Social Justice Report 2005 : Chapter 3 : Progress in implementing the new arrangements for the administration of Indigenous affairs - Ensuring the effective participation of Aboriginal and Torres Strait Islander peoples in decision-making processes

Social Justice Report 2005

Chapter 3 : Progress in implementing the new arrangements for the administration of Indigenous affairs - Ensuring the effective participation of Aboriginal and Torres Strait Islander peoples in decision-making processes

1) Overview of main developments in the new arrangements for the administration of Indigenous affairs: 1 July 2004 - 30 June 2005
2) Ensuring the effective participation of Aboriginal and Torres Strait Islander peoples in decision making that affects us
3) Indigenous representation and the new arrangements
4) Indigenous participation through local level agreement making
5) Government engagement with Indigenous peoples
6) The accountability and transparency of the new arrangements
7) Conclusion and recommendations
Endnotes
Download PDF version of Chapter 3 (1.38 MB)

The first twelve months of the federal government's new arrangements for the administration of Indigenous affairs has ended. The primary focus of this period has been on abolishing the Aboriginal and Torres Strait Islander Commission (ATSIC) and creating new processes to engage with local Indigenous communities and coordinate mainstream delivery of services to Aboriginal and Torres Strait Islander peoples. Twelve months on, the new arrangements remain in a transitional phase. It will be a number of years before they are fully locked into place.

In the Social Justice Report 2004, I noted that my Office would monitor the introduction of the new arrangements from a human rights perspective. I noted a number of issues of concern in that report and identified a range of follow up actions that my Office would monitor over the next 12 - 18 months.1 This chapter considers developments in the implementation of the new arrangements since my previous report.

There have been mixed results, outcomes and experiences in the initial twelve months of these new arrangements. There are some significant positive developments in promoting whole of government coordination and a more holistic approach to Indigenous issues, but there are also worrying gaps that remain in the new arrangements and challenges that are yet to be grappled with adequately or appropriately.

From a human rights perspective, Aboriginal and Torres Strait Islander peoples must be assured the opportunity to participate effectively in all aspects of policy development and service delivery by governments that impact upon their communities. This includes in the design, delivery, monitoring and evaluation of programs and services delivered by governments. In considering developments over the past twelve months, this chapter focuses on whether the new arrangements enable the effective participation of Aboriginal and Torres Strait Islander peoples at all levels of decision-making and service delivery that affect their lives.

There are four aspects to ensuring the effective participation of Aboriginal and Torres Strait Islander peoples. First, there are issues relating to Indigenous representation at the international, national, regional and local levels. Second, there are issues relating to Indigenous participation through agreement making and planning processes at the national, regional and local levels. Third, there are issues relating to processes for engagement with Indigenous peoples, such as through coordinated service delivery across governments and between governments, and through the development of an appropriately skilled public service. Finally, there are issues of accountability and transparency through the existence of appropriate data collection, performance monitoring and evaluation processes.

I consider developments in relation to these four sets of issues. The chapter concludes with a series of recommendations to governments and a number of follow up actions that my Office will engage in to continue to monitor significant issues over the coming twelve to eighteen months.

1) Overview of main developments in the new arrangements for the administration of Indigenous affairs: 1 July 2004 - 30 June 2005

The new arrangements for the administration of Indigenous affairs commenced at the federal level on 1 July 2004.2 Appendix 1 to this report provides a chronology of events relating to the introduction of the new arrangements from 1 July 2004 to 30 June 2005.

The chronology shows that there has been much activity across all areas of the federal government over the past twelve months to implement the new arrangements. In summary, the following events occurred during the past financial year in accordance with the new arrangements:

Abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC). The Aboriginal and Torres Strait Islander Commission Amendment Act 2005 passed through Parliament on 16 March 2005. This followed the conduct of an inquiry by the Senate into ATSIC's proposed abolition and the replacement structures which were progressively being introduced through administrative measures. The ATSIC Amendment Act abolished the National Board of ATSIC with immediate effect and ceased the activities of Regional Councils from 30 June 2005. The ATSIC Amendment Act amends the Aboriginal and Torres Strait Islander Commission Act and renames it the Aboriginal and Torres Strait Islander Act 2005. The new Act maintains, as well as making consequential amendments to the operations of, the Torres Strait Regional Authority, Indigenous Business Australia, the Indigenous Land Corporation and the Office of Evaluation and Audit (Indigenous Programs).
Administrative changes to effect the demise of ATSIC and ATSIS. Most programs and staff were transferred from ATSIS and ATSIC to mainstream departments on 1 July 2004. Further programs and staff were transferred in March 2005, when the ATSIC Amendment Act authorised the transfer of ATSIC's assets to other agencies within the Australian government. ATSIC did not cease to exist, however, until 30 June 2005 when Regional Councils were closed.
The establishment of new structures for administering Indigenous affairs. New mechanisms were put into place to administer the federal government's activities in Indigenous affairs. The Office of Indigenous Policy Coordination (OIPC) was established to coordinate policy nationally, and Indigenous Coordination Centres (ICCs) were established in each of the former ATSIC regions to deliver a whole of government approach to programs on a regional basis and to negotiate with Indigenous communities at the local level. The position of Indigenous Employment Coordinator was established in the Australian Public Service Commission to more clearly elaborate a competency framework for public servants working in Indigenous affairs and to address the declining representation of Indigenous peoples within the public service.
The introduction of measures to lead and support a whole of government approach at the federal level. The Ministerial Taskforce on Indigenous Affairs and Secretaries Group on Indigenous Affairs had been established prior to July 2004 and were confirmed as the mechanisms to lead the new arrangements. The National Indigenous Council (NIC) was also established to provide independent advice to the government, through the Ministerial Taskforce.
The negotiation of arrangements with the states and territories to improve coordination between governments. The Council of Australian Governments had adopted Principles for Government Service Delivery to Indigenous Australians in June 2004. These have implemented during the past year with the finalisation of the first bilateral overarching agreement on Indigenous affairs with the Northern Territory, and continued negotiations for similar agreements with other states and territories. The first stage of evaluations of the COAG trials also commenced and the NSW government agreed to co-locate staff from the Department of Aboriginal Affairs in regional ICC offices.
Changes to the Indigenous budget, grant management and financial reporting processes. Commencing with the 2005-06 Budget in May 2005, all Indigenous specific funding by the federal government is coordinated through a new, single budget submission process which is overseen by the Secretaries Group and Ministerial Taskforce. New grant management processes have also begun to be introduced with a revamp of the funding process for Aboriginal and Torres Strait Islander Legal Services, which has been accompanied by the progressive roll out of a public tender process. A new Indigenous management information system, known as AGIMIS, is also under development to support the new whole of government approach.
Re-alignment of programs to coordinate the operation of mainstream and Indigenous specific services. The new arrangements involve commitments to improve the performance of mainstream programs and services for Indigenous peoples. Projects such as the development of the AGIMIS reporting system are intended to provide improved and more coordinated information about access to mainstream services and programs in the longer term. During the past year, the Department of Employment and Workplace Relations reviewed the operation of the Community Development Employment Projects (CDEP) Scheme to align it closer to mainstream employment programs.
Consideration of regional Indigenous representative structures. Consultations have been jointly convened by the federal government and various state and territory governments to consider models for regional Indigenous representation. Agreement to progress the Northern Territory's preferred regional authority model was included in the bilateral agreement between the Commonwealth and Northern Territory governments. No alternative structures were funded as at 30 June 2005, although shortly afterwards agreement was reached on a Regional Partnership Agreement with the Ngaanyatjarra Council and funding has been provided for the Murdi Paaki Regional Assembly (including through a number of Shared Responsibility Agreements). A number of ATSIC Regional Councils also released their Regional Plans during the financial year, many of which focused on mechanisms to ensure Indigenous participation post-ATSIC.
Negotiation of agreements with Indigenous peoples at the local level. A target of 50-80 Shared Responsibility Agreements (SRA's) was set and met for the first twelve months of the new arrangements. Processes were set up to support Indigenous communities to identify their needs; as well as the establishment of a number of expert panels to assist communities to build their capacity to engage in the SRA process.

These developments have been accompanied by the Federal Government's acceptance of the legitimacy of my functions, as the Aboriginal and Torres Strait Islander Social Justice Commissioner, to focus on the human rights implications of the new arrangements.

