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Benchmarking Reconciliation And Human Rights

Benchmarking Reconciliation
And Human Rights

Report of a Workshop on Benchmarking
Reconciliation convened by the Human Rights and Equal Opportunity Commission

Sydney 28-29 November 2002


Background

Session
One: Introduction to Workshop

Session
Two: Indigenous participation in benchmarking

Session
Three: Progressive realization of economic, social and cultural rights

Session
Four: Statistics

Session
Five: Building Indigenous governance and capacity building into benchmarking

Session
Six: Discussion of the Steering Committee's draft framework for reporting
on Indigenous disadvantage

Where
to from here?

Attachment
A: List of Participants

Attachment
B: Issues Paper - Benchmarking Reconciliation and Human Rights - Paper
prepared for Sydney Workshop


Background

The Aboriginal and
Torres Strait Islander Social Justice Commissioner convened a workshop
titled Benchmarking reconciliation and human rights on 28-29 November
2002. The facilitator for the Workshop was Mr Peter Yu. A
list of participants is attached as Attachment A to this report
.

The purpose of the
workshop was to consider current developments in setting benchmarks, identifying
performance indicators and developing monitoring and evaluation frameworks
for addressing Indigenous disadvantage from a human rights perspective.
In particular, the workshop considered the Draft framework for reporting
on Indigenous disadvantage currently being developed by the Steering Committee
for the Review of Commonwealth/State Service Provision under the auspices
of the Council of Australian Governments (COAG), as well as a range of
human rights and development initiatives at the international level.

Considerable attention
had been devoted in the Social Justice Reports for 2000 and 2001
to issues relating to reconciliation. This workshop was intended to contribute
to the ongoing monitoring of the reconciliation process by the Social
Justice Commissioner's Office. An Issues and Options
paper was prepared and distributed to participants prior to the Workshop
(see Attachment B)
to underpin Workshop discussions. The Workshop
was divided into six sessions.

Workshop structure

Session one:
Overview / introduction.
This session provided an overview of the
Social Justice Commissioner's rights framework for reconciliation; the
Workshop Issues and Options paper; and the Draft framework for reporting
on Indigenous disadvantage
prepared by the Steering Committee for
the Review of Commonwealth/State Service Provision (SCRCSSP).

Session two:
Indigenous participation in benchmarking.
This session focused on
how to ensure adequate Indigenous participation in the setting and monitoring
of benchmarks and indicators.

Session three:
Australia's obligations to progressively realize economic, social and
cultural rights.
Focusing on how to ensure that Australia's human
rights obligations to progressively realise the equal enjoyment of economic,
social and cultural rights are reflected in monitoring frameworks and
are being met.

Session four:
Statistics.
Focusing on how to ensure that statistical collection
is adequate to support the measuring of Indigenous disadvantage and
the monitoring of progress for its progressive realization.

Session five:
Building Indigenous community capacity and governance.
Focusing
on how to ensure that the objective of community capacity building and
strengthening and supporting Indigenous governance is integrally linked
to processes for addressing Indigenous disadvantage.

Session six:
Comments on the draft indicative framework for measuring Indigenous
disadvantage
, as prepared by the Steering Committee.

Session
one: Introduction to Workshop

In opening the Workshop,
Dr Bill Jonas, the Aboriginal and Torres Strait Islander Social Justice
Commissioner, highlighted the relevance of human rights to the social
and economic advancement of Indigenous Australians. He posed the question:
what can international human rights standards offer to the current policy
debate on Indigenous disadvantage?

At the end of the
formal phase of the reconciliation process the need to overcome Indigenous
disadvantage was perhaps the only area of significant agreement between
Government and Indigenous representatives. Under the rubric of 'practical
reconciliation' emphasized by the Government, the acknowledgment sought
by Indigenous people of rights, such as self-determination and distinct
cultural rights, has been portrayed as being more concerned with symbolism
than practical improvements in real life outcomes. The Government's response
to the Council for Aboriginal Reconciliation's recommendations in its
Final Report of December 2000 included the commitment of the Council of
Australian Governments (COAG) to implement and monitor a national framework
to overcome Indigenous disadvantage. However, from a social justice perspective,
the emphasis on 'practical reconciliation' in the Government's response
is problematic. By contrast, the Social Justice Report 2000 emphasized
the need for a far-reaching rights-based response to Indigenous disadvantage.
In particular, the Report identified five requirements to integrate a
human rights approach into redressing Indigenous disadvantage. These requirements,
building on the work of the Council for Aboriginal Reconciliation, are:

  • The need for
    an unqualified national commitment to redressing Indigenous disadvantage
    through the adoption of a long term strategy which progressively reduces
    the level of disadvantage and ensures whole of government and cross-governmental
    coordination;
  • The facilitation
    of adequate, nationally consistent data collection to guide decision
    making and reporting, with appropriate monitoring and evaluation mechanisms;
  • The agreement
    of benchmarks and targeted outcomes through negotiation with Indigenous
    peoples and organisations, state, territory and local governments and
    service delivery organisations, with clear timeframes for achieving
    longer term and short term goals;
  • National leadership
    to facilitate inter-governmental cooperation and coordination;
  • The development
    of greater partnership approaches to ensure the full and effective participation
    of Indigenous peoples in the design and delivery of services. [1]

The Social Justice
Report 2000
outlined a human rights framework aimed at ensuring the
adequate protection of Indigenous rights in the context of implementing
reconciliation. This framework draws on human rights principles and norms
from international law - including in particular human rights standards
relating to economic, social and cultural rights as contained in the United
Nations International Covenant on Economic, Social and Cultural Rights
(ICESCR).

