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Social Justice Report 2003: Executive Summary

Social Justice Report 2003

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  • Executive Summary

    Chapter 1: Overview

    The Social Justice Report 2003 is
    the fifth report by Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Dr William Jonas. It was tabled in federal Parliament, along
    with the Native Title Report 2003, in March 2004.

    Chapter two of the report
    focuses on developments relating to reconciliation and ensuring accountability of government. It
    highlights progress in addressing Indigenous disadvantage; initiatives of the Council of Australian Governments (COAG) such as the COAG national reporting framework on Indigenous
    disadvantage, COAG whole-of-government community trials and ministerial action plans.

    Chapter three focuses on
    processes relating to Indigenous participation in decision-making and changing the relationship of Indigenous peoples
    with government. It highlights capacity development and governance
    and proposals for ATSIC reform.

    Chapter four analyses current
    progress by governments in addressing petrol sniffing on the Anangu Pitjantjatjara Lands, with an emphasis on the implementation
    of the recommendations of the South Australian Coroner and the progress
    of the COAG whole of government community trial on the AP Lands.

    Chapter five identifies
    the responses of governments to issues of family violence in Indigenous communities.

    Appendix One provides a statistical overview of the current circumstances
    of the Aboriginal and Torres Strait Islander population in Australian
    and, where possible, changes over the last five or ten years and international
    comparisons. Appendix two provides an overview of the
    COAG whole-of-government community trials.

    Findings and recommendations

    Overall, this report concludes that there are a number
    of recent initiatives which are moving us in the right direction, as
    well as small gains being made in some areas. Of particular note are
    recent developments in implementing the Council of Australian Government's
    commitments to reconciliation through the finalisation and first release
    of the national indicators on overcoming Indigenous disadvantage and
    the whole of government community trials ...

    There is a level of optimism created by the determined
    words of senior government members to pursue a changed approach, particularly
    through their efforts in the eight Council of Australian Governments
    whole-of-government community trial sites ...

    This optimism that there might be change in the air
    is accompanied, however, by a level of uncertainty for Indigenous peoples.
    This uncertainty relates in large part to the upheaval that has centred
    on the role of the Aboriginal and Torres Strait Islander Commission
    (ATSIC) over the past year ... (p2)

    Addressing this uncertainty, principally through renewing
    the role of ATSIC, is a critical issue that is dealt with at length
    in this report. It is a central feature of an agenda for change in Indigenous

    These developments are also accompanied by serious
    concerns that the pace of progress, where it exists, is too slow and
    may not necessarily be sustainable into long term. The release of Census
    data from 2001 shows that such progress is in fact minimal. Overall,
    it is difficult to see any progressive trend towards reducing the level
    of inequality experienced by Indigenous peoples compared to non-Indigenous
    people (even in areas where there might have been some marginal improvement
    in absolute terms).

    There is an overwhelming sense that the crisis situation
    that Indigenous peoples face is highly likely to worsen substantially
    over the next decade due to the faster growth rate of the Indigenous
    population (in other words, that government programs will not be able
    to keep up with the growth of the Indigenous population with the result
    that it will become increasingly difficult to maintain the status quo
    or prevent a further deterioration in key areas of well-being). The
    absence of a clear accountability framework for governments, including
    benchmarks and targets, is a matter of great urgency in addressing this

    Consequently, rather than having an overwhelming sense
    of optimism that there is a consistent forward trend in addressing Indigenous
    disadvantage and well-being, I feel apprehensive that the genuine efforts
    being made by governments at this time may not be sufficient to overcome
    the significant legacy of Indigenous disadvantage and marginalisation.

    For a range of reasons that are outlined in this report,
    there is not sufficient commitment by governments at any level to do
    whatever it takes to progressively improve the life chances and opportunities
    for Indigenous people, in terms of both absolute improvement in socio-economic
    conditions and in terms of reducing the level of inequality that exists
    compared to the life chances and opportunities for non-Indigenous Australians.
    I am encouraged that there is recognition by government of the scope
    of the issues faced, within the confines of practical reconciliation,
    and some significant movement towards addressing these problems. But
    ultimately, we are not progressing as well as we can or as well as we
    need to. This needs to change ... (p3)

    The report contains twelve recommendations directed to COAG and the federal government relating to:

    • data collection issues to support COAG's national report
      on overcoming Indigenous disadvantage (recommendation 1, p31);
    • the status of COAG's ministerial action plans for addressing
      Indigenous disadvantage (recommendations 2-5, p39);
    • the progress of the COAG whole-of-government community
      trials (recommendations 6-9, p44, p48); and
    • Capacity building and governance reform (recommendations
      10-12, p89).

    Recommendations - Social Justice Report 2003

    Recommendation 1 on reconciliation: Data collection

    1. That the federal government request the
    Australian Bureau of Statistics (ABS) to provide to COAG information on
    the actions that need to be taken in order to improve Indigenous data
    collection. The ABS should respond to the suggestions made by the Steering
    Committee for the Review of Government Service Delivery in the Overcoming
    Indigenous Disadvantage Report 2003
    , as well as identify actions that
    they consider necessary to ensure the availability of relevant data on
    a regular basis. In providing this information, the ABS should:

    • identify those issues that could be addressed through
      improvements to its existing data collection processes, as well as those
      issues which would require additional one-off funding allocations and
      those issues which would require additional recurrent funding from the
      federal government or COAG;
    • estimate the cost of any additional one-off and recurrent
      funding needs, including the cost of conducting the Indigenous General
      Social Survey on a triennial basis; and
    • consult with the Steering Committee for the Review of
      Government Services, the Aboriginal and Torres Strait Islander Commission,
      and other relevant agencies.

    Recommendations 2 -5 on Reconciliation: Ministerial
    Council Action Plans

    2. That the federal government, through
    its leadership role in the Council of Australian Governments, ensure that
    all Commonwealth / State Ministerial Councils finalise action plans on
    addressing Indigenous disadvantage and reconciliation by 30 June 2004.
    These action plans must contain benchmarks, with specific timeframes (covering
    short, medium and long term objectives) for their realisation. Where appropriate,
    these benchmarks should correlate with the strategic change indicators
    and headline indicators reported annually by the Steering Committee for
    the Provision of Government Services.

    3. That the federal government, through
    its leadership role in the Council of Australian Governments, request
    the Aboriginal and Torres Strait Islander Commission (ATSIC) to advise
    COAG whether it endorses these action plans and the benchmarks contained
    within, following consultations through its Regional Councils. ATSIC should
    be required to advise COAG of its endorsement or any concerns about the
    action plans within a maximum period of six months after being furnished
    with the action plans.

    4. That the federal government ensure that
    all Commonwealth / State Ministerial Council Action Plans are made publicly
    available as a compendium of national commitments to overcoming Indigenous

    5. That COAG publicly report on progress
    in meeting the benchmarks contained in each Commonwealth / State Ministerial
    Council Action Plan on an annual basis.

    Recommendations 6 - 9 on reconciliation: COAG Whole-of-government
    community trials

    6. That the federal government, through
    the Department of Immigration, Multicultural and Indigenous Affairs, commit
    to the existence of the Indigenous Communities Coordination Taskforce
    for a minimum of the five year duration of the COAG whole-of-government
    community trials and accordingly commit resources to the Taskforce until

    7. That federal government departments participating
    in the COAG whole-of-government trials increase their staffing commitments
    to the Indigenous Communities Coordination Taskforce by placing additional
    officers in the Taskforce's Secretariat.

    8. That COAG request the Productivity Commission
    (as Chair of the Steering Committee for the Review of Government Service
    Provision) to provide advice on aligning the benchmarks and outcomes agreed
    at the local level with COAG's National Framework for Reporting on Indigenous
    Disadvantage. This advice should include any recommendations for adapting
    the Indigenous Communities Coordination Taskforce Database to enable reporting
    of outcomes against this National Framework.

    9. That COAG agree and fund an independent
    monitoring and evaluation process for the whole-of-government community
    trials initiative. The Productivity Commission, Commonwealth Grants Commission
    or ATSIC's National Office of Evaluation and Audit would be suitable agencies
    to conduct this review.

    Recommendations 10-12 on capacity building and governance

    10. That COAG adopt ATSIC's Integrated
    framework on capacity building and sustainable development
    as a central
    component of its Reconciliation Framework.

    11. That COAG also provide funding for research
    into best-practice models of governance reform and capacity building relating
    to Indigenous peoples in Australia. Such research should be based on overseas
    models such as the Harvard Project on American Indian Economic Development,
    and build on the findings of existing work on governance reform in Australia.

    12. That the Minister for Aboriginal and
    Torres Strait Islander Affairs (Cth) ensure that reform of the Aboriginal
    Councils and Associations Act 1976
    (Cth) is treated as a high priority
    of the federal government and ensure extensive consultation is undertaken
    with Indigenous peoples about proposed amendments to the legislation.
    Any proposed legislative reforms should be in accordance with the recommendations
    of the 2002 review of the Act's operation. In particular, proposed amendments
    should recognise the need for special regulatory assistance for Indigenous
    organisations and maintain a distinct legislative framework for regulation
    outside of the Corporations Act as a special measure.

