Indigenous art and intellectual production.
The offer of inclusiveness
to Indigenous Australians without consideration of the rights and values
inherent within Indigenous cultures sounds all too much like invitation
to conform to mainstream Australian society without extending a reciprocal
invitation to non-Indigenous Australia to examine its relationship to
the Indigenous population. Inclusiveness as defined in the Minister's
speech is potentially a form of neo-assimilation. Essentially, the Government
is not prepared to validate Indigenous culture by creating a space for
Indigenous peoples to define culture and society in their own terms.
The Council for Aboriginal
Reconciliation's documents of reconciliation and proposed reconciliation
framework legislation provided processes for the Government to consider
for the recognition and protection of Indigenous rights. The rejection
of these by Government, most recently in its response to the CAR's final
report, will be discussed in further detail below.
3) Expenditure
on Indigenous-specific programmes
A major component
of the Government's approach to reconciliation is its reference to the
record high levels of expenditure on Indigenous affairs. In the 2002-03
Budget this record expenditure reached $2.5 billion on Indigenous-specific
programmes. Most of the increase on previous years was a flow-on from
the $327 million of initiatives over 4 years announced in the 2001-02
Budget.
As I noted last year
in regard to Budget 2001 this injection of additional funding still falls
a long way short of the necessary funds projected to meet outstanding
deficits across a range of key areas. For example, in the area of housing
$75 million has been provided over 4 years to address an estimated deficit
of $3 billion. In health, $4 million is provided over 4 years against
an estimated required minimum of $245 million per annum. Native title
representative bodies receive $17.4 million of the $86 million for native
title funding, regardless of the economic disparities between Indigenous
and other parties in the native title process and despite the fact that
Indigenous participants in the system are the only ones who are required
to use an outcome-based criteria for funding: 'other (non-Indigenous)
parties receive funding to engage in mediation or negotiation without
regard to outcomes'.[25]
The Budget also did
not provide any increase in the Government's existing allocation of $11
million funding for Indigenous-specific family violence projects over
a four-year period, despite the intense media attention given to this
subject over the past year and the Government's use of this issue to reinforce
its call for a practical reconciliation. Instead the Senate Estimates
process revealed that the Government underspent $4.3 million under the
Office for the Status of Women's program for domestic violence. ATSIC
spent $4.9 million on Indigenous family violence issues and claimed that
they could easily have spent the extra $4.3 million on programs to improve
community safety for Indigenous women and children.[26]
While violence in
Indigenous communities was a high profile issue in 2001, the amount of
public policy attention given to this issue is beginning to wane. Of note
are the findings of Putting the picture together, the Western Australian
Government's Inquiry into Response by Government Agencies to Complaints
of Family Violence and Child Abuse in Aboriginal Communities (the Gordon
Report) which indicated that:
- Indigenous women
account for as much as 50 per cent of all domestic violence incidents
even though they account for less than 3 per cent of the population; - Indigenous women
are 45 times more likely to be victims of violence than non-Aboriginal
women and 10 times more likely to die as a result; and - The level of substantiated
child abuse is over seven times the rate of non-Indigenous communities.[27]
Similarly, while
the Cape York Justice Study found a strong interrelationship between
the incidence of violence and alcohol and substance abuse, it also found
that the operation of the justice system only intensified these problems
and did not allow for the communities themselves to address justice issues.
Reconciliation Australia
stated in their Reconciliation Report Card 2002 that progress had
been slow in addressing family and community violence, despite COAG's
commitment to leadership in preventing violence in November 2000. Progress
in responding to Reconciliation Australia's call for an audit of services,
capacity-building and identification of best practice models for addressing
violence has been particularly slow. Co-Chair Jackie Huggins commented
that: 'it is 15 months since Reconciliation Australia made this call -
and was widely supported for doing so - but agreeing on what should be
done, and how, has become "mired in process"'.[28]
4) The
Council of Australian Government's reconciliation framework
There have been three
main developments at the inter-government level in the past year. These
are the submission of COAG's progress report for 2001; the commissioning
of the Steering Committee for the Review of Commonwealth/State Service
Provision to produce a regular report against key indicators of Indigenous
disadvantage; and the establishment of a trial of a whole-of-governments
cooperative approach in up to 10 Indigenous communities or regions.
The COAG Reconciliation
Framework: Report on Progress in 2001 (Progress Report) was released
subsequent to the COAG communiqué of 5 April 2002. The report gives
details of the progress made by governments in addressing the COAG priorities
of leadership, reviewing and re-engineering programmes to assist Indigenous
families and promoting Indigenous economic independence.
While there is evidence
of much good will in the Report, there is yet to be substantial progress
made in addressing Indigenous disadvantage. Much of the Progress Report
is devoted to detailing initiatives that are already in train and which
consequently, have not necessarily been driven by COAG's priorities or
commitments. These initiatives include the Cape York Justice Strategy,
the Mutitjulu Community Participation Agreement, and the Victorian Aboriginal
Justice Agreement.
Of particular concern
are the developments (or lack of them) in regard to reporting Indigenous
data and the establishment of action plans by each of the Ministerial
Councils under COAG. This is in keeping with the Government's repeated
tardiness in developing adequate forms of monitoring for reporting on
Indigenous data and progress in overcoming disadvantage.[29]
As ATSIC Chairman Geoff Clark observes, the COAG Reconciliation Framework
progress report 2002 is 'evidence, moreover, that government rhetoric
is outpacing its ability to deliver'. [30] The next
progress report is to be submitted by the end of 2003.
The April 2002 COAG
meeting agreed to commission the Steering Committee for the Review of
Commonwealth/State Service Provision (SCRCSSP) to develop a framework
for reporting on key indicators of Indigenous disadvantage. This responsibility
had originally resided with the Ministerial Council for Aboriginal and
Torres Strait Islander Affairs (MCATSIA) prior to being transferred to
the Steering Committee. I have been critical of the lack of capacity of
MCATSIA to provide an appropriate, effective monitoring mechanism for
progress on Indigenous issues (such as responding to Bringing them
home) and so welcome the transfer of responsibility to the independent
Steering Committee.
The Steering Committee
will publish a Framework for reporting on Indigenous disadvantage in
August/September 2003, which will be included in the COAG report on reconciliation
in December 2003. It is intended that the framework will provide a regular
focal point for the assessment of progress on reconciliation in relation
to eight strategic areas for action. It is holistic in its intent and
does not seek to provide indicators which relate purely to one issue or
department's activities. It is anticipated that the reporting under the
framework will facilitate debate about the adequacy and appropriateness
of policies and programs in functional areas. The details of the proposed
model are discussed more fully in chapter 4.
At this stage, the
proposed framework provides - in addition to the Social Justice Reports
and Reconciliation Australia's annual report cards - the only evaluative
mechanism on the Government's progress towards practical reconciliation.
While the framework is an important development, it is of great concern
that it is not accompanied by other processes which ensure sufficient
and appropriate Indigenous participation in setting priorities and qualitative
monitoring processes. As a result, the framework as a stand alone mechanism
has the potential to reinforce practical reconciliation and marginalise
further issues of significance to Indigenous peoples.
