Site navigation

Change font size: SmallerLargerReload

About the Australian Human Rights Commission navigation

Continuity and change through the new arrangements – Lessons for addressing the crisis of child sexual abuse in the Northern Territory

By Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

Launch of the Social Justice Report and Native Title Report 2006

Tuesday, 3 July 2007

Turner Hall, Sydney Institute of TAFE, Ultimo


I acknowledge the traditional owners of the land where we meet today, the Gadigal people of the Eora Nation and I pay my respects to your elders and to the ancestors.

On behalf of the Human Rights and Equal Opportunity Commission can I welcome everyone here today and thank you for participating in this launch.

Thank you to Rob Welsh, the Chairperson of the Metro Local Aboriginal Land Council for welcoming us all to Gadigal country. And can I also congratulate Metro, along with the NSW Department of Environment and Conservation and Sydney University, on the repatriation and reburial of the remains of eight Kuringai ancestors that occurred this past month.

Thank you also to Mick Gooda and Pat Anderson for agreeing to participate in the launch of my latest Social Justice Report and Native Title Report to federal Parliament. These reports are produced annually and are national in their coverage.

The Social Justice Report is a report on the status of the exercise and enjoyment of human rights by Indigenous peoples. This latest report asks: what makes good Indigenous policy? It sets out how Indigenous peoples are able to engage with the government on a variety of levels: from the individual and community level up to regional, state and national levels. It analyses progress in improving the accessibility of mainstream services to Indigenous people. It also provides an overview of the key issues for tackling family violence and child abuse in Indigenous communities.

Today we launch the 14th Social Justice Report.

The Native Title Report is a report on the impact of the native title system on the exercise and enjoyment of human rights by Indigenous peoples. This year’s report focuses on the capacity of the native title system to deliver economic benefits for Indigenous people. It showcases best practice examples of Indigenous community led development and in agreement making processes. I have also included in this year’s report other related information about land rights, 99 year leases, housing reform and economic development consistent with the functions conferred on me by Parliament.

Today we launch the 13th Native Title Report.

Unfortunately, because of recent developments in the NT, I won’t be focusing my remarks on the findings of the Native Title Report today. I say unfortunately, because it is a very forward looking report, identifying the priorities of traditional owners for their land and for economic development on that land. And it focuses on successes with some wonderful case studies that stand in stark contrast to the majority of media coverage and public commentary that we see on Indigenous issues. I will, however, be speaking to the findings of the report at a major mining symposium in Broome next week.

Both reports were tabled in federal Parliament on 14 June – less than three weeks ago. They say a week is a long time in politics, and never has that saying been truer than in the past couple of weeks!

Upon their release, the reports were not well received by the Minister for Indigenous Affairs. The Minister described them as ‘disappointing’ and as not doing ‘justice to what’s being achieved through reforms to Indigenous Affairs since 2004’.[1]

This criticism is unsurprising given the extensive concerns that I have expressed in both reports – of which you will hear more shortly.

The Minister also suggested that I was taking a ‘glass half empty’ perspective.

As anyone who knows me can attest, I am actually the eternal optimist!

I have spent a lot of time this past year convincing people from all walks of life that the challenges facing Indigenous peoples in this country are not insurmountable.

My previous Social Justice Report set forth a plan to achieve health equality for Indigenous peoples within a generation. This is a vision that is evidence-based and grounded in a human rights based approach.

This vision has been embraced by just about every peak health organisation in the country, as well as the non-government and community sectors, and reconciliation organisations. Just yesterday I co-hosted a historic meeting of Indigenous health peak bodies, professional associations and health experts to advance this ambition for health equality. Phrases like ‘close the gap’ have entered the national lexicon since last year’s report and I can promise you will become even more well known in the coming months.[2]

My 25 year vision is that of an optimist. My vision is for a country where the current state of Indigenous disadvantage will be as incomprehensible to future Australians as the ‘White Australia policy’ is to the present generation.

My optimism is, however, matched by also being a realist.

The reports being launched today reveal significant problems in the way the Australian Government is administering Indigenous affairs in the period since the abolition of ATSIC.

I make no apologies for this. As Social Justice Commissioner, I am obliged to ‘call it as it is’, no matter how unpalatable it may be.

The development of these ‘new arrangements’ – as they have been called – has been tracked through the past four Social Justice Reports.[3] As I state in the introduction to this year’s report:

This continuity of focus... provides a vital record of the policy making process for Indigenous affairs at the federal level... After four years..., it is clear that there are significant problems with... Indigenous affairs at the federal level.

