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Social Justice Report 2000: Chapter 4: Achieving meaningful reconciliation

Social Justice Report 2000

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  • Chapter 4: Achieving meaningful reconciliation

    Introduction

    Reconciliation
    within a human rights framework

    Indigenous
    disadvantage and progressive realisation

    An equality approach to overcoming Indigenous disadvantage

    Developing
    a national benchmarking framework and monitoring and evaluating progress

    Processes
    to implement a national committment to overcoming Indigenous disadvantage

    Strengthening Indigenous governance

    Regional
    governance and progressing reconciliation in a human rights framework

    Supporting
    regional governance through agreements and partnerships

    Implementing
    greater regional autonomy and Indigenous governance

    Recognising
    and protecting Indigenous rights in a federal system

    Improving
    government accountability for human rights

    Negotiating
    with Indigenous peoples over 'unfinished business'

    Conclusion

    Recommendations

    National
    commitments to overcome Aboriginal and Torres Strait Islander disadvantage

    Improved
    data collection

    Monitoring
    and evaluation mechanisms

    Negotiating
    with Indigenous peoples

    Protecting
    human rights



    This report identifies the necessity to adopt a human rights approach
    to reconciliation, as well as shortcomings in Australia's performance
    on human rights issues as they relate to Aborigines and Torres Strait
    Islanders. This chapter emphasises processes and mechanisms that enable
    reconciliation to be implemented within a human rights framework. It identifies
    crucial commitments and processes that governments must engage in to progress
    meaningful reconciliation in the coming years. In accordance with my reporting
    obligation under section 46C(1)(a) of the Human Rights and Equal Opportunity
    Commission Act 1986 (Cth), I have chosen to recommend actions that should
    be taken to improve the level of enjoyment of human rights by Indigenous
    Australians. These
    recommendations specifically aim to increase the accountability and transparency
    of governments in relation to Indigenous specific policies; facilitate
    the effective participation of Aborigines and Torres Strait Islanders
    in service delivery and policy development; and ensure adequate protection
    of the human rights of Indigenous Australians.

    Reconciliation
    within a human rights framework

    The following four
    inter-related principles synthesise a range of human rights obligations
    that must be addressed for reconciliation to be meaningful.

    • No discrimination
      - A guarantee of equal treatment and protection for all. Equal protection
      extends to the recognition of distinct cultural characteristics of
      particular racial groups, where appropriate, and requires that temporary
      special measures be adopted to overcome inequalities between racial
      groups. Concerns about Australia's compliance with this principle
      include the introduction of racially discriminatory laws at the national
      level, such as the native title amendments; the maintenance of laws
      at the state or territory level which have a racially discriminatory
      impact, such as mandatory sentencing; and the lack of equality between
      Indigenous and non-Indigenous people across all measures of social
      and economic status.
    • Progressive
      realisation
      - The commitment of sufficient resources through well-targeted
      programs to ensure adequate progress in the realization of rights
      on a non-discriminatory basis. Concerns about Australia's performance
      in meeting this principle include the inadequate targeting and benchmarking
      of Indigenous disadvantage, and insufficient progress in the reduction
      of the inequalities faced by Indigenous peoples. Related concerns
      include the continuing level of Indigenous over-representation in
      the criminal justice system; the inadequacy of the response of governments
      to Bringing them home, the reports of the Royal Commission into Aboriginal
      Deaths in Custody and the social justice package proposals.
    • Effective
      participation
      - Ensuring that individuals and communities are
      adequately involved in decisions that affect their well being, including
      in the design and delivery of programs. Concerns in relation to this
      principle include the level of engagement of Indigenous people in
      the reconciliation process; changes in the role and functions of ATSIC
      which limit its ability to effectively represent Indigenous people;
      and the lack of effective participation of Indigenous people in the
      development of programs and policies relating to Indigenous people,
      such as in the development of the native title amendments and programs
      to overcome Indigenous disadvantage.
    • Effective
      remedies
      - The provision of mechanisms for redress when human
      rights are violated. Concerns in relation to this principle include
      the ability in Australian law to override the guarantee of racial
      non-discrimination (and the actual overriding of this principle through
      the native title amendments and the removal of heritage protection
      at Hindmarsh Island); the failure of the Commonwealth to ensure compliance
      of the states and territories with human rights obligations; and the
      failure to provide adequate reparation for the impact of forcible
      removal policies.

    This chapter focuses
    on broader structural issues that facilitate the implementation of a human
    rights framework. The issues discussed are intended to provide increased
    accountability of governments for compliance with these obligations, and
    to facilitate increased Indigenous participation. The actions discussed
    are not exhaustive, and are intended to complement the actions proposed
    in the four national strategies on reconciliation and the Roadmap to Reconciliation
    released by the Council for Aboriginal Reconciliation. [1]
    These issues are considered under the following headings:

    • Indigenous
      disadvantage and progressive realisation;
    • Strengthening
      Indigenous governance; and
    • Recognising
      and protecting Indigenous rights in a federal system.

    Indigenous
    disadvantage and progressive realisation

    The appropriate standard
    for measuring progress in addressing Indigenous disadvantage is one of
    equality between Indigenous and non-Indigenous Australians. A focus on
    equality highlights that Government is obligated to progressively reduce
    the inequalities faced by Indigenous people by targeting such disadvantage
    and taking appropriate steps (or special measures) to the maximum of available
    resources. Governments should be held accountable, in the words of Mrs
    January-Bardill of the Committee on the Elimination of Racial Discrimination,
    to doing more than simply manage the inequalities.

    Current funding arrangements
    do not meet these obligations. Despite the commitment of significant resources
    to redress Indigenous disadvantage, there is very little to indicate the
    priority that governments attach to reducing the inequalities. The 2000
    budget paper on Indigenous policy notes the 'record amount of $2.3 billion ...
    allocated to targeted Indigenous-specific programmes' and that 'as part
    of its commitment to practical reconciliation between indigenous and non-indigenous
    Australians, the Commonwealth government is determined to ensure improved
    access for indigenous Australians to key government programmes and services'
    . [2] At
    no stage does it identify the reduction of the disparities in enjoyment
    of rights between Indigenous and non-Indigenous people as the government's
    purpose.

    Also missing from
    current funding and service delivery arrangements are adequate performance
    targets, benchmarks and mechanisms to ensure government accountability
    and transparency. This is demonstrated by a number of recent reports.
    The House of Representatives Standing Committee on Family and Community
    Affairs noted in its recent report on Indigenous health that:

    • The planning
      and delivery of Indigenous health services are characterised by lack
      of direction and poor coordination;
    • There is no
      clear delineation of responsibility for service delivery among the
      federal, state, territory and local governments;
    • This lack of
      clear delineation of responsibility shifts costs between governments
      and sectors;
    • There is little
      coordination between health services and other programs such as education
      and employment, despite the inter-related nature of these issues;
    • The result of
      this piecemeal funding and coordination is fragmented policies and
      programs across governments, which lack consistency; and
    • The lack of
      effort to integrate Indigenous community involvement into the planning
      and delivery of services is the biggest barrier to success. [3]

    The Committee also
    noted that a large proportion of health services for Indigenous Australians
    are simply reactive and tend to involve general non-specific services
    that are not designed to meet the special health and or cultural needs
    of Indigenous patients; and that funding for such services is frequently
    fragmented across a number of organizations in amounts that are insufficient
    to provide services in an efficient manner. [4] Health
    services provided by all levels of government are commonly vertical and
    inflexible, relating to identifiable risk factors, specific activities
    or diseases, and it is therefore difficult for funds allocated to individual
    programs to be used for purposes which might better meet the holistic
    needs of the relevant local Indigenous community. [5]

    The Committee stated
    that it is unlikely that the health of Indigenous Australians will improve
    significantly until the fragmentation of services, cost shifting and lack
    of agreement about responsibility for Indigenous health are resolved;
    and until there is clear agreement among the states and the federal government
    about their respective responsibilities, how they will act to meet these
    responsibilities and the resources to be committed by all parties. [6]

    This situation persists
    despite the existence of framework agreements between the Commonwealth
    and the states for health service delivery. These agreements were negotiated
    in accordance with the Council of Australian Governments (COAG) 1992 National
    commitment to improved outcomes in the delivery of programs and services
    for Aboriginal peoples and Torres Strait Islanders (The COAG National
    Commitment). The Committee noted that these framework agreements have
    not been effective, as they have been seen as gentlemen's agreements that
    apply in principle only and for which there is no recourse if breached.
    [7]

    Similarly, in its
    draft report on the Indigenous funding inquiry, the Commonwealth Grants
    Commission has noted that existing funding arrangements across health,
    housing, infrastructure, employment, education and training do not:

    (i) acknowledge
    and adequately address the long-term disadvantage of the Indigenous
    population;

    (ii) help build
    long-term capacity of Indigenous communities to plan and manage services;

    (iii) encourage
    Indigenous participation, priority setting and decision-making; and

    (iv) deal effectively
    with non-funding issues such as coordination, fragmentation and cross-functional
    issues. [8]

    The Commission emphasises
    in its report that:

    Indigenous disadvantage
    has a long-term nature and government programs aimed at overcoming
    it must take a long-term perspective ... many programs are not planned
    or funded for a sufficiently long term. Some have been commenced with
    guaranteed funding for only very short periods. Towards the end of
    those periods, there is growing uncertainty which reduces the incentive
    for people to invest energy in programs and increases community anxiety
    about the continuity of the service, with the result that disadvantage
    is not overcome ...

    [I]t is also
    essential that the processes are based on long-term social commitments
    to reducing Indigenous disadvantage and involve clear commitments
    to the continuity of funds, so long as they meet agreed outcomes.
    [9]

    The Commission also
    notes that:

    with the exception
    of some programs in the housing and infrastructure area, many Commonwealth
    and State government programs do not allocate funds on a needs basis.
    Allocation mechanisms include direct response to demand, history,
    submissions and formulae that may reflect population, needs, costs
    of service delivery or capacity to benefit. [10]

    ATSIC has also noted
    in its report on regional autonomy that there is concern among ATSIC regional
    councils that:

    • Different spheres
      of government have failed to meet their responsibilities to Indigenous
      communities, particularly in the delivery of citizenship entitlements;
    • State and territory
      agencies are not under any legal obligation to take responsibility
      for service provision to Indigenous constituents or to address longstanding
      inequities;
    • States and territories
      refer their obligations for Indigenous issues back to the Commonwealth,
      usually through ATSIC; and
    • Commonwealth
      monitoring mechanisms are ineffective and consequently, are unable
      to influence government agencies to target redressing Indigenous disadvantage,
      particularly in areas where there exists deeply entrenched racism.
      [11]

    These reports highlight
    the need for all Australian governments, led by the federal government,
    to have clearly targeted, long-term plans which identify redressing Indigenous
    disadvantage as a national priority and which measure progress within
    an equality framework; to be transparent about the outcomes sought, with
    adequate performance indicators and benchmarks; and to ensure ongoing
    and independent monitoring and evaluation of outcomes.

    An
    equality approach to overcoming Indigenous disadvantage

    It is insufficient
    to measure achievement in redressing Indigenous disadvantage according
    to the level of government expenditure on specialist programs for Indigenous
    people. Aside from creating resentment among other parts of society about
    'special treatment', such an approach lacks comparative and evaluative
    components.

    As the Commonwealth
    Grants Commission notes in its Indigenous Funding Draft Report, special
    programs for Indigenous people are there to serve a particular purpose:

    In general,
    mainstream services provided by the Commonwealth and the States are
    intended to meet the needs of all Australians. We have termed these
    'citizenship' services. For example, the Medical Benefits Scheme,
    hospital services, schools education and public housing services are
    intended to meet the needs of all Australians who meet the eligibility
    criteria. However, for many reasons, mainstream services do not always
    meet the needs of specific groups, especially Indigenous people. As
    a result, governments have found it necessary to provide many supplementary
    programs to increase the access of Indigenous people to services or
    to meet their specific needs ...

    [Special programs
    are not] intended to meet the total needs of Indigenous people. They
    are intended to supplement rather than replace mainstream programs
    to help Indigenous people gain access to services. They are designed
    to compensate for the disadvantage and particular needs of Indigenous
    people - which stem from where they live, degree of poverty and particular
    aspects of their history or culture. [12]

    Specific programs
    are intended to supplement citizenship services in order to enable Indigenous
    people to enjoy their rights on an equal footing. An appropriate approach
    to addressing Indigenous disadvantage is one that is clearly targeted
    over the long-term, with short-term goals based on these targets. It is
    an approach that seeks to measure progress by evaluating whether the disparity
    between Indigenous and non-Indigenous people in the enjoyment of rights
    is being reduced, and according to whether programs and services enable
    Indigenous participation.

    An equality framework
    to addressing Indigenous disadvantage has begun to be implemented in other
    countries. As discussed in chapter 2, the Canadian Royal Commission into
    Aboriginal Peoples recommended a 20-year commitment to overcoming Indigenous
    disadvantage and strengthening Indigenous governance mechanisms. It argued
    that the social costs of simply 'maintaining the status quo', without
    taking further steps to address current disadvantage, would see government
    expenditures steadily increase over time with little prospect that it
    would ever begin to decline. The Commission argued that a 20-year commitment
    of programmes of renewal could lead to significant reductions in the level
    of annual special programs expenditure required, and would represent 'a
    good investment'.

    The Canadian government
    responded to the recommendations of the Royal Commission in 1997 with
    Gathering strength - Canada's aboriginal action plan. [13]
    Gathering strength commits the Canadian government to a long term, integrated
    strategy to change the relationship between Indigenous and non-Indigenous
    Canadians. Underlying the strategy is the recognition of the imperative
    to address the discrepancies in living standards between aboriginal and
    non-aboriginal people; and the complexity and difficulties associated
    with this task. [14] Gathering strength is discussed
    further below.

    Another example of
    an approach that adopts an equality framework is the New Zealand government's
    'Closing the gaps' policy. This policy reflects a government commitment
    to progressively close the 'gap' between the social and economic status
    of M ori and non-M ori peoples. Integrally linked to this policy is the
    facilitation of Indigenous participation and capacity building. The Honourable
    Tariana Turia, Associate Minister of Maori Affairs, has explained the
    policy as follows:

    The closing the
    gaps policy provides the Government with further impetus to focus
    its attention on its own departments, strategies and systems, to produce
    positive results for M ori. The Government expects its departments
    to improve their contributions to make a positive difference to the
    health, housing, education, employment, justice, welfare and business
    and enterprise outcomes for M ori... this suggests departments will
    need to be responsive to the needs, interests and priorities of M ori. ...
    departments will have to be more rigorous in the development and implementation
    of their strategies, policies, programmes and services in terms of
    whether they work well for M ori. Closing the Gaps means there is
    even more reason for departments to engage with wh nau, hap , iwi
    and M ori organisations to deliver specified services to M ori communities.
    However, it is a 'needs-focused' policy through which M ori are treated
    as clients ...

