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Collaborative Indigenous Policy Development Conference (2006)

Aboriginal Aboriginal and Torres Strait Islander Social Justice

Collaborative Indigenous Policy Development

27 & 28 June 2006

Marriot Hotel,

Evaluating the external forces which exert an influence on
government policy direction

There are many influences on government when it comes to Indigenous
policy creation. Many have contrasting opinions, some are for pecuniary or self
interest, some because they feel Indigenous people get too much, others because
it is a power trip, others because of an academic interest and for others
because they want to see an improvement in the quality of life of Indigenous

This speech considers:

  • What are the main sources of external influence?
  • Can we quantify the extent to which they influence the direction of
    government policy, and
  • How can key individuals outside the government’s main advisory circle
    work effectively to have a positive influence on the lives of Indigenous people?
    My challenge to all of you here today is to LISTEN, LEARN AND

I would like to begin by acknowledging the
traditional owners of the land
where we meet today, and to pay my respects
to their elders[1]. I would also like
to thank the international quality and productivity centre and Shauna for
organising this event, and to acknowledge my eminent fellow speakers, non
Indigenous supporters and participants and Indigenous brothers and

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

I undertake this role in a number of ways. In particular, I am
required to report annually to the federal parliament on the status of enjoyment
and exercise of human rights by Indigenous Australians. This is called the Social Justice Report. The latest 2005 report was tabled in Parliament
on 14 February 2006. I have a limited number of reports in CD format with me
that people are welcome to take home, and the report is also available on the
HREOC website. I also produce a Community Guide that outlines the salient
points in the Social Justice Report and a second annual report I produce called
the Native Title Report and they are also available to take.

Today I
have been asked to consider the degree to which external influences can
influence or force the government to address issues.

Can I start by
observing that the idea of external forces ‘forcing’ an Australian
government to do anything - at least in relation to Indigenous affairs - is
something of a novel prospect. The sovereignty of Parliament ensures that
nothing can ‘force’ change upon Australian government policy, except
ultimately through a change of government itself by virtue of the ballot box.

Now this may suit the majority non-Indigenous population who have the
power to throw out a government with policies they do not like. But because
Indigenous peoples in Australia comprise less than 3% of the Australian
population we have little capacity to influence the political process that way.
This leads to the fact that leads to the question I am speaking to today
how do Indigenous peoples exert influence, or ‘force’

Now this raises a ‘big picture’ issue that I
would be remiss not to touch on before getting to the main part of my
presentation. That is the lack of enforceable restraints or obligations on governments in Australia, particularly in relationship to the human
rights of Aboriginal and Torres Strait Islander peoples.

Human rights
are poorly understood in Australia and particularly by Indigenous people. Some
bureaucrats, and they are often the major influencers of government policy, want
to maintain the ignorance as they are of the belief that an understanding of
human rights will mean a greater challenge of government to answer why? Such
gate keeping cannot be maintained if Indigenous peoples are to be empowered to
manage their own affairs and their own destinies.

However, the fact
remains that for Indigenous peoples, enforceable rights – whether set out
in a constitution, a treaty or other mechanism - could provide some balance to
their lack of political clout and provide the leverage to force Australian
governments to address a wide range of outstanding Indigenous issues that are
otherwise left on the back-burner or ignored.

We have a long way to go in
this regard in Australia. In fact, we are falling behind in the acceptance and
implementation of international standards.

In my Social Justice
to Parliament I have emphasised that as Indigenous peoples, we
must be able to effectively participate in decision making that affects our

I consider that participation is an essential element for
successful Indigenous policy and Indigenous people must insist on

This requirement for effective participation is strongly
supported in international human rights law. It relates variously to the rights
to self-determination, non-discrimination and equality before the law, as well
as to the right of cultural minorities to enjoy and practice their culture.

The necessity to ensure the effective participation of Indigenous
peoples also comes from practical experience. Much of the failure of service
delivery to Indigenous people and communities, and the lack of sustainable
outcomes, is a direct result of the failure to engage appropriately with
Indigenous people and of the failure to support and build the capacity of
Indigenous communities. It is the result of a failure to develop priorities and
programs in full participation with Indigenous communities.

Put simply,
governments risk failure if they develop and implement policies about Indigenous
issues without engaging with the intended recipients of those services.
Bureaucrats and governments can have the best intentions in the world, but if
their ideas have not been subject to the “reality test” of the life
experience of the local Indigenous peoples who are intended to benefit from
this, then government efforts will fail.