    Chapter 2: Reconciliation and government accountability

    A 'highly controlled' commitment to 'practical'

    There has been a high level of commitment
    by the federal government to continuing to implement programmes in accordance
    with its 'practical reconciliation' agenda. There have been significant
    developments in implementing the commitments of the Council of Australian
    Governments (COAG) to conduct a number of whole-of-government community
    trials across Australia and to establishing an annual reporting framework
    on Indigenous disadvantage. There has also been an increased focus on
    debilitating problems affecting Indigenous communities such as family

    The report does not suggest that there is
    an absence of a commitment to reconciliation by the government. Instead,
    the commitment is to a particular type of reconciliation around
    which the boundaries are tightly proscribed.

    The report identifies the following concerns about the government's

    • the limited scope of the commitments that they make;
    • the lack of a process for dealing with issues that fall
      outside the parameters set by the government;
    • the derisive and somewhat arbitrary way that the government
      discards issues which it does not agree with as 'symbolic' and then
      simply ignores them; " the lack of a rigorous monitoring framework to
      hold the government accountable for its commitments; and
    • the lack of progress in areas which it has chosen to
      ignore (pp 11- 12).

    The continuity over several years of this
    'highly controlled' approach of the government towards reconciliation
    has inevitably seen policy debates shift towards the government's framework.
    This was increasingly the case in 2003. Progressively each year has seen
    less focus on issues that do not fall within the government's approach,
    such as an apology, the plight of the stolen generations, the treaty debate
    and native title. These issues have not gone away. Rather, those involved
    in reconciliation have chosen to engage with the government where constructive
    progress can be made. This reflects political reality rather than an endorsing
    or embracing of the government's position (p12).

    Progress in addressing Indigenous disadvantage

    The government has emphasised time and again
    that the key focus of reconciliation should be on practical and effective
    measures that address the legacy of profound economic and social disadvantage
    that is experienced by many Indigenous Australians. Newly released data
    in 2003 provided the opportunity to establish whether we are progressing
    towards this ultimate goal of the government's reconciliation agenda and
    to determine whether the pace of such progress is adequate.

    The government's view is that it is making
    progress in addressing Indigenous disadvantage. However, there are number
    of notable features about various statements made by members of government
    that amount to a misrepresentation of progress being made (pp 14 - 16):

    • First, there are almost no references to progress in
      reducing the gaps that exist between Indigenous and non-Indigenous Australians
    • Second, there are significant omissions in the indicators
      that the government presents as demonstrating 'real improvement' in
      absolute terms (p17).
    • Third, some of the measures of success are presented
      purely as raw numbers and as percentages of increases in raw numbers.
      The ABS cautions against such presentation of statistics as they do
      not account for changes in the accuracy of data collection or increased
      rates of identification of people as Indigenous. This can result in
      the presentation of the level of progress being misleading (p17).

    Appendix one of the Report provides a statistical
    profile of the Aboriginal and Torres Strait Islander population. It includes
    information on the current status of Indigenous peoples on key measures
    of socio-economic well-being including health status, employment, income,
    education, housing, and contact with criminal justice and care and protection
    systems. The main findings of the Appendix in terms of progress in addressing
    Indigenous disadvantage across these areas are summarised below.

    Progress in addressing Indigenous


    • Gross household income for Indigenous people increased by 11%
      between 1996 and 2001. In 2001, it was 62% of the rate for non-Indigenous
      Australians, compared to 64% in 1996.
    • Median gross individual income for Indigenous people increased
      by 19% from 1996 to 2001, compared to an increase of 28.4% for
      non-Indigenous people. There has been a considerable increase
      in the disparity in individual income between these two groups
      between 1996 and 2001, as well as over the decade from 1991 to


    • In 2001, 54% of Indigenous people of working age were participating
      in the labour force compared to 73% of non-Indigenous people.
    • In 2001, the unemployment rate for Indigenous people was 20%
      - an improvement from the rate of 23% in 1996. This is three times
      higher than the rate for non-Indigenous Australians.
    • 18% of all Indigenous people in employment in 2001 worked on
      a CDEP scheme. If CDEP were classified as a form of unemployment,
      the Indigenous unemployment rate would rise to over 34%.


    • 69% of Indigenous students progressed from year 10 (compulsory)
      to year 11 (non-compulsory) schooling, compared to 90% of non-Indigenous
      students in 2001.
    • 38% of Indigenous students were retained to year 12 in 2002
      compared to over 76% for non-Indigenous students. This was an
      increase from 29% in 1996.
    • In 2001, Indigenous people participated in post-secondary education
      at a similar rate to non-Indigenous people, although they had
      a slightly higher attendance rate at TAFE colleges and lower attendance
      rates at universities. The proprtion of Indigenous youth (aged
      15-24 years) attending a tertiary institution declined between
      1996 and 2001.


    • In 2001, 63% of Indigenous households were renting (compared
      to 27% of non-Indigenous households), and 13% owned their home
      outright (compared to 40%).
    • Indigenous people are 5.6 times more likely to live in over-crowded
      houses than non-Indigenous people.

    Contact with criminal justice system

    • Indigenous people have consistently constituted 20% of the total
      prisoner population since the late 1990s, compared to 14% in 1991.
    • Indigenous people are imprisoned at 16 times the rate of non-Indigenous
      people. Indigenous women are imprisoned at over 19 times the rate
      of non-Indigenous women. These rates are higher than in 1991,
      when the Royal Commission into Aboriginal Deaths in Custody reported.
    • Since 1997, Indigenous juveniles have constituted at least 42%
      of all incarcerated juveniles, despite constituting 4% of the
      total juvenile population. In 2002, Indigenous juveniles were
      incarcerated at a rate 19 times that of non-Indigenous juveniles,
      an increase from 13 times in 1993.

    Contact with care and protection system

    • Indigenous children come into contact with the care and protection
      system at a greater rate than non-Indigenous children, and are
      increasingly represented at the more serious stages of intervention.

    Of particular concern is the lack of achievement in relation
    to improving the health status of Indigenous Australians.

    Progress in addressing Indigenous disadvantage
    - Health status

    Life Expectancy

    • Life expectancy for Indigenous females declined
      slightly from 1997 - 2001 to 62.8 years. This rate is lower than
      the life expectancy rate for females in India and sub-Saharan
      Africa (with the impact of HIV-AIDs factored out).The gap with
      non-Indigenous female life expectancy increased from 18.8 to 19.6
      years in the same period.
    • Aboriginal and Torres Strait Islander females can
      also expect to live between 10.9 and 12.6 years less than Indigenous
      females in Canada, the United States of America and New Zealand.
    • Life expectancy for Aboriginal and Torres Strait
      Islander males increased slightly from 1997-2001 to 56.3 years.
      This rate is lower than the life expectancy rate for males in
      Myanmar (Burma), Papua New Guinea and Cambodia. The gap between
      Indigenous and non-Indigenous male life expectancy increased slightly
      from 20.6 to 20.7 years in the same period.
    • Aboriginal and Torres Strait Islander males can
      also expect to live between 8.8 and 13.5 years less than Indigenous
      males in Canada, the USA and New Zealand.

    Median death age

    • In 2001, the median age of death was 24 years lower
      for Indigenous Australians than for non-Indigenous Australians.
      There has been no identifiable trend towards a reduction in this
      gap for either Indigenous males or females over the past decade.

    Infant health

    • There are twice as many low birth-weight babies
      born to Indigenous mothers than to non-Indigenous mothers. The
      rate of low birth-weights has increased for both groups in recent
      years, with a slight increase in the disparity between the two
      groups over the decade.
    • There are higher rates of low birth-weight babies
      among Indigenous Australians than there are for mothers in countries
      that are classified as low development countries by the United
      Nations, such as Ethiopia, Senegal, Zimbabwe, Lebanon and Indonesia.
    • There are 2.5 times as many deaths among Indigenous
      infants than non-Indigenous infants in Australia, with no discernable
      reduction in the number of deaths or the rate of inequality since
    • Rates of infant mortality for Indigenous people
      in Australia are significantly higher than rates for Indigenous
      people in Canada, the USA and New Zealand.

    These figures indicate that there are clear
    disparities between Indigenous and non-Indigenous people, and limited
    progress in reducing these disparities across many key areas of socio-economic
    status (pp 18 -20).

