Social Justice Report 2005
- Chapter 1 - Introduction by Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner | Download as PDF | Download as MS Word
- Chapter 2 - Achieving Aboriginal and Torres Strait Islander health status and life expectation equality within the next generation | Download as PDF | Download as MS Word
- Chapter 3 - Progress in implementing the new arrangements for the administration of Indigenous affairs - ensuring effective participation in decision making | Download as PDF | Download as MS Word
Chapter 1 - Introduction by Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner
The Social Justice Report 2005 covers the period from 1 July 2004 to 30 June 2005. The Report considers progress in achieving improvements in the health status of Aboriginal and Torres Strait Islander peoples and sets out a human rights framework for achieving health equality within a generation.
The Report also examines the implementation of the new arrangements for Indigenous affairs, in a post-ATSIC environment. It considers the new arrangements from the perspective of whether they ensure the effective participation of Aboriginal and Torres Strait Islander peoples in decision making that affects their daily lives.
Both issues go to the core of the commitments made by all governments to address disadvantage experienced by Aboriginal and Torres Strait Islander peoples. The federal Government"s approach to the new arrangements in Indigenous affairs is based on repudiating the models of the past and focussing on addressing what is perceived to be the failures of previous governments, such as through the operations of ATSIC. Consequently, a significant focus of the past year has been on dismantling old structures and replacing them with new government machinery.
Responsibility and accountability for Indigenous policy development and service delivery now lies squarely with the government. For Indigenous people the challenge of the new arrangements is to ensure that they have an appropriate voice in determining community priorities. A further challenge is that rigorous accountability mechanisms are established so that success can be identified and failures addressed.=
The report also comments on a range of other reform processes impacting on Aboriginal and Torres Strait Islander peoples, such as: changes to the Community Development Employment Program (CDEP) scheme; reforms of the federal Act governing Aboriginal associations and councils; as well as reforms to heritage protection, land rights, and native title. Other larger reforms, such as the workplace relations legislation will also impact on Aboriginal and Torres Strait Islander peoples.
All this, in light of the absence of representative arrangements, severely limits the ability of Indigenous peoples" voices to be heard at a national level, let alone influence decision making processes. There is a significant need to build the capacity of communities so they can engage meaningfully in the new processes and understand their rights and responsibilities in negotiation processes.
In my first 12 months as Aboriginal and Torres Strait Islander Social Justice Commissioner I have engaged productively with governments, including establishing a regular process for dialogue with government and other key stakeholders. I hope to continue to have a frank and robust relationship with governments to achieve the improvements in their processes and the principled basis on which they operate.
In addition to, and informing the Social Justice and Native Title Reports, I also travelled regularly across Australia visiting Indigenous communities and listening to the views of Indigenous Australians and have completed a range of other projects such as:
- A report examining issues relating to Indigenous young people with cognitive disabilities and the Australian juvenile justice system;
- Co-hosting a workshop with the United Nations Permanent Forum on indigenous Issues and engaging with indigenous communities as part of the International Conference on Engaging Communities held in Brisbane, August 2005;
- Contributing to a HREOC submission to the Senate Select Committee on Mental Health outlining the mental health concerns of Aboriginal and Torres Strait Islander peoples. This submission urged the committee to undertake specific consultations with Indigenous groups and communities in order to reach a deeper understanding of the issues;
- Co-facilitating consultations with the Acting Disability Discrimination Commissioner, the Mental Health Council and the Brain and Mind Institute"s review of the mental health system. The Report of this review, "Not For Service", was published in October 2005;
- Participating in working group meetings on the Draft Declaration on the Rights of Indigenous Peoples at the United Nations; as well as contributing to HREOC submissions to the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child in March and September respectively; and
- A range of projects relating to the 30 th Anniversary of the Racial Discrimination Act 1975 - the main projects being Voices of Australia and the production of the 4 th edition of Face the Facts.
Over the coming year, my Office will continue to focus on issues that have been identified in the Social Justice and Native Title Reports. My next report will further explore the issues identified by these reports; in particular, it will focus on the efforts made to support Aboriginal and Torres Strait Islander communities to engage effectively with government. This includes processes for consultation and negotiation, as well as processes to support Indigenous decision making.
There are a number of projects and programs currently underway that are assisting to build the capacity in Indigenous communities, including: Reconciliation Australia"s work on Indigenous governance; University of Melbourne"s development of an agreements database; the Indigenous mediation and facilitation project conducted by the Native Title Research Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies.
My Office will also focus on the lessons learned from these projects, as well as the COAG trials, and how these lessons inform policy to ensure appropriate engagement with Indigenous peoples. At present, there remains a distance to travel to ensure that the new arrangements (which ultimately affect all aspects of policy making relating to Indigenous peoples) engage with and provide Indigenous peoples" with opportunities to meaningfully participate in all decisions related to their lives.