At present in Australia
there is neither an adequate statistical base nor a national benchmarking
framework for addressing Indigenous disadvantage. In making recommendations
to the Government on reconciliation, the Social Justice Report 2000
was guided by developments at the international level, in particular in
respect of the United Nations Development Program (UNDP), which sets benchmarks
for the progressive realisation of rights in its poverty alleviation programs.

Another key focus
of the Social Justice Reports for both 2000 and 2001 was that of
the need to strengthen Indigenous governance. Governance issues concern
the right of Indigenous people to be self-determining and to participate
in national life on a basis of co-existence and equality. Integral to
Indigenous governance is capacity building.

Remarks by facilitator

The Workshop facilitator,
Mr Peter Yu, noted some key events that form part of the background to
the current circumstances of Indigenous disadvantage. These included the
1966 Pastoral Award Equal Wages decision, and the 1967 referendum concerning
the Commonwealth's powers in respect of Indigenous Australians. The failure
to recognize the mandate for change of the 1967 referendum and to build
on it represented a major lost opportunity, whilst the Equal Wages decision
is seen by many as disastrous - 'the beginning of the end for Indigenous
people'. There continues to be a public policy approach by successive
governments to Indigenous disadvantage of 'treating the festering sore'.
The continuing non-recognition of the substantive rights of Indigenous
peoples as First Peoples, including their particular rights and interests
in land, is a basic issue. Indigenous people argue that settling 'unfinished
business' should be the foundation stone for the relationship of Indigenous
and non-Indigenous Australians, and for collectively attacking the social
and economic ills of Indigenous peoples.

The essential task
of the workshop was to examine a number of key topics relating to the
development of reconciliation benchmarks in the human rights context.
The current emphasis on 'practical reconciliation' means that it is even
more important to assess and evaluate in-put and out-put indicators in
terms of human rights principles. A human rights approach is particularly
relevant to the Draft framework for reporting on Indigenous disadvantage
being developed in the COAG context.

Overview
of the Social Justice Commissioner's rights framework for reconciliation

Mr Darren Dick, Director
of HREOC's Social Justice Unit, provided an overview of the human rights
framework that has been proposed by the Social Justice Commissioner in
successive Social Justice Reports. That framework provides the
basis for the Workshop, and is reflected in the topics and issues identified
for consideration.

The position of Aboriginal
and Torres Strait Islander Social Justice Commissioner was originally
created largely in response to the Royal Commission into Aboriginal Deaths
in Custody, and specifically to ensure that there was an ongoing, independent
evaluative mechanism in respect of the human rights situation of Aborigines
and Torres Strait Islanders. The Commissioner monitors the performance
of governments at all levels in recognising and respecting the human rights
of Indigenous Australians, undertakes research and educational activities
to promote understanding of Indigenous peoples' human rights, and scrutinises
law making processes to ensure human rights compliance.

The Social Justice
Commissioner is required to report annually to the Attorney-General on
the exercise and enjoyment of the human rights of Indigenous peoples in
the Social Justice Report which is tabled in the federal Parliament.
The report may include any recommendations as to action that should be
taken in respect of the human rights of Indigenous peoples. The Commissioner
also provides the Native Title Report, on the impact of the Native
Title Act
on Indigenous peoples' human rights.

The two most recent
Social Justice Reports for 2000 and 2001 have focused on the reconciliation
process and have provided a detailed critique of the federal Government's
current response to reconciliation. The Reports, as well as providing
this critique, have been forward looking by identifying a human rights
framework for progressing the reconciliation process. One clear difference
over recent years between Indigenous people and the Government has in
fact been the emphasis that should be placed on human rights. The Government's
emphasis on 'practical reconciliation' has acted to exclude rights issues
from the discussion of Indigenous policy. Rights have been presented as
aspirational matters at best, and at worst as distractions from the real
issues.

Given this situation,
it is important to identify the purpose of human rights. According to
the Universal Declaration of Human Rights, human rights are common standards
of humanity. In other words, they are minimum entitlements and base levels
of treatment that can be expected - no matter who a person is. Everyone
possesses human rights simply by virtue of being human, and everyone is
entitled to enjoy them in full equality and on the basis of non-discrimination.
As such they are not given by any government nor can they legitimately
be taken away. Nevertheless the international human rights system has
established treaty mechanisms by which governments can freely choose to
guarantee the enjoyment of human rights by their citizens. Australia has
accepted such obligations by becoming a party to each of the six main
human rights treaties - thereby making commitments to other nations and
to the Australian people. Human rights are thus standards of accountability
and transparency.

The Social Justice
Report 2000
sought to draw on these obligations in order to suggest
proposals for how human rights standards in respect of Indigenous people
could best be implemented within our domestic system. The proposed framework
was based firstly on an assessment of what Australia's existing obligations
actually are, and second on the basis of how well we currently meet these
obligations. The Report categorised Australia's human rights obligations
into four broad areas of relevance to the situation of Indigenous people.
These were:

  • Non-discrimination
    - A guarantee of equal treatment and protection for all. This includes
    the recognition of distinct cultural characteristics of particular groups,
    where appropriate, as well as requiring that temporary 'special measures'
    be adopted to overcome existing inequalities.
  • Progressive
    realisation
    - The obligation to 'take steps' to ensure positive
    progress in addressing inequalities in the enjoyment of rights (see
    below). The Social Justice Report 2000 identifies the inadequate
    targeting and benchmarking of Indigenous disadvantage as the main concern
    in regard to progressive realisation.
  • Effective
    participation
    - Ensuring that individuals and communities are adequately
    involved in decisions that affect their well being.
  • Effective remedies
    - The provision of mechanisms for redress when human rights are violated.