    [T]he claim of the government that 'the wellbeing of Indigenous people
    is improving under this Government' cannot be verified across many
    core areas of practical reconciliation. There are undoubtedly some
    areas where improvements are being realised. Overall, however, there
    is no consistent forward trend in improving the well-being of Indigenous
    peoples, and particularly no forward trend towards a reduction in
    the disparity between Indigenous and non-Indigenous Australians (p17) ... There is some evidence that in relation to key measures,
    this situation may deteriorate further in the coming decade. The outcomes
    being achieved by governments are not adequate on any measure of success
    and despite the investment of significant resources by governments.
    This situation needs to change (p24).

    Implementing the commitments of the Council of Australian

    There has been significant progress in implementing
    the commitments made by the Council of Australian Governments (COAG) towards
    reconciliation in 2003. The report reviews developments in relation to
    the three main areas of commitment by COAG.

    i) Overcoming Indigenous disadvantage - Annual report
    against key indicators

    In its communique of 5 April 2002, COAG
    agreed to commission an annual reporting framework on key indicators of
    Indigenous disadvantage which was released in November 2003. The reporting
    framework was developed by the Steering Committee for Government Service
    Provision (see pp25-30). A recurring theme of the framework is acknowledgement
    that areas such as health, education, employment, housing, crime and so
    on are inextricably linked. Disadvantage or involvement in any of these
    areas can have serious impacts on other areas of well-being. The Steering
    Committee published its first report against this framework, titled Overcoming
    Indigenous Disadvantage - Key Indicators 2003,
    in November 2003.

    The endorsement of the framework by COAG in August
    2003 and the production of the first report by the Steering Committee
    in November 2003 are both substantial achievements (p33).

    There are two main issues relating to the
    framework which have a bearing on how influential it will be in promoting
    change to policy and program approaches by governments and ultimately
    in improving the well-being of Indigenous peoples:

    • First, a critical issue for the reporting framework is
      the availability of adequate and regular data. It is critical that the
      recommendations and suggestions of the Steering Committee in relation
      to improved data collection are addressed as a matter of urgency in
      order to ensure that the reporting framework is able to fully realise
      its potential and to be viable into the longer term (pp 30 -31). The
      report makes 1 recommendation on these issues.
    • Second, how the framework is to be incorporated into
      policy design and programmes across governments and between government
      departments (pp 32 - 33).

    If the reporting framework is not integrated
    into policy development then the Steering Committee's report risks becoming,
    in the words of the Chairman of the Steering Committee, 'an annual misery
    index' which simply reminds us on an annual basis of continuing Indigenous
    disadvantage without action to change this situation. (p32).

    ii) Developing Ministerial Council action plans
    and benchmarks

    It has now been three years since COAG agreed
    to the production of Ministerial Council action plans and benchmarks.
    A summary of those that have been released is at pp35 -37 of the report.
    Many of these action plans are rudimentary in scope and deal almost exclusively
    with data collection and performance monitoring issues. Very few have
    any benchmarks or targets.

    Benchmarking is a critical aspect of ensuring
    human rights compliance and accountability. Even the most sophisticated
    of these action plans, in education, does not meet the attributes necessary
    for adequate benchmarking (pp 36-38).

    the establishment of benchmarks requires ...
    an identification of an agreed rate of progress towards (the goal of
    equality), within a short, medium and longer term context, and an evaluation
    of issues relating to the prioritisation, resourcing and re-engineering
    of programs and services that will be needed in order to achieve this.
    The action plans and strategies adopted at the inter-governmental level
    to date do not contain critical elements for benchmarking.

    The absence of appropriate benchmarks is perhaps the most
    significant failure of governments in implementing practical reconciliation
    since the year 2000 (p38).

    The report contains 4 recommendations aimed at addressing
    the lack of government accountability through improved benchmarking and
    action plans.

    iii) The COAG whole-of-government community trials

    In its communique of 5 April 2002, COAG
    agreed to trial a whole-of-government cooperative approach in up to ten
    communities or regions of Australia. Appendix 2 of the report provides
    a detailed overview of the structure of the trials, and progress in each
    trial site.

    While the trials remain in the preliminary
    stages of development, rapid progress has been made during 2003 ... In
    meetings and correspondence about the trials, I have noticed an air
    of enthusiasm and optimism among government departments about the potential
    of the trials. Government departments are embracing the challenge to
    re-learn how to interact with and deliver services to Indigenous peoples.
    There are no illusions among government departments that the trials
    are as much about building the capacity of governments as they are about
    building the capacity of Indigenous communities.

    Through the active involvement of Ministers
    and secretaries of federal departments in the trials, a clear message
    is being sent through mainstream federal departments that these trials
    matter and that government is serious about improving outcomes for Indigenous
    peoples. Even at this preliminary stage, this is a significant achievement
    for the trials. ATSIC have stated that to date 'there has been clear
    success through improved relationships across governments at trial sites' (p42).

    It is too early to determine whether the
    trials will have a positive impact in improving government service delivery
    to communities in each trial region in the longer term or whether transferable
    lessons will be learnt which are able to more broadly benefit other
    Indigenous communities. At this stage, the report makes the following
    observations and concerns about the conduct of the trials and their

    • First, it appears that the Indigenous Communities Coordination
      Taskforce (ICCT), the Commonwealth government's coordinating mechanism,
      is inadequately funded and it is not clear that it will exist for the
      full five years of the trials and if it does, in what form (pp 42-44).

      There is a clear need for the Commonwealth
      to commit to the existence of the ICCT for the full five years of
      the COAG trials and to increase staffing levels to ensure that the
      ICCT is able to be fully responsive and continue to make high quality
      contributions to the COAG trials (p43).

    The report makes 2 recommendations relating
    to this concern.

    • Second, there are concerns relating to the use of the
      Flexible Funding Pool that has been established to support the trials,
      in particular, there is no commitment to any funding pool for the final
      two years of the trials (p45). The ICCT expects that funding will ultimately
      be provided in 'a more informal way' through the joining up of existing
      programs and changes to program approaches. This is an important goal
      for the trials and a way of ensuring that the outcomes of the trials
      are sustainable and able to be more broadly applied to other Indigenous
      communities. There will, however, need to be close attention paid in
      the implementation of the trials to the reality of this goal and a degree
      of flexibility from the government to allocate funding to the ICCT for
      the final two years of the trials should such funding ultimately prove
    • Third, there is concern from ATSIC that it is not being
      sufficiently engaged in the trials (pp 45-46).
    • Fourth, it is not clear at this stage that the performance
      monitoring framework for the trials will be sufficiently rigorous. It
      is anticipated that the first two years of the trial will be reviewed
      in mid-2004 and a further review conducted at the end of the 5 year
      trial phase. It is not clear at this stage how these reviews will be
      conducted, by whom or whether the results of the reviews will be made
      public (pp 46-48).

      The lack of a clear evaluation strategy is of great
      concern. It may be that the uncertainty in this regard is largely
      the product of the evolving nature of the trials and that there will
      be much greater clarity during 2004. I have previously, however, expressed
      concern at reliance by COAG on internal monitoring and evaluation
      strategies. In particular, I have expressed concerns about the lack
      of information that is publicly reported about such evaluations (thus
      limiting government accountability), the lack of appropriate consultation
      with Indigenous peoples and lack of independence in the monitoring

    My concern about such processes is reinforced
    by the failure in recent years of the Ministerial Council on Aboriginal
    and Torres Strait Islander Affairs to complete two significant evaluations
    on COAG's behalf and in a timely manner. The first is the review of
    progress by all levels of government in implementing the recommendations
    of the Bringing them home report. The second is an audit of family
    violence programmes to guide the response of COAG to this crisis issue.
    Approximately three years after these reviews were announced, neither
    has been presented to COAG nor made public (p46).

    A related issue is the existence of adequate
    data to contribute to the monitoring and evaluation process. In the initial
    stages of the trials, there has been a significant focus on developing
    local level priorities, outcomes and benchmarks. It is not, however, clear
    how the local level data will be able to be matched up to the national

    It is quite likely that it will not be
    possible to match up local level indicators with the national reporting
    framework, other than through the provision of case studies which can
    illustrate links between particular types of policy interventions and
    outcomes. This will, of itself, be valuable information. The concern
    is that the trials have set objectives for data analysis and performance
    monitoring that will not be able to be achieved because of the existing
    limitations in data quality and collection (p47).

    The report makes 2 recommendations relating
    to this concern.

    • Fifth, it is not clear how the lessons learnt from the
      trials will be transferable and contribute to broader reform of program
      design and service delivery for Indigenous peoples. Concerns identified
      by ATSIC in this regard include that:
    • there is limited experimentation of new approaches
      by Lead Agencies in the trials;
    • there is a blurring in some instances of Commonwealth
      and state responsibilities, 'attracting the possibility of cost shifting
      between parties'; and
    • initiatives in one trial are not being identified as
      having potential application in other trials.

