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Social Justice Report 2005

Chapter 2 : Achieving Aboriginal and Torres Strait Islander health equality within a generation - A human rights based approach

• 1. The challenge - addressing Aboriginal and Torres Strait Islander health inequality
• 2. An overview of the health status of Aboriginal and Torres Strait Islander peoples
  • a) The health status of Aboriginal and Torres Strait Islander peoples
  • b) Equality of opportunity in relation to health
  • c) Social determinants of health status
• 3. Existing policy approaches for improving the health status of Aboriginal and Torres Strait Islander peoples
  • a) The commitments of the Council of Australian Governments to address Indigenous disadvantage
  • b) Commitments to address Aboriginal and Torres Strait Islander health inequality at the inter-governmental level
  • c) Aboriginal and Torres Strait Islander health and the new arrangements for the administration of Indigenous affairs at the federal level
  • d) Summary - Existing policy frameworks and the challenge of addressing Aboriginal and Torres Strait Islander health inequality
• 4. The human rights based approach to health
  • a) Non-discrimination and the progressive realisation principle
  • b) The human rights based approach to development
  • c) The right to the enjoyment of the highest attainable standard of health
  • d) Summary
• 5. Aboriginal and Torres Strait Islander health inequality and human rights
  • a) The human rights implications of the current health status of Aboriginal and Torres Strait Islander peoples
  • b) Is the current framework for addressing Aboriginal and Torres Strait Islander health inequality consistent with the human rights based approach?
• 6. A campaign for Aboriginal and Torres Strait Islander health equality within a generation
  • a) The goal - Achieving Aboriginal and Torres Strait Islander health equality within a generation
  • b) What role should health issues play in the new arrangements for the administration of Indigenous Affairs?
• 7. Conclusion and recommendations
• Endnotes
• Download PDF version of Chapter 2 (1.14 MB)

Improving the health status of Aboriginal and Torres Strait Islander peoples is a longstanding challenge for governments in Australia. While there have been improvements made in some areas since the 1970s (notably in reducing high rates of infant mortality1) overall progress has been slow and inconsistent. The inequality gap between Aboriginal and Torres Strait Islander peoples and other Australians remains wide and has not been progressively reduced. With a significant proportion of Aboriginal and Torres Strait Islander peoples in younger age groups, there is an additional challenge to programs and services being able to keep up with the future demands of a burgeoning population.

Unless substantial steps are taken now, there is a very real prospect that the health status of Aboriginal and Torres Strait Islander peoples could worsen. A steady, incremental approach will not reduce the significant health disparities between Aboriginal and Torres Strait Islander peoples and other Australians. There is a need for commitments to a course of action, matched with significant funding increases over the next 20-25 years, if there is to be real and sustainable change.

This chapter outlines a human rights based campaign for achieving Aboriginal and Torres Strait Islander health equality within a generation. Such a goal is achievable through building on existing approaches to Aboriginal and Torres Strait Islander health, by seizing opportunities that currently exist through the new arrangements on Indigenous affairs at the federal level and by capitalising on the overall healthy economic situation of the country. Ultimately, the purpose of such an approach is to ensure that Aboriginal and Torres Strait Islander peoples, along with all other Australian citizens, are able to enjoy 'the highest attainable standard of health conducive to living a life in dignity.'2

1. The challenge - addressing Aboriginal and Torres Strait Islander health inequality

The poor health status of Aboriginal and Torres Strait Islander peoples is a well known fact. Substantial inequalities exist between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians, particularly in relation to chronic and communicable diseases, infant health, mental health and life expectation.

Governments of all persuasions have made commitments to address this situation over a prolonged period of time, accompanied with incremental funding increases. Governments have detailed strategies and national frameworks in place, developed through engagement with Aboriginal and Torres Strait Islander peoples, which clearly articulate the need for a holistic address to Aboriginal and Torres Strait Islander health and acknowledge the complex interaction of issues.

Yet despite all of this, what data exists suggests that we have seen only slow improvements in some areas of health status and no progress on others over the past decade. The gains have been hard-fought. But they are too few. And the gains made are generally not of the same magnitude of the gains experienced by the non-Indigenous population, with the result that they have had a minimal impact on reducing the inequality gap between Aboriginal and Torres Strait Islander peoples and other Australians.

There are a number of disturbing trends among Aboriginal and Torres Strait Islander peoples that reveal an entrenched health crisis. In particular, there remain:

• high rates of chronic diseases such as renal failure, cardio-vascular diseases and diabetes;
• continued higher rates of poor health among Aboriginal and Torres Strait Islander infants, as well as far too common occurrence of otitis media (middle ear infection) and eye conditions such as trachoma, which can impact on educational attainment and employment3;
• a continuing tendency towards poor access to primary health care, as evidenced by high rates of sexually transmitted infections and relatively high rates of HIV/AIDS prevalence; and
• high rates of unhealthy and risky behaviour, including an increased prevalence of substance abuse and alcohol and tobacco use.

On top of this, I fear that Aboriginal and Torres Strait Islander peoples face substantial health problems which are often left undiagnosed, and hence untreated. This is particularly in relation to mental health, as well as oral / dental health problems. These issues do not receive adequate attention in health frameworks and needs to be redressed.

There are three main failings in the approach of Australian governments to date in addressing Aboriginal and Torres Strait Islander health inequality.

First, governments of all persuasions have not activated their commitments by setting them within an achievable time frame. Governments have instead left the achievement of equality to an unspecified future time. By doing so, all Australian governments have been unaccountable for progress in achieving health equality. Second, they have not matched their commitments with the necessary funds and program support to realise them. And third, while they have accepted in health frameworks the need to address Aboriginal and Torres Strait Islander health in a holistic manner, they have not engineered their health programs consistent with this understanding nor considered the impact of their broader policy and program approach on Aboriginal and Torres Strait Islander health.

It is ten years since the Social Justice Commissioner has given detailed consideration to Aboriginal and Torres Strait Islander health issues. The comments of my predecessor at that time, apply equally today. He stated that:

We have all heard them - the figures of death, and of disability... Every few years, (the) figures are repeated and excite attention. But I suspect that most Australians accept them as being almost inevitable. A certain kind of industrial deafness has developed. The human element in this is not recognised. The meaning of these figures is not heard - or felt.

The statistics of infant and perinatal mortality are our babies and children who die in our arms... The statistics of shortened life expectancy are our mothers and fathers, uncles, aunties and elders who live diminished lives and die before their gifts of knowledge and experience are passed on. We die silently under these statistics.4

As he noted in the Social Justice Report 1994:

The gap between the numbers of our people who live and the number who should be alive is one measure of the inequality we have endured. The gap between the numbers living a healthy, socially-functional life and those living a life of pain, humiliation and dysfunction is another measure. They are both measures of our loss of elementary human rights.