The implication of
the framework in its present form is that issues of governance and capacity-building,
for example, are to be defined, as in the '5-point plan', in myopic and
culturally-reductive terms of individual citizenship rights and the western
nuclear family structure. Other concerns include fears that that the framework
may be too sterile or generic and requires qualitative contextual discussion.
A comment made on the framework at HREOC's Benchmarking Reconciliation
workshop was that the framework does not seem to grapple with the issue
of culturally appropriate service delivery mechanisms, with the danger
that it could reinforce the status quo rather than challenge institutions
to change.
The framework also
needs to negotiate the continuing problems with data availability and
statistical collection, differentiation between population groups, and
linkage with other reporting processes. In the case of the latter, it
has been suggested that there should be a third tier that is tied to service
delivery, although this could also be appropriately covered under the
Ministerial action plans process. The role of the private sector in responding
to Indigenous disadvantage and how this can be reported on also needs
consideration.
Another concern expressed
at HREOC's workshop was that this framework, with its emphasis on reporting
lacks and deficits in regard to policy and program areas impacting on
Indigenous disadvantage may in time become an 'annual misery index'. It
was noted that the decision-making process for the framework is non-Indigenous
at all stages, and proposed that Indigenous participation be ensured in
negotiating the framework. These issues are considered further in chapter
4 of this Report.
A third initiative
announced by COAG during the year was a trial of a 'whole-of-government'
approach to service delivery in ten Indigenous communities. This initiative
involves cooperation across government agencies under the leadership of
a taskforce directed by a group of Commonwealth departmental secretaries,
also includes ATSIC representation.
Communities are selected
as a result of consultation between state and federal governments, local
governments and the communities themselves. This process includes establishing
the focus of joint action within the particular jurisdiction. It is driven
by the concept of shared responsibility and aims to evaluate whether a
focused and coordinated approach can make a difference to specific communities
or areas. The departments involved have pooled funding for the task force's
administration of the project. Development of an evaluation framework
for the trials is currently in progress.[31]
The first trial has
commenced in the Cape York region under a partnership between the Commonwealth
and state governments and the local communities, and a second has begun
in the Wadeye community in the Northern Territory under the direction
of the Department of Family and Community Services. It is understood that
the third trial will be in the Murdi Paaki ATSIC region in Western New
South Wales.
This is a significant
and commendable initiative. However, the impact of duplication and poor
coordination services at an interagency level on service delivery to Indigenous
communities have been observed for some time in regard to increasing levels
of Indigenous disadvantage.[32] ATSIC Chairman Geoff
Clark comments in the ATSIC Annual Report 2001-2002:
ATSIC has consistently
advocated the need for whole-of-government coordination and the primacy
of Indigenous decision-making within programs. What the Minister for
Indigenous Affairs calls a 'new direction' is in fact a repackaging
of directions that have been pointed out by our community and in a multitude
of reports stretching back many years.[33]
In fact a range of
approaches, including partnerships, agreements and governance arrangements,
have been proposed with the aim of improving the service delivery environment
for Indigenous Australians, most recently the Community Participation
Agreements (CPA) being trialled by ATSIC as part of the Budget 2001 welfare
reform package.[34] The Mutitjulu CPA, which was discussed
in the chapter on governance and capacity-building in last year's Social
Justice Report, has since been discontinued. This is no small part
due to inflexibility and unwillingness to change current service delivery
approaches at the federal level.
ATSIC are currently
involved in the early stages of consultation and implementation with a
further fifteen to seventeen communities nationally for CPAs. They are
considering similar arrangements for five communities in the Tjarabalan
region in Western Australia and for three communities at Cape York. There
are plans to establish up to twenty CPAs by the end of 2002-03.
In order to avoid
replication of past problems it is crucial that the fundamental issues
concerning Indigenous service delivery be addressed and factored into
the trial's processes and evaluation framework.[35]
In the context of
the whole-of-government community trials, it is essential that the rights
and autonomy of Indigenous partners must be respected to ensure effective
participation. This means establishing Indigenous ownership of processes
and structures involved in modelling, and the relationship of Indigenous
kinship and authority to these. As the Social Justice Report 2001 commented
in regard to the CPA modelling:
it is important
that some of the more fundamental issues concerning the respective roles
and authority of Indigenous, government and other partners are re-visited,
or in time these new models may run the risk of becoming yet another
case of a failed Indigenous policy initiative and a further source of
'blaming the victim'.[36]
The other side of
the partnership requires clarity, consistency and continuity of commitment
on the behalf of participating government agencies. Diane Smith made the
following observations about interagency involvement in the context of
the Mutitjulu CPA:
Departmental coordination
has been an oft-stated government policy objective that has worn thin
from overuse and under-implementation. One has to question whether it
is a real possibility, or whether is it merely serves as a convenient
placebo for lack of capacity to deliver on the part of government and
its departments. These agreements will constitute a challenge to the
capacity of ATSIC, DFACS, Centrelink and DEWRSB, in particular, to formulate
the coherent enabling policy and consolidated program platform that
are needed.[37]
Smith's comments
are relevant to arrangements such as CPAs and the whole-of-government
community trials where departmental coordination is pivotal. The Government
and other commentators have been eager to impress the need for Indigenous
communities to take responsibility in overcoming disadvantage and its
related problems. Equal emphasis needs to be given to the responsibility
of governments and government departments and agencies in improving their
performance in regard to Indigenous communities.
One of the observations
made at HREOC's workshop on benchmarking reconciliation was that if a
whole-of-government approach is to be implemented properly through these
kind of initiatives, agencies need to overcome a 'silo effect' in terms
of their communication and negotiation with Indigenous communities and
with each other. Another important aspect of interagency involvement is
the maintenance of continuity of corporate knowledge in this area, including
awareness of the specific needs and cultural issues relevant to Indigenous
communities. The development of partnerships, agreements and other capacity
building and governance arrangements also needs considerable time investment,
including commitments to meeting assessable goals and objectives over
a set time-frame.
A further issue that
models such as the CPA initiative and the whole-of-government community
trials highlight is the need for a longer term commitment such as a five
to ten year funding period to make any inroads on current disadvantage.
Long-term funding commitments would further require support across successive
terms of governments such as bi-partisan agreements for improving Indigenous
capacity-building and governance.[38] Modelling processes
should also be flexible enough to accommodate investigation of new funding
and governance arrangements, and make recommendations for legislative
reform to support these where necessary.
In addition, the
need to establish protocols and principles for negotiation with Indigenous
communities is vital in ensuring equity in processes of consultation and
negotiation. Some examples of principles for negotiation with Indigenous
peoples are those put forward to Government by ATSIC, CAR and HREOC as
part of the social justice package proposals in 1995 and the use of human
rights principles for negotiating framework agreements for native title
in the Native Title Report 2001.[39] Ultimately
trials and models such as the COAG whole-of-government initiative and
the ATSIC CPAs may further require recognition that extensive participation
by Indigenous peoples and partnership with government in regard to governance
and capacity-building cannot be countenanced without consideration of
the dimension of self-determination and self-government.