    Ultimately, the transferability of outcomes
    from the trials in the longer term will depend on whether the trials are
    able to more broadly change the status quo of service delivery and program
    guidelines. A significant challenge will be ensuring that the adoption
    of more holistic, whole-of-government approaches is not a transient feature
    and that departments do not simply slip back into their usual ways of
    doing things once the trials have ended. Factors that will need to be
    addressed to ensure that this is not the case include the following:

    • Continued engagement of mainstream
      departments and programs:
      It is clear that a significant factor
      in the early success of the trials has been the high level involvement
      and commitment of ministers and departmental secretaries at the federal
      level in taking responsibility for particular communities (as the
      lead agency) and harnessing the services and programs of mainstream
      departments. The lead agency approach is not sustainable beyond a
      limited number of communities in its current format. Mechanisms such
      as the Minister's group and the Secretaries group may be more sustainable,
      so long as departments continue to have a significant investment in
      promoting improved coordination of services.
    • Coordinating funding of proposals
      in non-trial sites:
      The identification of a region or community
      as a trial site has naturally elevated the priority with which the
      service delivery needs of that community or region are dealt with.
      Governments and departments have been able to look to how they can
      relax program guidelines or join up funding from different programs
      and areas for more holistic solutions. A significant challenge is
      identifying how proposals in non-trial sites can also benefit from
      this approach where such proposals do not enjoy such priority attention.
    • Resource constraints: While
      the emphasis of the trials is not on new money but on better coordinating
      and getting value from existing money, there is a broader context
      of significant under-funding of key areas of Indigenous disadvantage.
      The focus on a limited number of communities, and the availability
      of a short term funding pool, shields the trials from this broader
      issue. Funding restrictions will become a significant issue when seeking
      to more broadly implement the lessons learnt from the trials. This
      will be complicated further by an emphasis on addressing relative
      need and reallocating funding towards those areas and issues of greatest
    • Capacity development of Indigenous
      Each of the trials has built on local Indigenous
      initiatives that were already under development to improve service
      delivery to their communities. The trials have undoubtedly greatly
      advanced processes that were previously underway in these and other
      trial areas. However, the broader concern is how transferable lessons
      will be drawn from the trials for those communities which experience
      a high degree of dysfunction and which are not, at least at this stage,
      capable of organising themselves so that they can better interact
      with governments. In other words, how do we avoid the situation where
      governments focus their attention on improved coordination of service
      delivery to those communities that are relatively organised? It is
      critical that in the longer term other communities do not get left
      behind because they do not have such capacity.

    There are also a number of processes available
    to ATSIC and Indigenous peoples to build on the achievements of the trials
    and more broadly inform policies and programs. There are three significant
    processes which ATSIC currently utilises which provide ATSIC with some
    leverage for advancing inter-governmental coordination and improved service

    • ATSIC has entered into a number of partnership agreements
      with states and territories, as well as agreements and compacts with
      federal government departments.
    • through the operation of ATSIC's Regional Councils and
      the development of their regional plans. Regional plans offer a significant
      opportunity for coordinating government activity within regions.
    • ATSIC leads the Community Participation Agreements (CPA)
      initiative under the Australians Working Together package. The
      CPA process provides ATSIC with a significant tool for advancing the
      objectives of Indigenous communities or regions as they relate to aspects
      of government service delivery.

    A further tool which is available to Indigenous
    communities to build on the advances of the COAG trials are the Indigenous
    Land Use Agreement provisions of the Native Title Act 1993 (Cth).

    Overall, the COAG whole-of-government
    community trials have advanced significantly during 2003 and offer much
    potential for reforming inter-government and whole-of-government approaches
    to service delivery to Indigenous peoples. There have already been a
    number of achievements from the process. There remain a number of challenges
    and some structural issues (particularly relating to monitoring and
    evaluation) that remain to be addressed. The long term success of the
    process will, however, depend on how the trials promote structural change
    in the way that governments go about delivering services to Indigenous
    peoples (p54).

    Conclusions - Government accountability for reconciliation

    During 2003, the government's approach to
    reconciliation has continued to be restricted to measures that fall within
    its 'practical' reconciliation approach. This has the consequence of there
    being a partial framework for progressing reconciliation with significant
    issues of unfinished business left in abeyance. The report establishes
    that progress in advancing 'practical' reconciliation over the course
    of the year has been variable.

    The statistical data indicates that there
    has been limited progress over the past five years in achieving the
    central purpose of practical reconciliation, namely improved Indigenous
    well-being. Of particular concern is the fact that the disparities that
    exist between Indigenous and non-Indigenous Australians have remained
    substantially the same, or have widened over the past five and ten years.
    Indigenous Australians also presently endure health standards worse
    than those in some so-called 'third world' countries. The lack of progress
    in achieving substantial improvement in Indigenous well-being is also
    in marked contrast to outcomes in similar settler countries such as
    the United States of America, Canada and New Zealand (p54) ...

    The year 2003 saw the development of significant
    measures for advancing reconciliation within the framework of the Council
    of Australian Governments. The national reporting framework on Indigenous
    disadvantage and whole-of-government trials under COAG are in fledgling
    stages and there are a number of issues that remain to be addressed before
    success is assured.

    These initiatives have not, however,
    been backed up by a range of other commitments and processes that are
    necessary to ensure the long term sustainability of improvements in
    the well-being of Indigenous peoples. There remains an absence of an
    appropriate national commitment to redressing Indigenous disadvantage,
    sufficiently rigorous monitoring and evaluation mechanisms, and benchmarks
    with both short term and longer term targets agreed with Indigenous
    peoples. There are also critical issues relating to the depth of inequality
    experienced by Indigenous people, the size and growth of the Indigenous
    population and under-resourcing of services and programs to Indigenous
    peoples that cannot continue to be ignored if there is to be any genuine
    improvement in Indigenous peoples' circumstances.

    Ultimately, the process of practical reconciliation
    is hampered by its lack of a substantive action plan for overcoming
    Indigenous disadvantage in the longer term, with short term objectives
    to indicate whether the rate of progress towards this goal is sufficient.

    The failure of the government to address these factors
    as part of its practical reconciliation approach reflects a fundamental
    flaw in the process. By committing to provide full access to citizenship
    entitlements and nothing more, practical reconciliation is a 'blank
    cheque' and amounts to a commitment into the foreseeable future to pay
    the increased economic and social costs associated with Indigenous disadvantage.
    In relation to employment alone, this cost is estimated by the Centre
    for Aboriginal Economic Policy Research to rise to the vicinity of 0.5
    to 1% of gross domestic product within the decade.

    At this stage, it is not possible to foresee
    a time when 'record levels of expenditure' of the Commonwealth on Indigenous
    services will not be necessary. It is also not possible to foresee a
    time when a continuation of the current approach will result in significant
    improvements in the lives of Indigenous peoples. Practical reconciliation
    does not have a plan for overcoming rather than simply managing
    Indigenous disadvantage.

    Ultimately, deficiencies in monitoring
    and evaluating processes for reconciliation indicate that there are
    problems of accountability of governments for their contribution to
    reconciliation. This lack of accountability allows governments to unilaterally
    establish the boundaries of issues that they will address in the first
    place and then to avoid public scrutiny when material improvements in
    Indigenous well-being are not achieved and sustained. A number of recommendations
    have been made throughout the course of this chapter to address this
    situation (pp55-56).

    Chapter 3: Indigenous participation in decision
    making - Transforming the relationship between government and Indigenous

    There has been increased attention over
    the past year to the nature of the relationship between government and
    Indigenous peoples. There has been a lot of talk from governments about
    the need to change the way they interact with and provide services to
    Indigenous peoples and communities. This has largely occurred as a result
    of the significant policy focus of Indigenous peoples and governments
    on capacity building and governance reform in recent years, progress in
    2003 in advancing the whole-of-government community trials by the Council
    of Australian Governments.

    Debates during the year about the relationship
    of Indigenous peoples and government have identified three key, inter-connected,
    issues. First, the need to change the way government interacts with Indigenous
    peoples. For governments, the emphasis here has been on the need to change
    the way services are provided to Indigenous peoples, including through
    improved coordination between governments and among government agencies.
    Second, the need to build the capacity of Indigenous communities, coupled
    with demands for improved corporate governance among Indigenous organisations.
    Third, the need to review the structures and operations of ATSIC, such
    as through introducing improved corporate governance mechanisms and by
    making ATSIC more representative and participatory. Indigenous peoples
    and governments alike have focused on the importance of these issues during
    the past year. There are, however, differences on how to best address
    these issues.

    A relationship of dependence - Challenging the existing
    service delivery approach

    Indigenous peoples seek to challenge the
    underlying basis of their relationship to governments in Australia. Indigenous
    peoples have increasingly come to realise that the current system perpetuates
    a cycle of dependency and is also not contributing to or promoting sustainable
    improvements in Indigenous communities and individual well-being.

    There are two levels of dependency:

    • First, of Indigenous organisations to government agencies.
    • Second, of Indigenous people to these organisations.
      The activities of Indigenous organisations are substantially defined
      and controlled by government decision making processes over which Indigenous
      peoples exercise minimal, if any, control. As a result, such organisations
      are based on non-Indigenous models of governance and do not necessarily
      reflect the priorities and needs of Indigenous communities.