At the international level,
principles relating to effective participation are gaining wide acceptance.
United Nations agencies are guided by what is known as the common
understanding of a human-rights based approach to development cooperation.
This integrates policy and program development for human rights, development
and poverty eradication. It proceeds on the basis that people are key actors in
their own development, rather than simply being passive recipients of services.
In other words, governments are there to serve communities, not the other way

Specifically in relation to Indigenous peoples, these
requirements for participation have been expressed as the principle of free,
prior and informed consent
. My office has done some work with the
Secretariat of the United Nations Permanent Forum on Indigenous Issues on this
issue, when we co-hosted a workshop in Brisbane in August 2005 titled Engaging the marginalised.

The outcomes of this workshop were
presented to the Permanent Forum at its 5th session in May 2006.

In brief:

  • Free requires no coercion, intimidation or
  • Prior requires that consent has been sought sufficiently in advance
    of any authorization or commencement of activities and respects time
    requirements of Indigenous consultation and consensus building
  • Informed requires that information is provided that addresses the
    purpose, scope, obligations and impact of any proposed activity;
  • Consent requires that consultations be undertaken in good faith; on a
    basis of mutual respect; and with full and equitable participation. It also
    requires that Indigenous peoples can participate through their own freely chosen
    representatives and customary or other institutions and ultimately it must allow
    the option for Indigenous people to withhold their consent.

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

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

So we
are starting to see these principles embedded in the international system for
human rights. What is says about the situation in Australia is that actions by
governments must be principled. That is, they must be based on
acceptance of the central importance of Indigenous participation. [Information
on FPIC and relevant international instruments are contained in the brochure and
CD titled “engaging the marginalised”.]

A major short coming
of current government approaches is that they do not focus sufficiently on
empowering the Indigenous community to know their rights and to be active
participants in determining their destiny. Bottom up influence is the most
powerful influence and that is what is lacking at present.

In recent
years we have seen significant changes in how governments deliver services to
Indigenous peoples and develop policy.

At the risk of repeating some of
what has already been discussed by Gavin, Mick and Wesley, want to first
provide an overview of the ‘new arrangements for Indigenous
because the bulk of my comments relate to how these

Key characteristics of these are a greater emphasis on regional
and local level engagement with Indigenous peoples, and a de-emphasis on
national level engagement. The most obvious manifestation of this was the
abolition of ATSIC in July 2004 and the establishment of the Office of
Indigenous Policy Coordination and the rolling out of Indigenous Coordination
Centres across what were the old ATSIC regional council jurisdictions.

Indigenous Coordination Centres (or ICCs) are designed to be ‘one
stop shops’ where Indigenous communities interface with all levels of
government. Put very simply, a community goes to, or is visited by; its local
ICC to negotiate having its particular needs met.

There, a new brand of
bureaucrat, a ‘solution broker’, navigates through all the levels
and sectors of government to negotiate, as their name suggests, a solution. As
an aside, it is intended that as many of these solutions as possible are to be
delivered according to the principle of mutual obligation. That is, the
community will be expected to give something in return through ‘shared
responsibility agreements’.

Mirroring the ICC network, it is government policy for Indigenous communities
to establish regional representative Indigenous bodies to interact with the ICCs
and governments; and to negotiate agreements at the regional level which link to
local level decision making processes – these are another form of
agreement called Regional Participation Agreements.
What stands out from this
brief overview of the new arrangements is the absence of a national Indigenous
representative structure to replace ATSIC and give voice to Indigenous peoples.

The ATSIC board’s relationship with the Australian government was
tense, to say the least, and this rendered it somewhat ineffective as an
external source of influence of Indigenous policy, particularly in its last few
years of existence.

However, can I take the opportunity to state that
while it is one thing to suggest that ATSIC could have negotiated this
relationship more effectively; it was another thing entirely to suggest that
there should not be a national representative body through which Indigenous
people can participate in government decision making.

Behind the scenes
ATSIC did play a significant role in developing planning and policy for

  • In relation to implementing the national strategic framework for
    Aboriginal and Torres Strait Islander health
    as a member of health sector
    planning forums established under the framework agreements for Aboriginal and
    Torres Strait Islander health
    in each state and territory.
    Unsatisfactorily, the state and territory branches of the Office of Indigenous
    Policy Coordination are intended to take ATSIC’s place under the new
    arrangements and this will not guarantee an Indigenous voice or a representative
  • In relation to Indigenous housing authorities established under the
    bilateral 5-yearly Indigenous housing agreements. Although there is an
    in-principle commitment to ongoing Indigenous representation within the
    Indigenous housing authorities, with the exception of the Northern Territory, it
    is not yet clear how this will occur?
  • And more broadly through regional planning within the jurisdictions of each
    ATSIC Regional Council.