Primarily, this is due to an ‘implementation gap’ between the rhetoric of government and its actual activities. Perhaps most concerning, is that the problems with the current policy settings are well known... The government has largely acknowledged their existence and has made extensive commitments to address them. And yet, the problems continue and are exacerbated year by year. [4]


I have intentionally focused the Social Justice Report on the systemic approach adopted through these new arrangements. This approach is fundamental in determining the ability of the government to respond to a host of issues in a holistic manner.

The report identifies critical issues that must be addressed if we are to move forward without repeating or exacerbating existing policy errors. And this is the importance of these reports to the current situation in the Northern Territory.

For this reason I have titled this launch speech ‘Continuity and change through the new arrangements – Lessons for addressing the crisis of child sexual abuse in the Northern Territory’.

One thing that I was immediately struck by with the announcements of the government these past weeks was the similarity between them and the government’s announcements in 2004 to abolish ATSIC and introduce the new arrangements.

The announcement of the abolition of ATSIC was clearly made on the run. The commitments made at the time were sweeping in their scope. What my reports have shown is that to date the government still hasn’t been able to bed down a system that can deliver on those commitments.

In 2004, the Secretary of the Department of Prime Minister and Cabinet made the following comments:

The vision is of a whole-of-government approach which can inspire innovative national approaches to the delivery of services to indigenous Australians, but which are responsive to the distinctive needs of particular communities. It requires committed implementation... it (has) the potential to bring about generational change.

As widely reported, he also stated:

The Australian Government is about to embark on a bold experiment.... It is an approach on which my reputation, and many of my colleagues, will hang.[5]

Compare this to the recent announcements. Last week the Prime Minister said:

the full power and resources of the Commonwealth will be directed to making lasting change, where we can, in the daily lives and future prospects of the most vulnerable fellow citizens in our nation.

It goes without saying that Mr Brough and I take full responsibility for the success or failure of this plan. We are under no illusion that it will take time to show results and that it will have painful consequences for some people. We will make mistakes along the way.[6]

The Prime Minister also spoke of “the overriding responsibility and duty of care” that the government has “for the young of this country (which) justifies the scale, the breadth and the urgency of our response.”[7]

These are serious commitments.

They are genuine and they are clearly heart-felt.

I whole-heartedly welcome this and I thank the Prime Minister and Minister Brough for their commitment.

In doing so, I make a plea to the Prime Minister. This duty of care - this responsibility - extends to ensuring that there is a robust system for delivering on these commitments.

What the government does in the coming months and years could, as the Prime Minister conceives, have ‘painful consequences’ and result in ‘mistakes’.

These must be minimised through eliminating policy error.

How can this be done? By ensuring that there is continuity between the mechanisms that will be relied upon to implement these recent announcements and the existing service delivery model of the ‘new arrangements’ – the so-called ‘bold experiment’ that has come about in the place of the ATSIC era. And by recognising that there is a need for change resulting from the flaws of this existing approach.

The Social Justice Report identifies significant concerns that have the capacity to derail the efforts in the Northern Territory if left unchecked. And the report highlights that these concerns – the current, existing errors in the policy settings - are entirely avoidable.

This duty of care also requires the government to initiate open and sustained engagement with Indigenous communities, other governments, Indigenous organisations and the community sector in addressing this enormous challenge before us all. And it is a challenge for everyone – we will either succeed jointly or fail individually.

We need to move from the situation as described by Michael Duffy in the Sydney Morning Herald this past weekend of the ‘white feather being used to ridicule dissenters’. He wrote:

The modern version of the white feather is the claim... that those who question any aspect of what the Government is doing are really saying “let’s do nothing”.[8]

More than ever before we need vigorous debate alongside the action. The two are not inconsistent.

The starting point is acknowledging that we all care about the safety of Indigenous women and children. We are not operating at cross-purposes. We are all determined to ensure that Indigenous children have an equal life chance and the opportunity to thrive.

We support the government in implementing its obligations under Article 19 of the Convention on the Rights of the Child, which states that governments:

Shall take all appropriate... measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse...

And further:

Such protective measures should... include effective procedures for the establishment of social programmes to provide necessary support for the child and (for their carers), as well as other forms of prevention and for identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment... and, as appropriate, judicial involvement.

These are extensive obligations.

No one – governments, NGOs or Indigenous peoples – should rely on dogma or ideology to avoid action being taken or to avoid debate about what would be the most appropriate action to take. Declaring the situation to be a national emergency does not exempt the need for debate.

