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 Australia

Implementing ‘practical reconciliation’

1) 'Changing Direction', the 5-point plan

2) 'Agreement making and sharing common ground'

3) Expenditure on Indigenous-specific programmes

4) The Council of Australian Government's reconciliation framework

5) The Government's Response to the Commonwealth Grants Commission's Report on Indigenous Funding

6) The Government's Response to the Council for Aboriginal Reconciliation's Final Report - Reconciliation: Australia's Challenge

a) 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 reconciliation

Conclusion

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 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

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 ߑ 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 for equitable provision of services to Indigenous people

10. Data collection systems require continuous improvement to ensure performance reporting on key Indigenous outcomes is of a high standard and enables resource allocation to be better aligned with identified need, including by geography. [42]

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 Australians…

The 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 objectives…

Whatever 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 counterparts…

These 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 .

3 ibid , p5.

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 ߒ '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.

9 Ruddock, op cit, p7.

10 ibid , p5.

11 ibid .

12 ibid , p2.

13 Howard, op cit.

14 For discussion of this policy approach, see Social Justice Report 2001 , pp205?207.

15 Ruddock, op cit , pp7-8.

16 ibid , p7.

17 Social Justice Report 2001, op cit , pp52-53.

18 Cf. ibid, pp61-@ 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.

19 Ruddock, op cit , p3.

20 ibid , p6.

21 ibid .

22 ibid , p4.

23 Martin, D, op cit , p36.

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- Clark, op cit , p29.

26 Lawrence, C, House of Representatives, Hansard , 17 June 2002, p3092-3.

27 Clark, op cit , p41.

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.

30 Clark, op cit , p31.

31 Senate Estimates Committee, Legal and Constitutional, Federal Parliament, Canberra, 20 November 2002, p24.

32 For discussion, see Social Justice Report 2000 , pp104-7.

33 ATSIC, op cit , p31.

34 For discussion see Social Justice Report 2000 , pp104-23.

35 Social Justice Report 2001 , pp79-91.

36 ibid , p84.

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- 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.

43 ibid , p5.

44 ibid , p5.

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.

48 ibid , p29.

49 ibid , p41.

50 ibid , p13.

51 ibid , p51.

52 ibid , p7.

53 ibid , p29.

54 ibid , p8.

55 ibid , p10.

56 ibid , p10-11.

57 ibid , p14.

58 ibid .

59 ATSIC, op cit , p31.

60 Social Justice Report 2000 , Chapter 4.

61 Government Response (CGC) , p21.

62 Commonwealth Grants Commission, op cit , pxvii.

63 ABC news release, op cit .

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)').

65 ABC news release, op cit .

66 Reconciliation Australia, op cit , pp5-6.

67 Government Response (CAR) , p3.

68 ibid , pp18-19.

69 Ruddock, 'Agreement making and sharing common ground', op cit , p2.

70 ibid .

71 Commonwealth Government, op cit , p19.

72 ibid , p21.

73 ibid , p18.

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 proposes framework agreements that embody human rights principles as a guide to agreement-making on native title land.

77 Government Response (CAR) , p19.

78 ibid .

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.

86 ABS, op cit .

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 .

88 Clark, op cit , p38.

89 ABS, 'Aboriginals and Torres Strait Islander Health Report', op cit; Government Response (CAR) , p6.

90 Clark, op cit .

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.

94 Clark, op cit , p40.

95 Government Response (CGC) , p7.

19 March 2003.