5) The
Government's Response to the Commonwealth Grants Commission'
Report on Indigenous Funding
The Commonwealth
Grants Commission's (CGC) inquiry into Indigenous funding and subsequent
report have been of enormous value in identifying the limitations and
problems of Indigenous service delivery and inter-governmental relations.
The Government responded
to the CGC's report in June 2002. It welcomed the Commission's Report
as:
a watershed
moment in documenting and analysing the available information on the
supply of and demand for programs and services for Indigenous people.
The Government also sees the report as providing a valuable basis for
the further development of evidence-based policy in Indigenous affairs.[40]
The Government noted
that its response to the CGC Report built on the Government's commitment
to address the underlying and contemporary causes of Indigenous disadvantage,
not just its symptoms.[41] That commitment is founded
on a partnership with Indigenous people and follows a number of key themes,
including taking a whole-of-government approach by involving all relevant
portfolio Ministers and the States and Territories, working within the
reconciliation framework set down by the Council of Australian Governments
(COAG).
The Government observed
that the Report provided a valuable basis for development of evidence-based
policy in Indigenous affairs. It contains a number of important undertakings
and commitments, which are made in the context of 'principles for equitable
provision of services to Indigenous people'. These principles build on
the understandings developed through the work of the CGC and others in
identifying the basic requirements and parameters for effective and equitable
approaches to addressing Indigenous disadvantage. As such, the Principles
set an agenda that provides an accountability framework for Government.
The issue, as has been the case in the past, will be whether the rhetoric
will be matched by action and by the level of priority accorded to these
matters. The Principles are set out below:
|
Principles 1. The design 2. The development 3. Access to 4. Mainstream 5. The resources 6. Where mainstream 7. Overall 8. Coordination 9. Improving 10. Data collection |
A concern about the
Government Response to the CGC is that it is confined to issues that fall
within the 'practical reconciliation' agenda. The Government response
states at the outset that 'the CGC report includes findings and makes
observations that go beyond the terms of reference for the inquiry. [The
Government's] response
is limited to those matters that are within
the terms of reference'.[43]
The terms of reference
for the Inquiry were limited to 'determining relative need on the basis
of geography and constructing distributional funding models'.[44]
The Commission had noted that:
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]
However, 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.[46]
The report had proposed
a wide range of processes for developing Indigenous community capacity
and creating a role for Indigenous communities in controlling service
delivery processes. These conclusions and associated recommend-ations
by the CGC are not responded to by the Government.
The continued narrowing
of the Government's focus on Indigenous funding to consideration solely
of relative need means that some important issues highlighted by the CGC
Report are largely disregarded.
The CGC Report found
that there were both practical and conceptual difficulties with the notion
of applying a formula-based approach to allocation of Indigenous funding
using indexes of relative need. Significant factors here include the lack
of comprehensive, comparable and up-to-date data necessary in order to
construct suitable regional indexes of relative needs. The notion that
resources can be redistributed on the basis of relative need presupposes
that there is 'a reasonably proportional relationship between the relative
needs of the regions and their relative requirements for funds
[when]
the requirement for funds are complex and are unlikely to be proportional'.[47]
The Report notes
that: 'A question arises as to whether a needs based allocation of resources
should be aimed at assisting the region where, on average, people are
more disadvantaged; or the region with most disadvantage, even if the
individuals in that region are relatively better off'.[48]
It highlights the
complex interplay of the following issues:
(i) Needs are met
by mainstream and Indigenous-specific programs are funded by the Commonwealth,
the States, local governments and non-government organisations. Modelling
allocations of Commonwealth funds, therefore, requires assumptions about
the co-ordination, level and distribution of the funds from the other
sources.(ii) Local cost,
efficiency and effectiveness factors influence the types of services
and the service delivery processes that best meet needs in each region.(iii) Needs in
each function are affected by activities, or the lack of them, in other
functions.(iv) The links
between the funds made available to meet needs and the resulting changes
in outcomes are not measurable.[49]
The Commission found
that Indigenous Australians did not access mainstream services at the
same rate as the non-Indigenous population. The lack of coordination of
the mix of Commonwealth and State mainstream and Indigenous-specific programs
creates further problems for the development of an equitable formula based
on relative need. This is exacerbated by economic, demographic and geographic
differences between regions.
In noting the inevitable
use of value judgments in decision-making about funding priorities, the
CGC Report observes that the Indigenous perspective may differ from that
of non-Indigenous people: 'For example, an Indigenous perspective of health
status is broader than physical health status and includes emotional,
social, spiritual and cultural wellbeing. In addition, Indigenous people
in metropolitan areas may have different views from those in remote areas'.
[50]
The historically-entrenched
poverty and socio-economic marginalisation faced by Indigenous peoples
also has significant ramifications for their relationship to government
programs and services in contrast to other societal groups: their reliance
on government service provision will necessarily be greater until they
reach a higher degree of economic and financial self-sufficiency.
All of these factors
point to the need to extend the scope of the Inquiry beyond the focus
on relative needs in the original terms of reference. Thus the CGC Report
observes that the extent to which redistribution is beneficial is questionable:
Large redistributions
risk losing the benefit of investments made over a number of years,
including those in developing organisational capacity and people. That
is, real costs of such redistribution may be high. In these cases it
might be more appropriate to maintain the existing distribution of current
resources and apply new distribution approaches to new and expanded
funds if and when they are made available.[51]
The Government Response
to the CGC does however acknowledge the difficulty in constructing regional
indexes of relative needs because of the absence of adequate data. It
accepts:
the CGC's
approach of defining need in terms of outcomes and notes that it is
difficult to develop purely mathematical measures of need, primarily
because of the absence of adequate and reliable data. The Government
is committed to improving data quality and availability in order to
improve the policy base and services.[52]
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. [53]
In committing to
a focus on outcomes, the Government Response to the CGC Report agrees
that 'in targeting resources to achieve identified outcomes, judgements
need to be made about which aspects of those outcomes are more important
and more relevant to Indigenous people'. [54] However,
a clear basis needs to be established for ensuring effective participation
by Indigenous peoples:
A final critical
dimension that also affects the resource allocation decision is the
question of the role and responsibility of the Indigenous community
as a partner in this process. The absence of a simple relationship between
need and resource allocation means that the Government and its agencies
must make judgements when they appropriate resources for Indigenous-specific
programs and when they distribute those resources on a regional basis.
[55]
The Government's
response notes the need to use evidence-based decision-making, for decisions
not to 'be unduly influenced by historical practice' and for decision-making
to be 'not just in terms of sectoral specific geographic allocative issues,
but also in terms of funding allocation across sectors'. [56]
Despite the difficulties surrounding the relationship between need and
resource allocation it is important that the Government not repeat the
mistakes of past policy makers and that in seeking to make mainstream
services genuinely more responsive to Indigenous peoples, it builds a
partnership that is grounded in standards of equity, effective participation
and self-determination.
The Government Response
states that where mainstream services are available, Indigenous Australians
'should enjoy the same needs-based level of access to mainstream services
as other Australians. This is a basic citizenship right'. [57]
Beyond this principle the response looks to maximising outcomes from the
Indigenous-specific expenditure available.