Chapter 2 - Achieving Aboriginal and Torres Strait Islander health status and life expectation equality within the next generation
This chapter sets out a campaign of achieving Aboriginal and Torres Strait Islander health status and life expectation equality within the next generation (approximately 25 years).
There is no greater challenge to the Australian values of decency, fairness and egalitarianism than the inequality in health status between Aboriginal and Torres Strait Islander peoples and the non-Indigenous population. It is a well known fact that a large gap in health equality exists in Australia. The gap in life expectation between Aboriginal and Torres Strait Islander peoples and the non-Indigenous population is estimated to be 17 years.
A major and underlying cause of health inequality is that Aboriginal and Torres Strait Islander peoples do not have an equal opportunity to be as healthy as non-Indigenous Australians in two key areas.
- Primary Health Care: Aboriginal and Torres Strait Islander peoples, in both remote and urban centres, do not enjoy equal access to primary health care. This is the essential foundation for health equality. Primary health care provides an immediate response to acute illness and injury; it protects good health through screening, early intervention, population health programs (such as antenatal care and immunisation) and programs to promote social and emotional wellbeing and prevent substance abuse.
Critically for the Indigenous population, primary health care identifies and treats chronic diseases (including diabetes, cardiovascular and renal disease) and their risk factors. Primary health care in this context means high quality, integrated primary health care delivered by Aboriginal Community Controlled Health Organisations wherever possible in order to ensure these health services are physically and economically accessible to Aboriginal and Torres Strait Islander peoples and responsive to the different cultural needs.
- Health infrastructure: Aboriginal and Torres Strait Islander peoples do not enjoy the same standard of infrastructure necessary for health, including: safe drinking water, healthy food sources, effective sewerage systems, rubbish collection services and healthy housing.
With these two foundation elements in place, concerted special measures programs to address specific health issues facing Aboriginal and Torres Strait Islander people and eliminate the gap in health status with the non-Indigenous population are possible and sustainable.
As a nation, we have never been as well placed as we are now to turn the current health crisis faced by Aboriginal and Torres Strait Islander peoples around. In part, this is because the necessary commitments and mechanisms for whole-of-government coordination are now in place to achieve this. Traditionally, there has been a lack of coordination between the Commonwealth, states and territories, and between the health care and other relevant sectors in Australia. Since the National Aboriginal Health Strategy (1989) there has been a general agreement that whole-of-government and intersectoral integration and coordination mechanisms were a necessary first step towards any comprehensive response to the health crisis. These are now in place.
Further, we have a historically large federal budget surplus, which could be used to fund dramatic improvements in Aboriginal and Torres Strait Islander peoples" health status. With new agreement making processes, we have an unprecedented opportunity to engage and empower Aboriginal and Torres Strait Islander peoples to overcome existing health inequalities.
And yet these opportunities are not being effectively harnessed.
The human rights based approach to health
Human rights provide a framework for addressing health inequality by providing a system to guide policy making and to influence the design, delivery, monitoring and evaluation of health programs and services. Crucially, the "right to health" requires governments to address issues of equality opportunity in health head on. It requires governments to address inequality of health services, particularly primary health care, as well as health infrastructure when it occurs. As such, it is directly relevant to the situation of Aboriginal and Torres Strait Islander peoples.
The most important statement of the right to health is article 12 of the International Covenant on Economic, Social and Cultural Rights, which recognises "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". It is not to be understood as a right to be healthy, which cannot be guaranteed by governments. Instead, the right requires a state to ensure that its population enjoys the opportunity and an equal opportunity to be as healthy as possible - primarily by being able to access primary and other forms of health care and medicines when necessary, as well as enjoying a high standard of health infrastructure.
The right to health is subject to the over-arching principle of "progressive realisation". This means that governments must take steps that are deliberate, concrete and targeted as clearly as possible towards health equality and equality of opportunity in relation to primary health care and health infrastructure.
Where health inequality and inequality of opportunity exists, governments must identify appropriate health indicators with achievable benchmarks, so that the rate of progress can be monitored and assessed. Setting benchmarks enables governments and other parties to reach an agreement about what rate of progress is adequate. Such benchmarks should be:
- specific, time bound and verifiable;
- set with the participation of the people whose rights are affected, to agree on what is an adequate rate of progress and set realistic targets; and
- Reassessed independently on their target date, with accountability for performance.
The right to health also emphasises processes for achieving improvements in health, with the free, active and meaningful participation of Indigenous peoples critical in the design and delivery of health services, health infrastructure and health programs.