There should be no mistake that the state of Indigenous health in this country is an abuse of human rights. A decent standard of health and life expectancy equivalent to other Australians is not a favour asked by our peoples. It is our right - simply because we too are human.5

There is no reason for this to be happening. Evidence shows that dramatic improvements in health status can be achieved and that gains on many issues can occur within even short time frames. Other comparable countries have made greater progress in improving the health status of indigenous peoples than what we have achieved in Australia.6

And we must remember that we are a wealthy nation. It is not credible to suggest that one of the wealthiest nations in the world cannot solve a health crisis affecting less than 3% of its citizens. Research suggests that addressing Aboriginal and Torres Strait Islander health inequality will involve no more than a 1% per annum increase in total health expenditure in Australia over the next ten years. If this funding is committed, then the expenditure required is then likely to decline thereafter.

Aside from addressing obvious and vitally important issues of equality and fairness, a campaign to overcome Aboriginal and Torres Strait Islander health inequality will also result in significant future health savings. This is pertinent given that managing the health of an ageing general population is expected to place a significant extra financial burden on the health system over the coming decades.7

I noted in the introduction to the Social Justice Report 2004 my intention to focus on Aboriginal and Torres Strait Islander health issues during 2005 and 2006. I stated that:

perhaps more so than any other area of life, programmes for addressing Indigenous health reveal the problem of a lack of implementation of human rights. It doesn't matter whether we look at the National Aboriginal Health Strategy of 1989 or the current National Strategic Framework for Aboriginal and Torres Strait Islander Health. The issue is the same with both.

Each of these frameworks has been agreed by the Commonwealth with the states and territories. They provide a detailed series of commitments and identify a range of areas that require attention. Both documents identify, from a human rights perspective, the key issues that must be addressed to improve Indigenous health. They are good, solid policy documents.

And yet they have made very little difference to Indigenous health. It appears that the lack of progress can not be explained as a result of there not being any answers to the problems faced by Indigenous people - instead it appears to be a matter of taking the necessary steps to implement what are... universally agreed solutions.8

In that report I suggested that we require a campaign for Aboriginal and Torres Strait Islander health equality within our lifetime. This chapter details a framework for achieving this. It seeks to build on existing policy frameworks and to learn from current successes and failings.

I consider it feasible for governments to commit to ensuring an equitable distribution of primary health care and equitable standards of health infrastructure (such as water, sanitation, food and housing) within a reasonable time period of no more than 10 years.

It is equally feasible for governments to commit to the goal of achieving equality of health status and life expectation within the next generation (approximately 25 years). This will also require a focus on specific diseases and conditions, an address to social determinants of health such as income, education and functional communities, and an address to the position of Aboriginal and Torres Strait Islander peoples in Australian society.

I have developed this framework with five key factors in mind. First, it proposes a human rights based approach to addressing Aboriginal and Torres Strait Islander health inequality. There have been significant developments in the international human rights system over the past decade that has demonstrated the clear link between human rights and health. As this chapter shows, a human rights based approach to Aboriginal and Torres Strait Islander health creates an empowering environment for Aboriginal and Torres Strait Islander peoples and one which focuses on the accountability of governments to achieve improved outcomes within a reasonable time period. It is a framework with the potential to address the flaws of the current system.

Second, it recognises that the inequality in health status endured by Aboriginal and Torres Strait Islander peoples is linked to systemic discrimination. Historically, Aboriginal and Torres Strait Islander peoples have not had the same opportunity to be as healthy as non-Indigenous people. This occurs through the inaccessibility of mainstream services and lower access to health services, including primary health care, and inadequate provision of health infrastructure in some Aboriginal and Torres Strait Islander communities. The Royal Australasian College of Physicians describes these health inequities as 'both avoidable and systematic'.9 This legacy remains to be fully addressed and is a significant barrier to the full enjoyment of the right to health for Aboriginal and Torres Strait Islander peoples.

Third, it addresses the issue of how to make meaningful the stated commitments of governments. At the federal level, for example, the Ministerial Taskforce on Indigenous Affairs has identified Aboriginal and Torres Strait Islander health as a major priority. It has also set out its desire for there to be a 20-30 year vision for Aboriginal and Torres Strait Islander Australia. That is exactly what this framework provides.

Fourth, it addresses Aboriginal and Torres Strait Islander health in a holistic manner reflecting both the social determinants of health inequality as well as the broader issues identified by Aboriginal and Torres Strait Islander people as impacting on their health.

Finally, it seeks to build on both the opportunities and the challenges that have emerged with the recently introduced changes to the administration of Indigenous affairs at the federal level. There can be no issue that is more appropriate for applying a whole of government and holistic approach than Aboriginal and Torres Strait Islander health. I also consider that there is significant potential to utilise the new agreement making processes under these new arrangements (namely, Shared Responsibility Agreements, Regional Participation Agreements and Bilateral Agreements between the Commonwealth and states and territories) to achieve significant improvements in Aboriginal and Torres Strait Islander health status, and to support Indigenous primary health care in particular.

My call to address Aboriginal and Torres Strait Islander health inequality joins that of many others over recent years. This includes the National Aboriginal Community Controlled Health Organisation (NACCHO)15, the Australian Indigenous Doctor's Association16, the Fred Hollows Foundation17, the Heart Foundation Australia18, Australians for Native Title and Reconciliation19, Oxfam Community Aid Abroad20, the Australian Medical Association21; the House of Representatives Standing Committee on Family and Community Affairs22; and health commentators including Professor John Deeble23, Professor Ian Anderson24, Dr Ngiare Brown and Professor Ian Ring.25

As a nation, we have perhaps never been as well placed as we currently are to turn the current situation faced by Aboriginal and Torres Strait Islander peoples around. We have the necessary commitments and mechanisms for whole of government coordination to achieve this. We have a historically large budget surplus, just a small fraction of which could lead to dramatic improvements in Aboriginal and Torres Strait Islander peoples' health status. And we have an unprecedented opportunity, with new agreement making processes, to engage and empower Aboriginal and Torres Strait Islander peoples to overcome existing health inequalities.

The central argument of this chapter is that a human rights based approach to Aboriginal and Torres Strait Islander health demonstrates that the situation faced by Aboriginal and Torres Strait Islander peoples in this country over the next twenty five years is not inevitably one of failure and inequality. A dynamic, targeted approach to Aboriginal and Torres Strait Islander health can yield significant improvements.

In my view, the time for concerted action is now. Accordingly, I have chosen to commence this chapter by outlining the challenge for governments through the following headline recommendation.26

Recommendation 1: That the governments of Australia commit to achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander peoples and non-Indigenous people within 25 years.

My Office will be vigorous over the next twelve months in promoting debate on this objective and to seek more concrete commitments and action from governments to achieve it.

