Social Justice Report 2000: Chapter 4: Achieving meaningful reconciliation

Social Justice Report 2000

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.

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