In looking to provide
a framework for ensuring appropriate recognition and protection of these
rights within the Australian system of law and government, the Social
Justice Report 2000
identified three structural areas that needed
to be addressed. These areas, which are inter-related, were:

  • addressing Indigenous
    disadvantage;
  • strengthening
    Indigenous governance; and
  • recognising and
    protecting Indigenous rights in a federal system.

The Report argued
that the current approach of governments to addressing Indigenous disadvantage
simply manages the inequality experienced by Indigenous people and does
not seek to overcome it. While each budget paper on Indigenous policy
notes the 'record amount' that is allocated to Indigenous-specific programs
and generally highlights the commitment of the Government to ensuring
improved access to programs and services, at no stage do they specifically
identify the reduction of the disparities in enjoyment of rights between
Indigenous and non-Indigenous people as the purpose of the expenditure.

The Government's
recent response to the final documents of the Council for Aboriginal Reconciliation
reflects a different aspect of this same problem. [2]
The Government response refers to statistics that indicate areas where
there have been improvements in addressing Indigenous disadvantage. However,
there does not appear to be a component to the use of the statistics that
actually identifies the problem that remains, and commits to an approach
to overcoming it. In other words, there is no basis for establishing whether
or not the enjoyment of rights by Indigenous people - which currently
is clearly not equal or non-discriminatory - is being progressively realized.
A framework that incorporates the progressive realization principle, with
public commitments by government, with targets and benchmarks and with
processes for monitoring, would facilitate questions such as is enough
being done? is there sufficient urgency? and indeed, is there a plan?

The Social Justice
Report 2000
went on to make 14 detailed recommendations on the human
rights requirements for reconciliation and addressing Indigenous disadvantage.
[3]

In addition to addressing
disadvantage, the Social Justice Report 2000 also identified supporting
Indigenous governance and the building of Indigenous community capacity
as the second integral strand of a rights framework for reconciliation.
The Report suggested that governance was the thread that could draw together
processes for addressing disadvantage, developing economic independence
and protecting rights. The same issues were also considered in detail
in the Social Justice Report 2001. It compared the potential of
supporting governance and capacity strengthening with the more limited
'mutual obligation' approach in respect of welfare reform - an approach
which the Report concluded was overstretched in the Indigenous policy
context and unlikely to produce the breadth of outcome and positive results
hoped for.

The final aspect
of the rights framework for reconciliation identified in the Social Justice
Reports is the developing of mechanisms for securing adequate protection
of human rights into the future, and for addressing historic violations
of rights. On this basis, the Social Justice Report 2000 recommended
as the third pillar of a rights framework, constitutional amendments to
entrench non-discrimination in Australian law, examination of proposals
for a Bill of Rights, acceptance of a series of social justice principles
to underpin negotiations with Indigenous people, and consideration of
the possibility of a treaty.

Overview
of the Issues and Options Paper

Mr Greg Marks, consultant,
provided an overview of the Issues and Options Paper. The purpose of the
paper was to present in the one document a snapshot or overview of the
range of relevant developments, at home and abroad, in respect of the
project of benchmarking reconciliation. Additionally, the paper identified
some potential issues, problems, and dilemmas in developing benchmarking
for consideration at the Workshop.

The Introduction
of the paper notes the extent of Indigenous socio-economic disadvantage
in Australia. In respect of this disadvantage:

  • international
    attention has been drawn to the failure to achieve equality for Indigenous
    Australians, for example by UN Committee on Economic, Social and Cultural
    Rights (CESCR) and by other UN Committees (the Committee on the Elimination
    of Racial Discrimination and the Human Rights Committee);
  • given the extent
    of the disadvantage there is a surprising dearth of detailed and reliable
    information in respect of Indigenous disadvantage in Australia; and
  • progress in addressing
    Indigenous disadvantage in Australia has been unsatisfactory.

The rationale of
the workshop is encapsulated in the following quote from an ATSIC submission
to CESCR in 2000:

Attempts to remedy
the over-all disadvantage of Indigenous Australians have been partial,
inadequate and without clear objectives and targets. [4]
(emphasis added).

The Introduction
notes the role of the Council for Aboriginal Reconciliation (CAR) in establishing
the parameters of the benchmarking reconciliation project. The CAR identified:

  • the need for
    a national framework for addressing Indigenous disadvantage through
    setting benchmarks that are measurable, have time lines, are agreed
    with Indigenous people and are publicly reported;
  • the requirement
    for a leadership role for the Council of Australian Governments (COAG);
    and
  • the need to improve
    the statistical base.

In respect of statistics,
the Council for Aboriginal Reconciliation stressed the necessity of reliable
information in respect of the level of need, the money spent and the services
delivered. CAR emphasised that these linkages are central to accountability.

International dimension

International standards
and developments merit close attention because, generally speaking, the
level of knowledge and awareness of these matters in Australia is not
high, and because international experience can be helpful in informing
the implementation of benchmarking in the domestic situation.

The paper notes that
there are two main components to the international context:

1. The legal

Customary international
law and international instruments, in particular the International Covenant
on Economic, Social and Cultural Rights (ICESCR), provide binding legal
obligations on Australia in respect of the human rights of Indigenous
Australians, including obligations of equality and non-discrimination
in relation to economic, social and cultural rights.

It should be noted
that while the economic, social and cultural rights protected by international
law are set out in the provisions of the Covenant, they have been further
developed and elaborated through a series of 'General Comments' made the
CESCR Committee. These General Comments [5] provide authoritative
guidance to States and assist them in meeting their obligations on a bona
fide basis.