Commenting on the
CGC Report's observation that it is simplistic to expect that mainstream
services be the primary providers for Indigenous peoples in urban areas
and Indigenous-specific programs for remote areas, the Government Response
suggests that:
the key consideration
is the extent to which services are routinely available to the general
population. Where those services are generally available in a remote
area, access issues should be addressed by adjustments to mainstream
services... Need should be addressed through an appropriate mix of mainstream
and Indigenous-specific services determined by careful consideration
of the causes of disadvantage and barriers to access to services. [58]
This observation
fails to engage with the CGC Report's findings about the limitations that
a focus on relative need sets on equitable redistribution of funds in
overcoming Indigenous disadvantage, especially in regard to the needs
of the non-Indigenous population.
ATSIC Chairman Geoff
Clark comments that:
ATSIC has consistently
advocated for increased funding to Indigenous programs given the extent
of the need. Nevertheless, the CGC was pointedly asked not to examine
absolute Indigenous need, but to compare the needs of different groups
of Indigenous people. Tony Fitzgerald was tasked with making recommendations
for change on Cape York based on 'the smarter use of existing State
resources'. However, both these examinations ultimately had no choice
but to acknowledge an absolute inadequacy of resources. [59]
From a human rights
perspective, the Government Response exemplifies the problem with a focus
on basic citizenship rights. In determining outcomes that are sensitive
over the long-term to meeting the specific needs of Indigenous peoples
and to addressing underlying disadvantage and discrimination, it is insufficient
to set accessibility of services to the general population as the benchmark.
A framework for benchmarking
progress in overcoming Indigenous disadvantage could more profitably be
modelled on that proposed in the Social Justice Report 2000, [60]
which uses an inequality perspective to measure the disparity between
different social groups and whether these disparities have increased or
decreased over time. This would of necessity involve not only assessment
of any inefficiencies in Indigenous-specific expenditure, but re-evaluation
of the parameters set for Indigenous-specific funding.
The principles for
equitable provision of services to Indigenous peoples put forward by the
Government Response to the CGC could also be aligned more strongly with
a human rights framework that sets benchmarks for progressive realisation
of rights in addressing poverty and disadvantage. Such a framework could,
for example, assist in clarifying the outcomes to be achieved by a policy
approach for addressing Indigenous disadvantage and provide benchmarks
for measuring progress in addressing inequality within a long-term perspective.
As the principles currently stand it is difficult to see how they can
ultimately be effective in addressing Indigenous disadvantage.
For example, while
the principles support a long-term perspective on Indigenous service delivery
needs and 'access to services
on the basis of need and equity to
all Australians, including Indigenous Australians, with a clear focus
on achieving measurable outcomes', there are difficulties in achieving
either without an equality perspective that takes into account absolute
need. [61] Without proper Indigenous participation in
setting outcomes and benchmarking against the needs experienced by the
non-Indigenous population, it is unclear how long-term change can be effected.
Ultimately such an approach will have ramifications not only for service
delivery but for sustainable capacity-building in Indigenous communities.
The CGC Report cautions that:
Indigenous people
in all regions have high needs relative to the non-Indigenous population.
An important question is whether new methods of distribution should
be applied to existing programs and funds. Any change in methods of
distributing existing resources means that some regions would lose funding
and others would gain. Large redistributions risk losing the benefits
of investments made over long periods of time, including those in developing
organisational capacity and people. The reals costs of redistribution
may be high. [62]
6) The
Government's Response to the Council for Aboriginal Reconciliation's Final
Report - Reconciliation: Australia's Challenge
When the Government
Response to CAR's Final Report was released, the accompanying media release
suggested that the Government's position on reconciliation is congruent
with that of CAR's: it was titled 'Reconciliation Council's Report highlights
practical approach'. [63] However, the Government's
Response to CAR's Final Report is certainly not representative of the
content of CAR's recommendations. In fact it responds to only one of the
Council's six final recommendations, and it outright rejects one of its
four, integrated national strategies.
It states the Government's
position on reconciliation as follows:
The Government
believes that the key to continuing progress is a commitment by all
Australians to achieving reconciliation through addressing disadvantage
and by improving community attitudes and understanding. All Australians
have a responsibility in this regard and the Government gladly adopts
a driving role. The Government will maintain its commitment to the implementation
of practical and symbolic measures which have a positive effect on the
everyday lives of Indigenous AustraliansThe Government
maintains that the things that unite Australians are infinitely greater
and more enduring than the things that divide. And so it is in relation
to reconciliation. [64]
Significantly, Reconciliation
Australia's Co-Chairs and Senator Aden Ridgeway, a member of the Council
for Aboriginal Reconciliation, have openly criticised the Government's
response to the Report's recommendations and found them lacking in substance.
Senator Ridgeway
states that: 'If you look at it from the six key recommendations that
came from the final report, they'd be lucky even to say half of any one
of those has been achieved'. [65] Reconciliation Australia's
Reconciliation Report Card 2002 notes that:
The Government's
belated response (almost two years after it received them) only adopted
wholeheartedly one of the Council's six recommendations - number
1... It is disappointing that the Government rejected others, including
number 6 which called for a statutory process to recognise Indigenous
rights and to progress towards an agreement or treaty. Limiting the
response to 'practical reconciliation' while neglecting or rejecting
other issues means that the 'unfinished business' of reconciliation
remains on the table. [66]
As in the Government's
response at the time of the CAR Report's tabling, the material released
by Government this year on reconciliation indicates a tendency to emphasise
the responsibility of the broader community to progress reconciliation
in a way that obviates the role of national leadership:
It is important
to appreciate that the Council's proposals, especially the Roadmap and
accompanying strategies, were not solely addressed to the Commonwealth
Government. They were addressed to all governments and to the community
as a whole. It is up to each to respond in its own way to the Council's
proposals. The response of the Commonwealth Government is but one piece,
albeit an important one, in that mosaic. [67]
While it is undoubtedly
true that all levels of government and all members of the community have
a responsibility toward achieving reconciliation with Australia's Indigenous
peoples, the Government is not only an important piece in the mosaic:
it is an integral one. It is after all the role of federal Government
to drive policy and enact legislation at a national level. A lack of effective
coordination or participation at a national level can mean that opportunities
to make a change at state and local levels can be stymied or even lost.
The following 'practical
reconciliation' themes are commonly reiterated in the Government's Response
to the CAR documents:
- A minimalist
response to the symbolic issues raised in the reconciliation documents; - A perception
that self-determination is divisive; - An emphasis on
perceived areas of agreement at the expense of continuing debate on
other areas; and - A misrepresentation
of progress towards meeting the goals of practical reconciliation.
a)
A minimalist response to symbolic issues
The recommendations
concerning 'symbolic' issues, including those often publicly identified
with a rights agenda such as the enactment of legislation for a treaty
process or constitutional recognition of Indigenous Australian's rights,
receive scant treatment in the Government's Response to CAR's final report.