2. An overview of the health status of Aboriginal and Torres Strait Islander peoples

This section provides an overview of the current health status of Aboriginal and Torres Strait Islander peoples. It makes comparisons to non-Indigenous Australians, and identifies where there have been improvements in health status over the past decade. It also provides current information about the provision of infrastructure and primary health care to Aboriginal and Torres Strait Islander communities, and identifies issues relating to social determinants of health.

a) The health status of Aboriginal and Torres Strait Islander peoples

Text Box 2 provides an overview of the current status of Aboriginal and Torres Strait Islander health. It clearly establishes the challenge ahead if we are to address Aboriginal and Torres Strait Islander health inequality. The following key issues are apparent from the statistics:

• First, 'the health status of Australia's Aboriginal and Torres Strait Islander peoples is poor in comparison to the rest of the Australian population.'27 There remains a large inequality gap in Australia.
• Second, Indigenous peoples do not have an equal opportunity to be as healthy as non-Indigenous Australians. As the Australian Institute of Health and Welfare have noted, 'the relative socioeconomic disadvantage experienced by Aboriginal and Torres Strait Islander people compared to non-Indigenous people places them at greater risk of exposure to behavioural and environmental health risk factors'28 as does the higher proportion of Indigenous households that 'live in conditions that do not support good health'.29 Indigenous peoples also do not enjoy equal access to primary health care and health infrastructure (including safe drinking water, effective sewerage systems, rubbish collection services and healthy housing).30
• Third, there has been very little progress in reducing this inequality gap between Aboriginal and Torres Strait Islander and non-Indigenous Australians over the past decade, for example in relation to long term measures such as life expectation.
• Fourth, while there have been improvements on some measures of Aboriginal and Torres Strait Islander health status, they have not matched the rapid health gains made in the general population in Australia. For example, death rates from cardiovascular disease in the general population have fallen 30% since 1991, and 70% in the last 35-years.31 In contrast, while the picture is ultimately unclear, Aboriginal and Torres Strait Islander people do not appear to have made any reduction in death rates from cardiovascular disease over this period.32
• Fifth, the young age structure of the Aboriginal and Torres Strait Islander population means that the scope of the issues currently being faced is expected to increase in the coming decades. The increase in absolute terms of the size of the Aboriginal and Torres Strait Islander youth population will require significant increases in services and programs simply to keep pace with demand and maintain the status quo, yet alone to achieve a reduction in existing health inequality.

Aboriginal and Torres Strait Islander peoples also disproportionately suffer from a range of communicable and chronic diseases. For example:

• Trachoma

  Trachoma is a parasite that attacks the eyes. It was traditionally a disease of the urban slums and was rampant in Australia in the 19th century. It was reported in 2001 that in areas with severe trachoma in Australia, one in five of Aboriginal and Torres Strait Islander people have in-turned lashes, and about half of these are either blind already or will eventually go blind. While many of these people require surgery, a long term solution rests in an address to health infrastructure in these communities.50

• Rheumatic heart disease

  Australia Aboriginal people living in the Top End of the Northern Territory and the Kimberly regions experience among the highest incidence rates of rheumatic heart disease in the world. Hospitalisation for Aboriginal and Torres Strait Islander males was six times as high, and among females was eight times as high, as the rates among the non-Indigenous population. Males die at 16 times, and females at 22 times, the rates in the non-Indigenous population.51

• Scabies and skin infections

  Poor health infrastructure helps the spread of communicable skin diseases that contribute to chronic diseases. Scabies, caused by mites, causes inflammation and itching that can result in infection by pathogens such as Group A streptococcal skin infection. Like scabies itself, the transmission of the infection is closely related to overcrowding and poor sanitation. Post streptococcal infections can play a significant role in kidney disease, which occurs at a disproportionately high rate in the Aboriginal and Torres Strait Islander population52 and also rheumatic fever which can result in rheumatic heart disease.

• Otitis media

  High rates of hearing loss among Aboriginal and Torres Strait Islander peoples were confirmed in the 2001 National Health Survey. In some remote communities up to 40% of children will have developed a chronic suppurative ear infection causing hearing loss by the age of ten.53 Total or partial hearing loss was more likely to be reported than by the non-Indigenous population in all age groups from infancy to 55 years of age. In children aged 0-14 years, 7% reported hearing loss compared with 2% of the non-Indigenous population.54

b) Equality of opportunity in relation to health

As set out in Text Box 3, Aboriginal and Torres Strait Islander peoples do not have an equal opportunity to be as healthy as non-Indigenous Australians. Aboriginal and Torres Strait Islander peoples do not enjoy equal access to primary health care and health infrastructure (including safe drinking water, effective sewerage systems, rubbish collection services and healthy housing).55

c) Social determinants of health status

Since the 1980s it has been recognised that social inequalities are associated with health inequality.67 The evidence base for these 'social determinants' of health inequality has been accepted by the World Health Organization68 and, in Australia, by the Royal Australian College of Physicians.69 The Royal Australian College of Physicians reports that Aboriginal and Torres Strait Islander communities are the prime example of negative social determinants of health in Australia.70

Research has demonstrated associations between an individual's social and economic status and their health. Poverty is clearly associated with poor health.71 For example:

• Poor education and literacy are linked to poor health status, and affect the capacity of people to use health information; 72
• Poorer income reduces the accessibility of health care services and medicines;
• Overcrowded and run-down housing is associated with poverty and contributes to the spread of communicable disease;
• Poor infant diet is associated with poverty and chronic diseases later in life;73 Smoking and high-risk behaviour is associated with lower socio-economic status.74

Research has also demonstrated that poorer people also have less financial and other forms of control over their lives.75 This can contribute to a greater burden of unhealthy stress76 where 'prolonged exposure to psychological demands where possibilities to control the situation are perceived to be limited and the chances of reward are small.'77 Chronic stress can impact on the body's immune system, circulatory system, and metabolic functions through a variety of hormonal pathways and is associated with a range of health problems from diseases of the circulatory system (notably heart disease) 78 and mental health problems79 through to men's violence against women and other forms of community dysfunction.80

Text Box 4 provides an overview of a range of socio-economic factors that impact on the health status of Aboriginal and Torres Strait Islander peoples.