    Concerns about dependency on permanent government
    service delivery are accompanied by concerns that this service delivery
    model is not delivering long term and sustainable improvements in Indigenous
    communities ... The current approach reduces the idea of development 'to
    one of 'community development' devoid of any economic dimension' and provides
    'little encouragement to Indigenous economic development since the resourcing
    of Indigenous organisations does not increase with increases in economic
    activity in their local area'. Service delivery of itself brings few economic
    benefits (p61).

    Indigenous people seek to move from a position
    of dependency on government service delivery to being active participants
    in governing their own communities. This requires a changed approach by
    governments and Indigenous organisations and communities.

    Overall, it requires two main but inter-related
    changes. First, it requires changes to the approach of government to funding
    in order to increase Indigenous participation and control. Second, it
    raises challenges for Indigenous people to develop structures that are
    capable of interacting with governments while also being representative
    of and accountable back to Indigenous communities and people. This requires
    building the capacity of Indigenous communities to be self-determining
    as well as reforming the structures of ATSIC to provide effective representation
    within government at the regional, state and national levels. It is this
    second set of challenges that this chapter focuses on.

    Facilitating Indigenous participation and moving beyond
    welfare dependency - The government's 'shared responsibility' approach

    [T]he government's approach, and their
    efforts to date to engage Indigenous peoples, do not seek to transform
    the existing model of service delivery to Indigenous peoples. Instead,
    they focus on improving the effectiveness of the existing approach and
    consequently, the outcomes achieved by it in relation to Indigenous
    disadvantage ( p66).

    The report notes that although government
    has made a series of commitments in relation to the 'shared responsibility'
    approach, it appears reluctant to relinquish any control over decision
    making or resource allocation (pp 64 - 65). Other observations are that:

    • The primary focus of the government is not on transforming
      the current approach, rather engaging Indigenous to make the system
      more responsive to their needs.
    • It is not based on recognising Indigenous jurisdictions
      (and in turn on distinct Indigenous identities) or on sharing power.
    • the government's focus in on achieving greater efficiency
      in service delivery, not radical change to existing financial commitments

    Capacity building in Indigenous communities and governance

    The report identifies four main features
    of the developments over the past few years relating to capacity building
    and governance reform:

    • The identification of significant capacity in
      Indigenous communities

    The first is that much capacity at the community
    level has been identified. A key challenge of reform is therefore to identify
    existing capacity in Indigenous communities and to understand and deal
    with the circumstances that prevent this capacity from being fully utilised
    (pp 67-71).

    • The importance of capacity building in building
      a more effective service delivery framework

    There is a growing realisation of the integral
    role that capacity building plays in addressing the deficiencies of the
    existing service delivery approach. It is only when effective governance
    strategies are in place that economic and other development projects have
    the chance of becoming sustainable. In developing capacity, international
    best practice and research suggests it is more productive for Indigenous
    communities to focus on issues over which they already exert a high level
    of control, rather than get embroiled in issues over which they have little
    control (p72) .

    • The importance of corporate governance standards

    It is estimated that there are nearly 3000
    associations incorporated under the Aboriginal Councils and Associations
    (the Act). Whole Indigenous communities may be dependent on the
    services provided by a corporation. The standard of corporate governance
    thus has a major impact on service delivery and accessibility of programs
    for Indigenous peoples. The recent review of the Act concluded it is out
    of date and has now itself become a source of disadvantage for Indigenous
    people (p73).

    The corporation is not always a culturally
    appropriate structure for Indigenous organisations. This cultural mismatch
    is significant because incorporation is often 'involuntary', being a requirement
    of legislative provisions and government policy. This:

    • exposes Indigenous people to technical requirements they
      may not understand;
    • forces together Indigenous groups which would not otherwise
      have joined together;
    • can result in confusion as to proper roles as members
      of the community or group and as members of the corporation;
    • has led to organisations being 'dominated by larger families'
      (pp 74-75).

    Ultimately, incorporation had not contributed
    to social capital and undermined existing capacities such that 'the effects
    of this history now have to be 'undone'. On 15 January 2004, the Minister
    for Immigration and Multicultural and Indigenous Affairs announced that
    the government was shortly to introduce proposed legislative reforms to
    the Act. The report supports such amendments, and recommends that amendments
    must be subject to broad consultation into order to achieve an appropriate
    'cultural match' with the needs of Indigenous people (p76).

    • Definitions of capacity building and a reform

    [D]espite the convergence of views on the need for capacity
    building and governance reform, there is no commonly agreed definition
    of what capacity building is, nor an agenda for progressing capacity
    building and governance reform in a whole of government and holistic
    manner (p76).

    The report notes there is no commonly agreed
    definition of what 'capacity building' is and what a reform agenda based
    on 'capacity building' should be. The lack of a common understanding promotes
    policy confusion and has the potential to render commitments by governments
    to support such processes meaningless. It also raises the possibility
    that the emphasis of governments on capacity-building could amount to
    nothing more than a bureaucratisation of what was formerly called community
    development (pp 76-77).

    ATSIC has developed an integrated framework
    for progressing capacity building and promoting sustainable development
    in Indigenous communities. There are three defining features of ATSIC's

    • First, it is a people-centred approach focused
      on building the human and social capital necessary for Indigenous participation
      in programs.
    • Second, it emphasises process elements such as access
      to choice, participation in planning, and access to decision making.
    • Third, is a focus on sustainability, continually re-assessing
      whether a program or project can become self-sustaining (pp 82-85).

    This framework highlights that there are
    three levels of interventions for capacity development - the community
    level; Indigenous organisations; and government level (including ATSIC).
    There are different approaches needed for each level (pp 86-88). The report
    recommends that this framework be adopted by COAG as part of its reconciliation
    framework. The adoption of this framework would provide a focus to overcome
    the concerns raised above.

    Overall, ... there have been significant advances
    in the past three years in relation to capacity building initiatives.
    There is a broader acceptance of the need for capacity building and governance
    reform within Indigenous communities and to changing the way that governments
    go about delivering services. There is also a broader acknowledgement
    of the breadth of initiatives currently underway to address the overall
    circumstances of Indigenous peoples. This is let down, however, by the
    lack of a consistent understanding of what capacity building entails which
    promotes a more limited focus purely on the operations of existing service
    delivery mechanisms.

    The proposal of an integrated capacity development
    approach by ATSIC demonstrates the potential for transforming the
    relationship of Indigenous peoples and government through a focus on governance
    reform and capacity building. It provides a holistic, whole-of-government
    approach that serves as an agenda for change. The adoption of this framework
    would not only provide a long term framework and vision for improving
    Indigenous well-being, it would also ensure that all governments proceed
    in addressing capacity development issues with a consistent understanding
    of the goals and objectives of such a process. Many current initiatives
    of governments - such as the COAG whole-of-government trials, proposals
    to reform corporate governance standards relating to Indigenous corporations,
    and agreement making with ATSIC - fit within or is consistent with this
    integrated framework (p88).

    The report makes 3 recommendations relating to capacity building and governance reform (recommendations 10-12).

    Strengthening the role of the Aboriginal and Torres
    Strait Islander Commission

    In 2003, an ATSIC Review Team made 67 recommendations
    which broadly address the reform of ATSIC and issues of the relationship
    between ATSIC and Indigenous peoples, the federal government, the states
    and territories, and between its elected and administrative arms (pp 94
    - 95).

    The Report supports the following recommendations
    of the Review Team:

    • to retain ATSIC's 35 Regional Councils and accord higher
      priority to the Regional Council planning process as the basis of national
    • to reunify ATSIC and ATSIS in one organisation;
    • to retain the conflict of interest directions within
      ATSIC (p95).

    In supporting the reunification of ATSIC
    and ATSIS, I support the retention of the conflict of interest directions
    within ATSIC by which ATSIC's elected representatives would continue
    to set policy priorities and to decide the broad program allocation
    of funding but not have any involvement in making individual funding
    decisions. The reunification of ATSIC's structure would overcome a potential
    tension that has been created through the creation of ATSIS whereby
    it is required to 'take all reasonable steps to ensure that ATSIS conforms
    to the policies and strategic priorities established by ATSIC' on the
    one hand, and 'coordinate its activities to achieve effective synergies
    with overall Government policies and priorities as well as have appropriate
    regard to overall Government policies and priorities' on the other hand. (p95).

    The report also identifies significant problems with the
    proposals of the ATSIC Review Team:

    I also have reservations about the Review
    Team's proposals for the creation of a national body and national executive
    in the format that they propose. I also consider that the Review Team's
    model does not provide adequate support to ATSIC's national structure
    and consequently would not provide ATSIC with sufficient leverage or
    powers to undertake a broader role of monitoring performance by other
    government agencies (at all levels) and in setting priorities to apply
    across government.