Early last week, I joined with my fellow Commissioners and the President of the Human Rights and Equal Opportunity Commission to welcome the Australian Government’s announcements of the proposed measures for the Northern Territory. In doing so, we urged the government to adopt an approach that is consistent with Australia’s international human rights obligations.

We stated:

The complex issues being tackled and the proposed measures to be taken to overcome them raise a host of fundamental human rights principles. It is of the utmost importance... for community respect for our system of government, that solutions to all aspects of these matters respect the human rights and freedoms of everyone involved.[9]

Overall, Australia’s human rights obligations set out a framework of measures ranging from:

Being the optimist that I am, I see the government’s commitment as providing a potential pathway for the recognition of the human rights of Indigenous peoples in the Northern Territory.

Perhaps for the first time ever in the Northern Territory we will have real discussions about what it takes to address the historic lack of services and funding that has been the lot of Indigenous communities for generations. As the Prime Minister has confirmed: “the full power and resources of the Commonwealth will be directed to making lasting change.”

Importantly, this includes providing Indigenous people with equality before the law by guaranteeing them the ‘right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution’[10]. This is a right that Australia has committed to protect since 1975, when it ratified the International Convention on the Elimination of All Forms of Racial Discrimination. It is a right that has comprehensively failed to be delivered in most remote Aboriginal communities to date.

The extent of the government’s commitment was also made very clear by the Minister for Indigenous Affairs on ABC TV’s 7:30 Report on 27 June. Kerry O’Brien asked of the proposed health checks:

If screening throws up eye disease, kidney disease, asthma, threat of diabetes, any one of a number of generic health problems throughout the Indigenous population you've undertaken to provide them all with on going treatment. Is that right?

The Minister’s response was unequivocal. He stated:

That's absolutely correct... We do understand the magnitude of this. We are saying if Australian kids are not healthy, then we have a duty of care to make them healthy... We are prepared to do this and break the cycle once and for all and we have no illusions about (a) the cost or (b) the time lines.[11]

An optimist might say that this commitment is not far removed from my call in the Social Justice Report 2005 for health equality for Indigenous peoples within a generation!

Overall, the announcements and the commitments made by the federal Government for the NT raise a number of important and complex issues. Each of these issues in some way comes back to the capacity of the government to deliver on its commitments. And it is, of course, the capacity of the government through the new arrangements that has been the focus of successive Social Justice Reports.

Structural questions about how the government will achieve its objectives include, but are by no means limited to the following:


The Social Justice Report identifies the warning signs where the current federal system for Indigenous affairs is not capable of addressing these core issues due to significant policy errors.

The most significant problem with the new arrangements identified by the Report is the lack of capacity for engagement and participation of Indigenous peoples. This manifests as a lack of connection between the local and regional level, up to the state and national level; and as a disconnect between the making of policy and its implementation.

As I stated in the report:

Indigenous peoples are treated as problems to be solved, not as partners and active participants in creating a positive life vision for the generations of Indigenous peoples still to come.

The greatest irony of this is that it fosters a passive system of policy development and service delivery while at the same time criticising Indigenous peoples for being passive recipients of government services![13]


I note also the recent comments on this issue by the Secretary of the Department of Treasury, Ken Henry. Speaking last week, he commented that:

To achieve progress in Indigenous development, there is a need for increased ownership, by Indigenous people, of both the problems and the policy solutions...

People who are affected by policy have a right to be involved in its development – that is no more than a statement of the primary rationale for democracy. And... people who are affected by policy also have a responsibility to be involved in its development.[14]

The difficulties of engagement at the regional level are also replicated at the national level. Recommendations 2 and 4 of the Social Justice Report address this issue, by calling for a rights based development approach to be adopted and through the creation of regional representative mechanisms.[15]

Now these are not merely theoretical observations that I have made. As is clearly demonstrated in the Social Justice Report, they go to the workability of policy.

Let me give you an example of how it applies to the current situation in the Northern Territory.

In 2003, the ATSIC Board of Commissioners released a Family Violence Policy and Action Plan. They recognised the importance of resourcing local initiatives to address family violence.

In accordance with this, the ATSIC Yilli Rreung Regional Council and North West Regional Governing Councils of the Northern Territory developed Family Violence Policies and Action Plans in 2004.