There are a range of collective health determinants that may also be impacting on Aboriginal and Torres Strait Islander peoples:

• Racism is a collective stressor that has been reported to affect both mental and physical health. A 2003 review of 53 studies in the United States found a decline in mental health status as racism increased93. Eight out of 11 studies found links between the elevated prevalence of high blood pressure in Afro-Americans and racism94.
• In relation to Aboriginal and Torres Strait Islander peoples, it may be that the lack of collective control acts as a determinant of poor health. This might manifest on a community level, providing another reason for effective community governance and the community control of services. However, there may be wider ramifications still. Aboriginal and Torres Strait Islander peoples have long asserted that their health is linked to their collective ability to control their lives and cultures and the recognition of their rights95 as have indigenous peoples around the world.96
• In the National Aboriginal Health Strategy, Aboriginal and Torres Strait Islander peoples linked their health to 'control over their physical environment, of dignity, of community self-esteem, and of justice. It is not merely a matter of the provision of doctors, hospitals, medicines or the absence of disease and incapacity.'97
• There is also evidence of discrimination in health services, as reported in relation to secondary and tertiary cardiovascular disease interventions. A study based around on data from the National Morbidity Database for hospital separations over 1997 and 1998 reported that Aboriginal and Torres Strait Islander patients with cardiovascular disease were significantly less likely to undergo major procedures, such as angiography: at a rate of about half of that of non-Indigenous patients.98 There were also significant differences in the rates of bypass surgery or angioplasty between the two groups.99

Access to traditional lands can also act as a determinant of health status, particularly where that land is culturally significant and provides sources of food, water and shelter. To illustrate this, my Office invited Ms Leanne Liddle, Aboriginal Parks and Wildlife Coordinator with the Department for Environment and Heritage in South Australia to describe her experiences managing the Kuka Kanyini project. This is currently underway in Wattaru, South Australia in the Anangu Pitjantjatjara Lands.

In the preparation of this chapter, my Office also invited Professor Sir Michael Marmot to comment on the implications of the health status of Aboriginal and Torres Strait Islander peoples from an international perspective. Professor Marmot is acknowledged as a pioneering international researcher on the social determinants of health and is a noted public health expert.100

3. Existing policy approaches for improving the health status of Aboriginal and Torres Strait Islander peoples

There have been a number of developments in Indigenous policy over recent years where governments have made commitments to addressing Aboriginal and Torres Strait Islander health inequality a major priority.

This has been through the processes of the Council of Australian Governments (COAG) that has made a number of commitments to address Aboriginal and Torres Strait Islander disadvantage as well as through the agreement of a specific health sector framework for addressing Aboriginal and Torres Strait Islander health issues.

The combination of these commitments provides a substantial foundation from which to address Aboriginal and Torres Strait Islander health inequality. They provide a number of opportunities and challenges, particularly as a consequence of the recently introduced changes to the administration of Indigenous affairs at the federal level. These new arrangements, introduced in July 2004, are intended to operate across all areas of government activity - including programs and services relating to Aboriginal and Torres Strait Islander health.

This section provides an overview of the commitments and processes that have been entered into by governments and the potential contributions of each of these to addressing Aboriginal and Torres Strait Islander health inequality.

a) The commitments of the Council of Australian Governments to address Indigenous disadvantage

Commitments to address Aboriginal and Torres Strait Islander disadvantage, including inequality in Aboriginal and Torres Strait Islander health status, have been made at the inter-governmental level over many years.

For example, COAG endorsed the 'National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal peoples and Torres Strait Islanders' in 1992. This recognised the need to address the underlying and fundamental causes of Aboriginal and Torres Strait Islander inequality and disadvantage and for governments to work together in partnership to address this.106 Very little was done by COAG to advance this commitment during the 1990's.

COAG stated its commitment to reconciliation in its communique of November 2000. It noted that, 'Governments can make a real difference in the lives of Indigenous people by addressing social and economic disadvantage, including life expectancy, and improving governance and service delivery arrangements with Indigenous people'. While noting that, 'governments have made solid and consistent efforts to address disadvantage and improvements have been achieved', they also noted that, 'much remains to be done in health and the other areas of government activity'.107

Accordingly, COAG committed itself to 'an approach based on partnerships and shared responsibilities with Indigenous communities, programme flexibility and coordination between government agencies, with a focus on local communities and outcomes'108. COAG also agreed that, '[w]here they have not already done so, Ministerial Councils will develop action plans, performance reporting strategies and benchmarks'109 in accordance with these commitments.

Progress in implementing this commitment was initially slow.110 However, subsequent COAG communiques have built on this commitment and given content and meaning to it.

In April 2002, COAG agreed to conduct up to 10 whole-of-government community trials for coordinated service delivery to Aboriginal and Torres Strait Islander peoples. At the same meeting, COAG agreed to commission a regular report against key indicators of Aboriginal and Torres Strait Islander disadvantage in order 'to measure the impact of changes to policy settings and service delivery and provide a concrete way to measure the effect of the Council's commitment to reconciliation through a jointly agreed set of indicators.'111

Known as the Overcoming Indigenous Disadvantage Framework, it reports on progress in addressing both the larger, cumulative or 'headline indicators' that provide a snapshot of the overall state of Aboriginal and Torres Strait Islander disadvantage (such as life expectancy) and a number of supporting 'strategic change indicators' to measure progress within the shorter term. Ultimately, the Framework is built on the vision 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.'112

In June 2004, COAG then agreed to a National Framework of Principles for Government Service Delivery to Indigenous Australians in order to 'underpin government effort to improve cooperation in addressing (Indigenous) disadvantage.'113 It was also agreed that this framework of principles would 'guide bi-lateral discussions between the Commonwealth and each State and Territory Government on the Commonwealth's new arrangements for Indigenous affairs and on the best means of engaging with Aboriginal and Torres Strait Islander people at the local and regional levels'.114

As a consequence of these COAG commitments:

• 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 National Framework of Principles for Government Service Delivery. These address the following themes: sharing responsibility; harnessing the mainstream; streamlining service delivery; establishing transparency and accountability; developing a learning framework; and focusing on priority areas.115
• Progress in addressing these commitments is able to be measured against the Overcoming Indigenous Disadvantage Framework on a biennial basis.

b) Commitments to address Aboriginal and Torres Strait Islander health inequality at the inter-governmental level

In addition to these commitments to address Aboriginal and Torres Strait Islander disadvantage generally, specific commitments have also been made at the inter-governmental level to address Aboriginal and Torres Strait Islander health inequality. This is through the development of a specific Aboriginal and Torres Strait Islander health policy framework and partnership process.

The National Strategic Framework for Aboriginal and Torres Strait Islander Health

The National Aboriginal Health Strategy (NAHS) of 1989 remains the key document in this regard. The document itself presented problems in terms of implementation (for example, it contained no recommendations). But as a statement of guiding principles, it enjoys broad support among all governments and Aboriginal and Torres Strait Islander peoples.

In July 2003, all Australian Governments renewed their commitments to Aboriginal and Torres Strait Islander health with the agreement of the National Strategic Framework for Aboriginal and Torres Strait Islander Health (or the National Strategic Framework) 116. This establishes a ten year plan for Aboriginal and Torres Strait Islander health, building on the principles of the NAHS.117

The National Strategic Framework reflects developments that had occurred since 1996, when responsibility for Aboriginal and Torres Strait Islander health and the implementation of the NAHS was transferred from ATSIC to the Department of Health and Ageing. The first Framework Agreements for Aboriginal and Torres Strait Islander Health were also completed and Aboriginal health planning forums were established during this period.