While the Government's
support for processes to acknowledge the special place of Indigenous peoples
in the life and history of Australia in Commonwealth ceremonies and for
a referendum to repeal section 25 of the Constitution are welcome initiatives,
the Government Response to CAR lacks commitment and direction to making
reconciliation a reality into the future.
These elements are
evident in the Government's refusal to pursue legislation that would enshrine
the principles in the CAR documents (Recommendation 2); to affirm the
Australian Declaration Towards Reconciliation (Recommendation 4); and
to enact legislation to support a treaty or agreement process to address
the unresolved issues of reconciliation (Recommendation 6). The Government's
alternative approach is as follows:
The Government
believes that a continuing dialogue on the unfinished business of reconciliation
allowing for negotiated outcomes on matters such as rights, self-determination
within the life of the nation and constitutional reform should be achieved
outside the confines of a legislated process. The Council's draft legislation
would impose a potentially divisive, protracted (at least 12 years)
and inconclusive process on the nation ATSIC's treaty consultation
process identifies similar objectivesWhatever community
support there may be for a written declaration of goals and values,
the Council's own public opinion research disclosed community opposition
to the idea of a treaty as a legally enforceable instrument such as
is made between sovereign states. A number of Aboriginal leaders have
also recently voiced concerns about the concept, its relevance and relative
importance. The Government is deeply concerned that rather than offering
closure, pursuit of a treaty would be a recipe for ongoing disputation
and litigation as has happened in North America and elsewhere.There are areas
in this debate which evidence widespread disagreement between the aspirations
of some Indigenous people and the wider community. The Government is
committed to a process which fosters an open, honest and ongoing dialogue
on reconciliation. This process must respect the rights and differing
views of all interested parties while also fostering ongoing and increased
support for reconciliation based on the principle of equal and common
rights for all Australians. [68]
Anxiety about the
potential divisiveness of the concept of a treaty is expressed more pointedly
in the Minister for Aboriginal and Torres Strait Islander Affairs's speech
at the National Treaty Conference. The speech summarises the Government's
reservations about a treaty as follows:
a treaty raises
a range of contentious issues that do not have wide public support and
could actually threaten to undermine support for reconciliation. The
focus on a treaty distracts everybody - government, Indigenous people
and the wider public - from the main game, which is fixing the appalling
circumstances in which many Aboriginal people live. And, when you strip
away all the rhetoric, we are ready to share much common ground...The Government
has been fostering a new culture of agreement-making with Indigenous
people that is giving them real influence and control in the affairs
of state that matter to them. And like many here, the Government wants
to take that further. [69]
Acknowledgement of
the common ground that exists between Indigenous and non-Indigenous Australians
is welcome. But without a set time-frame for resolution of unfinished
business, including principles and protocols for negotiation, it is questionable
as to whether the Government's proposal of a continuing free-floating
policy debate or its promotion of a 'culture of agreement making' are
likely to reach a satisfactory and non-divisive closure or merely perpetuate
dissension, given the lack of clearly discernible goals and objectives.
The Minister for
Aboriginal and Torres Strait Islander Affairs' National Treaty Conference
speech challenges Indigenous requests for a treaty by arguing that it
does not enjoy widespread community support:
Now I know that
some opinion polls suggest that some segments of the population
are attracted to the idea of a treaty. But I would remind people of
what the Council for Aboriginal Reconciliation found when it probed
community attitudes, that apparent community support collapses quickly
as soon as the concept of legal enforceability is introduced. [70]
However public opinion
is not the sole determining factor in the liberal democratic process:
the development of principles both within the Australian common law and
international human rights law pertinent to Indigenous Australians should
receive acknowledgement and protection within Australian law. Nor should
these developments be portrayed as occurring outside the process of reconciliation
and the code of ethics being formed to underlie the relationship between
Indigenous and non-Indigenous peoples.
The negotiation and
agreement process put forward by the Reconciliation Bill includes such
safeguards as protocols for negotiation and tri-annual reporting, and
the CAR documents support an ongoing process of education on reconciliation
issues such as the distinct rights of Indigenous peoples and constitutional
protection of rights.
The Reconciliation
Bill's negotiation and agreement process also provides an opportunity
for the use of human rights norms as a process for rebuilding this relationship
which is so fundamental to the nation. This process which the Bill sets
out assumes that reconciliation is an ongoing process in which unresolved
issues are squarely raised and processes put in place for their resolution
based on the informed consent of both sides. The application of these
principles must be negotiated and agreed upon by both parties before a
new relationship can emerge.
In this way the agreement
process is consistent with the human rights principle of self-determination
that recognises Indigenous peoples as a separate and distinct people,
capable of negotiating with nations on an equal footing. It confers on
Indigenous peoples a genuine and autonomous basis for the 'real influence
and control in the affairs of state': a dimension which a culture of agreement-making
that does not specify the basic status and rights of Indigenous peoples,
as well as the principles and protocols for agreement-making is less likely
to deliver.
The Government's
response to the Council's documents further observes that Australian governments
have 'generally observed the principle of only enacting legislation once
they are convinced that a legislative solution is superior to other policy
instruments for achieving the stated objective'. [71]
In doing so it begs the question of whether it is appropriate for matters
concerning the human rights of Indigenous Australians to be resolved through
public fora such as policy debate and referenda rather than legislative
mechanisms.
A Bill of Rights
or express Constitutional provisions are not supported because the 'Government
strongly believes that the best guarantee of fundamental human rights
in this country is to have a vigorous and open political system, an incorruptible
judicial system, and a free press'. [72] The Response
also states that they are committed to the protection of 'the rights of
all its citizens, and in particular its Indigenous peoples, by recognising
international standards for the protection of universal human rights and
fundamental freedoms' through ratification of the ICERD, the ICESCR and
the ICCPR and acceptance of the Universal Declaration of Human Rights.
[73]
It also claims that
the Racial Discrimination Act (RDA) provides sufficient protection
for race rights without need for further reinforcement through constitutional
change or the creation of a Bill of Rights.
But while the RDA
embodies the principles for the elimination of race discrimination set
out in the ICERD, it has been clear during recent years that it does not
provide adequate protection within the Australian legal system for the
exercise of Indigenous rights. For example since 1999 three separate international
human rights committees have expressed concerns to the Australian Government
about breaches of Indigenous peoples' human rights. [74]
Nothing has changed. For example, native title is still governed by the
exact same legal structure as that which, in 1998, caused the Committee
for the Elimination of Racial Discrimination (the CERD Committee) to put
Australia under its Urgent Action procedure and request an explanation
for this extreme imposition of discriminatory policy.