    I am also concerned that there are also
    significant gaps in the Review Team's analysis which overlook issues
    relating to the broader service delivery environment in which ATSIC
    operates, as well as deficiencies in the model that it proposes. (pp95-96)

    The report also notes the following concerns:

    • The Review Team had on the one hand acknowledged that
      ATSIC has wrongly been used as a scapegoat for failures by governments
      in addressing key areas of Indigenous disadvantage yet on the other
      hand replicated this scape-goating itself (p96).
    • The Review Team's report does not acknowledge the broader
      framework of government policy making and service delivery in which
      ATSIC operates. This includes recognition of the significant under-funding
      in key areas of Indigenous marginalisation, which is a key factor in
      preventing needs-based funding from being implemented (p96).
    • The ATSIC Review Team fails to acknowledge a number of
      recent initiatives undertaken by ATSIC to reform the way that it operates
      and to advocate for changes to the way the existing service delivery
      environment operates (for example, ATSIC's Integrated framework for
      capacity building and sustainable development
      discussed earlier
      in this chapter).
    • The Review Team's final report contains no detailed discussion
      and recommendations relating to supporting more flexible structures
      at the Regional Council level.

    The Review Team's discussion paper devoted
    significant attention to proposed reforms to strengthen ATSIC's Regional
    Council structure. The ... final report contains no recommendations relating
    to including provisions in the ATSIC Act to allow regional council structures
    to evolve over the longer-term in accordance with the aspirations of
    Indigenous peoples within the various council regions. Such proposals
    have now been under discussion since the conduct of ATSIC's Section
    26 review
    in 1998 and the regional autonomy consultations of 1999
    and 2000 without result.

    • The Review Team's proposals for ATSIC's national representative
      structures are flawed.

    I note however that in general, there
    is much potential in the Review Team's proposal that there be a new
    mechanism such as the proposed 'national body' to involve Regional Council
    Chairs in establishing national priorities and policies. It is desirable
    that such a 'national body' determine ATSIC policy, primarily through
    the development of a national plan which would be drawn from ATSIC Regional
    Council plans.

    It is fanciful, however, to suggest that
    a national body comprised of such a membership and charged with such
    responsibilities could effectively acquit their responsibilities to
    Indigenous peoples through the national body, particularly when the
    national body would only be meeting once every two years.

    The infrequency of meetings of the proposed
    'national body' combined with the reduced size of the national board
    (or new 'national executive') could significantly impact on the ability
    of ATSIC to advocate for reform at the national level, and on its ability
    to develop national policies. This would consequently affect its ability
    to influence the approach of other government departments and different
    governments (pp98-99).

    The report suggests that consideration
    could be given to an intermediate position whereby the ATSIC Board of
    Commissioners or equivalent 'national executive' is retained and charged
    with the day to day responsibilities of advocating ATSIC's position
    at a national level. Such a body would need to address issues of representativeness.
    Such a body could then be supported by a national congress or 'national
    body' made up of all Regional Council Chairs which meets with the Board
    of Commissioners on a regular basis (perhaps 3 to 4 times per year)
    to determine ATSIC's national policies and priorities (p99).

    The report then proposes how ATSIC could
    be reformed to meet the key objectives identified by the ATSIC Review.
    This requires change to their powers at each of the national, state/territory,
    and regional levels.

    • Reform to ATSIC at the national level

    There must be sufficient attention paid
    to the importance of ATSIC maintaining a strong voice at the national
    level. Any diminution of ATSIC's role at the national level will ultimately
    affect its ability to influence the national policy agenda and will lead
    to less effective advocacy for Indigenous peoples. This will be the case
    even where a diminution of the national focus is accompanied by an enhanced
    role for regional councils (p100).

    ATSIC's existing powers should be enhanced by strengthening
    the scrutiny role of ATSIC over service delivery and program design by
    other government departments. This could be achieved through amendments
    to the ATSIC Act which:

    • empower ATSIC to set the objectives and guiding principles
      for service delivery to Indigenous peoples across all issues (which
      they can do under the present legislation), but also to empower them
      to be able to develop legally binding directions for service delivery
      agencies that accord with these principles;
    • require the Minister to table in Parliament all such
      directions set by the ATSIC Board;
    • provide that all directions issued by the ATSIC National
      Board and subsequently tabled in Parliament have the status of legislative
      instruments (or delegated legislation);
    • require all government departments to include in their
      annual reports to Parliament information as to how they implement the
      directions of the ATSIC Board in delivering relevant services and programs;
    • empower ATSIC to evaluate how government departments
      and agencies (at all levels) comply with these directions in delivering
    • provide for regular scrutiny of compliance with these
      directions by the Australian National Audit Office or through an enhanced
      Office of Evaluation and Audit within ATSIC; and
    • provide for scrutiny processes by the Parliament, including
      through ATSIC reporting to Parliament about deficiencies in department's
      complying with directions and for parliamentary committees to scrutinise
      the actions of departments through specific inquiries or senate estimate
      processes. (pp100-101)
    • Reform to ATSIC at the state / territory level

    The report supports enhancing the structure
    of ATSIC for interface with state and territory government through improved
    support for ATSIC's State Advisory Committees. In particular, the report
    proposes a role for ATSIC's Office of Evaluation and Audit (OEA) in monitoring
    state and territory level service delivery (p102).

    • Reform to ATSIC at the regional level

    The report supports the ATSIC Review report's
    emphasis on the need for enhanced powers at the regional level and for
    input from the regional and local levels to inform policy development
    and decision-making processes at the state / territory and national levels
    (p 103). The following issues must be addressed:

    • The provision of the ability for regional councils to
      enter into agreements.
    • The need to enhance the profile of ATSIC representatives
      at the state level to ensure that regional needs are prioritised.
    • The creation of flexibility for regional councils to
      adapt to their local needs through developing alternative governance
      arrangements (p104).

    The report highlights the need for flexibility
    in developing new forms of governance and the unworkability of 'one-size-fits-all'
    models (p104).

    Overall, the report concludes on the need
    for ATSIC reform that:

    The ATSIC Review goes part of the way
    to identifying an agenda for change to ATSIC ... There is, however, a need
    to go beyond what the Review Team have proposed and ensure that there
    is no relative weakening in ATSIC's national structure while also increasing
    the focus on supporting innovation at the regional level. Reform of
    ATSIC is a critical aspect in achieving the effective participation
    of Indigenous peoples in decision making processes and supporting sustainable
    development. The extent to which the government supports ATSIC over
    the coming year to more effectively drive an agenda for change, including
    by providing it with sharper legislative powers, will be the litmus
    test of their commitment to achieving sustainable improvements in Indigenous
    communities (p105).

    Chapter 4: Responding to petrol sniffing on the
    Anangu Pitjantjatjara Lands: A case study

    [G]iven the smallness of the Anangu population, and
    the proportion of petrol sniffers within it, why has there been so little
    progress in addressing these problems, despite the plethora of governmental
    service delivery agencies and committees already in existence? (p152).

    Over the past year, there has been significant
    concern expressed about petrol sniffing in Aboriginal and Torres Strait
    Islander communities at the national level. The phenomenon of petrol-sniffing
    is, however, not well-understood and there is no reliable national data
    on the number of people involved and the extent of resulting damage to
    individuals and communities.

    There are, however, reported instances of
    petrol sniffing being a significant issue in several Indigenous communities
    across Australia. The limited research also suggests that there are different
    patterns of use of petrol and other volatile substances by Indigenous
    people compared to non-Indigenous people.

    It has been argued that there are structural
    problems in the way governments address issues of petrol sniffing in Indigenous
    communities. Because of the lack of reliable data and the absence of any
    powerful lobby groups or other agencies with the capacity to ensure that
    petrol sniffing remains on the public agenda in anything more than a transient
    manner, petrol sniffing as a public issue owes almost everything to media
    outbursts. Petrol sniffing is, consequently, unlikely to become the subject
    of a long-term, sustained policy focus.

    In these circumstances, it is difficult
    to consolidate an evidence base, to build and sustain links with existing
    expertise, or to maintain extensive corporate knowledge on the subject.
    By identifying petrol sniffing as an 'Indigenous problem' it has also
    been marginalised as a policy issue, with the result that it has not received
    the attention and resourcing that it may have if it had been positioned
    within mainstream substance misuse policy frameworks.

    Petrol sniffing on the Anangu Pitjantjatjara Lands:
    A case study

    In September 2002, the South Australian
    Coroner brought down his findings in the inquests into the deaths of three
    Anangu who were chronic petrol sniffers and lived on the Anangu Pitjantjatjara
    Lands (AP Lands) of South Australia. Data collected in 2000 indicates
    that, despite an overall decline in the 1990s, the number of people engaged
    in petrol sniffing on the AP Lands has begin to increase in recent years.
    Approximately 6% of the total Anangu population and 12% of the population
    aged between 10 and 35 years of age were sniffers in 2000. Petrol sniffing
    had caused at least 35 deaths in the last 20 years in a population of
    between 2,000 and 2,500 (pp 118-120).