Through the National Strategic Framework, all governments recognise that progress in improving Aboriginal and Torres Strait Islander health status has been too slow and is unacceptable. The foreword to the Strategy's Framework for Action by Governments states:

At the beginning of the 21st century, the devastating impact of poor health on Aboriginal and Torres Strait Islander peoples and communities cannot go on. It is timely for us to commit to a long-term collaborative approach to addressing the health status of Aboriginal and Torres Strait Islander peoples as a matter of urgency. It is time for us to work together across governments and across portfolios in a spirit of bi-partisanship and in full collaboration with Aboriginal and Torres Strait Islander health leaders and communities to progress long-term strategies for sustainable outcomes.118

The key commitments of the National Strategic Framework are set out in the text box below.

In accordance with the National Strategic Framework, Aboriginal and Torres Strait Islander Health Framework Agreements have been negotiated between the Commonwealth and each state or territory. The Agreements are intended to:

• increase the level of resources for Aboriginal and Torres Strait Islander health to reflect the higher level of need of Aboriginal and Torres Strait Islander peoples;
• improve access to mainstream and Indigenous specific health and health-related programs;
• establish joint planning processes which allow for 'full and formal Aboriginal and Torres Strait Islander participation in decision-making and determination of priorities'; and
• improve data collection and evaluation mechanisms.141

In accordance with these agreements and the National Strategic Framework, each government is required to develop its own implementation plan for addressing the goal and aims of the Framework. This process, including qualifications on how the commitments will be met, is described in the foreword of the National Strategic Framework as follows:

This National Strategic Framework commits governments to monitoring and implementation within their own jurisdictions, working together at the national level and working across government on joint initiatives between health departments and other portfolios. Through their Framework Agreement partnership structures, each jurisdiction will develop and publish a detailed Strategic Framework implementation plan including accountabilities for progressing the action areas, timeframes and reporting mechanisms.

Provision of financial resources to implement the Strategic Framework will depend on fiscal management strategies and competing funding priorities as determined by each jurisdiction's budget processes. An independent mid term review of progress against the implementation plan and outcomes achieved will be undertaken and published and an independent evaluation of the National Strategic Framework's outcomes will be conducted and published at its completion. Health portfolios will report on progress annually to the Australian Health Ministers' Conference and biennial whole of government progress reports will be prepared and published. Progress with implementation of this National Strategic Framework will be monitored by the Australian Health Ministers' Advisory Council through a joint meeting of its Standing Committee of Aboriginal and Torres Strait Islander Health and the National Aboriginal and Torres Strait Islander Health Council.142

Governments have acknowledged that they have failed in the past to make good on their commitments to Aboriginal and Torres Strait Islander peoples in relation to health service provision.143 They have acknowledged, for example, the findings of the 1994 evaluation of the NAHS which stated that it was 'never effectively implemented' due to:

• underfunding by governments in rural and remote areas targeted at meeting the objective of environmental equity by 2001;
• a lack of political will and commitment from all government ministers and ATSIC;
• a lack of accountability for implementation;
• the absence of meaningful partnerships between the mainstream health system and Aboriginal and Torres Strait Islander peoples; and
• the fact that other portfolios, such as housing, essential services, education and local government were not party to the strategy.144

Accordingly, the foreword to the National Strategy Framework states that:

Governments intend this National Strategic Framework for Aboriginal and Torres Strait Islander Health to inspire confidence amongst Aboriginal and Torres Strait Islander communities, organisations and leaders that we recognise the broader context of health disadvantage amongst Aboriginal and Torres Strait Islander peoples and have a long-term and bipartisan commitment to working with them to address it.145

In correspondence with my Office, the federal Department of Health and Ageing has noted the progress in developing implementation plans in the past year:

During 2004-05 the Department developed the Australian Government Implementation Plan 2003 -2008 against the National Strategic Framework for Aboriginal and Torres Strait Islander Health 2003-2013 and worked with jurisdictions on a reporting framework for the Implementation Plans that of all jurisdictions will replace the existing Framework Agreement reporting and assist in streamlining reporting.146

They also note progress in finalising the Health Performance Framework for monitoring and evaluation progress under the National Strategic Framework:

During 2004-05, the Department provided a significant contribution to the development of the new Aboriginal and Torres Strait Islander Health Performance Framework which is being auspiced by the Standing Committee on Aboriginal and Torres Strait Islander Health. This Framework has been developed to provide the basis for quantitative measurement of the impact of the National Strategic Framework for Aboriginal and Torres Strait Islander Health. It will replace the existing National Performance Indicators from 2006 and will provide the focus for improvements in Indigenous health data in the longer term.

The Aboriginal and Torres Strait Islander Health Performance Framework... includes a set of around 90 performance measures in three Tiers:

• health outcomes;
• determinants of health; and
• health system performance.

Tier 1 Health Outcomes includes measures of health conditions, life expectancy and mortality. Tier 2, Determinants of Health includes measures of socioeconomic factors, environmental factors and risk factors that all have an influence on final health outcomes. Tier 3, Health System Performance measures the effectiveness, capability and sustainability of the health system in relation to Indigenous health. It measures inputs and intermediate outcomes of the health system (such as antenatal care, immunisation, screening, management of chronic illness etc where there is clear evidence in the literature of a linkage between health system activity and health outcomes). The Health Performance Framework measures the performance of the whole health system in relation to Aboriginal and Torres Strait Islander health.

The new Health Performance Framework is consistent with the COAG principles for service delivery and incorporates the majority of the health related performance measures from the National Reporting Framework on Indigenous Disadvantage and extends these to cover health outcomes more broadly such as health conditions, mortality by leading causes and health system performance beyond the issue of accessibility.147

Despite this extensive system of monitoring, the National Strategic Framework does not require the setting of timeframes within which to achieve the goal and aims set out in the Framework. It states that:

each jurisdiction will develop and publish a Strategic Framework Implementation Plan against which progress in the jurisdiction will be measured. Within this implementation plan each jurisdiction will be responsible for determining its own specific initiatives, priorities and timeframes...

This National Strategic Framework sets agreed direction for reform in Aboriginal and Torres Strait Islander health without imposing specific targets or benchmarks on the Commonwealth, State and Territory governments in recognition of the different histories, circumstances and priorities of each jurisdiction. Therefore, reporting will record progress in areas consistent with the action areas detailed in each key result area and against the stated aims and, over time, chart each government's progress against their own baselines.148

The National Strategic Framework does, however, indicate in general terms the type of results that can be anticipated over the life of the Framework:

Some results of the National Strategic Framework for Aboriginal and Torres Strait Islander Health will be seen in the shorter term, such as the provision of enhanced primary care services under the Primary Health Care Access Program, outcomes of environmental health surveys, and outcomes of existing workforce capacity building initiatives.

In the medium term, it will be important to assess the aims of the key result areas to ensure that important initiatives are being implemented, including changes to service delivery, enhanced community participation and increases in the numbers of Aboriginal and Torres Strait Islander health professionals.