    For M ori, the
    main point of the closing the gaps policy is to ensure M ori are not
    prevented from having the best possible chance to lead, manage and
    control their own development. Until now, the disparities between
    M ori and non-M ori have had the potential to be seen as a record
    of the failings of M ori people. This is neither sustainable nor appropriate.
    Closing the Gaps does signal, however, how much of the Government's
    authority, expertise and resources need to be brought to bear to make
    a substantial difference to socio-economic outcomes for M ori. [15]

    A central aspect
    of the policy is a bi-annual report by Te Puni Kokiri (the Ministry of
    Maori Affairs). This reporting mechanism establishes benchmarks against
    which to measure progress towards closing the social and economic gaps;
    to 'assist government and mainstream agencies to maintain a focus on the
    status of Maori in their work and decision-making'; [16]
    and to assist in setting priorities for policy development. The findings
    of the report 'highlight the cumulative effect of government policies
    and individual action'. [17] As the benchmarks measure
    progress at a whole-of-government level they cannot be used as a performance
    indicator to hold individual government departments accountable.

    Until the release
    of the first 'Closing the gaps' report in 1998:

    it had been difficult
    to assess the overall social and economic position of M ori, or to gauge
    whether or not improvements had occurred across the relevant sectors ...
    The 1998 Report acted as a benchmark against which the Government could
    measure progress towards achieving the strategic objective for M ori development.
    The report used key statistical indicators to assess changes in the education,
    employment, economic and health status of M ori. It was based on data
    collected by state sector agencies, either through their administrative
    data collections or through regular surveys. The Closing the Gaps report
    pulled together historical data across each of the key sectors and provided
    an assessment of progress made over time. [18]

    The findings of the
    report were not unexpected:

    There was no denying
    that M ori had experienced and continue to experience poorer educational
    outcomes, higher unemployment, lower income levels, lower rates of home
    ownership, and poorer health than non-M ori. However, up until the Closing
    the Gaps report, it was difficult, if not impossible, to assess whether
    disparities were improving or getting worse. Overall, the report findings
    indicated that the gaps between M ori and non-M ori education, employment,
    economic and health status were significant, and were either stabilised
    or widening. [19]

    The second 'Closing
    the gaps' report, released in May 2000, found that:

    M ori continue to
    experience poorer health status, lower income levels, higher unemployment,
    higher rates of prosecution and conviction, lower educational status and
    lower rates of loving in owned homes than non-M ori. The report demonstrates
    that disparities exist for M ori of all ages ... Overall, there have been
    few reductions in disparity since the last report, and in those areas
    where M ori rates have been improving, corresponding improvements in the
    status of non-M ori mean that gaps between M ori and non-M ori are not
    closing. [20]

    The report also considered
    the causes of the disparities:

    the causes of disparities
    are the cumulative effects of events that are experienced throughout a
    lifetime. Historical events experienced by the M ori population, such
    as asset loss, land alienation, and rapid urbanisation may have played
    some part in contributing to the disparities evident today. However, ongoing
    inter-generational interactions in outcomes make it somewhat difficult
    to separate out cause and effect. Te Puni Kokiri is currently expanding
    its capability to undertake analyses into the causes of disparities. [21]

    In Australia, the
    need to adopt a nationally coordinated, long-term, equality framework
    for addressing disadvantage has recently been acknowledged by the House
    of Representatives Standing Committee on Family and Community Affairs.
    In its Indigenous health report the Committee recommended that the federal
    Minister for Aboriginal and Torres Strait Islander Affairs be required
    to produce an annual report to Parliament on the progress of government
    actions across all portfolios to improve indigenous health and well-being.
    This report should provide a benchmark to monitor improvements in the
    disparity between Indigenous and non-Indigenous people in relation to
    health, education and employment status. It should not simply be a reiteration
    of budget figures. The purpose of the report would be to highlight achievements
    in addressing Indigenous disadvantage against short and long term goals,
    and on changing priorities as goals are met. The Committee also recommended
    that the states and territories adopt a similar approach, and that it
    become a standing item on the agenda of the Council of Australian Governments.
    [22]

    The Committee stated
    that there ought to be:

    long term bipartisan
    support for the process ... The Indigenous community needs to be assured
    that this matter is a high priority for government, irrespective of which
    party is in government. [23]

    The government had
    not responded to the report at the time of writing.

    Various state governments
    are in the formative stages of adopting more coordinated, long term, whole-of-government
    strategies to Indigenous policy development and service delivery. The
    Western Australian government currently reports in ways consistent with
    an equality framework. The Aboriginal Affairs Department (WA) reports
    annually on a whole of government basis on the outcome of 'better social,
    cultural and economic outcomes for Aboriginal communities'. [24]
    The Department uses the following performance indicators:

    • Improvised
      dwellings (percentage of);
    • Home ownership
      or home being purchased (percentage of);
    • School participation
      rates (6-12; 13-17 years);
    • Unemployment
      rate;
    • Median income;
    • Health measures
      (mortality ratio);
    • Criminal justice
      (adult apprehension rate);
    • Planning (percentage
      of communities with plans regarding their needs); and
    • Environmental
      health factors - housing; power; water; solid waste disposal; sanitation;
      and dust. [25]

    Each indicator is
    reported on a regional basis, noting the disparity between indicators
    for Indigenous and non-Indigenous people, and shows whether there has
    been improvement since the previous year. [26]

    The Queensland government
    has begun to implement a policy framework on a whole-of-government basis,
    with the Department of Aboriginal and Torres Strait Islander Policy and
    Development responsible for developing and implementing Towards a Queensland
    Government Aboriginal and Torres Strait Islander Ten Year Partnership.
    This outlines key strategic directions to be pursued in partnership with
    Indigenous people, including improving performance indicators and enabling
    community-initiated reporting on the meeting of these indicators.

    The Victorian government
    finalised the Victorian Aboriginal Justice Agreement with ATSIC and the
    Binjirru and Tumbukka Regional Councils in 1999. The agreement notes:

    Currently, there
    is no integrated, long-term plan or strategic framework for the provision
    of whole-of-government and cross-portfolio services to the Aboriginal
    community. This has meant strategies, programs and services are fragmented
    and uncoordinated ... the government will work with the Aboriginal community
    to develop a strategic framework ... [which] will outline responsibilities
    and provide linkages across the whole-of-government, and coordinate
    a range of proposed and existing policies and programs ... The strategic
    framework should be developed by 30 June 2000. [27]

    Developing
    a national benchmarking framework and monitoring and evaluating progress

    Fundamental to the
    establishment of an equality framework for addressing Indigenous disadvantage
    in Australia is the existence of a sufficient statistical base at the
    national level, agreement on a national benchmarking framework and effective
    monitoring and evaluative mechanisms. The United Nations Development Programme,
    in its Human development report 2000 - Human rights and human development,
    emphasises the importance of developing an adequate statistical basis
    in order to measure progress in the realization of human rights. The UNDP
    emphasises the importance of developing indicators for:

    • Making better
      policies and monitoring progress;
    • Identifying
      unintended impacts of laws, policies and practices;
    • Identifying
      which actors are having an impact on the realization of rights;
    • Revealing whether
      the obligations of these actors are being met;
    • Giving early
      warning of potential violations, prompting preventative action;
    • Enhancing social
      consensus on difficult trade-offs to be made in the face of resource
      constraints; and
    • Exposing issues
      that have been neglected or silenced. [28]

    While statistics
    alone cannot measure the full dimension of rights, they can 'open the
    questions behind the generalities and help reveal the broader social challenges'.
    [29] They can allow human rights to be more concretely
    relied upon in designing and evaluating policy.

    The UNDP has provided
    a framework for what the statistics should measure so that they adequately
    assess progress in the realization of human rights. The UNDP suggests
    that statistics must address the following three perspectives, simultaneously:

    • An average
      perspective:
      What is the overall progress in the country, and
      how has it changed over time?
    • A deprivation
      perspective:
      Who are the most deprived groups in society, disaggregated
      by income; gender; region; rural or remote location; ethnic group;
      or education level, for example. How have the most deprived groups
      progressed over time?
    • An inequality
      perspective:
      Measuring the disparity between various groups in
      society, and whether these disparities have widened or narrowed over
      time. [30]

    This statistical
    base must facilitate the development of benchmarks [31]
    to measure whether adequate progress in addressing disadvantage is being
    made:

    Setting benchmarks
    enables civil society and government to reach agreement about what
    rate of progress would be adequate. The stronger is the basis of national
    dialogue, the more national commitment there will be to the benchmark.
    The need for democratic debate and widely available public information
    is clear. If benchmarks are to be a tool of accountability - not just
    the rhetoric of empty promises - they must be:

    • Specific,
      time bound and verifiable.
    • Set with the
      participation of the people whose rights are affected, to agree
      on what is an adequate rate of progress and to prevent the target
      from being set too low.
    • Reassessed
      independently at their target date, with accountability for performance.
      [32]

    At present, there
    is neither an adequate statistical base (particularly in reporting on
    an inequality perspective) nor an adequate national benchmarking framework
    in Australia.

    Some progress has
    been made in the past five years, particularly in relation to reporting
    on health issues. The Australian Bureau of Statistics (ABS) and the Australian
    Institute of Health and Welfare, for example, have begun to produce a
    biennial report titled 'The health and welfare of Australia's Aboriginal
    and Torres Strait Islander Peoples', the next report of which is due in
    2001. Similarly, the National Aboriginal and Torres Strait Islander Health
    Information Plan was introduced in 1997 by the ABS. The plan focuses on
    developing appropriate infrastructure for the collection and maintenance
    of Indigenous data; technical improvements required to support the collection
    of high quality statistics on Indigenous health; and leadership and coordination
    processes to progress issues and strategies across jurisdictions. [33]
    There have also been recent developments in collection on Indigenous housing
    issues, but progress has been slow on other areas such as community services
    information. [34]

    As the Commonwealth
    Grants Commission notes in its draft report of the Indigenous Funding
    Inquiry:

    Despite the 1992
    (COAG) National Commitment to a planning framework which 'identifies
    needs, and establishes clear and measurable objectives, agreed outcomes
    and performance indicators' and 'nationally consistent statistical
    reports with a policy orientation', comparable and reliable data are
    still difficult to obtain.

    There has been much
    activity in the areas of health, housing and education aimed at defining
    performance indicators and standardising data definitions and collection
    processes. However, improvements are occurring very slowly. Greater priority
    will need to be given to implementing the agreements and publishing data ...
    [35]

    While identifying
    some developments, the Commission notes that:

    Progress on producing
    reliable data has generally been slow, suggesting insufficient commitment
    to the tasks, a lack of coordination and the tendency for these 'data
    tasks' to be given lower priorities when resources become scarce ...

    Other data issues
    that must be considered in attempting to measure needs include the
    following.

    i) Much of
    the available data (such as that on hospital inmates) reflect needs
    that are being met, and do not include the 'unmet' needs. As such,
    the data measure the wrong thing ...

    ii) Data may
    not accurately reflect what was intended. For example, in the education
    area, there are some concerns that the processes used to measure
    literacy and numeracy are unsuitable for some areas and some students,
    and may underestimate their educational progress ...

    iii) The use
    of regions as the basis of comparisons can mask variations in needs
    between locations within the region. [36]

    Consequently, the
    Commission has suggested that the initiatives required by the Commonwealth,
    states and other service providers to improve data availability and benchmarking
    include:

    i) The establishment
    of comprehensive, objective measures of the needs of Indigenous people
    for each functional area;

    ii) The definition
    of each data item and data collections using uniform processes;

    iii) The preparation
    of clearly measurable objectives so that defined performance outcomes
    can be measured and evaluated at both a national and regional level;
    and

    iv) A higher
    priority being given by service providers to the collection and evaluation
    of data. [37]

    The Council for Aboriginal
    Reconciliation also suggests in its strategy to overcome disadvantage
    that:

    Territory, state
    and federal governments and ATSIC, with respect to their mainstream
    and Indigenous specific education, health, employment, housing, law
    and justice programs and services:

    - where they
    do not currently exist, set national, state, territory and regional
    outcomes and output benchmarks that are measurable, include time-lines
    and are agreed in partnership with Indigenous peoples and communities;

    - ensure that
    they have appropriate identifiers, administrative collections, tracking
    systems and integrated information systems to enable accurate and
    consistent output and outcome reporting for mainstream and Indigenous
    specific programs; and

    - publicly
    and annually present an outputs and outcomes based report to their
    parliaments, on a whole-of-government basis, against these agreed
    benchmarks. [38]

    The House of Representatives
    Standing Committee on Family and Community Affairs has also recommended
    in its Indigenous health report:

    • The establishment
      of an independent National Council for Indigenous Health Affairs.
      One of the purposes of the Council would be to work with the Australian
      Bureau of Statistics (ABS) and other relevant portfolios to establish
      baseline measures, across all areas that impact on Indigenous health,
      and against which progress in improving the health of the Indigenous
      population might be measured over time. The Council should report
      to Parliament annually on progress in improving Indigenous health
      (Recommendation 5).
    • The incorporation
      of the provisions of Indigenous framework agreements on health into
      the next Health Care Agreements negotiated with the states and territories,
      creating a more direct link between Commonwealth funding for Indigenous
      health, the national policy role of the Commonwealth, the service
      delivery roles of the states and territories and the role of community
      controlled services (Recommendation 7).
    • The pursuit
      by the Commonwealth of initiatives to improve the collection of data
      on Indigenous health as a matter of urgency, with additional resources
      allocated if necessary to support the process and encourage the states
      and territories to resolve the issue (Recommendation 33).
    • Funding the
      ABS to repeat the 1994 National Aboriginal and Torres Strait Islander
      Survey on a regular ongoing basis, to provide an adequate measure
      of changes in the level of Indigenous disadvantage over time (Recommendation
      34).