    This report examines the implementation
    of the Coroner's recommendations for addressing petrol sniffing issues
    on the AP lands.

    The findings and recommendations of the
    Coroner can be grouped into two key issues:

    • Coordination, funding and action by Government: Concerns were expressed about the failure of governments to
      consult appropriately and significant delay in implementing programs,
      with a need for governments to move beyond the 'information gathering'
      stage. The Inquest highlights the need for governments to re-assess
      their coordination of policy and funding approaches to service delivery
      on the AP Lands;
    • Specific interventions for addressing petrol
      The Inquest identifies the need to adopt a combination
      of primary, secondary and tertiary interventions relating to health
      and justice issues in order to combat petrol sniffing, combined with
      strategies to address the significant disadvantage and lack of services
      on the AP Lands, which forms the environment in which petrol sniffing
      takes place.

    Overall, the report finds that:

    The Coronial Inquest identified the need for 'prompt,
    forthright, properly planned, properly funded action' and the importance
    of effective inter-governmental coordination to achieve this and sustain
    it into the longer term. In the year since the Coronial Inquest, there
    has been some movement in this direction but overall not enough (p150).

    There is no lack of inter-departmental and
    inter-governmental forums for tackling issues relating to petrol sniffing,
    with the existence over the past few years of the APLIICC (Tier One Committee
    and Task Forces), CBRG, Petrol Sniffing Task Force (now submerged within
    APLIICC Tier One Committee) and Tri-Jurisdictional Justice Group. The
    COAG whole of government community trial is also now super-imposed over
    these structures.

    There have been some positive initiatives
    emerging from these committees, such as the agreement to conduct a study
    of demographics on the AP Lands and to explore coordination and sharing
    of facilities and programs across the NT, SA and WA; the creation of an
    Office of the APY Lands within the South Australian Indigenous affairs
    department; the allocation of additional funding by the SA government
    to address related issues on the AP Lands; and the creation of an Allocation
    Committee to coordinate funding on the AP Lands. The decision to conduct
    the COAG trial on the AP Lands is also a positive acknowledgement of the
    urgent needs of the area and of the importance of governments changing
    the way they work with the Anangu.

    The establishment of these committees has
    also been met favourably by communities on the AP Lands in general. However,
    communities on the AP Lands have expressed concerns about the continuing
    piecemeal approach to petrol sniffing and a reluctance to act by governments
    in the twelve months following the Coronial Inquest. Governments cite
    the intractable nature of the issue and the need for appropriate consultation
    as reasons for the slow progress to date.

    There is significant concern that the discrete
    focus on petrol sniffing is potentially being obscured by the level of
    bureaucracy. There is concern that petrol sniffing will be submerged within
    a sea of other significant issues and not receive the focussed attention
    called for by the Coronial Inquest and communities on the AP Lands.

    Concerns that have emerged in the initial
    twelve months since the Coronial Inquest include that the COAG trial might,
    in the name of being more 'streamlined', in fact be distancing key representative
    bodies on the AP Lands from service delivery and decision making as it
    relates to substance misuse. This is particularly due to concerns about
    the over-reliance on the APY Executive as the 'gateway' and peak body
    representing all Anangu interests. This seems to extend beyond its community
    acceptance and expertise. Significant concerns about its corporate governance
    and service delivery performance have also been raised as related concerns.

    There are also concerns that the emphasis
    of the COAG Trial and these processes on community ownership obscures
    the bigger picture of a lack of adequate and appropriate service delivery
    and funding. The expectations that appear to be placed on the APY Executive
    to take carriage and responsibility for issues, beyond coordinating consultations
    and participating in priority setting, is indicative of this. The Coronial
    Inquest makes clear the need for outside assistance and improved government
    performance. This may be being obscured by the emphasis on joint responsibility.

    There is also, however, optimism that the
    COAG trial may ultimately breakthrough and achieve improved inter-governmental
    and inter-agency coordination where it has not been achieved in the past,
    and that it may result in greater accountability for all levels of government.
    There is also hope that the involvement of the Commonwealth may also provide
    greater leverage and ultimately achieve more effective outcomes. It is,
    however, too early to say whether these potential benefits will be realised.

    A barrier to achieving such results remains
    the clear under-resourcing of service delivery on the AP Lands. The allocation
    of nearly $12 million by the SA government specifically to petrol sniffing
    related issues over the next 4 years is a welcome announcement. Concerns
    have been expressed that this quantum may not be enough. There is a need
    for ongoing assessment of the resourcing need, and for funding to be ongoing
    beyond the 4 year budget cycle. In particular, there is concern at the
    failure to date to fund projects beyond the pilot stage. The Coroner's
    suggestion of moving to block funding on a triennial basis is aimed to
    addressing this concern.

    It remains of great concern that alongside
    the establishment of the various committees and inter-governmental forums,
    there is no clear, long term commitment to do whatever it takes to overcome
    the petrol sniffing problem or movement towards establishing benchmarks
    and targets towards this end. It may be that the Commonwealth government's
    community participation agreement process (coordinated by ATSIC) may provide
    a way forward in this regard.

    At a practical level, there has been variable
    progress in implementing initiatives at the primary, secondary and tertiary
    intervention stages, relating to both health and justice issues. There
    have been practical problems in placing youth-workers and a youth work
    coordinator, with differing views as to the potential role of the CDEP
    scheme, where such workers are placed and whether more part time appointments
    would be more appropriate to the needs of communities. Significant issues
    relating to homelands / outstations, a changed approach to child protection
    issues and the provision of appropriate disability services and a secure
    care facility for offenders remain under consideration or subject to feasibility

    There have been positive developments relating
    to service delivery with an increased presence of correctional services
    officers, police and expansion of the community constable scheme as an
    interim measure. This has resulted in an improved response time from police.
    These issues require much greater attention, but there is greater optimism
    about the ability of police to have a more effective presence on the AP
    Lands, with consequent benefits for community safety.

    The police continue, however, to face pressures
    of being heavily relied upon in the absence of other necessary forms of
    service delivery. Overall, there also remains a significant challenge
    of balancing law and order responses with adequate provision of services,
    particularly those which are health related.

    Chapter 5: Addressing family violence in Indigenous

    There is no issue currently causing more
    destruction to the fabric of Indigenous communities than family violence.
    This has been acknowledged by all levels of government in recent years,
    with a number of significant inquiries and initiatives undertaken or commenced
    at the federal, state and territory level to address its impact.

    Recent initiatives such as the Prime Minister's
    family violence roundtable in July 2003 and subsequent commitment of $20
    million as a 'down payment' to address family violence issues, the response
    of the Western Australian government to the Gordon Inquiry's findings,
    and the focus on family violence issues in several of the COAG whole-of-government
    community trials, demonstrate a genuine commitment from governments to
    address family violence issues. The report notes, however that:

    The intensive scrutiny and public awareness of this
    issue has not, however, led to sufficient commitments of resources and
    effort to date. Nor has it led to continuous support for innovative,
    community led solutions to address the violence or the adoption of an
    holistic, coordinated approach to it. Overall, there is still not enough
    action being taken to address this issue with the priority and urgency
    that it requires (p155).

    Indigenous perspectives on family violence

    Indigenous concepts of violence are much
    broader than usual mainstream definitions of domestic violence. Many current
    approaches to family violence derive from a model of 'domestic violence'
    - violence against women, underpinned by western models of female oppression.
    These do not 'fit' Indigenous experience. The identity of many Indigenous
    women is bound to their experience as Indigenous people. Rather than sharing
    a common experience of sexism binding them with non-Indigenous women,
    this may bind them more to their community, including the men of the community.
    Indigenous people may also have a negative perception of police and welfare

    Indigenous women's experience of discrimination and
    violence is bound up in the colour of their skin as well as their gender.
    Strategies for addressing family violence in Indigenous communities
    need to acknowledge that a consequence of this is that an Indigenous
    woman 'may be unable or unwilling to fragment their identity by leaving
    the community, kin, family or partners' as a solution to the violence (p159).

    Liberal feminist approaches to domestic
    violence also tend to emphasise the experience of the victim, as opposed
    to the experiences of the perpetrator. This differs from an Indigenous
    community-based perspective, which includes the issues of both perpetrator
    and victim. Indigenous women are saying that men's issues must also be
    addressed if real solutions are to be found and lasting changes are to

    Of particular concern is that the typical
    'western' response to family violence is to criminalise such behaviour
    through specific domestic violence legislation, with the strong possibility
    of imprisonment being the outcome for those convicted of offences. An
    emphasis on criminal justice responses to family violence poses two main
    concerns for Indigenous women. The first is that the system is generally
    ineffective in addressing the behaviour of the perpetrator in the longer
    term. The effect of imprisonment is to remove them from the community
    and then, without any focus on rehabilitation or addressing the circumstances
    that led to the offending in the first place, to simply return them to
    the same environment.