The government has acknowledged in public forums that the Human Rights and Equal Opportunity Commission (HREOC), through the functions of the Social Justice Commissioner, is one of the independent monitoring mechanisms for the new arrangements. This is along with the Office of Evaluation and Audit (Indigenous Programmes) in the Department of Finance and Administration, the Australian National Audit Office and through the reporting of the Productivity Commission and Steering Committee on Government Service Provision.3

The Office of Indigenous Policy Coordination has also put into place formalised processes to interact with HREOC on the new arrangements and in the production of the Social Justice Report. These include:

the establishment of a contact officer at the senior level within OIPC to facilitate the preparation of responses and furnishing of information in response to all requests for information to OIPC by my Office, as well as to coordinate meetings with officers within the OIPC and ICCs4;
the establishment of quarterly meetings with the Associate Secretary and senior officials of the OIPC to discuss developments in the new arrangements; and
the furnishing of copies of finalised Shared Responsibility Agreements and Regional Partnership Agreements to my Office on an ongoing basis.5

2) Ensuring the effective participation of Aboriginal and Torres Strait Islander peoples in decision making that affects us

I have chosen to focus my review of the first twelve months of the new arrangements specifically on the impact on the ability of Indigenous peoples to participate in decision-making processes. There are three main reasons for choosing this focus.

First, the government has confirmed that a central objective of government activity remains to ensure the maximum participation of Aboriginal and Torres Strait Islander peoples. The objects of the amended Aboriginal and Torres Strait Islander Act 2005 confirm this.6 Section 3 of this Act states:

The objects of this Act are, in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society:
to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them;
to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders;
to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and
to ensure co-ordination in the formulation and implementation of policies affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres Strait Islander residents.

It is appropriate to consider how the new arrangements respond and contribute to these inter-related objectives.

Second, in addition to the significant changes introduced as part of the new arrangements, Indigenous communities are facing multiple government reform processes. I am concerned that the cumulative impact of the parallel reforms currently taking place is overwhelming some communities and individuals.

This renders it very difficult for Indigenous peoples to participate meaningfully in policy development, program design and service delivery. This is particularly so in the absence of representative structures to coordinate and focus the input of communities, particularly in relation to legislative reform and inquiry processes.

The intention of the reforms is plainly to improve engagement and service delivery with Indigenous peoples. However, the impact of individual arms of government proceeding with simultaneous reforms is challenging to communities and individuals. The rapid rate of the reforms and the accompanying impact it is having on communities and individuals needs to be acknowledged by governments.

Text Box 1 below outlines some of the reforms introduced over the past year at either the federal, state and territory level.

Text Box 1 - Current government reform processes which impact on Aboriginal and Torres Strait Islander communities and individuals

At the national level, communities are being impacted upon through the following reforms:

The abolition of ATSIC, particularly the Regional Councils. Grant management processes are now being administered by a variety of different departments (with differing degrees of flexibility in interpreting program guidelines) and the regional interface taking place through ICC's. There are also consultation processes underway to determine appropriate representative structures for Indigenous peoples regionally.
Reform to the operation of the CDEP Scheme, with revised grant conditions, regional hub arrangements, and a renewed focus on mainstream employment targets.
The negotiation with individual communities for the lifting of remote area exemptions for Centrelink benefits.
The tendering out of Aboriginal and Torres Strait Islander legal services, which has particularly impacted in Queensland with the reduction in the number of legal services to two. This is likely to impact in a similar way in New South Wales and the Northern Territory over the coming year.
The announcement of the reform process for the Aboriginal Councils and Associations Act, with new requirements to be met from 1 July 2006. This will impact on most Indigenous community organisations (as they are incorporated under this legislation). A parliamentary committee is also examining the Bill and undertaking consultations with Indigenous communities until early 2006.
Changes to funding processes for Indigenous education, including changes to the Aboriginal Student Support and Parental Awareness (ASSPA) Committees which were previously funded on a per child per school basis and have now been replaced by the Parent School Partnerships Initiative (PSPI) which require schools or incorporated organisations in partnership with the Indigenous community to apply for funding for individual projects.