    The ABS has also
    recently adopted 'a broad strategy for providing regular statistical information
    on the Indigenous population across all areas of social concern'. [39]
    The main focus of attention will be on the quality of data collection
    in the 2001 Census; as well as continuing to provide population estimates
    and projections [40] ; improve administrative data
    collections; and to continue a range of surveys obtaining information
    from the Indigenous community. In particular, the ABS has developed an
    Indigenous Survey Strategy that they will run in parallel to the Household
    Survey Program Review. This includes the conduct of an Indigenous General
    Social Survey (IGSS) in 2002 and then at 6 yearly intervals. This will
    be conducted in conjunction with the General Social Survey (GSS) of all
    Australians, which is conducted every 3 years, allowing for an inequality
    perspective. [41] Unfortunately, the ABS funding
    does not extend to conducting the IGSS at the same intervals as the GSS;
    and the ABS is not intending to repeat the 1994 National Aboriginal and
    Torres Strait Islander Survey . [42]

    Processes
    to implement a national commitment to overcoming Indigenous disadvantage

    To provide sufficient
    government accountability for the outcomes of Indigenous affairs policies,
    through greater transparency in policy formulation and scrutiny; and to
    integrate a human rights approach to redressing Indigenous disadvantage
    into the economic policy making process, the following five, integrated
    requirements must be addressed.

    • Making an unqualified
      national commitment to redressing Indigenous disadvantage;
    • Facilitating
      the collection of sufficient data to support decision-making and reporting,
      and developing appropriate mechanisms for the independent monitoring
      and evaluation of progress towards redressing Indigenous disadvantage;
    • Adopting appropriate
      benchmarks to redress Indigenous disadvantage, negotiated with Indigenous
      peoples, state and territory governments and other service delivery
      agencies, with clear timeframes for achievement of both longer term
      and short-term goals;
    • Providing national
      leadership to facilitate increased coordination between governments,
      reduced duplication and overlap between services; and
    • Ensuring the
      full participation of Indigenous organizations and communities in
      the design and delivery of services. [43]

    The federal government
    must acknowledge that a significant barrier to the full participation
    of Indigenous peoples in Australian society is the level of deprivation
    experienced by Indigenous people across all social and economic indicators,
    and the disparity in the enjoyment of human rights compared to the rest
    of the Australian community. This situation is historically derived.

    The government must
    identify overcoming Indigenous disadvantage as a national priority and
    clearly target the reduction of such disadvantage (from both a deprivation
    and inequality perspective). Agreement on this issue should be reached
    with the states and territories, and formalised by COAG through re-committing
    to the principles of the 1992 COAG National Commitment. The government
    should also identify overcoming Indigenous disadvantage as a key national
    priority for improving compliance with our international human rights
    treaty obligations. Accordingly, it should be prominently reflected in
    Australia's National Action Plan on Human Rights.[44]

    But simply committing
    to this goal is not enough. Similar commitments have been made in the
    past, as demonstrated by the COAG National Commitment of 1992, and service
    delivery framework agreements on health, housing and infrastructure concluded
    variously between ATSIC, state, territory and federal governments. Yet
    there has not been any noticeable improvement in the enjoyment of rights
    by Indigenous people and little progress in addressing the duplication
    and lack of coordination of services between governments and departments.
    In essence, governments have made these commitments without developing
    nationally consistent mechanisms by which they can be held accountable.

    An essential step
    to improve accountability is to identify the level of needs of Indigenous
    people (this meets what the UNDP terms an deprivation perspective) as
    well as the disparity in the enjoyment of rights (an inequality perspective).
    The Commonwealth Grants Commission is ideally placed to meet this requirement,
    through the conduct of regular inquiries into absolute need and Indigenous
    funding. The Commission is currently finalising its inquiry into the more
    limited issue of relative need and Indigenous funding. As they note:

    The issue of
    absolute needs was raised in all our consultations, no matter who
    they involved. The general theme was that given the high absolute
    needs, redistribution of existing levels of funding on the basis of
    relative Indigenous needs was of limited relevance. [45]

    A focus on relative
    need limits the Commission's ability to report on an inequality perspective
    and hampers the usefulness of the inquiry's outcomes for developing and
    improving national benchmarks. It also has the potential to skew the findings
    of the report in favour of addressing needs in rural and remote regions,
    despite the fact that the majority of Indigenous Australians reside in
    urban areas.

    Despite the limitations
    imposed by the scope of the inquiry, the Commission's inquiry has been
    an important one, vividly demonstrating the value of an independent evaluative
    mechanism. The draft report of the inquiry provides detailed consideration
    of Indigenous funding issues and identifies a range of suggestions to
    improve performance, including through changes to existing Commonwealth-state
    arrangements by introducing and/or reinforcing additional conditions on
    Special Purpose Payments (SPPs); moving to insert regional needs based
    allocation requirements into Indigenous specific SPPs; and seeking conditions
    on general SPPs to direct expenditure to aspects of services that are
    important to Indigenous people. [46]

    The Commission has
    also worked with the Australian Bureau of Statistics (ABS) to prepare
    an experimental index of Indigenous socio-economic disadvantage. Having
    determined that it is feasible to construct such an index, the second
    stage of the work by the ABS will examine the feasibility of sub-dividing
    the index according to broad functional lines to produce a habitat index
    (reflecting disadvantage relating to health, housing and infrastructure)
    and an economic index (reflecting disadvantage relating to education,
    training and employment), as well as sub-dividing the index along geographical
    lines to produce an urban and rural/remote index.

    It can reasonably
    be expected that through conducting broader inquiries into absolute need
    on a regular basis, the Commission would - through such collaborative
    work with the ABS - be able to provide ever-increasing sophistication
    in data analysis and reporting. Crucially, it will also be able to examine
    in increasing detail mechanisms for allocating funding to address Indigenous
    disadvantage, with the following purposes:

    • Clarifying
      the links between needs and funding;
    • Identifying
      mechanisms for the Commonwealth to tighten the connection between
      funding and both the reporting and achievement of service delivery
      outcomes by the states and territories; and
    • Identifying
      mechanisms for directly funding Indigenous organizations to deliver
      services on a regional basis (in accordance with the fiscal equalisation
      principle).

    The Commonwealth
    Grants Commission should be empowered and funded to conduct such broader
    inquiries, on a regular ongoing basis. Such inquiries would build on the
    achievements of the Commission's current inquiry, which will no doubt
    identify mechanisms for improving the sufficiency and quality of national
    data necessary to identifying Indigenous needs. At the conclusion of the
    Commission's current inquiry, the federal government should also request
    the Commission, along with ATSIC and the Australian Bureau of Statistics
    (ABS) to advise it on mechanisms to improve Indigenous data collection
    (taking into account the ABS' broad strategy for improving data collection);
    as well as the feasibility of the ABS repeating the National Aboriginal
    and Torres Strait Islander Survey of 1994 on a regular basis; proposals
    for increased coordination and consistency of data collection at the national,
    state and territory level; and the cost implications of improved data
    collection.

    Proposals for improved
    coordination and standardisation of data collection by the federal, state,
    territory governments and other service providers (such as ATSIC) should
    be formalised by COAG through framework agreements under the 1992 COAG
    National Commitment.

    State and territory
    governments should also agree to report to COAG and their respective parliaments
    on a biennial basis as to progress in addressing Indigenous disadvantage,
    and the measures taken to implement the COAG National Commitment. The
    federal government should also initiate mechanisms for biennial reporting
    of progress in overcoming disadvantage to the federal Parliament, and
    ensure regular, parliamentary and inter-governmental scrutiny of these
    reports.

    To commence this
    process, the Commonwealth, state and territory governments should report
    to COAG, and to the public through Reconciliation Australia, [47]
    by the end of 2001 indicating their support for the recommendations and
    actions proposed by the Council for Aboriginal Reconciliation in its four
    national strategies and final report to Parliament; and outline actions
    that they intend to take to implement these.

    The federal government
    should also coordinate negotiations between federal government departments
    and agencies, state and territory governments, ATSIC and service delivery
    agencies to develop benchmarks across all areas of service delivery, where
    such standards do not currently exist. [48] Targets
    should be developed that reflect the long-term nature of the process,
    but with short-term targets that are verifiable, measurable and agreed
    with Indigenous communities and organizations. Given this long-term agenda,
    it is necessary that there be bi-partisan commitment to targets for reducing
    the level of disadvantage and the disparity in the enjoyment of rights.

    The targets should
    be culturally appropriate. As the Council for Aboriginal Reconciliation
    (CAR) has noted, there is concern that some of the targets and desired
    outcomes may be:

    based on western
    assumptions about disadvantage and that they have limited cultural
    relevance to Indigenous peoples. Where this is the case, it may be
    unrealistic to expect full statistical equality to be achieved with
    the wider community, even in the long term. However, it would be wrong
    to describe as disadvantage those specific statistical differences
    that arise directly from cultural obligations and self-determination.
    [49]

    Issues concerning
    the cultural appropriateness of benchmarks are more likely to arise at
    the stage where the disparity in enjoyment of rights by Indigenous people
    has been significantly reduced from its current levels. In no way can
    the current lack of equality in the enjoyment of rights be seen as the
    result of cultural obligations or self-determination. As CAR notes, dealing
    with the potential for cultural bias in the setting of benchmarks (as
    well as to ensure regional flexibility) requires full involvement of Indigenous
    people in agreeing on appropriate standards. [50]
    'Bottom up' processes for the development of benchmarks at the local and
    regional levels should be preferred.

    Strengthening
    Indigenous governance

    If programs are
    to be effective, Indigenous people should have the authority to make
    decisions about the services they receive at both the State level
    and at the local level. Ideally, this would be accompanied by control
    over the funds necessary to provide those services. While this is
    much easier to visualise in circumstances of discrete Indigenous communities
    (subject to the development of the necessary community capacity),
    the principle applies equally to other circumstances. Indigenous people
    need also to be involved in decision making for mainstream services,
    if these are to be effective and provided in a culturally sensitive
    way. [51]

    Addressing disadvantage
    is a precondition for Indigenous people to be able to enjoy basic citizenship
    entitlements in Australia. The previous section has emphasised that Indigenous
    participation in decision-making is crucial to achieve this. But reconciliation
    must go beyond simply providing equality of opportunity in terms of 'sameness'.
    It must provide for the acceptance, recognition and celebration of the
    unique, distinct societies and cultural characteristics of first Australians.
    Consequently, an approach such as 'practical reconciliation', that does
    not extend past the realisation of measures that allow for citizenship
    participation in society, is deficient.

    Implementing measures
    to overcome Indigenous disadvantage, while certainly a great challenge,
    requires no great innovation from an institutional or constitutional perspective
    and is 'fully consistent with the public philosophy of liberal egalitarianism'
    . [52] The more difficult part of the process is
    changing decision-making and service delivery processes to accommodate
    Indigenous cultural characteristics and aspirations, including through
    supporting and rebuilding the capacity for Indigenous self-government
    and autonomy. As Peter Russell notes:

    Autonomy is the
    dimension of reconciliation that requires inventiveness, imagination
    and moral courage - on both sides. To find mutually acceptable ways
    of facilitating the self-determination of indigenous peoples within
    settler states is the greatest challenge in moving to a relationship
    that is truly post-colonial. Much of the challenge involves solving
    practical problems of institutional design and cultural adaptation ...
    [53]

    There is a commonly
    held view that for genuine change to occur it must involve participation
    from the 'bottom up'. One of the observations from the consultations ATSIC
    conducted on greater regional autonomy in 1999 was that '[p]eople would
    be able to exercise greater accountability over funds once they had some
    input into their deployment'. [54] More effective
    accountability at the community level is a consequence of greater autonomy.
    This principle is recognised by the House of Representatives Standing
    Committee on Family and Community Affairs when they note, in relation
    to health services, that the 'key to achieving an effective regional approach
    is engaging the Indigenous community. Without their participation and
    cooperation no approach will work'. [55]

    Such participation
    is necessary to developing greater community control of services and programs,
    and consequently, greater responsibility and accountability for outcomes.
    Such participation would also provide greater responsiveness to Indigenous
    need, as well as for Indigenous people's cultures and traditions to be
    reflected in the programs and services that intimately affect their lives
    on a daily basis. Through such involvement Indigenous people and communities
    would be able to begin moving from being, in the words of Noel Pearson,
    victims of 'passive welfare' towards being re-empowered through the exercise
    of greater control over their lives. ATSIC note that:

    Ownership of,
    or at least partnership in, delivery of services to communities suggests
    a means of breaking the cycle of poor health, education, employment
    and housing outcomes and the subsequent 'anti-social' behaviour and
    migration to larger regional centres which often results from poor
    service delivery. [56]

    In the broader context
    of recent debate on social policy reform, the McClure Committee's Report,
    Participation Support for a More Equitable Society (the 'McClure Report'),
    has proposed greater use of 'mutual obligations' and 'social partnerships'
    as ways of preventing welfare dependency and increasing avenues of economic
    participation. However, the application of these principles is concentrated
    largely within a model of 'individualised service delivery', the implications
    of which for Indigenous communities remain largely undeveloped in the
    McClure Report. [57] The Commonwealth Grants Commission
    in its Draft Report on Indigenous Funding, ATSIC in the Report on greater
    regional autonomy, and the House of Representatives Standing Committee
    on Family and Community Affairs report into Indigenous health all flag
    the development of mechanisms and structures for self-governance and greater
    regional autonomy as the next stage and natural progression from facilitating
    greater Indigenous participation in decision-making.

    The establishment
    of Indigenous governance structures is not a new idea, and varying degrees
    of Indigenous autonomy already exist through structures such as ATSIC,
    land councils, native title representative bodies (and emerging prescribed
    bodies corporate) and community-controlled organisations. The Minister
    for Aboriginal and Torres Strait Islander Affairs, in the government's
    1998 election policy statement Beyond welfare, also provides support for
    the development of regional autonomy mechanisms, committing the government
    to:

    Accept[ing]
    the recommendations of the ATSIC Board in relation to providing greater
    regional autonomy [and] ... working with the indigenous community and
    ATSIC to develop appropriate regional models, and to devolve, where
    possible, decision making and management to the local level . [58]

    Regional governance
    mechanisms were also central to proposals for the Social Justice Package
    in 1995. [59] ATSIC note that the issues raised
    in their consultations on regional autonomy proposals in 1999 are markedly
    similar to those envisaged as being the subject of a 'makarrata' in 1987,
    and as such 'highlight the lack of progress in achieving genuine self-determination
    for Indigenous peoples over the past decade or so'. [60]

    As ATSIC note, autonomy
    'is not confined to local government or the provision of services'. [61]
    Rather, 'it may embrace self-governance in the broader sense of decision
    making to maintain identity including cultural matters, languages, customary
    law, definition of group membership and ownership and use of land'. [62]

    The ATSIC discussion
    paper on regional autonomy, released in 1999, lists four main reasons
    for consideration of why greater autonomy should be available to Indigenous
    peoples at the regional and local level:

    a) The cultures
    and traditions of Indigenous peoples are best safe-guarded in the
    decision-making processes possible at the local level .... There is a
    possibility of ensuring through service delivery that services are
    consistent with cultural values;

    b) The taking
    of responsibility for decisions at the regional level is more likely
    to result in the development and achievement of goals ...;

    c) Greater regional
    involvement in decision-making is likely to lead to better program
    coordination as local decision-makers are more likely to identify
    duplication or a lack of services and respond more appropriately than
    agencies operating from a distance;

    d) The regional
    focus may make it easier for agreement making at that level with State/Territory
    and local governments and to establish partnerships with all agencies
    in service and other provision. [63]

    Regional governance
    mechanisms are also better able to address the great regional variation
    in the circumstances of the Indigenous population. The Commonwealth Grants
    Commission notes that at present, funding mechanisms do not account for
    the fact that various Indigenous communities are differently placed in
    terms of capacity to self-manage. More efficient communities, with better
    management and infrastructure, and most able at writing submissions, are
    often most successful in securing funds. The Commonwealth Grants Commission
    stresses the need for resources and services to be directed where need
    is greatest, although it maintains that if a community's measured needs
    are reduced by better efforts or efficiency, it should not have its share
    of resources reduced.