Some impacts on health outcomes may be expected in the medium term, such as changes to the health care provided to infants and young children and reductions in communicable diseases as a result of improved health information and immunisation programs. However, some results will take longer to achieve. Change in health outcomes must be monitored and the aim of reducing incidence, prevalence and impact of these disorders kept firmly in mind.149

In summary, the National Strategic Framework:

• sets out a coordinated framework for all governments to work in partnership to address Aboriginal and Torres Strait Islander health inequality;
• recognises that addressing Aboriginal and Torres Strait Islander health inequality is a shared responsibility between governments and requires partnerships with Aboriginal and Torres Strait Islander communities;
• acknowledges that governments have, in part, failed to deliver on their commitments in the past, and so introduces a more comprehensive monitoring framework which involves bilateral agreements between the Commonwealth and the states and territories, implementation plans and health planning forums;
• is now supported by a revised Aboriginal and Torres Strait Islander Health Performance Framework, which has been agreed at the inter-governmental level to report progress on the National Strategic Framework;
• sets the goal as achieving health equality, with a number of identified aims to support this;
• acknowledges the urgency of addressing Aboriginal and Torres Strait Islander health inequality, although it does not set a timeframe, targets or benchmarks for achieving the goals and aims of the Framework; and
• recognises the importance of addressing a wide variety of related issues outside of the health sector which have an impact on Aboriginal and Torres Strait Islander people's wellbeing.

Public health strategies relating to Aboriginal and Torres Strait Islander peoples

The National Public Health Partnership Group (NPHP) was established in 1996 by the Australian Health Ministers' Advisory Council to provide a mechanism for the Commonwealth, States and Territory governments to come together to develop joint approaches to public health. It currently operates under a Memorandum of Understanding signed by all Australian Health Ministers in February 2003, for the period 2003-2007.150

In 2002, the NPHP published Guidelines for the development, implementation and evaluation of National Public Health Strategies in relation to Aboriginal and Torres Strait Islander peoples.151

A number of national strategies and commitments in relation to environmental health workers, housing and the supply of food have also been developed. An overview of these frameworks is provided in the Text Box below. All require governments to work with Aboriginal and Torres Strait Islander communities to plan and deliver aspects of health infrastructure. However, there is yet to be developed an overarching strategy to address health infrastructure needs in communities in an integrated fashion.

c) Aboriginal and Torres Strait Islander health and the new arrangements for the administration of Indigenous affairs at the federal level

The COAG commitments noted above and the health sector specific processes underway for Aboriginal and Torres Strait Islander health exist alongside newly introduced arrangements for the administration of Indigenous affairs at the federal level. These new arrangements are intended to ensure:

• direct engagement with Aboriginal and Torres Strait Islander peoples at the local level (including through Shared Responsibility Agreements);
• needs-based planning at a regional level (including through Regional Partnership Agreements and the operation of regional Indigenous Coordination Centres);
• improved whole of government coordination (both between federal departments and between levels of government); and
• improved accessibility of mainstream services.164

The new arrangements apply to all federal government activity, including the delivery of health programs and services. It is also anticipated that the states and territories will align their service delivery processes with the new arrangements. This is asserted based on the agreement of the National Framework of Principles for Government Service Delivery to Indigenous Australians and the negotiation of bilateral agreements on Indigenous affairs based on these principles.165

There is already an extensive focus within the health sector on the type of issues that the new arrangements are grappling with. For example, the Framework Agreements on Aboriginal and Torres Strait Islander Health in each state and territory establish processes for advancing policy development, planning and resource allocation in a coordinated manner at the inter-governmental level and in partnership with Aboriginal and Torres Strait Islander communities (through community controlled health organisations).

Similarly, the Primary Health Care Access Program (PHCAP), which is the main program for the delivery of primary health care services to Aboriginal and Torres Strait Islander communities:

• is underpinned by a regional planning process which seeks to engage with Aboriginal and Torres Strait Islander communities to identify the key health needs and planning priorities for each region;
• recognises the importance of Aboriginal community controlled service delivery, and is supportive of local Aboriginal and Torres Strait Islander participation;
• is focused on improving the accessibility of mainstream services, such as through establishing mechanisms to improve access to Medicare and the Pharmaceutical Benefits Scheme and the funding available through these;
• involves coordinated care trials which have focused on achieving improved whole of government and holistic service delivery; and
• includes capacity building as a significant component of all strategies for improved access to health care.

The National Strategic Framework for Aboriginal and Torres Strait Islander Health notes that while a responsive health system is fundamentally important, 'action in areas such as education, employment, transport and nutrition is also required if sustainable health gains are to be achieved'.166 Accordingly, one of the groupings of Key Result Areas in the National Strategic Framework relates to influencing the health impacts of the non-health sector. It states:

The health sector can contribute to action on the agendas of other portfolios through research, advocacy, partnerships and linkages. Comprehensive primary health care services provide the infrastructure, and the Framework Agreements the partnership arrangements for intersectoral collaboration between the health sector, members of Aboriginal and Torres Strait Islander communities, other government agencies, the private sector and voluntary organisations. It is clear, however, that action on broader intersectoral issues also requires a commitment to undertake activity consistent with the overall vision of this National Strategic Framework from government ministers in other portfolios at the Commonwealth and state/territory level.167

Achieving such integration has been a central challenge for the health sector over the past decade. As discussed above, the 1994 evaluation of the National Aboriginal Health Strategy found that one of the reasons for the failure of that strategy had been the lack of engagement with the strategy by portfolios other than health.

The new arrangements provide the opportunity to sharpen the focus of service delivery so that it addresses those related issues that impact on Indigenous health and to do so within an integrated framework.

The potential of the new arrangements to address these issues has been acknowledged by the Department of Health and Ageing. In correspondence with my Office, they note:

In light of the changed arrangements in Indigenous Affairs, ICCs (Indigenous Coordination Centres) now represent the key mechanism that Aboriginal communities can use to contribute to the whole of government health planning and priority setting.168

They also acknowledge the potential to better utilise the existing processes set up in accordance with the framework agreements on Aboriginal and Torres Strait Islander health with the states and territories and under the Primary Health Care Access Program (PHCAP):

Under PHCAP, regional planning arrangements provide an important mechanism for promoting effective working relationships with Indigenous communities through the activities of joint planning forums, local regional steering committees and planning consultants. These planning processes enable direct engagement with Indigenous communities in the identification of key health needs and planning priorities. The momentum gained through the planning processes and structures needs to be maintained after regional plans are completed... in order to capitalise on the benefits of continued community involvement.

