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Benchmarking Reconciliation And Human Rights

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

Sydney 28-29 November 2002

Background

Session One: Introduction to Workshop

Session Two: Indigenous participation in benchmarking

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

Session Four: Statistics

Session Five: Building Indigenous governance and capacity building into benchmarking

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

Where to from here?

Attachment A: List of Participants

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

Background

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

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

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

Workshop structure

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

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

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

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

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

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

Session one: Introduction to Workshop

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

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

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

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

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

Remarks by facilitator

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Overview of the Issues and Options Paper

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

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

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

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

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

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

International dimension

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

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

1. The legal

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

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

The central themes of the Covenant include: [6]

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

2. The practice

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

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

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

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

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

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

Framework for measuring disadvantage

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

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

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

The first tier: Headline indicators

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

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

The second tier: Strategic areas for action

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Concerns raised in consultations to date include:

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

Session 2: Indigenous participation in benchmarking

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

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

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

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

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

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

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

Matters raised in respect of Indigenous participation included:

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

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

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

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

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

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

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

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

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

Session 4: Statistics

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

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

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

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

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

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

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

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

Session 5: Building Indigenous governance and capacity building into benchmarking

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

The question posed to the Workshop was:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where to from here?

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

1. Human rights

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

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

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

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

2. Governance and capacity building

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

3. The continuing traditional (non-market) economy

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

4. Disaggregation

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

5. Consultation

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

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

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

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

3. Ibid, pp130 -132.

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

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

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

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

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

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

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

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

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

Last updated 3 February 2003.