    The second is that there are a range of
    barriers in the accessibility and cultural appropriateness of legal processes
    which discourage Indigenous women from using the criminal justice system
    in the first place.

    It is not being suggested that incidents of family
    violence in Indigenous communities should be condoned or that responsibility
    of perpetrators be diminished. Instead, these barriers, highlight a
    failure to acknowledge the unique characteristics of Indigenous family
    violence has the potential to render approaches for dealing with this
    violence ineffective, with the consequence that Indigenous women ultimately
    do not enjoy the protection of the law. Accordingly, responses to family
    violence in Indigenous communities need to be cognisant of these broader
    issues and responsive to them (pp160-161).

    The extent of family violence in Indigenous communities

    There are significant deficiencies in the
    availability of statistics and research on the extent and nature of family
    violence in communities. An overview of recent statistics and research
    into the extent and nature of Indigenous family violence is provided in
    the report (pp161-168). What data exists suggests that
    Indigenous people suffer violence, including family violence, at significantly
    higher rates than other Australians do. This situation has existed for
    at least the past two decades with no identifiable improvement.

    Government Responses to Family Violence in Indigenous

    Addressing family violence is a shared responsibility
    between all levels of government with prime responsibility resting with
    health and community service agencies in federal, state and territory
    governments. The report provides an overview of recent developments in
    programs for family violence at the federal level and in all states and
    territories. It particularly notes:

    • the funding for 1000 CDEP placements in 2003-04;
    • the Prime Minister's national roundtable on Indigenous
      family violence in July 2003;
    • the development of ATSIC's National Family Violence Policy,
      which has since been endorsed progressively by regional councils and
      is intended to be supported by regional plans of action;
    • Putting People First, the WA Government's implementation
      plan in response the Gordon Inquiry;
    • developments in COAG trial sites, such as the focus of
      the Northern Tasmanian site on family violence issues.

    The report also notes that failure of MCATSIA
    to complete an audit of existing family violence strategies that it committed
    to undertake in 2001 (p174).

    Improving the programmatic responses to family violence
    in Indigenous communities - Future challenges

    • Promoting greater coordination and an holistic
      approach to family violence programs

    There are a patchwork of programs and approaches
    to addressing family violence in Indigenous communities among federal,
    state and territory governments. There remains a lack of coordination
    and consistency in approaches to addressing these issues between governments
    and among different government agencies. Significant gaps also exist.

    Existing family violence programs that are
    available to Indigenous peoples are limited in number, ad hoc and
    often of limited duration. Due to the inter-connections between family
    violence and other issues faced by Indigenous peoples, work being done
    at a grass roots level may also be overlooked and programs may not necessarily
    be identified or identify themselves as violence prevention programs.
    Proposed programs may also have difficulty obtaining funding, on either
    a pilot or ongoing basis, due to the overlap in jurisdictional and departmental

    Three recurring strategic aspects need to
    be present to address family violence in Indigenous communities, namely
    that programs be community-driven; that community agencies establish partnerships
    with each other and with relevant government agencies; and that composite
    violence programs are able to provide a more holistic approach to community
    violence (pp 183 - 184).

    Review of existing approaches identifies
    a critical need to adopt an holistic approach to the problem of family
    violence and identifies the crucial importance of engagement with Commonwealth
    and State government agencies and communities to work in partnership on
    family violence strategies, as well as supporting and strengthening the
    capacity of ATSIC Regional Councils to develop, implement and monitor
    family violence action plans.

    • Ensuring access to justice for Indigenous women

    A matter of great concern in relation to
    current debates about addressing family violence in Indigenous communities
    is the lack of attention paid to issues of access to justice for Indigenous
    women. ATSIC note that Indigenous women have been identified as the most
    legally disadvantaged group in Australia. A matter of particular concern
    is the limited ability of ATSIC/ATSIS, through its funding role of Aboriginal
    and Torres Strait Islander Legal Services (ATSILS) to provide access to
    justice for Indigenous women through legal representation and family violence

    ATSIC have introduced the Family Violence
    Prevention Legal Service Program (FVPLS) as a response to Indigenous women's
    lack of access to Legal Aid services. However with only 13 services across
    Australia, they do not provide coverage to all regions. ATSIS notes that
    'This relatively small and under-resourced program is unable to address
    the barriers Indigenous women face in accessing Indigenous Legal Aid services,
    nor to provide the range of legal services available through ATSILS'.

    ATSIC/ATSIS note further that while they
    and the ATSILS that it funds are committed to stamping out family violence,
    the prioritising of scarce resources to criminal matters means that 'in
    practice, victims are not assisted while those responsible, are'. Accordingly,
    constraints of existing resources for legal support limits the capacity
    of ATSIC/ATSIS 'to give its own policies concrete substance. This contradiction
    will be overcome only through additional resourcing of ATSILS and Indigenous
    women specific legal service providers'.

    In the context of the increased focus
    on family violence in recent years coupled with the lack of progress
    in reducing the over-representation of Indigenous people in custody
    in general, it is a matter of great concern that there is not a greater
    emphasis on the legal needs of Indigenous women.

    There is an urgent need to ensure appropriate
    funding levels for ATSILS in order to provide a greater focus on the
    legal needs of Indigenous women as well as a greater focus on preventative
    action and community education. At the very least, there is also an
    urgent need for the federal government to allocate additional, quarantined,
    funding to expand the Family Violence Prevention Legal Service Program.
    Such funding needs to be new money as there is clearly no capacity for
    ATSIS/ATSIC, through its support for ATSILS, to re-allocate existing
    resources (p186).

    • Community justice responses to family violence

    The criminal justice system is extremely
    poor at dealing with the underlying causes of criminal behaviour and makes
    a negligible contribution to addressing the consequences of crime in the
    community. One of the consequences of this, and a vital factor that is
    often overlooked, is that Indigenous victims of crime and communities
    are poorly served by the current system.

    Accordingly, the current system disadvantages
    Indigenous people from both ends - it has a deleterious effect on Indigenous
    communities through over-representation of Indigenous people in custody
    combined with the lack of attention it gives to the high rate of Indigenous
    victimisation, particularly through violence and abuse in communities.
    Reform to criminal justice processes, including through community justice
    initiatives, must be responsive to these factors.

    The past decade has seen an increased emphasis
    on restorative justice mechanisms for addressing criminal behaviour in
    Indigenous communities to address the needs of victims (including of family
    violence) as well as to make the system more meaningful to offenders.

    There are numerous new initiatives in Australia
    developing community based justice mechanisms for Indigenous people which
    are based on restorative justice principles. Some of these processes,
    such as Law and Justice Committees in the Northern Territory and Community
    Justice Groups in Queensland incorporate an holistic response to family
    violence into strategies for addressing offending in communities (pp 188
    - 191).

    The last two years has also seen the development
    of community justice mechanisms for involvement of Indigenous peoples
    in sentencing. Examples include the Ngunga Court and Ngunga Youth Court
    in South Australia; the Murri Court in Queensland; the Koori Court in
    Victoria and circle sentencing in New South Wales. Generally, these processes
    seek to incorporate an Aboriginal traditional customary law approach to
    the sentencing of Aboriginal offenders within the framework of existing
    legislation. While there are variations between the various models, they
    all involve Aboriginal Elders sitting alongside the magistrate to advise
    on sentencing options, with members of the offender's family, the victim,
    the victim's family and other interested community members participating
    in the sentencing process.

    These processes have been extremely successful
    in their initial years. Currently, however, they are limited to dealing
    with particular non-violent offences. Accordingly, offences relating to
    violence and sexual offences cannot be addressed within these sentencing

    Examples such as the Northern Territory
    Law and Justice Committee and Queensland Community Justice Group approaches,
    the roles and services established under ATSIC's Family Violence Prevention
    Legal Service Program, and Canadian models for addressing sex offending
    by Indigenous people suggest that the full potential of community justice
    mechanisms for addressing family violence has not been explored sufficiently,
    and may provide an appropriate way forward for addressing some aspects
    of need (p191).


    Overall, the report concludes:

    [The] commitments and recent initiatives
    by all governments ...are welcome and long overdue. As yet, they are not
    sufficiently wide-ranging in their scope or effectively funded. There
    are also significant gaps in service provision, including through a
    general paucity of programs and lack of legal assistance to Indigenous
    women in many areas. As a consequence, there remains a need for ongoing,
    continuous support for innovative, community led solutions to address
    family violence and the adoption of an holistic, coordinated approach
    by governments. ATSIC's Family Violence Plan provides a platform for
    improving this situation, with the development of regionally targeted
    programs and action plans. The escalating and debilitating affects of
    family violence on Indigenous people and communities requires urgent
    attention (p191).