The central themes
of the Covenant include: [6]

  • The obligation
    to 'take steps' to 'progressively realise' the social, economic and
    cultural rights enshrined in the provisions of the Covenant;
    Note: the
    concepts of 'taking steps' and 'progressive realisation' are fundamental
    to understanding the nature of obligations upon States arising from
    ratification of the Covenant.
  • The steps taken
    have to be deliberate, concrete and targeted, and the rights have to
    be realised as effectively and expeditiously as possible;
  • The obligation
    to achieve minimum core obligations immediately; and
  • The task of monitoring
    a State's performance rests with the CESCR. A State cannot purport to
    sit in judgment on its own performance.

The ICESCR provides
a normative human rights framework for addressing Indigenous disadvantage.
While the Covenant provides for a realistic and flexible approach to its
implementation, nevertheless States are obligated to achieve the progressive
realization of rights as effectively and expeditiously as possible. The
paper notes that the development of policies to address the disadvantage
of Indigenous Australians is best done in full cognizance of Australia's
international human rights obligations, including the obligations arising
from Australia's ratification of ICESCR.

2. The practice

An important development
at the international level in integrating a human rights approach into
poverty alleviation programs and activities has been the publication by
the United Nations Development Program (UNDP) of its Human Development
Report
for 2000 on the theme of 'Human Rights and Development'. Chapter
Five of the UNDP Report, titled 'Using Indicators for Human Rights Accountability',
has particular relevance to the deliberations of the Workshop. This key
chapter affirms that statistical indicators are powerful tools in the
struggle for human rights. The UNDP Report sets out purposes of benchmarking
and criteria for ensuring that benchmarks are developed that are effective
tools of accountability.

A further development
is the recent Draft Guidelines on Poverty Alleviation developed
jointly by UNDP and the UN Office of the High Commissioner for Human Rights.
These Guidelines provide a comprehensive human rights approach to poverty
alleviation programs. They provide a detailed methodology and stress the
need for programs and activities directed at poverty alleviation to develop
monitoring and accountability procedures that are effective, accessible
and transparent.

The UNDP Report and
the Draft Guidelines provide a valuable resource for developing indicators
and benchmarks in the Australian context.

The overview of the
international dimension emphasised the importance of consistency of Australian
objectives, policies and programs for addressing Indigenous disadvantage
with international law and practice. The question was raised - how much
notice has been taken to date in Australia of international law and practice
in developing reporting frameworks and identifying indicators and benchmarks?

It was also noted
that the issues paper provides an overview of research relevant to benchmarking.
Consideration of extensive body by research of the Centre for Aboriginal
Economic Policy Research (CAEPR) at the ANU has identified difficulties
in terms of evaluating policy outcomes arising from the 'duality' of policy
aims in Australia. [7] The possible conflict between
the policy objectives of choice (or 'self-determination') and of equality
of outcomes can lead to significant difficulty in interpreting statistics
on program outcomes. This difficulty in turn raises the general issue
of the cultural appropriateness of program objectives and whether full
statistical equality in terms of indicators is achievable or always desirable.

The importance to
the Workshop of the Steering Committee for Commonwealth/State Service
Provision's draft two tier system of indicators for reporting on Indigenous
disadvantage for COAG was noted. In respect of the issues and questions
section of the paper, the questions posed there attempt to identify potential
problems, contradictions and dilemmas in the benchmarking reconciliation
project as a basis for discussion.

Framework
for measuring disadvantage

Mr Gary Banks, Chair
of the Productivity Commission, in his capacity as Chair of the Steering
Committee for the Review of Commonwealth/State Service Provision (SCRCSSP),
made a presentation on the 'Draft framework for reporting on Indigenous
disadvantage' that is being developed by the Steering Committee. The Draft
framework is a whole of government initiative and is a major component
of the COAG response to reconciliation. Originally, responsibility for
developing the framework resided with the Ministerial Council for Aboriginal
and Torres Strait Islander Affairs (MCATSIA), but this responsibility
was transferred to the Steering Committee at the April 2002 COAG meeting.
Further to the COAG decision, the Prime Minister wrote to Mr Banks, noting
that the Steering Committee's key task 'will be to identify indicators
that are of relevance to all governments and Indigenous stakeholders and
that can demonstrate the impact of program and policy interventions'.
[8]

The timetable for
developing the framework is that it will be published in August/September
2003 and included in the COAG report on reconciliation in December 2003.
Accordingly it must be finalised and approved by COAG in early 2003. The
Committee has now provided a Draft framework for public comment. The framework
has three logically related elements. Firstly, there are priority outcomes
based on COAG 'priority areas for policy action'. These provide the end
focus of the framework. The three priority areas identified in the Draft
framework are:

  • safe, healthy
    and supportive family environments with strong communities and cultural
    identity;
  • positive child
    development and prevention of violence, crime and self harm; and
  • improved wealth
    creation and economic sustainability for individuals, families and communities.

The other two elements
are provided by a two tier set of indicators: These encompass 'headline
indicators' of the higher order outcomes, and 'strategic areas' for policy
action. These indicators emphasise the possible need for joint action
within and across governments.

The first tier: Headline indicators

The headline indicators
are intended to provide a snapshot of the state of social and economic
Indigenous disadvantage, given the overall priorities that have been identified.
They sit within four areas of well-being:

  • Individual
    capacities

    • Life expectancy
      at birth (and/or median age at death)
    • Rates of disability
      and/or profound or severe core activity restriction amongst indigenous
      children, adults or seniors
    • Year 10 and
      12 retention
    • Tertiary qualification
      participation and attainment/completion (including VET)
  • Material/economy

    • Unemployment,
      underemployment and labour force participation
    • Median household
      income
    • Indigenous
      home ownership
    • Access to
      clean water and functional sewerage
  • Spiritual/cultural

    • For example,
      a land indicator (to be identified following consultations with
      indigenous stakeholders)
  • Family and
    community

    • Decision-making/self
      determination/autonomy (to be refined following consultation)
    • Incidence
      of family violence
    • Incidence
      of child sexual abuse
    • Suicide and
      self-harm (including youth suicide)
    • Rates of homicide
      and interpersonal violence
    • Victim rates
      for crime
    • Imprisonment
      and juvenile detention rates

These headline indicators
are higher order outcomes that reflect the longer-term more targeted policy
actions at the second tier. Collective improvements in the headline indicators
should lead to benefits in the three priority outcomes. For example, an
increase in life expectancy at birth and a decline in child sexual abuse
would contribute to the achievement of, for example, the priority outcome
of 'positive child development and prevention of violence, crime and self
harm'.