A campaign for Aboriginal and Torres Strait Islander health equality within a generation
The failure of the policies and programs over the past 20 years to achieve significant improvements in Aboriginal and Torres Strait Islander health status, yet alone reduce the inequality gap, reveals two things people can no longer accept from governments.
We cannot accept the failure of governments to commit to an urgent plan of action. It is not acceptable to continually state that the situation is tragic and ought to be treated with urgency and then fail to put into place targets to focus policy making or to fund programs accordingly.
A plan that is not adequately funded to meet its outcomes cannot be considered an effective plan. The history of approaches to Aboriginal and Torres Strait Islander health reflects this statement. Australian governments have proved unwilling to fund Aboriginal and Torres Strait Islander health programs based on need and as a result plans have failed. Programs and service delivery must be adequately resourced and supported so that they are capable of achieving their stated goals.
The campaign the Social Justice Commissioner"s Office is proposing directly addresses these two failings.
Time frames, targets and benchmarks
Perhaps the most striking factor in the current response is the absence of a timeframe for achieving Aboriginal and Torres Strait Islander health equality. This absence promotes a lack of accountability of governments.
The campaign recommends that governments commit to achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander and non-Indigenous people within 25 years.
This proceeds from a commitment to provide equality of opportunity in relation to health for Aboriginal and Torres Strait Islander peoples. Governments should commit to achieving equal access to primary health care and health infrastructure (including safe drinking water, effective sewerage systems, rubbish collection services and healthy housing) within 10 years for Aboriginal and Torres Strait Islander peoples.
The goal of health equality and equality of opportunity should be supported by targets and benchmarks over the short and medium term. In many cases, the Overcoming Indigenous Disadvantage Framework, as well as the Aboriginal and Torres Strait Islander Health Performance Framework provide an appropriate basis for establishing targets and benchmarks with deadlines in the short and medium term across a variety of contributing areas .
There is sufficient evidence to demonstrate that the improvements sought in Aboriginal and Torres Strait Islander peoples" health status are achievable within the timeframes the campaign is proposing. For example, in the 1940s-50s in the United States, Native American life expectancy improved by approx. nine years; an increase in life expectancy of about 12 years took place in Aotearoa/New Zealand over two decades from the 1940s-60s. Figures demonstrate dramatic improvements in infant mortality in Australia (from 200 per 1000 in the mid 1960s in Central Australia to around 50 per 1000 by 1980) through the provision of medical services.
A number of programs in Australia have also achieved rapid improvement in Aboriginal and Torres Strait Islander peoples" health in response to specific program interventions. For example, death rates among Aboriginal and Torres Strait Islander people from pneumonia have dropped 40% since 1996 due to the rolling out of pneumococcal vaccinations; and the Strong Babies, Strong Culture program has shown that significant reductions in the number of low birth weight babies can occur within a matter of years.
It is ironic that the government has committed to achieve the UNMillennium Development Goals by contributing to the international campaign to eradicate poverty in third world countries by 2015, but has no similar plans for Aboriginal and Torres Strait Islander Australians, in particular their health.
Only with funding commitments that are proportionate to the outstanding needs in the community will governments be able to meet the outstanding primary health care and infrastructure needs of Aboriginal and Torres Strait Islander peoples within 10 years.
A Commonwealth initiative called the Primary Health Care Access Program (PHCAP) is the main vehicle for the expansion of existing primary health care services in communities and the establishment of new services. However, PHCAP has never been fully or appropriately funded.
Not all zones have been rolled out and there are no plans to roll out further PHCAP zones in the Top End of Australia. Similarly, the Department of Health and Ageing has not provided estimates on the funding required to implement the PHCAP to the benchmark funding level in Aboriginal and Torres Strait Islander communities over the next five years.
Medicare per capita underspend estimates have been used to assess the quantum of the Aboriginal and Torres Strait Islander primary health care shortfall. Factoring in greater health needs has created the following cost estimates:
- In 2003, the Australian Medical Association calculated there was a $250 million per annum shortfall in Medicare and related spending on Aboriginal and Torres Strait Islander peoples by the Commonwealth that, if made up, could be devoted to primary health care.
- In a report published in May 2004, Access Economics estimated there was a $400 million (approx.) per annum shortfall that should be devoted to an Aboriginal and Torres Strait Islander health program, including provision of an equitable distribution of primary health care.
- In 2004, the Costings Models for Indigenous HealthReport estimated the cost of extending Indigenous specific universal primary health care to be between $409 million and $570 million depending on the quality of service offered.
The Community Housing and Infrastructure Program (CHIP) has been set up to provide capital works infrastructure to communities. However, the CHIP is not a strategic plan to ensure that an equal standard of infrastructure is provided to Aboriginal and Torres Strait Islander communities. Funding is not linked to needs under this program. In 2001, it was estimated that at the current rate of funding it would take at least 20 years to achieve an equal standard of infrastructure in these communities.
