Presentation - Only time will tell : Human rights implications and the new arrangements for Indigenous affairs.
Mr Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights & Equal Opportunity Commission (Australia)
Prepared for the United Nations & Queensland State Government Engaging Communities Conference, Workshop 4 "Engaging the Marginalised", Brisbane
15 August 2005
Acknowledge traditional owners, member of the Permanent Forum Professor Mick Dodson and participants.
Thank UN for the opportunity to speak.
This week's conference could not happen at a more opportune time. While we discuss ways to engage Indigenous communities, as we listen to that ways government can engage with its citizens, a radical change is occurring in the way the Australian government and Indigenous Australians engage.
The changes affect Indigenous people's influence over policy, access to services and overall participation in the decisions that affect their lives and the lives of generations to come.
These changes go to the heart of the relationship between government and Indigenous people. This relationship can be characterised as a new relationship of 'direct engagement'.
Under the new rules for engagement, government will negotiate directly with individual Indigenous communities. Agreement-making will be based on the principle of mutual obligation where the provision of services and funding are directly negotiated between government and individual Indigenous communities.
The government has achieved this by removing the conduit between government and community - Australia's only national Indigenous representative body - the Aboriginal and Torres Strait Islander Commission or ATSIC.
What is certain about this new relationship is that it will impact on the enjoyment of human rights by Indigenous Australians. However, whether this will enhance or undermine the enjoyment of such rights is still unknown.
What I have just described to you, in part, are the Australian government's reforms to Indigenous affairs, otherwise known as the 'new arrangements'. The new arrangements are in their early days, and only time will tell what impact they will have on the lives of Indigenous people.
My job as Australia's Indigenous rights watchdog is to monitor these reforms to ensure the enjoyment of rights is enhanced.
Today I will share a preliminary assessment of direct engagement between government and Indigenous communities. In particular, I will explore issues such as:
- The impact and challenges of engaging Indigenous communities in the absence of representative structures; and
- Any potential infringement on human rights standards and principles as a result of the reforms.
On 23 March 2005, Federal Parliament passed legislation to abolish the National Board of Aboriginal and Torres Strait Islander Commission and its 35 Regional Councils.
The result was the loss of Indigenous Australia's first and only elected and representative voice. The abolition left a gap in the representation of Indigenous Australians and the provision of advice to inform Indigenous affairs policy to government.
The government's solution to this was to:
- support the creation of alternative regional representative structures;
- appoint a national Indigenous advisory council; and
- start having 'new conversations' with local Indigenous people directly.
On the latter point, the Minister for Indigenous Affairs stated in an address at the 2005 National Reconciliation Planning Workshop:
As the old structures that stood between governments and local people are dismantled
or change and respond, we will need to support the development of sound governance
arrangements and leadership in local communities.
There is value in government directly engaging with Indigenous communities. There is also added value in the big picture policy advice an elected, representative voice can provide. It seems from the Ministers comment that an elected body is seen as a hindrance rather than help.
My view is that Indigenous Australia must have a national representative voice in order to influence and inform policy-making at the federal level.
While services should be tailor made to individual community needs and direct engagement with local communities is the best way to meet those needs, it is equally important to have a representative voice at the national level to inform national policy.
The impact of these changes on Indigenous peoples' engagement is not only limited to the domestic context.
The demise of ATSIC, along with its international advocacy program, also diminishes the degree of representation by Indigenous Australians at various United Nation fora such as the Working Group on Indigenous Populations, the Working Group on the Draft Declaration on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues.
ATSIC was recognised as playing a key role in representing the views of Indigenous Australians at these fora. This international voice has not been replaced.
The absence of both national and international representation on Indigenous rights will, in my view, reduce the level of scrutiny and accountability of governments in their endeavours to improve the lives of Indigenous Australians.
Challenges and human rights implications
In March 2005, the Committee on the International Convention on the Elimination of Racial Discrimination noted its concern that the abolition of ATSIC, the government's appointment of a National Indigenous Council to provide policy advice and the transfer of Indigenous-specific programs to mainstream government departments would reduce the participation of Indigenous Australians in the decisions that affect their lives.
The Committee recommended that the Australian government make decisions on the rights and interests of Indigenous Australians only with their informed consent.
The Committee's concerns and recommendations highlight the key human rights issue that is raised by the Australian government's reforms - that is, effective participation based on free prior informed consent.
In the Social Justice Report 2004 I raised a number of challenges related to the government's reforms. One of those challenges being effective participation.
It will be a challenge for Indigenous Australian's to effectively participate in the new arrangements as both the national and regional elected Indigenous representatives no longer exist. To date only ten out of the former 35 ATSIC regions have proposed alternative representation models. While the government has indicated its support for such alternative Indigenous regional representative bodies, how it will support such representative structures is still unknown.
It will be a challenge for Indigenous Australian's to effectively participate in the new arrangements where there is no connection between local, regional and national decision-making. Effective participation can be achieved through a mix of local, regional and national processes that are interconnected. At this stage, each level seems to be operating in isolation.
Agreements are made at the local level. Alternative representative structures are being developed at a regional level. And the government appointed National Indigenous Council advises government at the national level. But, there is no mechanism to connect these processes.
It will be a challenge for Indigenous Australian's to effectively participate in the new arrangements where there is a lack of free prior informed consent. From consultations conducted for the Social Justice Report 2004 I observed a lack of information about the new arrangements in Indigenous communities. It is difficult to see how the new arrangements can succeed, and how Indigenous people can directly engage with government, without a broadly based campaign to inform Indigenous peoples of the changes as well as of their role in the new processes, such as through agreement-making.
The fourth session of the United Nations Permanent Forum on Indigenous Issues noted that consultation and participation are crucial components of a consent process. Consent means that Indigenous peoples' have reasonably understood and agreed to the information provided. To ensure consent within that definition can be given, all the necessary information must be provided sufficiently in advance. And such information must be accessible and accurate.
In Australia, the Racial Discrimination Act 1977 (Cth) is the only legal mechanism by which to monitor any potential discriminatory impact of the new agreement-making process. Given this, it has never been more important to develop principles for engagement between Indigenous Australians and government. And the cornerstone of such principles must be Indigenous peoples' participation in decision-making, setting priorities and the agenda on issues that involve their rights and interests.
As Social Justice Commissioner, my role is to monitor the impact of government activity on the enjoyment of human rights by Indigenous Australians.
As I mentioned earlier, the new arrangements have the potential to impact significantly on the enjoyment of rights by either leading to improved performance and outcomes by government, as well as improved engagement with Indigenous peoples, or by undermining the enjoyment of human rights by Indigenous Australians.
The latter will occur if Indigenous Australians are not able to effectively participate in the new arrangements by having a voice at the national level, the ability to influence developments on a regional basis through the operation of culturally legitimate representative structures, or if local level engagement is selective or based on coercive measures.
I will continue to monitor the new arrangements, and in particular the 'direct engagement' between government and Indigenous Australians to ensure that a breach of Indigenous peoples' human rights does not result in the longer term.
Last updated 24 January 2006.