    A focus on Indigenous
    governance emphasises the need for greater coordination of services; the
    collective nature of the solutions required to the current problems faced
    by Indigenous people; and the necessity to adopt a holistic approach to
    addressing Indigenous need. It also allows for the renewal of Indigenous
    societal structures. It must be recognised, however, that Indigenous societies
    are not static. They have changed greatly over time, no doubt including
    during the period prior to contact with Europeans. The reference to 'renewal'
    of Indigenous societal structures and governance mechanisms absolutely
    does not refer to the reconstruction of societies as they existed over
    two hundred years ago.

    Regional
    governance and progressing reconciliation in a human rights framework

    The development
    of governance structures and regional autonomy provides the potential
    for a successful meeting place to integrate the various strands of reconciliation.
    In particular, it is able to tie together the aims of promoting recognition
    of Indigenous rights, with the related aims of overcoming disadvantage
    and achieving economic independence.

    Unfortunately, during
    the reconciliation debate so far, there has been insufficient acknowledgement
    of the inter-related nature of these processes, which has been demonstrated
    by the failure to identify the crucial nature of recognising and building
    Aboriginal and Torres Strait Islander governance capacity to achieving
    these goals.

    The Council for Aboriginal
    Reconciliation's strategy for achieving economic independence, for example,
    focuses on how governments and peak private sector organizations can apply
    affirmative action and culturally sensitive initiatives in the areas of
    education and training, employment, access to capital, access to markets
    and trades, challenges in regional and remote areas, and promoting partnerships
    and joint ventures. [64] The strategy is more directed
    towards channelling private sector support into the development of Indigenous
    economic independence, in some instances with the encouragement of Government
    agencies, rather than developing more economically viable Indigenous governance
    structures.

    The Council for Aboriginal
    Reconciliation's national strategy to overcome Indigenous disadvantage
    has as an objective 'Building stronger communities and equal partnerships'
    and includes the following actions:

    • Service providers,
      ATSIC, and local, Territory, State and Federal governments involve
      Indigenous communities and peoples as partners in the design, development,
      delivery and evaluation of policies, programs and services.
    • Service providers,
      ATSIC, and local, Territory, State and Federal governments design
      and deliver their programs and services in a way that is driven by
      local Indigenous peoples, strengthens local communities, forges partnerships,
      makes links with the corporate sector and draws on the resources within
      the community to achieve agreed outcomes.
    • Service providers,
      ATSIC, and local, Territory, State and Federal governments build the
      skills base of Aboriginal and Torres Strait Islander peoples so that
      they are able to sustain the infrastructure and deliver the services
      to their communities.
    • To ensure equal
      partnerships, local, Territory, State and Federal governments support
      and fund Indigenous community organisations to participate in policy
      development, planning, service delivery and monitoring processes.
      [65]

    These actions are
    constrained within a service delivery environment. They do not identify
    or give priority to building the capacity of or recognising Indigenous
    community structures as the basis of sustainable Indigenous communities
    into the future. As such, they place insufficient emphasis on the pivotal
    issue of maintaining distinct Indigenous identities and cultures.

    They are also separated
    from the Council's objective of providing 'formal recognition of the right
    of Aboriginal and Torres Strait Islander peoples to self-determination
    within the life of the nation' as identified in the national strategy
    to recognise Aboriginal and Torres Strait Islander rights. [66]
    As that strategy notes:

    Self-determination
    is much more about the process of decision-making ... It also reflects
    the kind of autonomy and decision-making that is already being exercised
    by communities who take responsibility for the delivery of services
    and programs. That is, self-determination is reflected in the recognition
    by governments of Aboriginal and Torres Strait Islander peoples right
    to exercise a sphere of authority and responsibility and the communities'
    exercise of that right.

    In international
    law self-determination is 'the right of all peoples to freely determine
    their political status and to pursue their own economic, social and
    cultural development'. It has its origins in the theory of self-government
    - that a society should be able to determine for themselves how they
    are to be governed and to make the decisions that directly affect
    them. [67]

    As James Anaya notes,
    '[s]elf-government is the political dimension of continuing self-determination'.
    [68] Governance mechanisms illustrate the point
    that self-determination does not necessarily entail secession or the creation
    of separate states but can be articulated through the restructuring and
    renewal of existing relations between Indigenous organizations and Government
    to create arrangements to reflect and support a diversity of Indigenous
    circumstances.

    A recent study of
    the situation of Indigenous peoples in Australia, Canada and the United
    States of America considers the connection between Indigenous governance
    and achieving improved socio-economic conditions. The study compared health
    and housing conditions for Indigenous people in all three countries. It
    notes that, compared to Indigenous peoples in Canada and the United States,
    Indigenous Australians have much lower life expectancy, educational levels,
    home ownership rates, and higher levels of unemployment and overcrowding
    in housing conditions. [69]

    The explanations
    for these disparities identified by the author include that lower rates
    of socio-economic status experienced by Indigenous Australians contribute
    to poorer health outcomes; that the direct, bilateral arrangements between
    the federal government and Indigenous organizations in Northern America
    has led to greater effectiveness of programs; and that in Northern America
    there exists 'a higher level of Indigenous governance, ownership and empowerment,
    at individual, community, regional and national levels'. [70]

    These factors led
    the author to acknowledge the necessity of moving from a welfare approach
    to a rights-based approach:

    There should be a
    shift in existing attitudes, policy and programs in Australia away from
    implied assumptions of dependence, towards greater community control and
    economic empowerment. This applies not only to the rhetoric and 'value-adding'
    of existing programs, but also to the intricacies of household life and
    the encouragement, opportunities and power that permit day-to-day choices.
    The experience of Indigenous people in North America suggests that such
    a shift should contribute to the improved health of Indigenous Australians.
    [71]

    The insufficient
    emphasis on developing Indigenous governance structures in Australia can
    be contrasted with policies to address the historical legacy of colonisation
    in other countries. The facilitation of Indigenous governance is central
    to the New Zealand government's Closing the gaps policy, as discussed
    above. Indigenous governance is also pivotal to the process of renewal
    currently underway in Canada.

    As noted in chapter
    2, Gathering strength - Canada's aboriginal action plan, builds on the
    principles of mutual respect, mutual recognition, mutual responsibility
    and sharing. It expresses a vision of a shared future for aboriginal and
    non-aboriginal people with the following four inter-related objectives:

    • Renewing
      the partnerships
      - bringing about meaningful and lasting change
      in the relationship with aboriginal people;
    • Strengthening
      aboriginal governance
      - supporting aboriginal people in their
      efforts to create effective and accountable governments;
    • Developing
      a new fiscal relationship
      - arriving at financial arrangements
      with aboriginal governments and organizations which are stable, predictable
      and accountable and which foster self-reliance; and
    • Supporting
      strong communities, people and economies
      - focusing on improving
      health and public safety, investing in people and strengthening aboriginal
      economic development. [72]

    The fourth strategy,
    'Supporting Strong Communities, People and Economies', covers issues of
    effective citizenship participation similar to those referred to in CAR's
    national strategies on overcoming disadvantage and achieving economic
    independence. But Gathering strength goes further than the CAR strategies
    and provides precedents for developing Indigenous self-government that
    could be adapted to the Australian context.

    In 'Developing a
    New Fiscal Relationship', Gathering strength gives extensive treatment
    to the issues of improving both fiscal relations at the federal level
    and intergovernmental relations with Indigenous people. The Canadian government
    commits to:

    work in a partnership
    with aboriginal governments and organizations to develop a new fiscal
    relationship which provides more stable and more predictable financing,
    is accountable, and which maximizes the internal generation of own-source
    revenue. [73]

    At present, 'financing
    is to be negotiated and is [the] shared responsibility of governments
    and aboriginal people', [74] and is delivered through
    a federal framework for transferring programs and services to First Nations
    in accordance with the goal of strengthening aboriginal governance. Aboriginal
    groups are encouraged to raise their own revenues where possible. Multi-year
    funding arrangements are available, enabling greater flexibility for program
    design and allocation of funds according to community priorities. [75]

    In addition to such
    initiatives as the creation of funding formulas to 'provide a more stable
    and predictable flow of revenue to facilitate program and financial planning'
    and the development of transfer arrangements to 'provide fair, stable
    and equitable transfers commensurate with responsibilities and circumstances',[76]
    the Canadian government intends to develop a process for renewing funding
    agreements with its aboriginal partners that ensures commensurability
    between programs and services provided in aboriginal and non-aboriginal
    communities.

    The Canadian government's
    related strategy for strengthening aboriginal governance involves working
    closely with aboriginal peoples, and provincial and territorial governments
    to ensure that:

    aboriginal governments
    and institutions have the authority, accountability mechanisms and
    legitimacy to retain the confidence and support of their constituents
    and of other governments and institutions, to govern effectively.
    [77]

    To date, 80 tables
    to negotiate self-government arrangements have been established, and First
    Nations organizations or governments are delivering more than 80 per cent
    of the programs funded by the Department of Indian Affairs and Northern
    Development (DIAND). DIAND outlines the features of a 'good agreement'
    about self-government as follows:

    • Governance
      - Governance structures for groups of First Nations which are legitimate
      and democratically accountable;
    • Jurisdiction
      - Clear description of First Nations law-making powers, with application
      of the Charter of Rights and Freedoms and overriding laws of national
      importance (eg. criminal law);
    • Fiscal arrangements
      - Shared responsibility for self-government through generation of
      own-source revenue, including taxation, and more First Nation control
      over spending decisions with fiscal accountability to members;
    • Programming
      - Capacity for effective, affordable delivery of programs, harmonised
      with surrounding communities, and meeting appropriate standards; and
    • Implementation
      - Provides resources for transition to self-government and contains
      principles for future intergovernmental relations. [78]

    'Strengthening Aboriginal
    Governance' also includes a commitment by the Canadian government to working
    with aboriginal peoples, other levels of government and other partners
    to improve on the existing federal policy and negotiation process with
    particular regard to building governance capacities. It is acknowledged
    that 'many aboriginal groups and nations require support in order to assume
    the full range of responsibilities associated with governance, including
    legislative, executive, judicial and administrative functions.' [79]
    Part of the Government's commitment is an initiative to explore with aboriginal
    people the possible establishment of government resource centres to assist
    aboriginal people with developing models of governance, providing guidance
    on community consensus building and dispute resolution, and serving as
    a resource on best practices. They might also play a role in helping identify
    skills and supporting capacity development in the areas of administrative,
    financial and fiscal arrangements. Other areas of capacity building include
    initiatives to involve aboriginal women in self-government processes;
    to design and implement culturally relevant and equitable community-based
    justice programs; and to develop professional strategies for management
    of land, environment and resource management.

    There are clearly
    differences between the Australian and Canadian contexts. [80]
    However, the Canadian approach identifies some key objectives that are
    of broad relevance in the development of cooperative partnerships between
    Indigenous peoples and government in Australia. These include:

    • Identifying
      mechanisms for Indigenous people to exercise control over their own
      affairs, through program and service delivery;
    • Delineating
      a clear role for all levels of government, including Indigenous structures;
    • Committing to
      building the financial and administrative capacity of Indigenous communities
      with a view to economic independence;
    • Providing incentives
      to Indigenous organisations and communities to raise own-source revenue;
      and - Recognising and protecting Indigenous rights.

    Supporting
    regional governance through agreements and partnerships

    The Council for Aboriginal
    Reconciliation proposes, in the national strategy to overcome Indigenous
    disadvantage, that Commonwealth/State fiscal relations with Indigenous
    people could be improved by governments employing mechanisms to ensure
    adequate funding; offering supplementary funding incentives for meeting
    benchmarks agreed with Indigenous organizations (such as through federal
    Special Purpose Payments grants); pooling funds across agencies and levels
    of government; developing a joint agency approach to coordination of services
    and programs; creating flexible funding arrangements; ensuring geographic
    distribution of funds; and through prioritising the allocation of funds
    to community controlled services. [81]

    These actions are
    not targeted to developing governance mechanisms, although they could
    appropriately be adapted towards meeting the goal of developing regional
    governance processes.

    For example, in ATSIC's
    consultations on greater regional autonomy, problems were identified about
    the inflexibility and short-term nature of funding arrangements to Indigenous
    community organisations. At present, the majority of funds received by
    ATSIC Regional Councils are 'tied' ? that is, already marked for expenditure
    in national programs such as CDEP, and Housing and Infrastructure. [82]
    It was suggested that there should be more flexible funding arrangements
    at the regional level by adopting an outcomes approach where targets and
    accountability requirements are set locally. This would involve establishing
    priorities and deploying funds appropriately at the regional and local
    levels rather than relying on parameters set, often through rigid and
    generic program guidelines, at the national or state level. The Report
    on greater regional autonomy states that such an approach would be better
    able to respond to regional variations in needs and programs, and:

    If current tied funding
    arrangements were relaxed and an outcomes-based approach to accountability
    was fully implemented, Councils would be able to channel funds to deal
    more effectively with local issues - in particular, housing, youth and
    domestic violence were issues cited in this context. [83]

    The availability
    of funding on only a short-term basis also limits the ability of Regional
    Councils to tackle issues that are deeply entrenched and systemic in nature.
    In accordance with recommendations that had been made in the Royal Commission
    into Aboriginal Deaths in Custody in 1991, block funding and funding over
    triennial periods were noted by ATSIC 'as means of improving planning
    possibilities and outcomes for communities.' [84]

    Related to the need
    to develop longer-term and more comprehensive funding strategies for targeting
    Indigenous disadvantage is the development of Indigenous community capacity,
    in terms of both financial and human resources. As the House of Representatives
    Standing Committee on Family and Community Affairs states in Health is
    life:

    [I]t is not simply
    enough to say that the community should be allowed to determine the
    nature of their health services, if they do not have the capacity
    to do so. Frequently communities rely on outside professional advice
    and expertise. When these people leave, services deteriorate until
    such time as another person can be found ...