There is a danger that if infrastructure needs are not addressed expeditiously, the rapidly growing Aboriginal and Torres Strait Islander population may put such pressure on existing infrastructure that much of the good work of the past decade will be undone. Planning to address this historical lack of infrastructure is an essential joint step (with the provision of primary health care) if improvements to health are to be realised. However, there is no current overall plan to address these needs that meets with the human rights principle of progressive realisation (i.e. that inequality is steadily being reduced with the commitment of the maximum of available resources).
While the estimated funds needed to address primary health care access and infrastructure provision is significant, it only represents about 1% of the current national per annum spending on health. Total expenditure on health goods and services, health-related services and capital formation in Australia in 2003-04 was estimated at $78.4 billion. This was an increase of $6.1 billion over the previous year.
A federal budget surplus of $13.6 billion (as at 30 June 2005) suggests that resource availability is not the issue.
How does the campaign fit in with existing approaches to Aboriginal and Torres Strait Islander health and the new arrangements?
This campaign seeks to place a time-frames on the goal and aims of the National Strategic Framework for Aboriginal and Torres Strait Islander Health and the commitments of the Council of Australian Governments (COAG) to overcome Aboriginal and Torres Strait Islander disadvantage. It provides a long-term vision for government focussed activity.
Governments have, after all, already made commitments to addressing Aboriginal and Torres Strait Islander health inequality as a major priority. In particular, there is now a joint commitment from all governments in Australia to coordinated service delivery with the objective of addressing Aboriginal and Torres Strait Islander disadvantage, including health inequality. Efforts towards this goal are to be guided by the COAG National Framework of Principles for Government Service Delivery . Progress in addressing these commitments is able to be measured against the COAG Overcoming Indigenous Disadvantage Framework on a biennial basis.
Further, the National Strategic Framework for Aboriginal and Torres Strait Islander Health commits governments to work in a holistic, whole-of-government manner in partnership with Aboriginal and Torres Strait Islander peoples towards the goal of health equality. With the rolling out of the new arrangements for the administration of Indigenous affairs at the federal level over the past 18 months, the "whole-of-government" machinery necessary to implement the commitments of COAG is now in place.
Processes have been put into place to administer this framework to achieve its goals and aims. This includes: the finalisation of bilateral health agreements between the Commonwealth and states and territories; the establishment of state-level health forums; the development of regional plans which identify needs and priorities; and the establishment of a national performance monitoring framework.
There has been significant work to address many public health issues affecting Aboriginal and Torres Strait Islander peoples, notably commitments to environmental health workers, food and housing. However, there is no overarching strategic response to public health issues (notably health infrastructure) faced by Aboriginal and Torres Strait Islander peoples.
The key outstanding issue for Aboriginal and Torres Strait Islander health is the need to implement the extensive commitments of governments and to ensure that the number and pace of activities is sufficient to achieve health equality. This campaign would address this failure by linking existing commitments to adequate funding and resources and setting the goal of health equality within a 25-year period.
The new arrangements, with their emphasis on a whole-of-government response to Aboriginal and Torres Strait Islander disadvantage, are entirely compatible with such a campaign. Shared Responsibility Agreements (SRAs) in particular provide a significant opportunity to advance non-health sector issues which impact on Aboriginal and Torres Strait Islander health status. They are able to target social determinants of health, as well as support partnership approaches to addressing some issues relating to infrastructure provision and management within communities. However, there are limits on when SRAs should be used. In particular, it is not appropriate for primary health care to be delivered through SRAs.
Overview of recommendations
The Social Justice Commissioner has made the following recommendations to achieve long-term commitments to the goal of health equality for Aboriginal and Torres Strait Islander peoples within a generation.
1) Governments of Australia commit to achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander and non-Indigenous people within 25 years.
2) Governments of Australia commit to achieving equality of access to primary health care and to an equal standard of health infrastructure for Aboriginal and Torres Strait Islander peoples within 10 years.
This commitment could be achieved with agreement at the Australian Health Minister"s Conference of a National Commitment to achieve Aboriginal and Torres Strait Islander Health Equality, with bi-partisan support from federal, state and territory parliaments.