It is easy to lose sight of the fact that
three years ago; the focus at the federal level was very much on reforming the
role of ATSIC so it could be more effective as a national advisory body. In
fact, the shifting of the administration of ATSIC programs to ATSIC was intended
as an interim measure to enable ATSIC to strengthen its role as the principle
source of policy advice to the government on Indigenous affairs.
Now, as I
have noted, it is the absence of an Indigenous representative body to
externally influence policy at the national level that is the outstanding
characteristic of the present state of affairs. We are thus left in the some
what paradoxical position under the new arrangements – which are built on
a commitment to regional and local level engagement – that this local
level engagement is to be established through national processes that do not
consistently involve the participation of Indigenous peoples.

Indeed, the only mechanisms for participation of Indigenous peoples are
through the National Indigenous Council or sector specific organisations –
such as national committees on education, the National Aboriginal Community
Controlled Health Organisation, the Secretariat of National Aboriginal and
Islander Child Care and affiliations of local bodies (such as working groups of
Native Title Representative Bodies). The spread of these permanent bodies are
supplemented by ad hoc Indigenous advisory committees, working groups and
so on. However, the government pretty much ‘pick and choose’
whether to listen to what these bodies advise.

These mechanisms, individually or collectively, are not sufficient to ensure
appropriate representation of Indigenous peoples in national decision-making
processes in the more general sense.

In relation to the National Indigenous Council (NIC), it is not a
representative organisation. It does not claim such a role – indeed, the
chairperson, Dr Sue Gordon, has made clear that the NIC is not a replacement for
ATSIC. Rather, the Council is an advisory body to government.

The consequence of this is clear. While the NIC is entitled to put positions
to government based on the individual and collective expertise of its members,
its views can in no way be seen as providing consent or agreement on behalf of
Indigenous peoples to any proposal.

I also note that the NIC has no capacity to undertake consultations with
Indigenous peoples and hence no capacity to seek endorsement of its views among
Indigenous communities. Therefore, it essentially does not represent an
Indigenous voice but the voice of Indigenous individuals. Although I am
informed that members of the NIC are informally receiving phone calls from the
public, it is not clear whether these are calls from non Indigenous people or
Indigenous people and the representativeness of the callers are not known.

The other concern is whether the NIC is being pro-active in advising
government or reactive in responding to government requests for advice on
particular issues or programs? For example, from the publicly released record
of the meetings there appears to be a program of senior bureaucrats informing
the NIC about their programs and seeking advice but there appears to be little
evidence of the NIC, for example, pro-actively tackling the problems of federal
service delivery or providing advice to government on issues that they
themselves have identified as of critical importance.

While the NIC are reacting to government we cannot see much chance of a
potentially influential Indigenous group exerting their authority. As
individuals, NIC members are prominent Indigenous people who I respect, however,
collectively at this time my opinion is reserved.

Similarly, while sector specific organisations play an important role
in their relevant sector they also do not have the mandate or representative
base from which to be able to effectively represent Indigenous peoples across
the full range of issues necessary. Many organisations are also service
based rather than
representative in their structures.

Finally, at the national level, since the demise of ATSIC, my own office,
that of the Aboriginal and Torres Strait Islander Social Justice Commissioner,
has been left as one of the few independent commentators with - by virtue of the
Social Justice Report being tabled in Parliament – at least some capacity
to influence the way policy unfolds.

And indeed, I can happily report some changes for which I believe my office
can take at least partial credit. I highlight the development of a series of
principles for Shared Responsibility Agreement making, set out in this years
report, that I know – from talking to communities – has influenced
the way at least some of these agreement making processes are being approached
by Indigenous Coordination Centres; as well as the development of measures to
address concerns about the recruitment and retention of Indigenous peoples in
the Australian Public Service. I also intervened to ensure that a wide ranging
inquiry into mental health issues by the Senate last year specifically addressed
issues relating to Indigenous peoples.

The influence of my office I would refer to as being part of a
‘building block’ approach to policy change – likely to get a
range of smaller changes across a number of areas, rather than larger general
changes. The reports also play a key role in providing information to
Indigenous communities and organisations, and by doing so to lend support to
Indigenous communities in their advocacy work.

In contrast to this national picture, if we look at the regional level there
are government commitments to support Indigenous representative structures to
connect local and regional needs to all levels of government. But to date,
there are only two such structures in place – in the Murdi Paaki region of
far north NSW and the Ngaangtjatjara Council in Western Australia.

There is generally an absence of these structures more than 2 years into the
new arrangements. It is also not clear what arrangements will apply in urban
centres. Indeed, it is notable that none of the representative structures that
are finalised to date are in regions that encompass major urban centres such as
capital cities.