    There needs to
    be a commitment to developing mechanisms which work within Indigenous
    autonomy, but which provide the tools to develop such autonomy, without
    developing a dependence. [85]

    The Committee identifies
    the need for an agreed long-term strategy, with appropriate resources,
    to move to community control; processes that balance accountability requirements
    against 'developing a core of commercial and management expertise in funded
    organizations and communities' ; [86] and for the
    development of mechanisms to improve the way funding bodies respond when
    organizations get into financial difficulties. The Commonwealth Grants
    Commission similarly emphasises that given the capacity to self-manage
    is necessary for resources to be targeted most effectively, '[r]esources
    must be invested over time to increase that capacity before full community
    control will be a workable approach.' [87]

    Another approach
    to creating more flexible arrangements for addressing disadvantage that
    has been suggested is the pooling of funds. This involves 'broad-banding'
    available funds from Commonwealth and state bodies to meet priorities
    set at the regional level, 'to result in more efficient and effective
    use of funds by reducing administrative burdens and better matching initiatives
    with local conditions'. [88] Perceived benefits
    of this approach include less fragmentation of funds and services to ensure
    that 'an adequate level of funding ...can be linked to an improved regional
    planning process', identification of long-and short-term goal for the
    community and the development of a partnership with mainstream services
    in 'determining how best to meet those needs with the available resources'.
    [89] This approach also seeks to address issues
    such as the wastage, inefficiencies and inappropriateness of funding available
    that occur through duplication and lack of coordination of services.

    Strategies such as
    the pooling of funds; increasing the flexibility of funding at the regional
    and local levels; developing longer term, cyclical funding options; capacity
    building and providing management support could all assist in the development
    of Indigenous governance structures. They can all be progressed through
    the negotiation with Indigenous people and communities of agreements and
    partnerships.

    There are several
    different types of agreement-making currently in operation. While few
    of these have been in operation long enough to assess properly, it is
    clear that:

    regional-type
    arrangements have the potential to move decision-making closer to
    the grassroots Indigenous communities and to promote further community
    control of service provision. [90]

    One form of agreement-making
    is bilateral agreements between the Commonwealth and a state or territory
    to pool resources and joint manage projects in a particular service delivery
    area, such as health, housing and infrastructure. An example of this is
    the Bilateral Housing Agreements between ATSIC, the Aboriginal Rental
    Housing Program and Community Housing. Agreements are currently in place
    in New South Wales, Western Australia, South Australia and the Northern
    Territory, and also between the Queensland Government and the Torres Strait
    Regional Authority. Through these agreements, it is possible to achieve
    'greater control of the Indigenous housing sector by Indigenous people
    and [to] improve the co-ordination of streams of resources for housing.'
    [91]

    These housing agreements
    have been largely successful, although the Commonwealth Grants Commission
    warns that 'it is also necessary to ensure that Indigenous people continue
    to have adequate access to mainstream public housing and that their needs
    are not diverted to the Indigenous specific programs'. [92]
    As a matter of equity it is also important to ensure that such agreements
    are not used by States to buck-pass their responsibilities for service
    delivery by using Commonwealth monies to 'top up' State funds or to require
    Commonwealth monies to be offered as an incentive to get States to the
    bargaining table.

    A further example
    is the Aboriginal Coordinated Care Trials in the Northern Territory. These
    have been directed at 'developing a funding pool for health services to
    be used for any client need and ...directed irrespective of program or institutional
    boundaries'. [93] These trials recognise difficulties
    many Indigenous communities face in accessing mainstream health services,
    with contributions to the pooling fund made on the basis of an estimate
    of the amount that would otherwise have been made available to the community
    through the Medicare Benefits Schedule (MBS), Pharmaceutical Benefits
    Schedule (PBS), State health services and Home and Community Care (HACC)
    services.

    The community is
    involved on an intensive basis in the consultations prior to the trial
    and decision-making on health services delivery during the trial. While
    it is too early to draw any comprehensive conclusions about the trials,
    Health is life suggests that a similar approach to funding primary health
    care services for Indigenous Australians should be introduced into all
    regions to support the current regional planning processes. Recommendation
    8 proposes that:

    In conjunction
    with the Indigenous community over the next two years, the Commonwealth
    develop a revised approach to funding primary health care services
    for Indigenous Australians, based on:

    • the use of
      funds pooling at a regional level, determined by reference to a
      nominal per person Medicare Benefits Sschedule[sic](MBS) /Pharmaceutical
      Benefits Scheme(PBS) contribution, which takes into account not
      only the national average costs of MBS/PBS usage by non-Indigenous
      Australians, but should also be weighted for the higher costs of
      servicing specific communities and the poorer health status of indigenous
      Australians;
    • the combination
      of these funds with an amount from the State or Territory, representing
      the cost of hospitals and other health services; and
    • the community
      to be supported in taking responsibility for these funds and determining
      the use of the funds pool in delivering services to the community
      which best meet the health needs of each community. [94]

    The Commonwealth
    Grants Commission also suggests the development of state level regional
    structures to coordinate funding and service delivery. It suggests that
    such regional arrangements:

    could emerge
    as a means of linking State level decision making with local community
    control over service delivery matters. In some circumstances regional
    decision making might even develop as an alternative to State level
    processes. [95]

    The Commission suggests
    the consideration of regional arrangements in which Commonwealth Indigenous
    specific funds would be 'allocated to State level Indigenous-controlled
    bodies that would include representatives of Commonwealth and state governments
    and, where relevant, local government'. [96] In
    addition, State funds could be 'combined with the Commonwealth funds and
    distributed through this mechanism'. [97] Collaborative
    decision-making could occur at the state level between government and
    Indigenous people, as well as the oversighting of additional needs to
    be met at the regional level. The Commission nominates the Aboriginal
    Housing Authority in New South Wales and the Indigenous Housing Authority
    in the Northern Territory 'as approximate working examples of such arrangements'
    for the function of housing. [98] Defining features
    of these arrangements would include:

    • a commitment
      in line with the 1992 National Commitment to self-management by Indigenous
      people in the planning, decision-making, management and evaluation
      of service provision;
    • long-term collaboration
      between the Commonwealth and State Governments and Indigenous people
      to build the capacity of communities for such self-management;
    • co-ordination
      of related streams of funds for each key function, possibly including
      pooling of relevant funds from all sources, and distribution according
      to regional needs; and
    • data gathering
      and reporting mechanisms which enable informed decisions to be made
      and provide public accountability to outcomes. [99]

    One of the perceived
    advantages of using a state-based approach is that it 'could provide a
    balance between the States' responsibilities and the Indigenous peoples'
    aspirations to control their own affairs ... [s]uch regional level collaborative
    decision-making arrangements might be established by building on the present
    ATSIC structure'. [100]

    Despite these proposed
    advantages, the development of state level regional structures should
    be considered with great caution. The distribution of state and territory
    funds for Indigenous service delivery is the area where there exists the
    least transparency and greatest cost shifting. Accordingly it is an area
    that requires great attention before introducing further administrative
    structures.The
    Commission's proposal is also too ambiguous and unclear as to how these
    new institutions might fit with ATSIC's regional council and state advisory
    committee structures.

    The issue of building
    on the ATSIC structure to increase Indigenous peoples' control over decision-making
    at the regional level was the focus of ATSIC's recent Report on greater
    regional autonomy. This report followed from the 1997/98 Section 26 review
    of the operation of the Aboriginal and Torres Strait Islander Commission
    Act 1989, in which the need to strengthen ATSIC's regional focus and pursue
    greater autonomy emerged as a key area of interest. The Report on greater
    regional autonomy found that there was strong support to increase the
    power of Regional Councils, particularly through the capacity to make
    agreements, and some support, particularly in northern and remote areas,
    for the creation of independent governance structures such as regional
    authorities, of which the Torres Strait Islander Authority (TSRA) is an
    example.

    The Report on greater
    regional autonomy considers the strategic use of regional agreements,
    particularly in the context of regional planning. In some areas, Indigenous
    people have given consideration to the development of a coalition of communities
    and organisations - such as 'regional advisory groups', 'community working
    parties', and 'regional forums' or 'interfaces' ? as alternatives or precursors
    to the establishment of a governance structure. [101]
    These arrangements can play an important role in representing the needs
    and aspirations of communities to government and non-government agencies.
    The NSW Murdi Paaki Regional Council Plan and the Cape York Peninsula
    Partnerships Plan are two models of this type that have been put forward.

    Murdi Paaki Regional
    Council is currently developing a model involving 'a fairly sophisticated
    regional plan underpinned with regional agreements to target better outcomes
    for service delivery'. [102] Through this model,
    the Regional Council aims to increase its profile and decision-making
    power at regional and state levels by providing an interface with government
    and community sectors. Central to the model is the establishment of community
    working parties to facilitate consultation with and participation by Indigenous
    communities across the region. Consultation with community working parties
    is to provide the major means of targeting local needs and priorities,
    avoiding problems of under-representation of some community groups on
    Council. [103] The consent of the community working
    parties is also necessary for the development and implementation of any
    further approaches to autonomy.

    The model seeks to
    build on the existing Murdi Paaki Aboriginal Housing and Infrastructure
    Regional Agreement by developing a framework for coordinating programs,
    services and funding for Indigenous communities across the region. Agreements
    would be set in place with the relevant funding bodies regarding the objectives
    and outcomes of various programs, and funding allocations would be negotiated
    with, and managed by, the Regional Council. It is envisaged that the Council
    would ultimately become a purchaser of services, in effect directing funds
    and services to target needs and priorities identified by the community
    working parties.

    Murdi Paaki Regional
    Council perceives a broad spectrum of approaches to the issue of increasing
    autonomy with enhancement of the Council's regional plan through a series
    of agreements at one end and the establishment of a regional government
    at the other. The Council's perspective is 'outcome'-based, meaning that
    they may not progress the model to a full-scale authority if they can
    achieve the required results via comprehensive regional planning. Problems
    attaining the position the Council desires as a purchaser of services
    could be posed if governments and government agencies do not make adequate
    changes to current funding arrangements. For example, if ties on ATSIC's
    funding to Councils remain unchanged and only bodies such as regional
    authorities are able to receive direct funding from Commonwealth and state
    agencies.

    The Cape York Partnerships
    Plan was developed by the Aboriginal leaders and community members of
    Cape York Peninsula and regional organizations, and suggests the effective
    devolution of power to local Indigenous peoples at a community level.
    Noel Pearson's paper, 'Our right to take responsibility', provides the
    impetus for the plan and seeks to address the power differentials between
    government and Indigenous communities. [104]

    Pearson posits a
    four-point plan for developing a real economy for Aboriginal society on
    Cape York Peninsula in place of the 'passive welfare' paradigm that has
    plagued Indigenous governance since the 1970s. The four components of
    this plan are: access to the enjoyment of traditional subsistence resources;
    changing the nature of welfare programs to reciprocity programs; developing
    community economies; and engaging in the real market economy. [105]

    Pearson's four-point
    plan is informed by the concept of 'mutual obligations', which has been
    promoted in recent debates on welfare policy reform as a potential catalyst
    for community capacity building through capitalising on 'partnerships'
    between government, business, communities and individuals. Pearson has
    played an influential role in translating this concept into an Indigenous
    context, identifying precedents for 'mutual obligations' in traditional
    Indigenous social structures in contradistinction to dependency on a right-based
    welfare support system.

    Many of the initiatives
    proposed under the rubric of 'mutual obligations' by 'Third Way' and other
    welfare reform commentators focus on the individual's relationship to
    government as the context for change, such as the recent McClure Report's
    key proposal of 'a model of individualised service delivery'. [106]
    The McClure Report is accordingly limited in its approach to Indigenous-specific
    issues, especially given the systemic nature of Indigenous disadvantage,
    its basis in 'historical exclusion, marginalisation, and now welfare dependency',
    [107] and diverse circumstances of Indigenous people.
    While the Report recognises the severe social and economic disadvantage
    experienced by Indigenous people and the need to develop more culturally
    and locationally appropriate models for Indigenous people, [108]
    these issues do not receive any sustained analysis (apart from an isolated
    case study on the Gwydir Valley Indigenous Employment Strategy as an example
    of successful collaborative partnerships). The specific difficulties faced
    by Indigenous people in developing effective social partnerships require
    further attention, particularly in reference to areas where business is
    non-existent (especially remote); government is embedded in community
    organizations; government is perceived as reneging on meeting legitimate
    needs-based support; individuals are embedded in networks not contingent
    on economic participation; communities are divided for a range of reasons.
    [109]

    Pearson's four-point
    plan bases the development of effective social partnerships in the creation
    of a regional governance structure (specifically in the context of the
    Cape York Peninsula) that re-engages Indigenous social structures and
    economic participation with the 'real economy'. Central to the plan is
    the notion of a 'partnership interface' between Aboriginal communities
    and organizations in Cape York Peninsula and Commonwealth and state Governments,
    and ATSIC.

    Agreements would
    be made between Government agencies and Indigenous representatives in
    regard to provision of resources (that is, all government 'inputs', such
    as funding, services and programs). It is envisaged that the decision-making
    process would be characterised by a greater degree of autonomy and flexibility
    for the community and local groups, and that the partnership interface
    would be supported by state and Commonwealth legislation, particularly
    in its 'holistic and de-welfarised' aspects. While this interface is not
    to be an independent bureaucracy, but 'a meeting place, a forum for planning,
    consultation, negotiation and decision-making, there has been some discussion
    by organizations on the Cape of the ultimate extension of this model into
    a regional authority. [110] Some reform of current
    community governance structures is also advocated. [111]

    The Queensland government
    responded to the Partnerships Plan in July 1999, by making a commitment
    to developing partnerships with Indigenous communities in Cape York as
    an alternative to current service delivery arrangements. The Queensland
    Cabinet endorsed such principles as improved partnership arrangements
    between the State Government, business leaders and Cape York communities
    to better address the disadvantage experienced by Cape York Indigenous
    people; integration and enhancement of existing planning processes between
    State Government, business leaders and Cape York Aboriginal communities
    to identify and implement trials of new operating practices; and encouragement
    of the Commonwealth Government to participate in the process at an appropriate
    stage. [112] In October 1999, 400 Aboriginal elders
    and community leaders expressed support for the partnerships idea and
    passed a motion for continuing dialogue on the issue. A facilitation process
    was established at government level in December 1999, with the establishment
    of Director Generals Steering Group and a Cairns Based Implementation
    Group, both of which comprise representatives from government agencies
    and Indigenous organizations. Community consultations on the partnerships
    plan have been in train during 2000.