This commitment should:
- acknowledge the existing inequality of health status faced by Aboriginal and Torres Strait Islander peoples;
- acknowledge that this constitutes a threat to the survival of Aboriginal and Torres Strait Islander peoples and their languages and cultures, and does not provide Aboriginal and Torres Strait Islander peoples with the ability to live safe, healthy lives with full human dignity;
- confirm the commitment of all governments to the National Strategic Framework and the National Aboriginal Health Strategy as providing over-arching guidance for addressing Aboriginal and Torres Strait Islander health inequality;
- commit all governments to a program of action to redress this inequality, which aims to ensure equality of opportunity in the provision of primary health care services and health infrastructure within 10 years;
- note that such a commitment requires partnerships and shared responsibility between all levels of government, Aboriginal and Torres Strait Islander peoples and communities, non-government organisations and the private sector;
- acknowledge that additional special measures will be necessary into the medium term to achieve this commitment;
Benchmarks and targets for achieving equality of health status and life expectation should be negotiated, with the full participation of Aboriginal and Torres Strait Islander peoples, and committed to by all Australian governments. Such benchmarks and targets should be based on the indicators set out in the Overcoming Indigenous Disadvantage Framework and the Aboriginal and Torres Strait Islander Health Performance Framework. They should be made at the national, state/territory and regional levels and account for regional variations in health status. Data collection processes should also be improved to enable adequate reporting on a disaggregated basis, in accordance with the Aboriginal and Torres Strait Islander Health Performance Framework.
Resources available for Aboriginal and Torres Strait Islander health through mainstream and Indigenous specific services should be increased to levels that match needs in communities, and to the level necessary to achieve the benchmarks, targets and goals set out above. Arrangements to pool funding should be made with states and territories, matching additional funding contributions from the federal Government.
Finally, the goals and aims of the National Strategic Framework for Aboriginal and Torres Strait Islander Health be incorporated into the operation of Indigenous Coordination Centres and the new arrangements for Indigenous affairs.
The Social Justice Commissioner"s Office will follow up these recommendations with governments over the next 12 months, and further the campaign through consultation with Aboriginal community controlled health organisations and their representatives, Aboriginal and Torres Strait Islander peoples, the non-government and private sector.
Chapter 3 - Progress in implementing the new arrangements for the administration of Indigenous affairs - ensuring effective participation in decision making
The primary focus for the federal Government in the first 12 months of the new arrangements in the administration of the Indigenous affairs was the abolishment of the Aboriginal and Torres Strait Islander Commission (ATSIC) and the creation of new processes to engage with local Indigenous communities and coordinate mainstream delivery of services to Aboriginal and Torres Strait Islander peoples. The results so far are mixed, with some significant developments in promoting whole-of-government coordination, as well as some worrying gaps and challenges that have yet to be adequately addressed.
From a human rights perspective, Aboriginal and Torres Strait Islander people must be assured of the opportunity to participate effectively in all aspects of policy development and service delivery that impact upon them. This chapter identifies four requisites for ensuring effective participation:
- Representation at local, regional, national and international levels.
- Participation through agreement making and planning processes at all levels.
- Engagement with Indigenous peoples, through coordinated service delivery across and between governments and through the development of an appropriately skilled public service.
- Accountability and transparency through the existence of appropriate data collection, performance monitoring and evaluation processes.
Indigenous representation and the new arrangements
Participation in decision making processes is central to a human rights based approach to development. Principles relating to self-determination, non-discrimination, equality before the law and minority group cultural rights have been interpreted as requiring governments to work with Indigenous peoples in a fair and open manner. Perhaps a first step in this process is to ensure that information is disseminated to Indigenous communities so that those communities can make decisions based on detailed knowledge. Indigenous communities need to be equal partners in any agreement or process that affects their communities. It is imperative therefore that the participation of Indigenous peoples be based on free, prior and informed consent.
There have been substantial efforts made in the first 12 months of the new arrangements to identify processes for engaging with Indigenous peoples. Despite this, significant gaps remain in Indigenous representation at local, regional and national levels. Also, no mechanisms have been established to ensure the distinct issues of Torres Strait Islanders on the mainland are addressed.
The first priority must be to establish regional representative bodies which can link to local, as well as state and national levels. Regional Partnership Agreements can provide a solid basis for this to occur. Governments and communities have identified a number of representative models, most of which are based on connecting local services and decision making bodies, to a regional council or a state-wide forum. However, the federal Government has not yet outlined how it will support the proposed models. Addressing the absence of regional representation should be an urgent priority for governments i n the next financial year.
While most of the focus throughout the last 12 months has been on developing local and regional representative models there has been very little consideration given to ensuring national level input of Indigenous peoples into policy making processes.
Concerns raised by the abolition of ATSIC include:
- establishing replacement processes for the participation of Indigenous peoples in Commonwealth-State framework agreements;
- the absence of requirements for government to consult with Indigenous organisations;
- facilitating Indigenous participation in national policy debates through linking local and regional levels structures to the national level; and
- negotiating with Indigenous peoples on the positions on Indigenous rights adopted by the governments in international fora.