The second tier: Strategic
areas for action

Eight strategic areas
for action have been identified. For each of these strategic areas, a
few key indicators (strategic change indicators) have been developed
with their potential sensitivity to government policies and programs in
mind. These strategic change indicators are not intended to be comprehensive
- it is not possible to incorporate into the framework all of the factors
that influence outcomes for Indigenous people. The strategic areas for
action have been chosen on the evidence that action in these areas is
likely to have a significant, lasting impact in reducing Indigenous disadvantage

The framework is
intended to provide a regular focal point for the assessment of progress
on reconciliation in relation to the eight strategic areas for action.
This approach seeks to avoid a 'silo' approach whereby issues are sorted
into bureaucratic bundles, and is holistic in its intent. While the indicators
are sometimes associated with functional areas such as health or education,
the indicators in this framework typically cover a number of sectors in
terms of their impacts. The model is a preventative model with upstream
and downstream components. In this model, strategic changes are upstream
components, whilst priority outcomes are downstream.

The eight strategic
areas, and the rational for choosing them, are:

1. Early
child development and growth (prenatal to age 3)
Early child development can have significant effects on physical
and mental health in childhood and adulthood, growth, language development
and later educational attainment.

2. Early
school engagement and performance
Early school engagement is important for establishing a foundation
for educational achievement, retention in secondary schooling, opportunities
in employment and minimising contact with the justice system later in
life.

3. Positive
adolescence and transition to adulthood
Participation in school and vocational education; and community,
cultural and recreational activities, encourages self-esteem and a more
positive basis for employment. Such participation also assists in avoiding
contact with the justice system.

4. Breaking
the substance abuse cycle
Abuse of alcohol and other substances affects later physical
and mental health, family and community relationships and contact with
the justice system. Tobacco use is the greatest single contributor to
poor health outcomes.

5. Functional
and resilient families and communities
Functional and resilient families and communities influence
the physical and mental health of adults and children and contact with
the justice system. Problems in families and communities can lead to
breaks in schooling and education, disrupted social relationships and
social alienation.

6. Building
on the strength of Indigenous culture
A strong Indigenous culture provides a foundation for strong
families and communities, economic development, self-determination and
community resilience, reduced youth alienation and reduced self-harm
and suicide.

7. Functioning
environmental health systems
Clean water, adequate sewerage, housing and other essential
infrastructure are important to physical well being and health, nutrition
and physical development of children.

8. Economic
participation
Having a job or being involved in a business activity not only
leads to improved incomes for families and communities (which has a
positive influence on health, education of children, etc) it also enhances
self-esteem and reduces social alienation.

The lack of data
can explain why some otherwise desirable indicators are not included.
However, where data is not currently (or only partly) available, but the
indicator is important enough, an indicator may still be included as an
incentive to improve data quality.

The Steering Committee
has formed an Indigenous Working Group for the process of developing the
framework. The Working Group is comprised of central agencies from all
levels of government; ATSIC; MCATSIA; Australian Institute of Health and
Welfare (AIHW); Australian Bureau of Statistics (ABS) and Australian Local
Government Association (ALGA). In respect of consultation on the Draft
framework, the consultation process has been devolved to each state and
territory who have provided reports of that consultation (with Victoria
and Tasmania yet to report). The Steering Committee itself has also conducted
additional consultations.

Feedback has provided
a variety of reactions but in general there has been broad support for
the Draft framework. There is support for the whole of government approach
and the focus on outcomes. The Steering Committee needs further guidance
on the inclusion of spiritual and cultural indicators within the framework.
A strong reaction has been that these may be too problematic, although
they are matters which are at the same time fundamental to Indigenous
well-being. Another matter requiring further consideration is how to measure
indicators concerning decision-making, self-determination and autonomy.

Concerns raised in
consultations to date include:

  • the framework
    may be too sterile and requires qualitative contextual discussion;
  • it may become
    an 'annual misery index' focusing on problems rather than positive developments;
  • there are significant
    problems with data availability and statistical collection;
  • there are problems
    of differentiation between population groups (eg urban/remote) - 'one
    size fits all' indicators may not be appropriate; and
  • concern at how
    the reporting process of the framework will be tied to other processes
    in respect of policy and planning (in this regard, the question is whether
    there should be a third tier of indicators which is tied to service
    delivery. However, it has been suggested that this aspect could be appropriately
    covered under the Ministerial Action Plans reporting processes).

In terms of the future
development of the Draft framework, approval by COAG early next year would
not see the Draft framework as being inflexible or 'set in stone'. It
will require a process of continuous improvement.

Session
2: Indigenous participation in benchmarking

The Workshop considered
four key issues in respect of benchmarking reconciliation. The question
posed for the session dealing with the first issue, Indigenous participation
in benchmarking, was:

How can it be ensured
that Indigenous participation in setting priorities, identifying targets,
developing benchmarks, monitoring performance and evaluating programs
is effective, culturally appropriate and truly reflects Indigenous aspirations
rather than those of the wider community?

