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Collaborative Indigenous Policy Development Conference
27 & 28 June 2006

Marriot Hotel, Brisbane

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


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

This speech considers:


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In brief:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Tom Calma
Aboriginal and Torres Strait Islander
Social Justice Commissioner

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

Last updated February 5, 2009