The Government Response
to CAR highlights the potential for negotiated outcomes and 'agreement-making'
at a local level outside the legislative process and the Minister's National
Treaty Conference speech emphasises an 'alternative step-by-step process
[that] is already beginning to happen'. [75] While the
use of agreement-making has strong Indigenous support, it is important
to realise that these initiatives do not of themselves guarantee protection
of Indigenous peoples' rights and interests. In the case of native title,
the difficulty is in convincing developers, mining and resource companies,
pastoralists, and local and state governments to enter into agreements
which deliver real outcomes to Indigenous peoples when the legislation
does not necessarily require this of them. [76]
There are periods
in Australian history prior to the 1967 referendum when basic citizenship
rights for Indigenous peoples may not have received widespread community
support but this does mean that some of the dehumanising treatment experienced
by Indigenous peoples or the failure of past governments to protect their
basic rights was in any way supportable. The recognition of Indigenous
inherent rights deserves national leadership within the reconciliation
process including legal protection where appropriate.
b)
The perceived divisiveness of self-determination
Related to the Government's
continuing refusal to countenance recognition and protection of Indigenous
peoples' inherent rights is its commitment to perpetuating the misconception
that Indigenous self-determination will necessarily be divisive as it
'carries the implication of a separate Indigenous state or states'. [77]
As explained in chapter 2, self-determination does not constitute such
a threat to national unity as it does not amount to a right of secession.
While the Government
Response to CAR prefers to promote self-management and self-empowerment
for Indigenous peoples, it quickly becomes clear that without the fundamental
recognition of Indigenous self-determination, even these will be circumscribed
within the Government's own terms:
It is the responsibility
of government to ensure that all Australians have equality of opportunity
and access to services. The Government is concerned that self-determination
implies that a government must in some way relinquish responsibility
for and control over those aspects of Indigenous well being over which
it rightly has jurisdiction in common with its responsibilities to all
Australian citizens. The Commonwealth Government remains accountable
for outcomes in Indigenous affairs when making fiscal commitments. [78]
The limits of this
approach are discussed in detail in chapter 2 of this Report.
Examples from other
international contexts indicate that Indigenous self-determination and
self-government can be grounded in a partnership of mutual fiscal responsibility
between government and Aboriginal peoples. 'Supporting Strong Communities,
People and Economies', the fourth strategy of Gathering strength -
Canada's aboriginal action plan, covers issues of effective citizenship
participation similar to those referred to in CAR's national strategies
on overcoming disadvantage and achieving economic independence. [79]
But it goes further than the CAR strategies, giving extensive treatment
to the issues of improving both fiscal relations at the federal level
and inter-governmental relations with Indigenous people.
The Harvard Project
on American Indian Economic Development found that tribal-control of resource
management and design of economic development strategies led to the exercise
of effective sovereignty on American Indian reservations: 'When tribes
make their own decisions about what approaches to take and what resources
to develop, they consistently out-perform non-tribal decision-makers'.[80]
There is also evidence
that the capacity to be self-determining can have positive implications
for Indigenous peoples' health, well-being and sense of identity. Commenting
on the gaps between Maori and Indigenous Australians' health status, and
whether the treaty obligations that underpin Maori-State relations have
contributed to improvements in Maori health over the past sixty years,
Kate Ross and John Taylor observe that:
The other side
of the institutional arrangements that flow from treaties is the interpretation
by individual Indigenous people of their own status. In the presence
of legal rights and obligations, an effective bargaining base and explicit
recognition by the non-Indigenous majority, it is arguable that psychosocial
stress could be mitigated. A positive external ascription may have as
its product a positive internal ascription, and a lessening of a sense
of powerlessness or hopelessness. [81]
c)
An emphasis on perceived areas of agreement
While the Government's
response to CAR is quick to suggest that there is significant conflict
between the Indigenous and non-Indigenous communities, it does not annotate
or provide any comprehensive analysis of the polls it claims substantiate
these areas of disagreement. By contrast, a poll conducted by Issues Deliberation
Australia (IDA) - 'Australia Deliberates on Reconciliation' - on 16-18
February 2001 found significant changes in perceptions and increases in
knowledge among non-Indigenous Australian participants as a result of
this debate. IDA record that:
Following deliberation,
younger Australians, more educated Australians, and Australians living
in capital cities, were more observant of Indigenous disadvantage. This
intensified perception of the degree of Indigenous disadvantage correlated
highly with the tendency to agree to an official government apology,
a treaty, native title, an integrated legal system and payment to the
'stolen generation'. Prior to deliberations, Coalition and ALP supporters
were starkly different. Comprehensive weighing of opposing arguments
tended to negate that political divide, with post-deliberation opinions
converging on key aspects of reconciliation.Regardless of these
'gaps', the informed voice of the general population of Australians
was a far less divided and ambivalent voice than the pre-deliberation
uninformed voice. In general, informed Representative Australians revised
their perceptions of how important the issue of reconciliation is to
the nation, and how disadvantaged Indigenous Australians are in comparison
to their non-Indigenous counterpartsThese changes in
perceptions and increases in knowledge correlated highly with levels
of support for a range of national initiatives:
- formal acknowledgement
that Australia was occupied without consent of Indigenous Australians:
81%
- formal acknowledgement
that Indigenous Australians were the original owners of the land and
waters: around 81%
- an apology
to the 'stolen generation': 68%. [82]
These results are
indicative of the progress towards agreement between Indigenous and non-Indigenous
Australians on the unfinished business of reconciliation that a structured
framework for both education and debate on the relationship between Indigenous
and non-Indigenous Australians could facilitate. IDA comment further that:
All previous Deliberative
Polls provide compelling evidence that people who have had the opportunity
to be informed, to question competing experts and advocates and to discuss
the issues with their peers, think fundamentally differently and draw
different conclusions to those who have not had such opportunities.
The conclusions of the 'representative citizens' following deliberation
have recommending force for Governments, Government Agencies
and other organisations, as they develop their strategies in this area.
[83]
Such a process for
debate and education could be facilitated and resourced through the mechanisms
proposed by the Reconciliation Bill for resolving unfinished business,
such as the National Reconciliation Conventions. While one of Reconciliation
Australia's primary functions is to provide wider community education,
the limited budget on which it operates is inadequate to support a comprehensive
educative process of this nature. In the absence of support for the processes
presented by the Reconciliation Bill and the failure to put forward an
alternative, resourced framework for this purpose, it is hard to see that
the Government is committed to sustaining a continuing dialogue on reconciliation.
The Government's
emphasis on finding ground also supports a tendency to prioritise its
own agendas at the expense of those of Indigenous people. For example,
while acknowledging the 'robustness of the debate' on treaty promoted
by Indigenous peoples in his speech at the National Treaty Conference
the Minister claims that the 'focus on a treaty distracts everybody
from the main game, which is fixing the appalling circumstances in which
many Aboriginal people live'. [84]
While overcoming
Indigenous disadvantage is the only major point of agreement between the
Government and Indigenous leaders in regard to reconciliation, it does
not follow that there is common assent to a practical reconciliation approach.
Once again this is a rhetorical sleight-of-hand on the Government's behalf
which belies their capacity to consult adequately or to engage equitably
with Indigenous peoples in setting the parameters for dialogue on reconciliation.
This is a continuation of a pattern in the Government's 'take it or leave
it approach' to reconciliation which implies that Indigenous peoples are
dependent on the benevolence of government rather than the establishment
of an equal partnership in developing the terms of debate in regard to
reconciliation and Indigenous policy.
d)
Misrepresenting progress towards practical reconciliation
The Government's
response to the CAR documents also list significant achievements of practical
reconciliation across a range of socio-economic indicators.[85]
This list of 'progress' does not admit to the continuing gravity of Indigenous
disadvantage as indicated by recent Census data and a range of other reports.