The absence of a framework for Indigenous representation at all levels of decision-making undermines and contradicts the aims of the new arrangements. It restricts the ability of Indigenous people to participate in decision-making processes where they would have otherwise through the ATSIC Regional Council"s.
Indigenous participation through local level agreement making
An integral component of the new arrangements has been the negotiation of local level agreements within Indigenous communities. These are known as Shared Responsibility Agreements (SRAs), which are based on mutual obligation principles. Early on, the federal Government set a target of finalising 50-80 SRAs by June 2005, which was met. The target for the 2005-06 is 100 SRAs.
This chapter considers how SRAs impact on the well-being of Indigenous peoples and whether they are consistent with human rights standards. SRAs have the potential to improve the enjoyment of human rights by Indigenous peoples in the following ways:
- by being based on local level negotiation and consultation, they could ensure the effective participation of Indigenous peoples in decision making that affects them;
- by tailoring services to the specific circumstances of the community, they could lead to culturally-appropriate service delivery and improved accessibility of mainstream services;
- by supporting the development of local enterprises that are culturally relevant, they could expand the existence of otherwise limited economic development opportunities in remote communities; and
- by being part of a comprehensive plan to address the needs and build the capacity of communities, they could lead to the empowerment of Indigenous communities.
Conversely, SRAs also have the potential to restrict the enjoyment of human rights by Indigenous peoples in the following ways:
- if they impose conditions on Indigenous peoples" access to services, where such services are otherwise available to other sections of the community without condition;
- if SRAs make the progressive realisation in the enjoyment of rights for Indigenous peoples contingent upon conditions being met (this is particularly relevant given the existing state of inequality experienced by Indigenous peoples); and
- if they make Indigenous peoples access to core minimum entitlements conditional, as these matters require immediate effect and are not subject to negotiation.
Free, prior and informed consent
A key principle that emerges throughout the considerations for agreement making is that of free, prior and informed consent, which represents a synthesis of the obligations to ensure effective participation. The elements of this principle include the lack of coercion, intimidation and manipulative actions; that consent has been sought in advance and consultation processes have been respected; information is provided on the scope of the activity; and that consultation and participation are undertaken in good faith.
The public debate about SRAs has generally been based on very limited information. The Social Justice Commissioner"s Office has been provided with copies of SRAs as well as visiting many communities involved in SRAs to talk with them about their experiences in making them. This has confirmed that great care must be taken in passing judgement on individual agreements based solely on media reports.
The following guideline of principles suggests that SRAs may still potentially breach human rights even if it provides a benefit that is over and above essential services, if it is provided in a manner that is discriminatory or makes addressing existing inequalities contingent upon the completion of mutual obligation principles.
Human rights standards relating to the process of SRA making
- Non-discrimination and equality.
- Effective participation.
- Transparent government frameworks.
- Indigenous representation.
- Accurate and appropriate reporting and data collection.
- Adopting a long term approach to planning and funding.
- Capacity building.
Human rights standards relating to the content of SRAs
In addition to the principles relating to the process of engagement, there are a number of principles that are relevant to the content of SRAs to ensure that they are consistent with human rights standards, in particular those set out in the International Covenant on Economic Social and Cultural Rights (ICESCR).
Those principles can be summarised as:
- Non-discrimination and equality before the law.
- Special measures and legitimate differentiation of treatment.
- Progressive realisation of rights.
- Core minimum obligations.
- Respecting, protecting and fulfilling rights.
Human rights standards require that:
- the government takes whatever steps are necessary;
- strategies should reflect extensive genuine consultation with, and participation by, all of those affected; and
- the government can demonstrate that the measures being taken are sufficient to realise the right for every individual in the shortest possible time in accordance with the maximum of available resources.
Over the next 12 months, the Social Justice Commissioner"s Office will focus on agreements that involve commitments about subject matter relating to the delivery of basic entitlements or essential services. This is to ensure that the obligations made in such agreements amount to positive measures to fulfil human rights and do not place restrictions on the accessibility of basic entitlements.
The SRA process is clearly an evolving one. Presently the SRA process appears to lack some of the key elements necessary to ensure appropriate engagement of Indigenous communities. In particular, there are not transparent frameworks for government accountability, with an absence of sufficient benchmarking or targets in many agreements. Although recent guidance provided by the Office of Indigenous Policy Coordination (OIPC) in developing relevant and appropriate key indicators, aligned with Overcoming Indigenous Disadvantage is a step in the right direction.
Government engagement with Indigenous peoples
A key element that will determine the success of the new arrangements is the ability of governments to effectively engage with Indigenous people. This chapter details the challenges to achieve this, including:
- ensuring that public servants have the appropriate skills to engage with communities;
- improving the coordination of activities and services at the federal level, as well as with the state, territory and local governments; and improving the accessibility of mainstream services, and the coordination of mainstream and Indigenous specific services.