    Another potential
    approach is the development of regional authorities by ATSIC. A regional
    authority would have greater powers than an ATSIC Regional Council, such
    as the authority to negotiate and reach agreements with Government and
    other funders and service providers, and the ability to undertake functions
    normally performed by other services providers . [113]
    Currently, the Torres Strait Regional Authority is the only regional authority
    in operation in Australia. It was established as an independent statutory
    authority in 1994 in response to the findings of the 1993 review of the
    operation of the ATSIC Act. It includes such features as the capacity
    to liase directly with both the Queensland and Commonwealth Governments
    in developing bilateral agreements on infrastructure, health, housing
    and education, and to negotiate its budget directly with the Minister.
    [114] The TSRA receives block funding directly
    from both governments, the 'goal being to devolve maximum authority to
    the Regional Assembly to determine the priorities for the allocation of
    funds consistent with appropriate Commonwealth or Queensland accountability
    requirements'. [115]

    The Report on greater
    regional autonomy notes that ATSIC regional councils received the concept
    of an authority with 'cautious or qualified support', and that greater
    support was recorded from 'discrete and remote communities ... [rather]
    than from those in settled urban and rural centres where communities have
    often been dispersed'. [116] It was also 'generally
    conceded that authorities were more appropriate to those in remote and
    northern regions, and that ... it was easier to form a regional authority
    over remote areas where Indigenous peoples formed a majority.' [117]
    An additional consideration here is the better access experienced by those
    living in settled areas to mainstream services, in comparison to those
    in remote areas who are often reliant on a patchwork or services. Regional
    authorities for those in remote and northern areas in particular suggest
    a means of 'finding the appropriate type of social and infrastructure
    program to suit people whose distinct culture alienates them from the
    demands of some institutions in which they are governed.' [118]

    A further dimension
    of authorities that has some appeal is their capacity to provide a vehicle
    for Indigenous aspirations such as those expressed by the Aboriginal Nations
    of Central Australia in the Kalkaringi Statement, that is, 'the rights
    of self-determination and self-government, including recognition of the
    role of Indigenous governance structures and the direct Commonwealth funding
    of Indigenous communities and organisations, and recognition of customary
    law'. [119]

    At present, the Kimberley
    Executive, a reference group comprising the ATSIC Zone Commissioner and
    Regional Council Chairs plus major Indigenous organisations across the
    Kimberley, and Miwatj Regional Council in East Arnhem land are participating
    in ATSIC funded projects for modelling regional authorities. Both are
    still in initial phases of consultation with Indigenous communities in
    the proposed regions and have acknowledged that the establishment of authorities,
    or other structures and approaches for progressing autonomy, will be a
    lengthy process. [120]

    ATSIC has emphasised
    that there must be Indigenous ownership of the development of any forms
    of regional governance or their goal of ensuring Indigenous control and
    participation in decision-making will be seriously compromised. In part,
    this is a reaction to earlier suggestions following the 1997/98 Section
    26 review of the Aboriginal and Torres Strait Islander Commission Act
    1989 that Regional Councils be converted into a series of independent
    'regional authorities', which would amount to a somewhat arbitrary and
    top-down application of 'autonomy' that does not take the needs and circumstances
    of specific regions into account. Concerns have also been expressed about
    the potential for 'top-down', quick-fix solutions for rationalisation
    of services to override Indigenous aspirations for self-government. A
    recent example of this is the Northern Territory's Department of Local
    Government's proposal to improve co-ordination of service delivery to
    councils and outstations through reduction in the number of Municipal,
    Community Government and Association Councils. While the need for more
    effective services to communities in the Northern Territory is recognized,
    concerns have been raised because of the limited amount of consultation
    planned with the communities regarding these reforms and the stated intention
    of the Northern Territory Government to initiate legislation for the reforms
    in any case without the necessary compliance of the Councils. [121]

    Implementing
    greater regional autonomy and Indigenous governance

    Greater regional
    autonomy and improved governance mechanisms do not necessarily mean the
    establishment of new structures and authorities. There is also no 'one
    size fits all' model that will suit the circumstances of all Indigenous
    people and communities. It is essential that a range of strategies and
    mechanisms be considered to develop and facilitate improved governance
    and autonomy.

    Regional governance
    mechanisms also do not obviate the need for a strong national Indigenous
    voice such as ATSIC. Indeed, in consultations for the Report on greater
    regional autonomy it was noted that there was 'wide support for the retention
    of a representative and democratically-elected body at the national level
    to address government and to coordinate Indigenous advocacy'. [122]

    The tendency for
    government to over-regulate Indigenous people, by imposing burdensome
    and inflexible structural arrangements for organization, must also be
    borne in mind. The Aboriginal Councils and Associations Act 1976 (Cth),
    for example, has been described as 'a classic piece of over-regulation'
    [123] and there is concern that the prescribed
    bodies corporate provisions of the Native Title Act 1993 (Cth) are too
    elaborate and may create a situation where 'a really free and spontaneous
    people become people governed by legal regulation'. [124]
    Indigenous people should design regional governance and autonomy mechanisms
    that are suitable to their needs and aspirations with government providing
    the necessary support for such structures.

    All levels of government
    should acknowledge that facilitating Indigenous people's efforts to achieve
    such autonomy and improved Indigenous governance is vital to achieving
    improvements in Indigenous disadvantage and the recognition of Aboriginal
    and Torres Strait Islander rights. Government efforts should be focused
    on negotiating governance arrangements with Indigenous peoples, including
    through the provision of appropriate support (including technical support
    to build capacity, long term funding arrangements and legislative backing).

    This is consistent
    with the key finding of ATSIC's regional autonomy report, which recommends
    that there should be 'prioritisation of agreement-making to inform partnerships
    with Government and other agencies as a means of progressing autonomy
    from the "bottom up" in preference to further governance structures at
    this point in time'. [125]

    It is also consistent
    with the recommendations of the Social Justice Package proposals made
    by CAR, HREOC and ATSIC in 1995. ATSIC proposed that the Commonwealth
    accept 'the concept of regional agreements as a framework for establishing
    a range of formal relations and settling of outstanding social justice
    issues on a regional basis'. [126] Recognition,
    rights and reform outlines the following role for the Commonwealth government
    in setting the environment and facilitating arrangements for regional
    agreements:

    • Underpinning
      the financial costs of negotiations;
    • Leverage/incentives
      in respect of other negotiating parties, e.g. funding leverage on
      state or local government;
    • Further empowerment
      of indigenous negotiating interests, e.g. control of block funding
      for service provision;
    • Willingness
      to legislate where necessary to provide an effective basis for enforcement
      of agreements;
    • Consideration
      of constitutional reform to make provision for and give protection
      to regional agreements (e.g. similar to s.105A of the Constitution);
      [127] and
    • General facilitation
      and support. [128]

    Governments should
    agree to negotiate mechanisms to facilitate greater regional autonomy
    through the design and delivery of programs and services. Negotiations
    should include matters such as developing flexible funding arrangements
    with Indigenous organizations, including transfer of funding, block funding
    and arrangements for pooling funds across governments and on a regional
    basis; Indigenous participation in developing service delivery priorities,
    setting benchmarks and targets on a regional basis, and in monitoring
    and evaluating progress.

    Recognising
    and protecting Indigenous rights in a federal system

    Failures to observe
    or to protect human rights cannot be justified by reference to Australia's
    internal jurisdictional arrangements. We need to develop ways to overcome
    the structural difficulties in protecting human rights that arise from
    Australia's federal system of government. Actions are required to guarantee
    the adequate protection of Indigenous rights across all levels of government,
    and especially in the following key areas:

    • Improving government
      accountability for human rights; and
    • Negotiating
      with Indigenous peoples over 'unfinished business'.

    Improving
    government accountability for human rights

    By becoming a party
    to several human rights treaties, successive Australian governments have
    confirmed to all Australians, others within our shores (whether here legally
    or otherwise), and to the international community that we intend to treat
    all people in a manner that respects their human dignity and accords with
    a series of minimum standards. But our system of government operates in
    a way that a commitment of this kind does not, of itself, guarantee compliance
    with these obligations. There are two main reasons for this - first, international
    law must be incorporated into our domestic legal system for it to take
    effect, and second, the responsibility for particular matters is often
    split between different layers of government.

    The recent scrutiny
    of Australia's compliance with human rights obligations has shown that
    we need to consider ways to improve accountability for human rights at
    all levels of government. The examples of native title and mandatory sentencing
    laws, discussed in chapter 3, reveal the problems that exist in current
    protection of rights in Australian law.

    Mandatory sentencing
    reveals that while the Commonwealth has the constitutional power to override
    state and territory laws, it is reluctant to use this power. This reluctance
    is based on the view that state and territory governments are democratically
    elected and ought to be left to make laws as they see fit. The situation
    concerning the native title amendments is different: the Commonwealth
    government actively provided states and territories with the authority
    to introduce racially discriminatory laws, thereby removing human rights
    protection that would otherwise exist. These examples suggest that adequate
    protection of human rights in Australia requires actions that will bind
    the states and territories and the Commonwealth.

    It is easier to introduce
    mechanisms that bind the states and territories. An ordinary enactment
    of the federal Parliament - such as a legislated Bill of Rights ? could
    incorporate Australia's obligations under international human rights treaties
    and accordingly provide protection to human rights standards. A legislated
    Bill of Rights could, for example, include protections such as guarantees
    against arbitrary detention; requirements for proportionality in sentencing
    offenders and the right to a fair trial; guarantees of equality before
    the law and non-discrimination; prohibitions of torture or cruel, inhuman
    or degrading treatment; and so forth. Such protections would clearly remove
    the ability of the states or territories to introduce laws such as mandatory
    sentencing.

    In conjunction with
    section 109 of the Commonwealth Constitution, a legislated Bill of Rights
    would operate to invalidate state or territory laws that conflict with
    these minimum standards of observance and protection. Such an approach
    would confirm that state and territory governments have an important,
    indeed primary, role in setting laws. They would remain free to pass whatever
    laws they chose, subject to the constraint that those laws met minimum
    core standards. This is consistent with the purpose of a federation -
    in which no one level of government has unfettered power to make any laws
    that it chooses. Other constraints are already placed on the law making
    capacity of states and territories (and the Commonwealth) across a range
    of areas.

    But the principle
    of parliamentary sovereignty means that such an approach would still not
    prevent the Commonwealth from introducing laws, such as the native title
    amendments, which either breach human rights or which allow the states
    and territories to breach human rights. The only way that the Commonwealth
    can be bound to protect rights is through constitutional mechanisms.

    One option is to
    provide constitutional protection to a Bill of Rights. While this is the
    preferred option, it would take a considerable amount of time to achieve
    the necessary support to pass at a referendum.

    A second option,
    which is more immediately achievable and provides adequate protection,
    is to amend the Constitution to include a guarantee of equality and non-discrimination.
    Such a guarantee would reflect the fact that the principles of non-discrimination
    and equality before the law have the status of jus cogens, or put differently,
    that they are standards from which no deviation is permitted at international
    law. It would place the commitment of government to these principles at
    the highest possible level, and guarantee that such commitment could never
    be put aside for more expedient political purposes.

    A third alternative
    is to introduce a legislated Bill of Rights so that the public are able
    to understand more fully, through its operation, the purpose of a Bill
    of Rights and its benefits. People could then become more comfortable
    with the concept of a Bill of Rights, thereby building support in the
    long term for a Referendum to constitutionally enshrine it. A legislated
    Bill of Rights would also provide moral authority for successive federal
    governments to demonstrate a commitment to human rights, by passing laws
    that are consistent with the provisions of the Bill of Rights. It would
    also more closely link Australia's international obligations and domestic
    practice.

    The government's
    response to the dialogue with the CERD also demonstrates the need for
    improvements to the international accountability of the Australian government.
    The United Nations Development Programme (UNDP) has developed a human
    rights international accountability index. [129]
    The UNDP note that members of the United Nations are held accountable
    for human rights through three routes:

    • Acceptance
      of international human rights treaties, through accession or ratification;
    • Cooperation
      through submission of periodic reports to committees established under
      these treaties and through cooperation with requests and visits by
      special rapporteurs of the United Nations; and
    • Responsiveness
      to the views and conclusions of various United Nations treaty committees.
      [130]

    A country's level
    of international accountability can be measured through each of these
    routes as follows:

    • Acceptance:
      Has the country ratified or acceded to all human rights treaties,
      and all associated individual communication mechanisms?
    • Cooperation:
      Has the country submitted periodic reports in good time; provided
      requested information to special rapporteurs and thematic missions;
      and cooperated with monitoring missions and other visits?
    • Responsiveness:
      Has the country responded adequately to the recommendations and final
      views of treaty committees in relation to periodic reports and individual
      communications, and the recommendations of special rapporteurs and
      thematic missions? [131]

    When considered against
    this index, Australia's international accountability can be seen to be
    less than perfect. Following the government's decision not to ratify the
    Optional Protocol to the Convention on the Elimination of All Forms of
    Discrimination Against Women (CEDAW) earlier this year, Australia does
    not have universal accession or ratification to individual communication
    mechanisms. [132] The significance of this cannot
    be underestimated. Ratification of individual communication mechanisms
    demonstrates a country's willingness to be fully accountable and open
    to international scrutiny. It reflects a confidence that a country has
    a good human rights record, by demonstrating a preparedness to be scrutinised.

    Australia's periodic
    reports under all six human rights treaties have also been submitted significantly
    late. Much of this backlog has now been addressed, following the consideration
    of Australia's periodic reports by four committees over the past year.
    Unfortunately though, it is a trend that has continued with the latest
    periodic report under ICERD that was due in October 2000. At the time
    of finalising this report, the periodic report was already late and the
    government had not commenced any consultations on the preparation of the
    report.