Close examination of the gains from reconciliation for Indigenous people
listed in Government's response to CAR against these latest findings suggest
that the Government is not providing a very clear delineation of outcomes
for Indigenous peoples but a somewhat limited and even misleading view.
Statistics released
by ABS from the Indigenous component of the 2001 National Health Survey
indicate poor outcomes for the Indigenous population in comparison to
the mainstream population for life expectancy, reported level of health,
and health risk factors.[86] Even more damningly, the
survey found that while Indigenous people are hospitalised at twice the
rate of the general population, real spending on Indigenous health was
half that of the non-Indigenous community.[87] ATSIC
Chairman Geoff Clark observes: 'Considering the high rate of illness experienced
by Indigenous communities, we would expect expenditure on health services
for our people to be about three times the average'. [88]
Some of the gains
in health that the Government's response to CAR notes pale in contrast
to the big picture of Indigenous health issues. While it observes that
Indigenous infant death rates have fallen over the past decade, Indigenous
babies are still twice as likely to die at birth as those born to non-Indigenous
mothers.[89] The response reports some declines in rates
for respiratory illness and deaths from infectious and parasitic diseases
but the rates remain at around 4 times the non-Indigenous average. Indigenous
people still continue to experience higher rates of asthma, diabetes and
hypertension than other Australians, as well as higher rates of hospitalisation
and mortality for mental health and substance abuse related disorders.
[90]
Likewise while there
have been some improvements in regard to education, the recent National
Report to Parliament on Indigenous Education and Training 2001 reveals
significant gaps between Indigenous and non-Indigenous Australians. For
example, although retention rates to year 12 have increased, the rate
is still half the rate for non-Indigenous students. The numeracy and literacy
rates of year 3 students have improved but there is still a substantial
gap between these rates and those of non-Indigenous students. The numbers
of Indigenous students undertaking tertiary and post-secondary vocational
education has increased but the rates at which Indigenous students progress
through and complete their courses are not as high as those for non-Indigenous
university students.[91]
As Senator Ridgeway
observed, this first national report on education has come 35 years after
the Commonwealth took responsibility for this area following the 1967
referendum. He comments as follows on the value of this report for monitoring
disadvantage in regard to education:
We cannot afford
to sacrifice another generation of Indigenous people to the unemployment
queues or the pathway to our detention centres and gaols Given
that the Minister for Aboriginal and Torres Strait Islander Affairs
has excused the Government's lack of progress in Indigenous Affairs
by saying there is no baseline data to measure progress - at least on
the education front this kind of excuse cannot be wheeled out in future.
[92]
The Australian Vice
Chancellors' Committee (AVCC) said that the report highlighted the need
for a review into the adequacy of current income support arrangements
for Indigenous students and supported the package of measures for consideration
put forward by the AVCC. The AVCC President, Professor Deryck Schreuder,
stated that:
The fact is, Indigenous
Australians' access to, and completion of, higher education is too low
and further assistance is needed to ensure universities are able to
increase numbers of both students and staff Whilst there are some
encouraging signs with an increase in the number and proportion of Indigenous
students enrolled in Bachelor's degree courses in higher education,
from 3863 in 1997 (or 52 per cent) to 4630, (or 63 per cent) in 2001,
clearly more must be done to achieve greater participation and completion
of higher education. [93]
The Government Response
(CAR) also reports improvements for Indigenous peoples since 1992 in the
area of housing and infrastructure. It cites increases in the percentage
of discrete Indigenous communities with access to electricity and higher
level sewerage systems, and the proportion of dwellings in need of major
repair, as well as a decline (of 2 per cent) in the proportion of residents
living in temporary dwellings since 1996.
However, the overall
picture for Indigenous access to housing and infrastructure is still one
of disadvantage, with the majority of Indigenous peoples generally living
in overcrowded and poor quality rental accommodation. The ABS Community
Housing and Infrastructure Needs Survey (CHINS) funded by ATSIC in 2001
found that 19 per cent of Indigenous dwellings in urban and regional areas
have a high need for repairs in contrast to 7 per cent for other households.
There are also 3.4 people in Indigenous households compared to 2.6 in
other households; and in 1996 7 per cent of Indigenous households consisted
of 10 or more people in contrast to 0.1 per cent of Indigenous households.
[94]
The statistics on
law and justice presented in the Government's response to CAR are particularly
disingenuous. It states that:
- Despite a rise
in the total prison population since 1994, the rate of Indigenous incarceration
has remained relatively stable in recent years - On average, the
rate of Indigenous deaths in custody has fallen since the Royal Commission,
and Indigenous people are less likely to die in custody than non-Indigenous
prisoners. [95]
A different and more
honest way of presenting the facts on this issue would be to acknowledge
that since the Royal Commission into Aboriginal Deaths in Custody incarceration
rates and over-representation rates have risen significantly, and in recent
years have not declined. It would also be to acknowledge that Indigenous
people still constitute approximately 18% of all deaths in custody despite
constituting 2% of the population. These figures cannot be construed as
a positive outcome.
Again, the absence
of a long term commitment to overcoming Indigenous disadvantage, with
short, medium and long term targets, masks the distinct lack of progress
in addressing Indigenous disadvantage within a practical reconciliation
approach. There is a continual need for Indigenous organisations to unravel
the statements of the Government so that it can be held accountable for
the real lack of achievement.
Conclusion
The past twelve months
have seen the Government reinforce its practical reconciliation approach
to Indigenous issues. By continually reinforcing that its commitment is
to addressing key issues of Indigenous disadvantage and nothing else,
the Government has selectively engaged in debates about Indigenous policy
formulation. It has developed a tunnel vision that renders it incapable
of seeing anything that falls outside the boundaries that it has unilaterally,
and artificially, established for relations with Indigenous peoples.
There are two features
to this approach that are of particular concern. First, it has seen Indigenous
peoples marginalised from having any role in setting the priorities or
agenda for Indigenous affairs. This has been done, deceitfully, under
the rubric of 'partnership and agreement-making'. Second, the efforts
of the Government over the past twelve months have been directed towards
the goal of cementing this reductive approach into place, including at
the inter-governmental level. The consequence is that the limited processes
for accountability are not directed to those issues which the Government
does not agree with.
1
A selection of speeches from the launches are available online at: www.humanrights.gov.au/social_justice/.
2
Howard, J, 'Address to the Committee for Economic Development of Australia:
Strategic Leadership for Australia: Policy Directions in a Complex World',
Sydney, 20 November 2002, p1. Italics added. Available online at: www.pm.gov.au/news/speeches/2002/speech1996.htm.
4
Evans, C, 'Indigenous Australians hospitalised at twice the average but
funded at half the rate', media release, 11 December 2002.
5
Australian Bureau of Statistics, 'Aboriginals and Torres Strait Islander
Health Report', media release, 20 November 2002; 'Australians live longer:
mortality indicators improve', media release, 10 December 2002.