The Yilli Rreung Family Violence Policy committed the Council to empowering Indigenous people within ‘the region to develop, own and support local initiatives to combat family violence, in order to build functional and resilient families and communities’.[16]

The plan – that was never funded or implemented, due primarily to the abolition of ATSIC and removal of program responsibility – makes for interesting reading in light of recent events. It identifies several key issues that need to be addressed to impact on offending behaviour across the Top End of the Northern Territory and in some of the communities that will now be subject to federal government interventions. The key priorities identified included a focus on:


The Yilli Rreung Violence Action plan and Policy was also supported by the convening of a regional summit on family violence in 2004.[17] The first recommendation of that summit was for it to be repeated at regular, two-yearly intervals.

This process was a major achievement for the Yilli Rreung Regional Council, even though its potential, and the solutions focus it provided, were never fully met.

The question remains: what is the current status of this Regional Action Plan on Family Violence? Indeed, what is the status of each of the regional action plans on family violence that existed nationally?

In the past two Social Justice Reports I have expressed concerns at the failure of the government to utilise the planning tools and action plans developed by the ATSIC Regional Councils and through other planning forums for health, housing, criminal justice and so on. These existing plans could provide a cornerstone for regional engagement under the new arrangements.

After all, the new Indigenous Coordination Centres cover the same geographic region as the old ATSIC Regional Councils did. Accordingly, the ATSIC Regional Council Plans, Regional Family Violence Plans, as well as Regional Health Planning Forums and other such planning documents, provide a good head start on these issues.

This example illustrates what is missing from the current arrangements and the structural problems in delivering the commitments made on family violence and child abuse.

We are not starting from scratch in dealing with this issue – despite the rhetoric.

Let me give you one more example. It is reflections on the experiences in the past three years of the Murdi Paaki Regional Assembly – one of only two regional bodies that the government has funded nationally.

The Regional Assembly is based on community working parties that provide the connection between government programming, regional planning and priority setting and the implementation of projects at the community level.

Each community working party is responsible for a community action plan to identify key local priorities. This includes working parties that are dealing with issues integrally related to family violence and child abuse.

The Chairman of the Murdi Paaki Assembly, Sam Jeffries, has commented on his experience of the new arrangements and the regional engagement arrangements that have been funded as follows:

Unfortunately in moving from a fully elected regional body under the ATSIC Act with its own administrative resources, the arrangements do not resource regional representative arrangements to enable them to perform all the functions expected of them.

In these circumstances, government relies on the good-will of the Indigenous participants in Community Working Parties to meet its own interests in ensuring effective coordination and responsiveness...

What we now have is a new discretionary interventionist policy where the initiative resides with the Minister and government officers...[18]

He warns:

In the way they are being implemented, the new arrangements run counter to the ideals that have influenced the Murdi Paaki region over the past decade in developing effective arrangements for empowering our communities.

 

We have been guided by a number of fundamental principles:

 

  • Participation is a way to plan, identify and implement priority development activities and better use existing resources;
  • Communities must have the capacity to analyse their circumstances so that development can be on the basis of informed consent and communities can guide government agencies in the way they provide the necessary assistance;
  • Communities also identify what incremental and strategic resources are needed and negotiate their source;
  • Communities themselves provide the information service providers need to respond to identified local needs and priorities.

 

Participation means becoming more accountable to communities...

 

The difficulty I have with the new arrangements is that there is no structured, resourced, representative participation, but a series of ad hoc arrangements designed to meet the needs of government based on one-off funding agreements incorporating not citizen rights but administrative and political discretion.[19]

The findings of the Social Justice Report back up these concerns - we need consistency and continuity of engagement.

My comments today have addressed the structural issues for how the government delivers services and engages with Indigenous communities.

It is a complex situation and there are many potential consequences yet to be considered.

For example, in implementing its reforms in the Northern Territory, some of the other key issues that we don’t have much detail on as yet include whether the government:


These are complex matters. They need robust debate. The need for such debate should not lead to inertia or inaction. But it should lead to a commitment to principled engagement with Indigenous peoples so that we are recognised as active participants and agents of change for our own futures and for those of our children.

This is a key challenge if we are to succeed in the Northern Territory, and in addressing the issue of family violence and child abuse in every other state in Australia. And these are the challenges that I detail in the Social Justice Report and Native Title Report that I am launching here today.

I want to see a positive future, where the rhetoric of government results in true reconciliation, as measured in tangible outcomes. This is achievable and it is realistic.

Please remember, from self respect comes dignity, and from dignity comes hope.

I thank you for joining me here today.