It was noted that,
other than through ATSIC, there appeared to be little knowledge in the
Indigenous community of the current developments to establish indicators
to report on outcomes of government strategies and programs. To virtually
exclude the Indigenous community from participation in the development
of strategies and benchmarks runs the risk of further entrenching dependency
and compounding the public policy failure of the last 30 years.

In considering Indigenous
participation, reference was made to the concept of 'cultural match' adopted
by the Harvard Project in the United States. [9] This
Project identified the significance of self-governance in those Indian
nations that had been successful and self-determining. In turn, successful
Indigenous governing institutions were seen to have be those that had
developed with close attention paid to Indigenous political culture, that
is how their own people believe authority should be organised and exercised.

It was noted that
the concept of 'equal protection' rather than 'special rights' provided
the appropriate way to view equality issues. The equality sought should
lie in the equality of protection of rights rather than simple equality
of outcomes. There was considerable discussion on the distinction between
merely consulting with Indigenous people, as opposed to negotiating and
agreeing issues in partnership with them. It was widely accepted that
there is a need for Indigenous involvement in setting performance frameworks
at all stages - that is the beginning of the process as well as at the
end. In this context questions were raised as to the extent that Indigenous
peoples may be able to influence the decision making process in respect
of indicators and benchmarks. That is, are the parameters to be set by
government, and are Indigenous people only being asked to respond or confirm
in the restricted sense of 'consultation'. Is there to be a role for negotiation?
The importance of there being some Indigenous control over decision making,
rather than merely providing a confirmation of an already made decision,
was stressed. There is a need to determine if the process of consultation
is one to simply 'capture' information, rather than a process aimed at
facilitating participation and shared decision making.

While one participant
pointed to the large investment in resources and time that would be required
for a proper consultation process, it was pointed out in response that
national or peak Indigenous bodies exist for particular areas of concern
and that they could be appropriate intermediate bodies for consultation
and negotiation.

Further concerns
about the consultation process were raised in terms of who can actually
represent Indigenous views. It was pointed out that community councils
generally do not represent Indigenous views, and that this is why there
is so much concentration on governance issues at present.

Matters raised in
respect of Indigenous participation included:

  • What principles
    should underpin negotiation and consultation. In this regard, Recommendation
    12 of the Social Justice Report 2000 was noted, which proposed that
    the federal government and COAG adopt the Principles for Indigenous
    social justice and the development of relations between the Commonwealth
    government and Aboriginal and Torres Strait Islander Peoples
    as
    proposed by ATSIC in Recognition, rights and reform, as forming
    the framework for negotiations about service delivery arrangements,
    regional governance and unfinished business.
  • Who is appropriate
    to be consulted with will be context specific and depend on the nature
    of the issue/decision;

A number of models
of good consultation were identified - the longer term, open ended and
localized approach of the Stronger Families package, [10]
as well as the process engaged in by the Commonwealth Grants Commission
for the indigenous funding inquiry. [11] Generally though
it was noted that current approaches to consultation are often inadequate,
opaque and selective in their approach. In this context, concerns were
raised that the Draft framework for reporting on Indigenous disadvantage
does not reflect an Indigenous perspective. The decision making process
about the framework, as distinct from any consultations undertaken, is
non-Indigenous at all stages. There needs to be some way of ensuring Indigenous
people are at the table in negotiating the structure of the Draft framework.
Otherwise, the process will be seen as a classic government approach -
the agenda already decided, and no space for other ideas to be brought
forward.

Given the concerns
expressed about the adequacy of consultation and negotiation with Indigenous
interests over the Draft framework, the question was asked: why are we
having benchmarks and indicators? There is a fundamental consultation
and negotiation problem here and the risk is of continuing cynicism and
frustration on the part of Indigenous people. There needs to be an acknowledgement
that as a result of the Mabo decision and native title, the framework
for negotiation with Indigenous people has changed. Indigenous people
should be at the negotiating table as of right.

Session
3: Progressive realization of economic, social and cultural rights

The question posed
for this session of the workshop was, in the context of achieving progressive
realization of economic, social and cultural rights, how to ensure a long
term perspective in the design and implementation of programs and services
so that goals can be set with a degree of security. In respect of ensuring
a long term perspective, the workshop was asked:

How can this objective
be achieved in a climate of short term and pilot projects, grant application
driven programming, and outsourcing of government functions?

The difficulty of
overcoming Indigenous disadvantage within short term timeframes was broadly
agreed. It was noted that there is a need to develop longer term funding
cycles and that long term objectives cannot run in parallel with an approach
focused only on short term projects, trials etc. Short and medium term
objectives should be consistent with and build towards long term objectives.
Governmental perspectives need to be longer than the electoral cycle.
Many areas of disadvantage, for example education, are simply not susceptible
to short term solutions.

Long term planning
can in fact coexist with shorter term activities, where the long term
planning (say 25 years) is broken up into shorter parts (projects and
programs). That is, the human rights requirement or obligation is to take
steps, in the context of progressive realization. However, the steps must
be targeted, and contribute to the longer term objectives.The objective
of greater matching of funding with needs was also noted. State wide housing
agreements/block funding/comprehensive regional agreements were seen as
attempts to move to longer term planning horizons.

A key matter identified
was the poor level of achievement by government programs and expenditure
to date. Given the resources expended, outcomes to date have been disappointing.
Indeed, concerns were expressed that the extent of unmet need may actually
be growing in some areas. [12]

The question of control
over funding is important and concerns were expressed at current funding
arrangements, and the lack of control by and involvement of Indigenous
people in funding-related decision making processes. This lack of control
is exemplified by native title. Although native title is an entitlement,
the approach to native title funding does not reflect this. Prescribed
Bodies Corporate act in trust or as agent for native title holders following
a determination of title. They are a legal requirement and are set up
under the provisions of Native Title Act, yet they are not funded. Overall,
it was felt that it is necessary to facilitate greater Indigenous involvement
in funding decisions.