The appointment of Ms Pat Turner as Aboriginal and Torres Strait Islander Employment Coordinator at the Australian Public Service Commission (APSC) indicates an increased focus on these issues by the Australian Public Service (APS).
Another welcome development was the launch of the APS"s Employment and Capability Strategy for Aboriginal and Torres Strait Islander Employees which, among other things, aims to provide pathways to employment by removing barriers and supporting employees. The strategy specifically aims to increase the number of Aboriginal and Torres Strait Islander people in the public service and build the capacity of the APS generally to provide more effective service delivery to Indigenous people.
A key feature of the new arrangements is the placement of staff from across mainstream departments into Indigenous Coordination Centres (ICCs) in regions across Australia. This approach involves a significant shift in how mainstream departments provide service delivery for Indigenous communities. It will require that staff is suitably skilled to undertake the diverse requirements expected of them and to consider best practice models for the integration of activities of different departments within an ICC.
Improved coordination between state and territory governments will be necessary in order to ensure the success of the new arrangements. This is a central undertaking by all governments through the National Framework of Principles for Government Service Delivery to Indigenous Australians as agreed to by COAG in June 2004. It includes the signing of bilateral agreements between the federal, state and territory governments. As at June 2005, one bilateral agreement had been signed between the Northern Territory and the Commonwealth Government. The agreement commits both governments to work together in partnership with Indigenous people to overcome disadvantage.
Negotiations continue on bilateral agreements in the other states and territories.
Reforms to the Community Development Employment Program scheme
Perhaps the most significant development over the past year has been the reform to the Community Development Employment Program (CDEP) scheme. The reform to the CDEP is integral to the whole-of-government approach to delivering services, especially carrying out the details of SRAs. The CDEP will be largely responsible for performing many of the activities agreed to under SRAs - from essential service delivery activities (such as garbage collection) to community development activities (such as building community halls and basketball courts).
The reform to the CDEP scheme highlights the potential of aligning Indigenous specific services with the mainstream. One of the main principles of the new arrangements is the government"s desire to see Indigenous people relying less on passive welfare and participating in mainstream employment. The lifting of Remote Area Exemptions (RAEs) is another aspect to this approach and one that will impact on the operations of some CDEPs.
The government has said that it will take local conditions and employment opportunities into account rather than being too prescriptive in their approach to outcomes. However, the lack of consultation during the development of the reforms is not consistent with communities and government being equal partners in this process.
The focus on welfare reform also needs to be broadened to consider long-term challenges to the sustainability of Indigenous communities. This includes educational opportunities, the opportunities provided by the availability of new forms of technology and housing, as well as economic development and employment.
The accountability and transparency of the new arrangements
Now that the new arrangements have been in place for over 12 months it is critical that steps be taken to ensure that the government"s intended policy and program goals are properly monitored and outcomes appropriately evaluated.
Progress to date has been slow in ensuring that the new arrangements are subject to rigorous and transparent monitoring processes. The absence of sufficient processes amounts to a failure of government accountability.
One of the main concerns is the lack of evaluation of the COAG trial sites. This is especially concerning given that the new arrangements are largely based on the COAG trial model. This concern was expressed in the Social Justice Report 2004 and there are still no formal evaluations of the trials 12 months later.
However, the Social Justice Commissioner has been advised by the OIPC that the terms of reference for the independent evaluations have now been finalised and are expected to be produced in early 2006. The Commissioner is particularly concerned by the statements of some governments and departments which suggest that in some trials the baseline data for the evaluations still does not exist. This concern has been confirmed by two independent community initiated reports on the Shepparton trial site, which found that the lack of baseline data and milestones established by the trials has made it difficult to know whether success has been achieved.
The lack of progress and lack of transparency on this issue has the potential to undermine the credibility of the trials. This would be a great shame, given that there are positive lessons to be learned from these major initiatives.
The concerns I have in relation to the COAG trial sites are also relevant to the new arrangements. The new arrangements require rigorous monitoring and evaluation, especially the collection of performance information and data to support decision-making and to measure inputs and outputs.
At present, data collections and performance information systems do not provide information on a consistent or comparable basis. Furthermore, there is also very little information available that can identify the extent of usage of, or barriers to, mainstream services by Indigenous people. The absence of consistent and comparable data can result in inefficiencies, duplication and lack of accountability.
However, there have been a number of positive developments aimed at addressing a number of issues relating to performance information. The Australian Government Indigenous Management Information System (AGIMIS) is being developed by the OIPC in order to collect data and provide reports to monitor investment by government. The challenges for the project are consistency and compatibility of data. The system also needs to have an ability for data to be related to Indigenous socio-economic outcomes.