ENDNOTES

[1] Minister Brough, Disappointing treatment of social justice reforms, Media release, 14 June 2007, www.atsia.gov.au/Media/media07/140607.aspx.
[2] See further: www.humanrights.gov.au/social_justice/health/.
[3] There was a detailed analysis of the then new whole of government community trials (or COAG trials, which pre-date the new arrangements) in the 2003 report.
[4] Social Justice Report 2006, p1, pp15-18.
[5] Dr Peter Shergold, Connecting Government: Whole-of-Government Responses to Australia's Priority Challenges, Speech, Launch of Connecting Government: Whole-of-Government Responses to Australia's Priority Challenges, 20 April 2004, www.dpmc.gov.au/speeches/shergold/connecting_government_2004-04-20.cfm.
[6] Prime Minister, Address to the Sydney Institute, Speech Transcript, Four Seasons Hotel, Sydney, 25 June 2007, www.pm.gov.au/media/Speech/2007/Speech24394.cfm.
[7] Prime Minister, Address to the Sydney Institute, Speech Transcript, Four Seasons Hotel, Sydney, 25 June 2007, www.pm.gov.au/media/Speech/2007/Speech24394.cfm.
[8] Michael Duffy, ‘Lessons from Iraq absent in Howard’s law-and-order solution’, Sydney Morning Herald, Saturday 30 June 2007, p35. Duffy also discusses ‘irrationality in public opinion’ whereby public support in the USA always increases when its government declares war – any war. He states: “it is the ‘rallying around the flag phenomenon’. I would not be surprised if this occurs in Australia too.’
[9] Human Rights and Equal Opportunity Commission, A human rights based approach is vital to address the challenges in Indigenous communities, Media release, 26 June 2007, www.humanrights.gov.au/media_releases/2007/45_07.html.
[10] Article 5(b), International Convention on the Elimination of All Forms of Racial Discrimination.
[11] 7:30 Report, Interview by Kerry O’Brien with Minister Brough, 27 June 2007, Available online at: www.abc.net.au/7.30/content/2007/s1964020.htm.
[12] See: www.oipc.gov.au/documents/OIPC_EvaluationPlan_23May.pdf. For commentary on the plan see: Social Justice Report 2006, pp64-68.
[13] Social Justice Report 2006, pp17-18. We should also remember that the legislation which forms the foundation for the new arrangements, the Aboriginal and Torres Strait Islander Act 2005 (Cth), has as one of its objectives ‘to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them’. This legislative requirement is currently not being met.
[14] Ken Henry, Creating the right incentives for Indigenous development, Address to the Cape York Institute Conference, ‘Strong foundations – rebuilding social norms in Indigenous communities’, Cairns, 26 June 2007, Speech online at: www.treasury.gov.au/documents/1275/HTML/docshell.asp?URL=070624_CYI.htm. p2.
[15] Recommendation 2 is that there be acknowledgement by government of the importance of a human rights based approach to development in order to effectively implement the new arrangements and the achievement of effective and sustainable improvements in Indigenous living standards and well-being. This requires accepting the importance of Indigenous forms of social organisation and engaging on the basis of mutual respect and good faith, and to support processes, including through capacity building initiatives, to ensure that the aspirations of Indigenous peoples are able to be voiced. Recommendation 4 is that it be acknowledged that the absence of mechanisms at the regional level for engagement of Indigenous peoples contradicts and undermines the purposes of the federal whole of government service delivery arrangements. It calls for this deficiency to be addressed as an urgent priority.
[16] ATSIC Yilli Rreung Regional Council, Family Violence Policy, ATSIC Darwin 2004.
[17] Aboriginal and Torres Strait Islander Commission, Our Indigenous Women Speak Out: Indigenous Women’s Conference on Family Violence and Child Welfare, 15 – 18 June 2004.
[18] Sam Jeffries, Rhetoric and Reverse Gear: Indigenous Policy as a strategic afterthought, 4th National Indigenous Education Conference, Getting on with the job: Indigenous Engagement in Education, Newcastle, 27-29th November 2006.
[19] Sam Jeffries, Rhetoric and Reverse Gear: Indigenous Policy as a strategic afterthought, 4th National Indigenous Education Conference, Getting on with the job: Indigenous Engagement in Education, Newcastle, 27-29th November 2006.
[20] Bauman, T. (2006) Final Report of the Indigenous Facilitation and Mediation Project July 2003 June 2006: research findings, recommendations and implementation. Report No. 6 Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra. See also NADRAC (2006) Indigenous Dispute Resolution and Conflict Management NADRAC, Canberra.