The regional plans developed to date include a broad examination of health needs - including analysis of the underlying determinants of health such as the quality and availability of housing, environment issues (e.g. clean water supply and adequate sanitation) and adequate employment and education opportunities. Specific recommendations emerging from the regional planning process could prove useful in the inter-agency negotiations conducted through the ICCs.169

As at 30 June 2005, the arrangements for aligning activities in the health sector with those of ICC's, and more generally under the new arrangements, were as follows:

• The Department of Health and Ageing had four staff nationally who were located in ICC's (two in Broome, one in Port Hedland and one in Darwin).170
• The Department intends to use the 'staffing resources transferred to it with the abolition of ATSIC and ATSIS to establish its physical presence in Indigenous Coordination Centres across the country. These resources comprised a mix of occupied and unoccupied positions across a range of APS levels in a range of locations and will be used to recruit, over time, solution brokers at the APS6 - EL1 levels. Solution brokers will represent the Department's programs within ICCs, and in particular, in the development of Shared Responsibility Agreements (SRAs) and Regional Partnership Agreements (RPAs)'171.
• Until these solution brokers are recruited and placed in ICCs, 'ICC Contact Officers have been established in the Department's State and Territory offices' who serve as 'an important point of contact for ICC managers in relation to SRA development around health issues'172.
• To date, six (6) SRAs have been finalised which involve funding contributions from programs run by the Department of Health and Ageing.173 Further SRA's are under negotiation which involve either funding contributions from the Department or other support and assistance to Aboriginal and Torres Strait Islander communities.174
• The Department of Health and Ageing has also invited State policy managers from the Office of Indigenous Policy Coordination to participate in the state-level Aboriginal Health Forums, in order to facilitate engagement with Aboriginal and Torres Strait Islander communities at the regional level.175
• The Department have also noted that 'Over time, the work of ICCs will link in to health planning processes established under the... Framework Agreements (on Aboriginal and Torres Strait Islander health) and implemented through Aboriginal Health Forums at the State and Territory level.'176

These actions to align activities on Aboriginal and Torres Strait Islander health with the operation of ICC's are welcomed. The clear recognition from the Department of Health and Ageing of the central role of ICCs in coordinating federal government activity at the regional level is also welcomed.

I acknowledge that the efforts to build the capacity of the Department of Health and Ageing to fully participate in the new arrangements are at an early stage.

It is also acknowledged that further improvements in coordination of activity will most likely be built into the Framework Agreements on Aboriginal and Torres Strait Islander Health when they are next renegotiated between governments. It must be recognised, however, that the COAG Principles for government service delivery to Indigenous Australians already require governments to work together to better coordinate their service delivery and so, strictly speaking, the alignment of health service delivery with the new arrangements is not dependent on the re-negotiation of the framework agreements.

Overall, it is fair to say that the Department of Health and Ageing has not played a significant role in the roll-out of the new arrangements for the administration of Indigenous affairs to date. In particular, the Department does not as yet have a significant presence in Indigenous Coordination Centres and has limited capacity to influence the strategic directions underpinning engagement at the regional level and through agreement making processes such as SRAs. Similarly, the new arrangements have not sought to build on the significant progress and experience of the health sector. At this early stage, the new arrangements are yet to:

• apply the methodologies and lessons learned from the health sector;
• build upon the significant community resources and capacity that exists through the Aboriginal community controlled health sector - for example, by building a relationship between the Aboriginal Community Controlled Health Organisations and ICCs at the regional level; or
• build on the findings and recommendations of the regional planning processes conducted under the state-wide Aboriginal Health Forums - despite these processes identifying the priority health needs of Aboriginal and Torres Strait Islander people for each region and involving broad-based community consultation and providing a solid evidence base.

As a consequence, there is a disconnect between existing programs relating to Aboriginal and Torres Strait Islander health and the whole of government approach adopted through the new arrangements. This is despite the clear inter-connections between the issues. Even though there is recognition by governments that Aboriginal and Torres Strait Islander health outcomes require a holistic response in order to achieve lasting and sustainable improvements, in most instances issues are still being addressed separately.

d) Summary - Existing policy frameworks and the challenge of addressing Aboriginal and Torres Strait Islander health inequality

So what can we ascertain about the existing policy environment for addressing Aboriginal and Torres Strait Islander health inequality?

First, there has been significant work completed over the past 3 years to reinvigorate the commitments of governments to address Aboriginal and Torres Strait Islander health inequality through the National Strategic Framework. This commits governments to work in a holistic, whole of government manner and in partnership with Aboriginal and Torres Strait Islander peoples.

Second, processes have been put into place to administer the National Strategic Framework and through which to achieve the Framework's goal and aims. This includes through 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. The 'whole of government' machinery necessary to implement the commitments of COAG is in place.

Third, there has been significant work to address many public health issues affecting Aboriginal and Torres Strait Islander peoples, notably commitments in place in relation to environmental health workers, food and housing. There is, however, an absence of an overarching strategic response to public health issues (notably health infrastructure) faced by Aboriginal and Torres Strait Islander peoples.

Fourth, the specific commitments to address Aboriginal and Torres Strait Islander health inequality have progressed parallel to the agreement by COAG of commitments and processes to address Aboriginal and Torres Strait Islander disadvantage more generally (such as through the establishment of the Overcoming Indigenous Disadvantage reporting framework and the principles for service delivery to Aboriginal and Torres Strait Islander peoples). The health specific and Aboriginal and Torres Strait Islander disadvantage commitments are being progressed in a consistent manner, and are mutually reinforcing. However, both processes could benefit from better coordination of activities, including through building on the achievements and structures that have been established in relation to health.

Fifth, the more established approach in the health sector has not played a significant role during the first twelve months of these new arrangements for the administration of service delivery at the federal level. There remains much potential to learn from the achievements and structures of the health sector, particularly through its engagement with Aboriginal and Torres Strait Islander communities and assessment of need on a regional basis. The health sector could be more actively engaged in progressing the new arrangements. This would also clearly benefit efforts to address health issues that are impacted on through the activities of other departments.

Finally, the current processes recognise the urgency of the need to address Aboriginal and Torres Strait Islander health inequality. There is acknowledgement that efforts to address this in the past, such as those undertaken in accordance with the NAHS from 1989 to 1994, were insufficient. There is now a more sophisticated basis for planning activities and monitoring progress than in the past. There is also no broader agenda for setting a timeframe within which to achieve equality in health status or to match funding contributions and activities to the achievement of this goal.

Accordingly, the key issue for Aboriginal and Torres Strait Islander health remains the need to implement the extensive commitments of governments and to ensure that the quantum and pace of activities is sufficient to achieve the goal of addressing Aboriginal and Torres Strait Islander health inequality.

4. The human rights based approach to health

Human rights provide a framework for addressing the consequences the health inequality experienced by Aboriginal and Torres Strait Islander peoples. This includes recognising its underlying causes as well as the inter-connections with other issues. Human rights require more than a rhetorical acknowledgement of the existence of inequality and general commitments to overcome this situation at some unspecified time in the future.

Ultimately, human rights standards provide a system to guide policy making and to influence the design, delivery and monitoring and evaluation of health programs and services. It is a system for ensuring the accountability of governments.