6
Clark, G, 'Chairman's report', ATSIC Annual Report 2001-2002, Canberra,
ATSIC, p35.
7
Ruddock, P, 'Changing Direction', ATSIC National Policy Conference - Setting
the Agenda, Canberra, 26 March 2002.
8
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2002, HREOC, Sydney, 2002, pp46-47.
14
For discussion of this policy approach, see Social Justice Report 2001,
pp205?207.
17
Social Justice Report 2001, op cit, pp52-53.
18
Cf. ibid, pp61-64; Martin, D, 'Community development in the context of
welfare dependence', in Morphy, F and Sanders, W, (eds), The Indigenous
welfare economy and the CDEP Scheme, CAEPR Research Monograph No.20,
CAEPR, Canberra, 2000, pp31-38.
24
Ruddock, P, 'Agreement making and sharing common ground', National Treaty
Conference, Canberra, 19 August 2002, p1. Available online at: www.minister.immi.gov.au/atsia/media/transcripts02/treaty/treaty_conf_0802.htm.
25
Social Justice Report 2001, pp208-10; Clark, op cit, p29.
26
Lawrence, C, House of Representatives, Hansard, 17 June 2002, p3092-3.
28
Reconciliation Australia, Words, symbols and actions: Reconciliation
Report Card 2002 - A Report from Reconciliation Australia to the Australian
People, Canberra, Reconciliation Australia, 2002, p12.
29
See Jonas, Dr W, 'Government approach to reconciliation lacks direction
and accountability' states Social Justice Commissioner', media release,
27 September 2002, www.humanrights.gov.au/media_releases/2002/66_02..html.
Note also Ridgeway, A: 'The Government says it is spending more than $2
billion on Indigenous programs this financial year, but Senator Ridgeway
has rejected the Government's claim it has not the data to set measurable
benchmarks for the improvement of Indigenous disadvantage.' ABC news release,
'Govt's response to reconciliation report comes under fire', http://www.abc.net.au,
27 Sept 02.
31
Senate Estimates Committee, Legal and Constitutional, Federal Parliament,
Canberra, 20 November 2002, p24.
32
For discussion, see Social Justice Report 2000, pp104-7.
34
For discussion see Social Justice Report 2000, pp104-23.
35
Social Justice Report 2001, pp79-91.
37
See discussion in relation to CPAs in Smith, D, 'Community Participation
Agreements: A model for welfare reform from community-based research',
CAEPR discussion paper No. 223/2001, CAEPR, Canberra, 2001, p38.
38
ibid, p67. Social Justice Report 2001, pp89-90.
39
See ATSIC, Recognition, rights and reform: Report to Government on
native title social justice measures, Canberra, ATSIC, 1995, pp9-10;
Native Title Report 2001, Chapter 3.
40
Federal government, Government response to the Commonwealth Grants
Commission Report on Indigenous funding, Canberra, DIMIA, June 2002,
p3. (Herein 'Government Response (GCG)'). Available online at: www.atsia.gov.au/atsia/media/reports02/index02.htm.
41
The Minister for Immigration and Multicultural and Indigenous Affairs,
Phillip Ruddock, Government to Focus on Indigenous Need, Media
Release and associated documents, 27 June 2002. See in particular the
Government's detailed Government Response (CGC).
42
Government Response (CGC), pp21-22.
45
Commonwealth Grants Commission, Report on Indigenous Funding 2001,
Canberra, Commonwealth of Australia, 2001, pxii.
46
Social Justice Report 2000, pp101-102.
47
Government Response (CGC), p33.
60
Social Justice Report 2000, Chapter 4.
61
Government Response (CGC), p21.
62
Commonwealth Grants Commission, op cit, pxvii.
64
Federal government, Commonwealth Government Response (CAR) to the Final
Report of the Council for Aboriginal Reconciliation, Commonwealth
of Australia, Canberra, 2002, http://www.minister.immi.gov.au/atsia/media/reports02/index02.htm,
p3. (Herein 'Government Response (GCG)').
66
Reconciliation Australia, op cit, pp5-6.
67
Government Response (CAR), p3.
69
Ruddock, 'Agreement making and sharing common ground', op cit,
p2.
71
Commonwealth Government, op cit, p19.
74
In 2000 the Committee on the Elimination of Racial Discrimination (the
CERD Committee) the Human Rights Committee, and the Committee on Economic
Social and Cultural Rights criticised Australia's native title legislation
based on Australia's obligations under the Convention on the Elimination
of All Forms of Racial Discrimination (ICERD), the Covenant on Civil and
Political Rights (ICCPR) and the Covenant on Economic, Social and Cultural
Rights (ICESCR) respectively. For a full analysis of these decisions see
www.humanrights.gov.au/social_justice/nt_issues/index.html.
75
Government Response (CAR), p3.
76
See Aboriginal and Torres Strait Islander Social Justice Commissioner,
Native Title Report 2001, HREOC, Sydney, 2002, Chapter 3; proposes
framework agreements that embody human rights principles as a guide to
agreement-making on native title land.
77
Government Response (CAR), p19.
79
Minister of Indian Affairs and Northern Development, Gathering Strength
- Canada's aboriginal action plan, Ottawa, 1997.
80 Harvard Project on American Indian Economic Development, Overview of
the Harvard Project, http://www.ksg.harvard.edu/hpaied/overview.htm,
13 December 2002.
81
Ross, K and Taylor, J, 'Improving life expectancy and health status: A
comparison of Indigenous Australians and New Zealand Maori', Joint Special
Issue, Journal of Population Research and NZ Population Review,
September 2002, p234.
82
Issues Deliberation Australia, 'Australia deliberates: Reconciliation
- where from here?', Executive summary of results, Canberra, 2001. Available
online at: www.i-d-a.com.au/recon_report.htm.
83 Project description, ibid. www.i-d-a.com.au/recon_description.htm.
84
Ruddock, 'Agreement making and sharing common ground', op cit,
p2.
85
Government Response (CAR), pp5-7.
87
Australian Bureau of Statistics, National Health Survey: Aboriginal
and Torres Strait Islander Results, Australia, 2001, 4715.0. Available
online at: www.abs.gov.au/ ; Australian
Instistute of Health and Welfare, Expenditures on Health Services for
Aboriginal and Torres Strait Islander People 1998-99, cat. No. IHW7,
Canberra, Australian Institute of Health and Welfare, 2001. http://www.aihw.gov.au/publications/index.cfm?type=detail&id=565.
89
ABS, 'Aboriginals and Torres Strait Islander Health Report', op cit; Government
Response (CAR), p6.
91
Nelson, Dr B, 'Statement by the Honourable Dr Brendan Nelson, MP - Minister
for Education, Science and Training: The national report to parliament
on Indigenous Education and Training 2001', House of Representatives,
Hansard, 14 November 2002, p8948.
92
Ridgeway, A, 'First National Indigenous Education Report - 35 Years Coming',
media release, 12 November 2002.
93
AVCC, 'More must be done to help Indigenous students', media release,
15 November 2002.
95
Government Response (CGC), p7.
19
March 2003.