Session
4: Statistics

As the development
of benchmarks and indicators is based on the use, analysis and interpretation
of statistics, a session was devoted to this topic. Discussion was wide
ranging.

Concern was expressed
that Indigenous people have been 'over researched' and statistics have
been misrepresented and used against them. This results in a degree of
cynicism and mistrust and is a significant issue in respect of developing
indicators and benchmarks. Indigenous people need to be confident that
statistics are being used properly and in particular that appropriate
benchmarks are being set. Indigenous people should participate in these
matters.

There are difficulties
with obtaining information to enable identification of Indigenous service
users, including sensitivity and privacy. However, this identification
provides key data for a number of indicators. Training is needed for staff
of agencies and organization in collecting this data. There is in general
a need to educate, train and enable Indigenous people about the use of
statistics so that statistics can be fully utilised in addressing Indigenous
disadvantage, including by Indigenous organisations to support proposals
and submissions for additional resources.

There are significant
deficiencies in data collections, including the lack of consistent data
over a sufficient time period to enable adequate comparison. These deficiencies
need to be addressed as a matter of priority to ensure validity and credibility
in the development and use of indicators. There is also a need to get
data as accurate as possible on a regional basis. National statistics
do not reflect the wide variety of Indigenous circumstances. Statistics
along a regional basis (perhaps based on ATSIC regions) can be more important.

Statistical benchmarks
in respect of employment (for example, does the Community Development
Employment Program - CDEP - measure employment or does it disguise unemployment?),
and housing, where different use patterns may mean that definitions of
what constitutes households may be at variance with mainstream understandings,
are problematic in designing indicators and analysing data. Interpretation
of statistics may be difficult across a number of indicators. There is
a tendency for statistics to evaluate Indigenous well-being from a mainstream
approach. Indicators may not adequately reflect issues such as participation
in traditional economies. Meanings and values may differ between Indigenous
and non-Indigenous populations rendering statistical analysis value-laden
and potentially misleading. These matters need to be addressed in developing
indicators.

In response to these
concerns, the idea was raised of whether it is possible to build in to
indicators and benchmarks a subjective element. How do Indigenous people
perceive their disadvantage? For example, this could be done by surveying
Indigenous people for their views on what they need as communities and
families - such an approach would be constitutive of 'effective partnership'.

The type of statistics
can be divided into classifications: census data; administrative data,
and expenditure data. There are problems with interpretation of census
data, including the issue of the growth of the Indigenous population according
to the Census. Administrative data includes the extent to which Indigenous
people use services - benchmarks are needed on the scope and quality of
administrative data, which currently has many gaps and is inconsistent
between jurisdictions. With expenditure data it is important to identify
expenditure on Indigenous people.

ATSIC could strengthen
its advocacy role by increasing its analysis and use of statistics. However,
there is a problem with ATSIC getting access to relevant statistics (for
example in the area of Aboriginal Health Services).

Session
5: Building Indigenous governance and capacity building into benchmarking

The discussion of
governance matters proved quite difficult, possibly reflecting the relative
lack attention that has been given to such matters in developing the Draft
framework for reporting on Indigenous disadvantage in a climate of 'practical
reconciliation'. The discussion indicated that there is a degree of ambiguity
as to what people mean by terms such as governance and capacity building.

The question posed
to the Workshop was:

How should governance
arrangements take into account Indigenous culture and norms (or at least,
that they are not hostile to Indigenous law and practice)?

Suggestions were
made about the need to be able to match cultural requirements with management
requirements, about the importance of communities developing the capacity
to consult and conduct negotiations, and about the need to develop the
necessary infrastructure to support decision making. The Harvard project
was noted as relevant to this issue because of its findings on the importance
of effective Indigenous governance in achieving economic, social and cultural
progress.

The operation of
the Aboriginal Councils and Associations Act is problematic in terms of
delivering good Indigenous governance and it appeared to have led to a
plethora of Aboriginal organizations. If so, was this wasteful of resources?
It was argued that the problem of too many organizations is created in
part by the grant application process, and the consequent need to be incorporated
to get funding.

Reference was made
to the summary made by Fred Chaney, co-chair of Reconciliation Australia,
of the outcomes of the Indigenous Governance Conference held in April
2002. In particular, two paragraphs of the summary were noted:

Paragraph 5
noting that it is clear that the primary push for good governance must
come from the people themselves, using whatever tools and strategic
opportunities are available. In the words of the slogan much used at
the conference, 'Just do it'.

Paragraph 6
noted that, at the same time, it is crucial to develop skills and capacities
in communities for people to effectively carry out the tasks of governance
so that it delivers tangible benefits for communities and people.

The point at issues
accordingly becomes how does that critical link between the two aspect,
governance and capacity, get made. It was suggested that an important
factor, at this stage, may be for work to be done to identify 'presence
and absence factors' - i.e., identifying what capacity is missing in communities
as well as what is in place.

A key concern from
the benchmarking reconciliation perspective was how governance and capacity
building become integral to the strategic indicators framework.

Session
6: Discussion of the Steering Committee's draft framework for reporting
on Indigenous disadvantage

Following discussion
of the issues referred to above, the workshop returned to its consideration
of the Draft framework for reporting on Indigenous disadvantage developed
by the Steering Committee under COAG. Mr Banks, chair of the Steering
Committee, gave a presentation outlining in further detail the model that
has been developed so far, and discussion followed.

A number of suggestions
and comments were made on the Draft framework. Concerns expressed included
the need to ensure that Indigenous participation and decision making are
reflected in and measured by the strategic indicators, and that, in particular,
the framework incorporate the goal of capacity building, identify its
priority as on objective, and measure its progress.