This section of the chapter outlines the human rights based approach to health. While issues relating to health and human rights have been of international concern since the establishment of the United Nations, 'the actual linkages between health and human rights had not been recognized even a decade ago.'177 Since then:

a "health and human rights" language (has developed)... which has allowed for the connections between health and human rights to be explicitly named, and therefore for conceptual, analytical, policy and programmatic work to begin to bridge these disparate disciplines and to move forward. In the last few years human rights have increasingly been at the centre of analysis and action in regard to health and development issues.178

There are three main issues at the international level which are drawn on in setting out a human rights based approach to health. These are the application to the right to health of over-arching principles of non-discrimination and progressive realisation; the emergence in international practice of the connection between human rights standards and participatory development processes; and the content of the right to health itself.

a) Non-discrimination and the progressive realisation principle

Article 2 of the International Covenant on Economic, Social and Cultural Rights states that:

1. Each State Party to the present Covenant undertakes to take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (emphasis added).
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The non-discrimination principle outlined above (in Article 2(2)) applies to all human rights. It establishes a baseline position that all people are entitled to be treated equally and to be given equal opportunities. The progressive realisation principle (as outlined in Article 2(1)) gives meaning to this principle where such equality does not exist for a particular group defined by race, sex or range of other characteristics.

There are two key features to the obligation 'to take steps' in Article 2(1). First, it allows governments to introduce specific measures to addressing the lack of equality experienced by a particular group within society. This includes a group defined by race, such as Aboriginal and Torres Strait Islander peoples.

Each of the main human rights treaties contains a provision which encourages (and indeed requires179) governments to redress inequality in the enjoyment of economic, social, cultural or civil and political rights. These provisions are sometimes referred to as 'special measures' provisions.180 They are a form of differential treatment that is considered non-discriminatory. This is because they are aimed at achieving substantive equality or equality 'in fact' or outcome.

The rationale for such measures is that 'historical patterns of racism entrench disadvantage and more than the prohibition of racial discrimination is required to overcome the resulting racial inequality'.181 Special measures are time limited, in that they can only be justified for so long as there is a situation of inequality which they are aimed at redressing. They cannot, therefore, lead to the maintenance of separate rights for different racial groups and are not to be continued after the objectives for which they were taken have been achieved.182

Second, the obligation 'to take steps' in Article 2(1) also means that governments must progressively achieve the full realisation of relevant rights and to do so without delay. Steps must be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.183

The High Commissioner for Human Rights has described this principle and its relevance to policy-making as follows:

Since the realization of most human rights is at least partly constrained by the availability of scarce resources, and since this constraint cannot be eliminated overnight, the international human rights law explicitly allows for progressive realization of rights... While the idea of progressive achievement is common to all approaches to policy-making, the distinctiveness of the human rights approach is that it imposes certain conditions on the behaviour of the State so that it cannot use progressive realization as an excuse for deferring or relaxing its efforts.

First, the State must take immediate action to fulfill any rights that are not seriously dependent on resource availability. Second, it must prioritize its fiscal operations so that resources can be diverted from relatively non-essential uses to those that are essential for the fulfillment of rights that are important for poverty reduction. Third, to the extent that fulfillment of certain rights will have to be deferred, the State must develop, in a participatory manner, a time-bound plan of action for their progressive realization. The plan will include a set of intermediate as well as long-term targets, based on appropriate indicators, so that it is possible to monitor the success or failure of progressive realization. Finally, the State will be called to account if the monitoring process reveals less than full commitment on its part to realize the targets.184

Accordingly,

The idea of progressive realization has two major strategic implications. First, it allows for a time dimension in the strategy for human rights fulfillment by recognizing that the full realization of human rights may have to occur in a progressive manner over a period of time. Second, it allows for setting priorities among different rights at any point in time since the constraint of resources may not permit a strategy to pursue all rights simultaneously with equal vigour.185

This approach requires that governments identify appropriate indicators, in relation to which they should set ambitious but achievable benchmarks, so that the rate of progress can be monitored and, if progress is slow, corrective action taken. Setting benchmarks enables government and other parties to reach agreement about what rate of progress would be 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 to prevent the target from being set too low; and
• Reassessed independently at their target date, with accountability for performance.186

My predecessor as Social Justice Commissioner elaborated on this rights-based approach in the context of addressing Aboriginal and Torres Strait Islander disadvantage. In particular, he identified five integrated requirements that need to be met to incorporate a human rights approach into redressing Aboriginal and Torres Strait Islander disadvantage and to provide sufficient government accountability. Namely:

• Making an unqualified national commitment to redressing Indigenous disadvantage;
• Facilitating the collection of sufficient data to support decision-making and reporting, and developing appropriate mechanisms for the independent monitoring and evaluation of progress towards redressing Indigenous disadvantage;
• Adopting appropriate benchmarks to redress Indigenous disadvantage, negotiated with Indigenous peoples, state and territory governments and other service delivery agencies, with clear timeframes for achievement of both longer term and short-term goals;
• Providing national leadership to facilitate increased coordination between governments, reduced duplication and overlap between services; and
• Ensuring the full participation of Indigenous organisations and communities in the design and delivery of services.187

b) The human rights based approach to development

There have been a number of developments at the international level in recent years which have seen a clearer understanding emerge of the relationship between human rights and development and poverty eradication. Past Social Justice and Native Title Reports have highlighted this work188 - such as the extensive focus on human rights by the United Nations Development Programme, including through its annual Human Development Reports; increased focus on the right to development; and also through the drafting of guidelines on human rights and poverty eradication by the High Commissioner for Human Rights and the United Nations Development Programme.

These have emerged largely as a result of the objective set in 1997 by the Secretary-General of the United Nations, Mr Kofi Annan, to mainstream human rights into all United Nations activities. This has been reaffirmed through the Millennium Declaration of 2000 and the commitment of all countries to achieve the Millennium Development Goals189 (MDG's) by 2015.

The focus of the MDG's is very much centred on developing nations. The usual context in which the involvement of countries like Australia is discussed is in relation to international aid, technical assistance and debt relief. But the implications of this focus on poverty eradication clearly relate to the situation of Aboriginal and Torres Strait Islander peoples in Australia. It is ironic that the Government has committed to contribute to the international campaign to eradicate poverty in third world countries by 2015, but has no similar plans to do so in relation to the extreme marginalisation experienced by Aboriginal and Torres Strait Islander Australians.

One of the most significant outcomes of this focus on integrating human rights and development and poverty eradication activities has been the agreement among the agencies of the United Nations of the Common Understanding of a Human-Rights Based Approach to Development Cooperation.190

This document outlines the human rights principles that are common to the policy and practice of the UN bodies. The Common Understanding states that these principles are intended to guide programming in relation to health, among other issues.191 This includes all development cooperation directed towards the achiev