Further, there are concerns about how regional representative bodies will be
funded and the type and level of administrative support they will be provided
with. The consequence of the current status of these models is that there are
few mechanisms for Indigenous participation at the regional level.

This issue needs to be progressed as an urgent priority and it is not
possible to make an assessment of what possible influence such bodies will exert
in the development of regional policy ie regional partnership agreements, until
they are operational.
So, to speak to the final part of my presentation:
how then can key individuals outside
the government’s main
advisory circle work effectively to have a positive influence on the lives of
Indigenous people?

I want to finish this speech on a positive note,
because I do think there is some cause for optimism, by examining two recent

First, in relation to the beginning of the rolling out of
subsidised Opal petrol across a large part of Central Australia, announced in
March 2006.

For those who do not know, in February 2006, a cost benefit
analysis of rolling out subsidised Opal petrol and other responses to petrol
sniffing in Central Australia by Access Economics was released. Prior to the
report, the Australian govt’s position was that a comprehensive roll out
of opal fuel was too expensive. After the report, the Australian govt has
projected it will spend $6 million per annum rolling out Opal and ‘every
community that wants it will get it’.

Now, I believe the impact
of the cost benefit analysis report provides something of a case study in
effectively exerting influence. So what are the lessons that I believe can be
drawn from it? The main one, I believe, is that the report spoke the
government’s language. It was a cost-benefit analysis. It showed clearly
that if it invested in opal fuel subsidies there would be a net benefit
the government of up to $26 million per annum. Further, it was from a
reputable sourceAccess Economics. The government has not
disputed the findings or the methodology. The report allowed the
government’s turn-around to appear reasonable.

Now, note that the
report was privately commissioned by the ‘Opal Alliance’ consisting
of the GPT group (property developers, the owners of the Ayers Rock Resort), the
NPY Women’s Council and the Central Australian youth link-up service. You don’t get more ‘external’ as a source of
than that.

Finally, another example, although its
success is not possible to assess at the moment, is my campaign for Indigenous
health equality that is quietly underway in Australia.

To give you
some background, chapter 2 of the Social Justice Report 2005 spoke at
length to the poor state of Indigenous health and health inequality (when
compared to the non-Indigenous population) and the role the right to health
could play in achieving Indigenous health equality in Australia. It contained
recommendations that the governments of Australia commit to a campaign to
achieve Indigenous health and life expectation equality within 25 years. And
that in order to achieve this goal, governments commit to achieving equal access
to primary health care and health infrastructure within 10 years.

since tabling the report, my office has began a process that I believe is fairly
unique in terms of attempting to exert influence on the government and that, I
believe, provides useful pointers to how influence from outside may be
effective. The goal is to persuade Australian governments to adopt the
recommendations by the 40th anniversary of the 1967 Referendum, which
will occur in May 2007.

Probably the most important part of the process
is the building of alliances with other influential NGOs who support the
recommendations. To that end, a partnership has been formed that includes: the
National Aboriginal Community Controlled Health Organisation (NACCHO); the
Australian Indigenous Doctors Association; the Royal Australasian College of
Physicians; the Australian Medical Association; the Australian Divisions of
General Practice; and the Royal College of Australian General Practitioners. It
integrates with similar campaigns already underway by Oxfam Australia and

To summarise, I highlight some further points that may be of
use to anyone contemplating influencing the government from ‘the

  • Work with government. One thing I have learned in my career over
    many years with governments of all persuasions is that if there is one sure way
    to sabotage an attempt to influence a government it is to surprise and embarrass
    it. It is vital to work with government, develop alliances with key public
    servants, talk with ministers and their senior advisers, keep all stakeholders
    and interested parties on side and informed and look at the big picture and
    overall strategy not just the here and now.
  • It is also essential to garner public support, particularly for such a large
    scale endeavour as this. The 1967 Referendum was the biggest single policy
    shift ever in Indigenous affairs, and it was only achieved on the back of
    significant public support.
  • Finally, and this relates somewhat to what I said earlier about speaking the
    governments language, go with the grain if possible. In relation to the health
    campaign, for example, we are not re-inventing the wheel, just greasing the
    bearings and doing a wheel alignment.

The proposal utilises and builds on existing commitments and mechanisms for
whole of government coordination (for example, in Indigenous coordination
centres, and the jurisdictional health planning forums); the historically large
budget surpluses; programs that are already in place; and shared responsibility

Thank you and I wish you well in your endeavours and for
bureaucrats please listen to and actively involve Indigenous people in the

Tom Calma
Aboriginal and Torres Strait Islander
Social Justice Commissioner

[1] Note that who the traditional
owners are appears to be contested; hence no particular group is named.


February 5, 2009