    Similarly, the government's
    response to the concluding observations of the various treaty committees
    has not been adequate. This is demonstrated in chapter 3 of this report,
    as well as by the fact that the Committee on the Rights of the Child recommended
    in 1997 that mandatory sentencing laws be repealed - some four years before
    similar recommendations were made by the CERD and the Human Rights Committee.

    These issues can
    be dealt with quite easily. The Commonwealth government should ratify
    the Optional Protocol to CEDAW; and increase the priority with which it
    handles the periodic reporting obligation under all human rights treaties.
    It should also ensure, consistent with its obligations under the treaties,
    wide dissemination of the views of the treaty committees. It could also
    provide for parliamentary scrutiny of the recommendations and observations
    of human rights treaty committees.

    Negotiating
    with Indigenous peoples over 'unfinished business'

    These government
    commitments help build a framework for the protection of rights into the
    future. They do not address historical injustices or inequalities in society
    today. Accordingly, they must be accompanied by efforts to overcome Indigenous
    disadvantage, strengthen Indigenous governance and provide recognition
    of Indigenous rights.

    There is only one
    way of addressing the historical violation of Indigenous peoples rights
    - by negotiating with Indigenous peoples. I have already discussed the
    importance of agreement-making with Indigenous peoples with respect to
    service delivery and funding arrangements. Alongside these processes should
    be the negotiation of a framework agreement (or treaty) at the national
    level, and negotiation of agreements at the regional and local levels
    recognising Indigenous rights and dealing with 'unfinished business'.

    The federal government
    should commit to a process of agreement-making with Indigenous peoples
    to address these issues. Such agreement-making should be supported through
    a two-stage process.

    The first stage is
    the introduction of framework agreements legislation, which recognizes
    the need to negotiate with Indigenous peoples about a range of matters
    and sets out protocols and a negotiation framework within which negotiations
    will take place. It should provide legislative force to agreements with
    Indigenous organizations on a local, regional and national level.

    The necessity to
    negotiate with Indigenous people has been identified for some time. The
    most extensive and notable expression of this in recent years has been
    the social justice package proposals put to Government in 1995 by ATSIC,
    CAR and the Social Justice Commissioner. Following extensive consultation
    with Indigenous organizations and people, ATSIC recommended the negotiation
    of regional agreements with Indigenous peoples and the adoption of a series
    of social justice principles to form the basis of relations between Government
    and Indigenous peoples at the local community and regional levels. These
    principles emphasised the importance of entering into negotiations with
    Indigenous peoples and recognising their distinct cultural characteristics:

    Principles for Indigenous
    social justice and the development of relations between the Commonwealth
    government and Aboriginal and Torres Strait Islander Peoples

    1. The relationship
    between the Commonwealth Government and the Aboriginal and Torres
    Strait Islander peoples of Australia is founded in full acceptance
    and recognition of the fundamental rights of Aboriginal and Torres
    Strait Islander peoples to:

    a) recognition
    of indigenous peoples as the original owners of this land, and of
    the particular rights that are associated with that status;

    b) the enjoyment
    of, and protection for, the unique, rich and diverse indigenous cultures;

    c) self-determination
    to decide within the broad context of Australian society the priorities
    and the directions of their own lives, and to freely determine their
    own affairs;

    d) social justice
    and full equality of treatment, free from racism; and

    e) exercise and
    enjoy the full benefits and protection of international covenants.

    2. In the formulation
    of policies and delivery of programs that affect Aboriginal and Torres
    Strait Islander peoples, the Commonwealth, pursuant to powers in relation
    to indigenous peoples overwhelmingly granted it by the people of Australia
    in the 1967 Referendum:

    a) shall ensure
    that policies, the delivery of programs and services, and the effective
    improvement of service quality is achieved through processes which
    are negotiated with and which protect the rights of indigenous peoples;

    b) recognises
    the diversity of the Aboriginal and Torres Strait Islander peoples;

    c) accepts the
    importance of empowerment for decision making and planning at the
    community and regional levels, and the need for Government at all
    levels to cooperate and negotiate with Aboriginal and Torres Strait
    Islander communities and organisations;

    d) requires that
    indigenous peoples have full access to, and equitable outcomes from
    participation in, all relevant mainstream programs;

    e) shall ensure
    processes of accountability to Aboriginal and Torres Strait Islander
    peoples and especially shall ensure their involvement in review and
    evaluation processes;

    f) requires that
    collaboration and coordination between Government agencies providing
    services to Aboriginal and Torres Strait Islander people shall be
    significantly improved;

    g) shall establish
    a genuine and productive partnership with indigenous peoples through
    representative bodies at local, regional, State and national levels;

    h) shall provide
    quantifiable data and other forms of information on the objectives
    and outcomes achieved, for all programs which impact on Aboriginal
    and Torres Strait Islander well-being; and

    i) shall ensure
    that the interests of indigenous peoples transcend existing conventions
    about the division and compartmentalisation of the functions of the
    various spheres of Government ... [133]

    ATSIC recommended
    that these principles be enshrined in legislation. There is much similarity
    between ATSIC's recommendations in 1995 and those of the Council for Aboriginal
    Reconciliation in its Final Report in 2000. The Council recommends the
    adoption of framework legislation that includes the negotiation by Indigenous
    peoples and Government of protocols to underpin negotiations on matters
    of unfinished business.

    The social justice
    principles form the appropriate starting point for negotiating these protocols.
    The Commonwealth government should legislate framework agreement legislation,
    providing for the negotiation of agreements at the national, regional
    and local level, and including provision for protocols to underpin negotiation.
    Negotiations based on the social justice principles should commence immediately,
    and the federal government should take the lead in seeking commitments
    to the protocols from all levels of government through the processes of
    COAG.

    Having introduced
    such framework legislation, and provided appropriate resources for agreement
    processes to be entered into, the second stage of the process is a commitment
    to work towards amending the Commonwealth Constitution along similar lines
    to the current section 105A to provide the Commonwealth with the power
    to make agreements with Indigenous peoples. Section 105A of the Constitution
    provides that the Commonwealth may make agreements with the States with
    respect to the public debts of the States. It further provides that the
    federal Parliament has power to legislate any matter contained in the
    agreement; that such agreements can be varied or rescinded by the parties;
    and that agreements, and any variations, are to bind all levels of government.

    This would be a long-term
    approach and has the benefit of protecting documents of consensus (therefore
    reflecting both the aspirations of Indigenous people, and being acceptable
    to the broader community). By approaching such reform in two stages, the
    mainstream society is able to come to a deeper appreciation of the need
    for such agreements and to have a more detailed understanding of the issues
    involved.

    Conclusion

    In this chapter I
    have drawn together many disparate and complicated issues. The complexity
    is compounded by the fact that the many issues facing Indigenous people
    and governments are inter-related and deeply entrenched. Underlying the
    discussion throughout this chapter, however, is the simple message that
    Indigenous peoples must be able to participate in Australian society requires
    that their human rights be fully recognised. This requires that all efforts
    be made to overcome the disadvantage faced by Indigenous peoples; to facilitate
    Indigenous participation in such efforts and to promote Indigenous governance;
    to put in place stronger mechanisms to prevent future breaches of the
    human rights of Indigenous Australians; and to ensure increased accountability
    of governments for policy making, from a human rights perspective.

    Under section 46C(1)(a)
    of the Human Rights and Equal Opportunity Commission Act 1986 I am able
    to make recommendations as to actions that should be taken by governments
    to improve the recognition of the rights of Aborigines and Torres Strait
    Islanders. Accordingly, I have chosen to make the following recommendations,
    which reflect the discussion in this chapter. Given that they address
    issues that are of national significance I have targeted all the recommendations
    towards the Commonwealth government.

    Recommendations

    National
    commitments to overcome Aboriginal and Torres Strait Islander disadvantage

    1. That the federal
    government adopt, on a whole of government basis, long-term policies that
    identify overcoming Aboriginal and Torres Strait Islander disadvantage
    as a national priority. That the government take steps to target the progressive
    reduction of such disadvantage (from both a deprivation and inequality
    perspective) and negotiate with the opposition parties in the Parliament
    for cross-party support for a long-term strategy and commitment.

    2. That the federal
    government, through the processes of the Council of Australian Governments
    (COAG), seek the agreement of the states, territories and local government
    to identify as a national priority measures to overcome Aboriginal and
    Torres Strait Islander disadvantage. That such agreement be formalised
    by COAG renewing the 1992 COAG National commitment to improved outcomes
    in the delivery of programs and services for Aboriginal peoples and Torres
    Strait Islanders, after negotiation with ATSIC.

    3. That the federal
    government, through the processes of COAG, seek the agreement of the states,
    territories and local government, and ATSIC, service delivery agencies
    and Indigenous organizations on benchmarks for Indigenous service delivery
    at the national, regional and local levels.

    4. That the Commonwealth,
    states and territory governments report by 30 September 2001 to COAG and
    publicly through Reconciliation Australia on their responses to: - The
    recommendations of this report; - The recommendations of the Council for
    Aboriginal Reconciliation's final report to Parliament; and - The actions
    identified in the Council for Aboriginal Reconciliation's four national
    strategies for reconciliation.

    5. That the federal
    government update Australia's National Action Plan on Human Rights so
    that it commits to addressing Aboriginal and Torres Strait Islander disadvantage
    (from both a deprivation and inequality perspective). To the maximum extent
    possible, the National Action Plan on Human Rights should identify benchmarks
    and targets for overcoming Aboriginal and Torres Strait Islander disadvantage,
    and monitoring and evaluative mechanisms.

    Improved
    data collection

    6. The federal government
    request the Commonwealth Grants Commission, Australian Bureau of Statistics
    (ABS) and ATSIC to provide advice within three months of the finalisation
    of the Commonwealth Grants Commission's current inquiry into Indigenous
    funding on:- Mechanisms for improving the sufficiency and quality of national
    data necessary to identifying Indigenous needs, on an absolute basis.
    This advice should consider the ABS' strategy for improved data collection
    as outlined in Directions in Australia's Aboriginal and Torres Strait
    Islander statistics (March 2000); - The feasibility of the ABS repeating
    the National Aboriginal and Torres Strait Islander Survey of 1994 on a
    regular basis, or undertaking the Indigenous General Social Survey on
    a triennial basis; - Proposals for increased coordination and consistency
    of data collection at the national, state and territory level; and- Cost
    implications of improved data collection.

    7. That the Australian
    Bureau of Statistics address deficiencies identified in national data
    collection processes relating to Aborigines and Torres Strait Islanders.

    8. That the federal
    government coordinate the negotiation of framework agreements under the
    COAG National Commitment to improve coordination and standardisation of
    data collection between the federal, state and territory governments,
    ATSIC, Indigenous organisations and service delivery agencies.

    Monitoring
    and evaluation mechanisms

    9. That the federal
    government amend the Commonwealth Grants Commission Act 1973 (Cth) to
    require: - The Commonwealth Grants Commission to conduct a biennial inquiry
    into Indigenous funding (from an absolute needs perspective); and- A joint
    committee of the federal Parliament to examine the Commission's report
    and, following consultation with Indigenous organizations, recommend any
    actions required to improve Commonwealth service delivery to Indigenous
    people. Adequate funding should be provided to the Commission in order
    to undertake the inquiry. The scope of the CGC inquiry should include
    mechanisms for the Commonwealth to encourage states and territories to
    report on and meet benchmarks; and proposals for the direct funding of
    Indigenous organizations (in accordance with the fiscal equalisation principle).

    10. That the Commonwealth,
    state and territory governments agree to report to their respective parliaments
    and COAG on a biennial basis as to progress in addressing Aboriginal and
    Torres Strait Islander disadvantage, and the measures taken to meet the
    commitments made in the COAG National Commitment. That governments report
    to the biennial Reconciliation Conventions proposed by the Council for
    Aboriginal Reconciliation in the Reconciliation Bill 2000.

    Negotiating
    with Indigenous peoples

    11. That the federal
    government introduce framework legislation providing legislative support
    for the negotiation of agreements with Indigenous peoples at the national,
    regional and local levels. The Council for Aboriginal Reconciliation's
    proposed Reconciliation Bill 2000 is an appropriate legislative model.

    12. That the federal
    government and COAG adopt the Principles for Indigenous social justice
    and the development of relations between the Commonwealth government and
    Aboriginal and Torres Strait Islander Peoples as proposed by ATSIC in
    Recognition, rights and reform, as forming the framework for negotiations
    about service delivery arrangements, regional governance and unfinished
    business.

    Protecting
    human rights

    13. That the federal
    Parliament establish a joint parliamentary committee inquiry into an appropriate
    model for a Bill of Rights. The inquiry's terms of reference should include-
    International models for a Bill of Rights;- Appropriate ways to incorporate
    Australia's human rights obligations under all six United Nations human
    rights treaties to which we are a party;- Any specific provisions required
    in a Bill of Rights to recognise and protect the unique status of Indigenous
    Australians;- Processes for seeking constitutional endorsement of the
    Bill of Rights at a later stage; and- The feasibility of seeking, within
    a four-year period, the entrenchment of a guarantee of equality before
    the law and non-discrimination in the Constitution.

    14. That the Commonwealth
    government ensure universal ratification of individual communication processes
    under international human rights treaties by ratifying the Optional Protocol
    to the Convention on the Elimination of All Forms of Discrimination Against
    Women.


    1.
    The four strategies are on redressing Indigenous disadvantage; achieving
    economic independence; recognising Aboriginal and Torres Strait Islander
    rights; and sustaining the reconciliation process. The four strategies
    and the Roadmap to Reconciliation ? which summarises their main aims -
    are available at: http://www.reconciliation.org.au.

    2.
    Minister for Aboriginal and Torres Strait Islander Affairs, The future
    together - Indigenous specific measures in the 2000-01 budget, Statement
    by Senator the Honourable John Herron, Commonwealth of Australia, Canberra,
    9 May 2000, p1.

    3.
    House of Representatives Standing Committee on Family and Community Affairs,
    Health is life
    , Parliament of Australia, Canberra 2000, (Herein Health
    is life). paras 1.1-1.10.

    4.
    ibid, paras 2.35-36.

    5.
    ibid, para 1.2.

    6.
    ibid, paras 1.11-12.

    7.
    ibid, para 2.56.

    8.
    Commonwealth Grants Commission, Indigenous Funding Inquiry - Draft Report,
    Commonwealth of Australia, Canberra 2000, p53.

    9.
    ibid, p42.

    10.
    ibid, p29.

    11.
    Aboriginal and Torres Strait Islander Commission, Report on greater regional
    autonomy, ATSIC National Policy Office, Canberra 2000, pp 11-12.