Measures of accessibility
to services need to be reflected in the indicators (including in urban
settings). Some of the draft indicators, for example measurements of building
healthy communities and families, tend to focus on negative measurements
(crime, abuse etc) rather than capacity building. In this respect, for
example, the prominence given to child sexual abuse in the first tier
'headline' indicators appears to be indicative of a negative emphasis
in the indicators, rather than a balance between negative results and
positive developments in building the capacity of families and communities
to function in a supportive and caring way.

In a similar context,
the relationship between the first and second tier indicators is not always
clear. There was a concern that the indicators may reflect insufficient
research or a failure to consult widely enough to obtain representative
views of Indigenous people and communities.

A key concern with
the Draft framework was the apparent failure to measure involvement in
the subsistence economy and traditional activities as against the market
economy. The importance of subsistence and traditional activities does
not appear to be represented in the indicators and this would potentially
skew the results, particularly against remote and outstation communities.

Ensuring consistency
of measurements in the Draft framework with those already committed to
in State agreements (for example, consistency with justice measurements
under the Queensland Ten Year Partnership) is a technical issue that will
need attention. Even though the Draft framework does not purport to establish
targets, consistency of data sets will be important, and analysing why
a target has or has not been met is a similar exercise to interpreting
progress against the strategic indicators of the Draft framework.

Where
to from here?

The Workshop raised
a number of serious concerns from a human rights perspective about the
development of indicators and benchmarks in respect of Indigenous disadvantage
in Australia. Accordingly, a number of potential follow-up actions are
suggested in this section.

1. Human rights

The current draft
framework for reporting on Indigenous disadvantage appears to have been
developed with little reference to human rights standards, to Australia's
international obligations, or to relevant international experience. Perhaps
reflecting an emphasis on 'practical reconciliation', the Draft framework
consequently fails to develop a series of indicators of Indigenous socio-economic
disadvantage within a rights framework.

It is proposed that
the Draft framework should be reviewed against human rights criteria,
and that such a review be informed by international standards and current
international developments. Specific reference should be made in such
an analysis to the Draft Guidelines on Poverty Alleviation developed by
the UNDP and the UN Office of the High Commissioner for Human Rights.

HREOC would appear
to be the appropriate agency to undertake such a review.

Further, building
on the initiative taken by HREOC to convene the Workshop, a continuing
dialogue over the coming months between HREOC and the Steering Committee
would appear to provide a constructive path in respect of ensuring that
the human rights dimension of benchmarking reconciliation is built into
the Draft framework.

2. Governance and capacity
building

Serious concerns
were expressed about the failure of the proposed indicators to adequately
reflect governance and capacity-building objectives. These matters require
urgent attention before the Draft framework goes to COAG for approval.
Discussions with ATSIC, AIATSIS and HREOC would appear appropriate.

3. The continuing traditional
(non-market) economy

The present failure
of the indicators to reflect traditional and subsistence economic activity
and production is a major concern. It is likely to skew results against
remote and outstation communities. Urgent attention needs to be given
to the literature and research on these matters, including the work of
CAEPR, and subsistence production and activity needs to be accommodated
in the indicators.

4. Disaggregation

The draft framework
intends to provide a reporting tool on a national basis. However, it needs
also to be able to be disaggregate to a sufficient level to provide meaningful
and realistic results as a guide to policy review and formulation. The
ability to disaggregate results on a regional basis would appear to be
a high priority (perhaps by ATSIC region). Consultation with the Commonwealth
Grants Commission and ATSIC may be appropriate.

5. Consultation

Considerable concern
was evident at the Workshop about the level and nature of consultation
to date with Indigenous representatives, organizations and communities
about the Draft framework, including the tight deadlines prevailing and
whether the consultation has been wide and/or representative enough. here
is the possibility that the Draft framework, rather than being perceived
as a positive tool for partnership between governments and Indigenous
peoples, will be met with suspicion and distrust, and seen as yet another
government contrivance thrust upon Indigenous society.

To ensure that the
Draft framework is seen as a positive step towards reconciliation based
on an effective partnership between government and Indigenous Australians,
it would appear important at this stage to ensure that ATSIC and other
relevant Indigenous peak bodies are brought fully into the consultation
and negotiation loop, as a matter of priority. A high level conference
or seminar with peak Indigenous bodies may be an appropriate means to
advance consideration of the Draft framework.


1.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2000
, HREOC, Sydney, 2000, p 100.

2.
The Minister for Immigration and Multicultural and Indigenous Affairs,
Philip Ruddock, Reconciliation Council's Report Highlights Practical
Approach
, Media Release 26 September 2002

3.
Ibid, pp130 -132.

4.
ATSIC, Aboriginal and Torres Strait Islander Peoples and Australia's
obligations under the UN Covenant on Economic, Social and Cultural Rights
,
August 2000, p.39

5.
CESCR General Comments can be found at the United Nations Human Rights
Website: www.unhchr.ch

6.
Committee on Economic, Social and Cultural Rights (CESCR), General
Comment 3: The nature of States parties obligations
.

7.
See Rowse, T, Indigenous Futures, UNSW Press 2002.

8.
Steering Committee for the Review of Commonwealth/State Service Provision,
Reporting on Indigenous Disadvantage, at www.pc.au/gsp/indigenous
framework/index.html

9.
For a brief summary of the Harvard project see the issues and options
paper at p 37. See also ATSIC News, Spring 2002.

10.
Department of Family and Community Services, Stronger Families and
Communities Strategy
, see www.facs.gov.au

11.
Commonwealth Grants Commission, Report on Indigenous Funding 2001,
Canberra 2001.

12.
See the Issues and Options paper, p 2.

Last updated 3 February 2003.