There is currently little information to show progress on a variety of measures through the new arrangements. We are also unlikely to see an analysis of the 2006 Census data until 2007 or 2008 and analysis of the next National Aboriginal and Torres Strait Islander Social Survey (NATSISS) until 2008. The latest report on Overcoming Indigenous Disadvantage by the Productivity Commission Steering Committee for the Review of Government Service Provision reflects on data that pre-dates the new arrangements on most indicators. The report also identifies the strengths and weaknesses of current data collection sources such as Census data, the NATSISS and administrative data.
Another weakness resulting from the demise of ATSIC is the lack of structures currently in place to provide a framework to consult with Indigenous peoples. Data collection can only be effective when it involves Indigenous peoples" being consulted.
A further concern is the inconsistent provisions and unclear processes for measuring outcomes within SRAs. The OIPC have informed the Social Justice Commissioner"s Office that SRAs will be initially evaluated on a limited basis by OIPC in the first half of 2006 - but not independently. However, the OIPC has acknowledged the role of independent streams of evaluation such as: the Office of Evaluation and Audit (Indigenous Programs); the Australian National Audit Office; and the Aboriginal and Torres Strait Islander Social Justice Commissioner.
The evaluations conducted by the Office of Evaluation and Audit (Indigenous Programs) and the Australian National Audit Office relate to specific Indigenous programs and system wide operations of the new arrangements.
One accountability framework mechanism available is the Overcoming Indigenous Disadvantage report, which will be produced every two years. The report will document the outcomes for Indigenous people and is intended to provide information to governments so they can assess whether their policy interventions are having the intended impact. By developing a range of key indicators, the Overcoming Indigenous Disadvantage reporting framework embodies a vision, committed to by all governments, that Indigenous people will one day enjoy the same overall standard of living as other Australians. They will be as healthy, live as long, and participate fully in the social and economic life of the nation.
At present there is no correlation between many programs and activities under the new arrangements and the key indicators developed by the Overcoming Indigenous Disadvantage reporting framework. SRAs to date are weak on addressing data limitations or ensuring rigorous, sustainable links to the reporting framework. These links need to be implemented. Applying benchmarks and monitoring frameworks means that processes which provide for the effective participation of Indigenous peoples" in decision making are transparent.
Recommendations and follow up actions
This chapter contains two recommendations and five follow up actions.
Recommendation one: the federal Government, in partner ship with state and territory governments, prioriti se the negotiation of regional repre sentative arrangements with Indigenous peoples. Representative bodies should be finalised and operational by 30 June 2006 in all Indigenous Coordination Centre regions.
Recommendation two: the Office of Indigenous Policy Coordination, in consultation with the Aboriginal and Torres Strait Islander Social Justice Commissioner, agree to Guidelines to ensure that Shared
Responsibility Agreements comply with human rights standards relating to the process of negotiating SRAs and the content of such agreements.
Over the next 12 months, the Social Justice Commissioner will follow up on certain issues and concerns identified throughout this chapter. These follow up actions are:
1. Consider the adequacy of processes undertaken by all governments to consult and negotiate with Indigenous peoples and communities on policy development, program delivery and monitoring and evaluation processes.
2. To work in partner ship with non-government organisations and Indigenous community organi sation s to promote under standing of the rights of Indigenous peoples in the making of Shared Responsibility Agreements.
3. Monitor the Shared Responsibility Agreements process, including considering the process for negotiation and implementation of SRA s;
- considering whether the obligations contained in agreements are consistent with human rights standards or place restrictions on the accessibility of basic entitlements or essential services; and
- establishing whether the government has fulfilled its commitments in SRAs, through providing appropriate support to communities to ensure that the proposed benefit in an SRA is realised by the community.
4. The Social Justice Commissioner will examine approaches adopted by the government to improve the accessibility of main stream services to Indigenous communities and individuals. This will include:
- conducting consultations and case studies with the participation of select urban, regional and remote Indigenous communities, to identify best practice as well as barriers to the accessibility of mainstream services;
- examining the role of solution brokers in Indigenous Coordination Centres and in the negotiation of Shared Responsibility Agreements (for example, by considering the percentage of funding allocated through SRAs from mainstream programs, as opposed to Indigenous specific funding or the SRA flexible funding pool); and
- considering the impact of reforms to the CDEP Scheme, including changes to align the program more closely with mainstream employment programs.
5. The Social Justice Commissioner will continue to consider the adequacy of monitoring and evaluation processes for the new arrangements. This will include considering efforts by all governments to integrate the Overcoming Indigenous Disadvantage Framework into policy and review processes, through the establishment of benchmarks and targets; as well as monitoring progress in the COAG whole-of-government trials and the outcomes of the formative evaluations of these currently underway.