    12.
    Commonwealth Grants Commission, op.cit, pp18-19.

    13.
    Minister of Indian Affairs and Northern Development, Gathering strength
    - Canada's aboriginal action plan, Ottawa 1997, http://www.inac.gc.ca/strength/change.html.

    14.
    Aboriginal
    people in Canada face similar issues to those in Australia: particularly
    the rapid growth and young age structure of the Indigenous population.

    15.
    The Hon Tariana Turia, Associate Minister of Maori Affairs, Closing the
    gaps & capacity building, Speech, 7 June 2000, http://www.tpk.govt.nz/press/gaps.htm.

    16.
    Te Puni Kokiri, Progress toward closing the social and economic gaps between
    M ori and non-M ori, Government of New Zealand, May 2000, http://www.tpk.govt.nz/reports/gaps.htm.,
    p11.

    17.
    The Hon Tariana Turia, Closing the gaps & capacity building, op.cit.

    18.
    ibid.

    19.
    ibid.

    20.
    Te Puni Kokiri, Progress toward closing the social and economic gaps between
    M ori and non-M ori, op.cit.p10 See also: Minister of Maori Affairs, Closing
    the gaps 2000, Press Release, Auckland 2000, http://www.tpk.govt.nz/publish/gaps.htm.

    21.
    ibid..

    22.
    Health is life, op.cit, paras 1.60-73, Recommendation 6.

    23.
    ibid, paras 1.71-72.

    24.
    Aboriginal Affairs Department, Annual Report 1998-99, Perth Western Australia
    1999.

    25.
    ibid, pp 51-56.

    26.
    NB: The quality of these statistics may not be adequate, given that statistics
    such as Indigenous unemployment, home ownership and median income are
    not available nationally on an annual basis, yet alone on a regional basis.

    27.
    Department of Justice and Department of Human Services, Victorian Aboriginal
    justice agreement, Government of Victoria, Melbourne 1999, p19.

    28.
    United Nations Development Programme, Human development report 2000 -
    Human rights and human development, UNDP New York 2000, http://www.undp.org/hdro/HDR2000.html,
    p89.

    29.
    ibid, p90.

    30.
    ibid, p108.

    31.
    The Council for Aboriginal Reconciliation has defined a 'benchmark' as
    an agreed standard or target that reflects the community aspirations that
    either have been met or are desirable to be met: Council for Aboriginal
    Reconciliation, Towards a benchmarking framework for service delivery
    to Indigenous Australians, CAR and Centre for Aboriginal Economic Policy
    Research, ANU 1998, p16.

    32.
    UNDP, Human development report 2000, op.cit, p99.

    33.
    See further: Australian Bureau of Statistics and Australian Institute
    of Health and Welfare, The health and welfare of Australia's Aboriginal
    and Torres Strait Islander peoples, ABS / AIHW, Canberra 1999, pp 172-175.

    34.
    ibid, pp176-177.

    35.
    Commonwealth Grants Commission, op.cit, p35.

    36.
    ibid, p37.

    37.
    ibid, pp38-39.

    38.
    Council for Aboriginal Reconciliation, Overcoming disadvantage, CAR Canberra
    2000, http://www.reconciliation.org,au/overcoming_disadvantage/index.htm.

    39.
    Australian Bureau of Statistics, Directions in Australia's Aboriginal
    and Torres Strait Islander statistics, ABS Canberra 2000, see paras 1-4.
    For the complete breakdown of surveys intended in the 2001-2011 period
    see Appendix one of this paper.

    40.
    These estimates and projections demonstrate the difficulties faced in
    collecting and maintaining comparable data over a long term period. There
    has been, for example, a 200% increase in the official Indigenous count
    between the 1971 and 1996 Census - a growth rate of 8% per annum. Similarly,
    there is an increasing trend for Indigenous people to report unions with
    non-Indigenous partners, meaning that statistics that focus solely on
    Indigenous people may not reflect fully the social reality for the majority
    of Indigenous Australians. See further: Taylor, J, Indigenous enumeration
    in the late twentieth century: Emerging issues for population analysis,
    CAEPR, ANU 2000.

    41.
    ibid, paras 29-31.

    42.
    The IGSS may be sufficient to replace the NATSIS Survey, if conducted
    at sufficiently regular intervals.

    43.
    This requirement is discussed more fully in the next section.

    44.
    A National Action Plan is lodged with the United Nations Commission on
    Human Rights as a statement to the rest of the world of how a country
    is progressing in implementing its human rights obligations in a practical
    sense. National Action Plans serve as an evaluation tool for a country's
    vision on human rights; an instrument for evaluating a country's performance
    in relation to their human rights obligations; a record of a government's
    performance with regard to the protection and promotion of human rights;
    a tool for setting human rights goals and priorities within achievable
    time frames, and for planning the management of resources for the promotion
    and protection of human rights; and as a statement of strategies and measurable
    targets with regard to the promotion and protection of human rights: See
    further, Department of Foreign Affairs and Trade, National Action plan
    on human rights, http://www.dfat.gov.au/hr/nap/natact_plan.html.

    45.
    Commonwealth Grants Commission, op.cit, p xii.

    46.
    ibid, p58.

    47.
    The foundation established to carry on the work of the Council for Aboriginal
    Reconciliation.

    48.
    Note that the recent COAG communique adopted on 3 November 2000 refers
    to the development of indigenous action plans, performance monitoring
    strategies and benchmarks by ministerial councils of COAG over the next
    twelve months. See further: http://www.pm.gov.au/news/media_releases/2000/media_release531.htm.

    49.
    Council for Aboriginal Reconciliation, Overcoming disadvantage, op.cit.

    50.
    ibid.

    51.
    Commonwealth Grants Commission, op.cit, p34.

    52.
    Russell, P, 'Corroborree 2000 - A nation defining event' (2000) 15 Arena
    Journal 25, p30.

    53.
    ibid, p31.

    54.
    ATSIC, Report on greater regional autonomy, op.cit, p20.

    55.
    Health is life, op.cit. para 3.29.

    56.
    ATSIC, Report on greater regional autonomy, op.cit, p20.

    57.
    McClure, P., Participation Support for a More Equitable Society: Final
    Report of the Reference Group on Welfare Reform, July 2000, Department
    of Family and Community Services, Canberra, 2000.

    58.
    Minister for Aboriginal and Torres Strait Islander Affairs, Beyond welfare,
    as cited in ATSIC, Regional autonomy for Aboriginal and Torres Strait
    Islander communities, op.cit, p7.

    59.
    See ATSIC, Recognition, rights and reform: Report to Government on native
    title social justice measures, Canberra, ATSIC, 1995, pp55-62; Aboriginal
    and Torres Strait Islander Social Justice Commissioner, Indigenous social
    justice strategies and recommendations, Office of the Aboriginal and Torres
    Strait Islander Social Justice Commissioner, Sydney, 1995, pp19-31.

    60.
    ATSIC, Report on greater regional autonomy, op.cit, p15.

    61.
    ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander communities,
    Discussion paper, ATSIC Canberra 1999, p9.

    62.
    ibid.

    63.
    ibid, pp9-10.

    64.
    CAR, 'Strategy for achieving economic independence', CAR, Canberra 2000,
    http://www.reconciliation.org.au/economic/pg4.htm
    (24 November 2000), p5.

    65.
    Council for Aboriginal Reconciliation, Overcoming disadvantage, op.cit.

    66.
    Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres
    Strait Islander rights, op.cit, p20.

    67.
    ibid.

    68.
    ibid, p13.

    69.
    Moran, M 'Housing and health in Indigenous communities in the USA, Canada
    and Australia: The significance of economic empowerment' (2000) 7 Aboriginal
    and Torres Strait Islander Health Bulletin 1.

    70.
    ibid, p6.

    71.
    ibid, p8.

    72.
    Minister of Indian Affairs and Northern Development, Gathering strength
    - Canada's Aboriginal action plan, op.cit, p2.

    73.
    Department of Indian and Northern Affairs (DIAND), 'Aboriginal self-government:
    the government of Canada's approach to implementation of the inherent
    right and negotiation of Aboriginal self-government', Department of Indian
    and Northern Affairs, Ottawa, 1995, p14.

    74.
    ibid, p7.

    75.
    ibid, p14.

    76.
    ibid.

    77.
    INAC, op cit, p9.

    78.
    Hanson, E., Self-Government: a fundamental change in the relationship,
    March 2000, Department of Indian and Northern Affairs, Ottawa, 2000, pp13-14.
    For a more thorough discussion of the components of this self-government
    policy, see Behrendt, L, The protection of Indigenous rights: contemporary
    Canadian comparisons, Parliament of Australia, Parliamentary research
    paper 27, 1999-2000, http://www.aph.gov.au/library/pubs/rp/1999-2000rp27.htm
    (19 July 2000).

    79.
    INAC, op cit, p10

    80.
    See Behrendt , op.cit, for an overview of the contrast between the Australian
    and Canadian contexts. One difference of note is that while the Canadian
    federal government has had responsibilities for aboriginal affairs from
    the beginning, the federal government in Australia was excluded from such
    a constitutional role until 1967.

    81.
    CAR, Overcoming disadvantage, op.cit.

    82.
    For further discussion see ATSIC, Report on greater regional autonomy,
    op cit, p13.

    83.
    ibid, pp10-11.

    84.
    ibid, p20.

    85.
    Health is life, op cit, paras 3.42 - 3.44.

    86.
    Commonwealth Grants Commission, op cit, p42.

    87.
    ibid, p34.

    88.
    ibid, p43.

    89.
    Health is life, op cit, para 2.67.

    90.
    Commonwealth Grants Commission, op cit, p61.

    91.
    ibid, p89.

    92.
    ibid.

    93.
    Commonwealth Grants Commission, op cit, p42.

    94.
    Health is life, op,cit, para 2.95.

    95.
    Commonwealth Grants Commission, op cit, p61.

    96.
    ibid, p60.

    97.
    ibid.

    98.
    ibid.

    99.
    ibid.

    100.
    ibid, p61.

    101.
    ATSIC, Report on greater regional autonomy, op cit, p16.

    102.
    ibid, p22.

    103.
    ibid, p9.

    104.
    Pearson, N, Our Right to take Responsibility, Noel Pearson and Associates,
    Cairns, 2000, pp42-3.

    105.
    ibid, p83.

    106.
    McClure, P, op.cit, p.10.

    107.
    Martin, D., 'Community development in the context of welfare dependence',
    The Indigenous Welfare Economy and the CDEP Scheme: Autonomy, Dependence,
    Self-Determination and Mutual Obligation, CAEPR Conference, ANU, 7 - 9
    November 2000 http://www.anu.edu.au/caper/iwepapers/Martin.pdf
    , p3.

    108.
    McClure, P., op.cit, p17.

    109.
    Altman, J., 'Mutual obligation', the CDEP scheme and development: Prospects
    in remote Australia', The Indigenous Welfare Economy and the CDEP Scheme:
    Autonomy, Dependence, Self-Determination and Mutual Obligation, CAEPR
    Conference, ANU, 7 - 9 November 2000 http://www.anu.edu.au/caper/iwepapers/Altman.pdf
    , p5. Altman also critiques Pearson's strategies for economic development,
    finding them 'too light on practical, culturally-informed strategies',
    ibid, pp5-6.

    110.
    ATSIC, Report on greater regional autonomy, op cit, p22, 24.

    111.
    Pearson, N, op cit, pp72-3. Another prospect for addressing the difficulties
    experienced by remote regions is to transform an existing institutional
    model, the Community Development Employment Projects (CDEP) scheme, a
    longstanding precedent for mutual obligations models in Australia, into
    a development agency; see Altman, op.cit, pp6-9.

    112.
    Cape York partnerships, Cape York partnerships, Cairns, July 2000; Government
    of Queensland, Cape York partnerships: Some practical ideas, Department
    of the Premier and Cabinet, Brisbane 2000.

    113.
    ATSIC, Report on greater regional autonomy, op cit, p14.

    114.
    ibid, p30.

    115.
    House of Representatives Standing Committee on Aboriginal and Torres Strait
    Islander Affairs, Torres Strait Islanders: a new deal, AGPS, Canberra,
    1997, pp.xvii, xxi.

    116.
    ATSIC, Report on greater regional autonomy, op cit, p16

    117.
    ibid.

    118.
    Fletcher, C, 'Aboriginal Regional Australia: the hidden dimension of community
    governance', Regional Australia Summit paper, Parliament House, Canberra,
    27-29 October 1999, p1.

    119.
    ATSIC, Report on greater regional autonomy, op cit, p17.

    120.
    See ibid, pp22-7.

    121.
    Department of Local Government, Local Government: the next step, Department
    of Local Government, Northern Territory, September 1999. For discussion,
    see ATSIC, Report on greater regional autonomy, op cit, pp31-2.

    122.
    ATSIC, Report on greater regional autonomy, op cit, p10. The principle
    of self-determination remains a key element of ATSIC's corporate vision.
    Cf. ATSIC Corporate Plan 1998-2001: 'We have set ourselves three broad
    goals over the next three years: to provide an effective voice for our
    communities, organisations and people: to strengthen our people and organisations;
    and to protect, promote and pursue our collective rights.' ATSIC, 'ATSIC
    corporate plan 1998-2001', Commonwealth of Australia, Canberra, http://www.atsic.gov.au/default_ie.asp
    (30 November 2000).

    123.
    Nettheim, G., 'Discussion paper 7: Governance bodies and Australian legislative
    provision for corporations and councils', Govenance structures for Indigenous
    Australians on and off native title lands, University of New South Wales,
    Sydney, 1999, para 2.14, http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/arccrp/dp7.html.

    124.
    Burke, P, Constructing an appropriate legislative framework for PBCs',
    Presentation to Governance structures for Indigenous People workshop,
    Canberra, 31 March 2000, unpublished, p2. See also Mantziaris, C, and
    Martin, D, Native title corporations: A legal and anthropological analysis,
    Federation Press, Sydney, 2000.

    125.
    ATSIC, Report on greater regional autonomy, op.cit, p36.

    126.
    ATSIC, Recognition, rights and reform, op.cit, p57.

    127.
    This is discussed further below in relation to recognising and protecting
    Indigenous rights in a federal system.

    128.
    ATSIC, Recognition, rights and reform, op.cit, p57.

    129.
    United Nations Development Programme, Human Development Report 2000, op.cit,
    p107.

    130.
    ibid.

    131.
    ibid.

    132.
    Australia has also not ratified the Convention on the protection of the
    rights of all migrant workers and their families.

    133.
    ATSIC, Recognition, rights and reform, op.cit, pp9-10.