The following inquiries and consultation processes have also been announced at the national level, which relate to the rights and interests of Indigenous peoples and communities. The capacity of Indigenous communities to participate in and inform these processes will depend on available resources:

Consultation processes announced to reform the native title system, including the operation of Native Title Representative Bodies and Prescribed Bodies Corporate.
Proposed changes to communal land ownership regimes to enable long term leasing and private home ownership. This will initially be focused on the Northern Territory, although the federal government has announced that a new home ownership program and incentive scheme for long term renters may be extended to other states if they also change their land rights / communal land ownership provisions.
Proposed amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act were introduced into Parliament in October 2005.
Parliamentary committee inquiries are currently being conducted into Indigenous employment;7 the provisions of the Corporations (Aboriginal and Torres Strait Islander) Bill 2005;8 the operation of native title representative bodies;9 and mental health.10 An inquiry into Indigenous training and employment outcomes was deferred in 2004 and is anticipated to be recommenced in late 2005.11 This is in addition to other inquiries that are not Indigenous specific but which raise issues of concern to Indigenous peoples.
Parliamentary committee inquiries which took place during the past year and which have recently been completed included inquiries into the access of Indigenous Australians to law and justice services12; the provisions of the Aboriginal and Torres Strait Islander Commission Amendment Bill 2004 and the proposed administration of Indigenous programs and services by mainstream departments and agencies (the ATSIC inquiry)13; and the provisions of the Indigenous Education (Targeted Assistance) Amendment Bill 2005 (in relation to funding to provide tutorial support to Indigenous students who need to move away from remote communities to study).14

At the state and territory level, communities are being impacted upon through the following processes:

In New South Wales, a taskforce has been established to review the operation of the land council system. Community consultations on proposed amendments to the Aboriginal Land Rights Act will occur in late 2005.
The Redfern-Waterloo Authority Act 2004 has established an Authority to consider issues which impact upon the Aboriginal communities of the Redfern and Waterloo areas.
In the Northern Territory, the Parks and Reserves (Framework for the Future) Act 2003 came into effect in 2004 and has resulted in Indigenous Land Use Agreements and land tenure changes to introduce leasing and joint management arrangements in 27 national parks and reserves across the Northern Territory.
Amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 are also expected in early 2006.
In Queensland, corporate governance reforms are underway with the transition of Deed of Grant in Trust communities into local council structures.
In South Australia, a review of the operation of the Aboriginal Lands Trust Act 1966, the Maralinga Tjarutja Land Rights Act 1984 and the Pitjantjatjara Land Rights Act 1981 has occurred. Amendments to the Pitjantjatjara Land Rights Act 1981 are expected shortly.
In Tasmania, the Aboriginal Lands Amendment Bill 2005 introduces a definition of 'Aboriginal person', which is based on a 'three-part' test of Aboriginality. This impacts on the election of members of the Aboriginal Land Council of Tasmania and more broadly, to the accessibility to Indigenous specific services.

The third reason for a focus on the impact of the new arrangements on the ability of Indigenous peoples to participate in decision making processes is that such participation is central to a human rights based approach to development.

As Chapter 2 demonstrates in relation to the right to health, the principle of effective participation is integral to meeting the requirements of accessible, appropriate, acceptable and quality services in the realisation of economic, social and cultural rights.

Principles relating to self-determination, non-discrimination, equality before the law and minority group cultural rights have also been interpreted as requiring the effective participation of Indigenous peoples in decisions that affect them, and that such participation be on the basis of free, prior and informed consent.15

In August 2005, the Human Rights and Equal Opportunity Commission co-hosted a workshop with the United Nations Permanent Forum on Indigenous Issues to consider the key elements which underpin the engagement of governments and civil society with Indigenous communities. The text box below sets out a checklist for engaging with Indigenous peoples and communities based on human rights principles.

Text Box 2 - Checklist to guide engagement with Indigenous peoples

This checklist was developed at the International Workshop on Engaging with Indigenous Communities which took part at the International Conference on Engaging Communities in Brisbane in August 2005.16

It sets out principles for governments, the private sector and civil society to engage with indigenous peoples, including in the following contexts:

Indigenous systems of governance and law;
Indigenous lands and territories, including sacred sites;
Policies and legislation dealing with or affecting indigenous peoples.

The check list for engaging with indigenous communities specifically includes:

Human Rights-Based Approach to Development

All policies and programs relating to indigenous peoples and communities must be based on the principles of non-discrimination and equality, which recognise the cultural distinctiveness and diversity of indigenous peoples;
Governments should consider the introduction of constitutional and or legislative provisions recognising indigenous rights;
Indigenous peoples have the right to full and effective participation in decisions which directly or indirectly affect their lives;
Such participation shall be based on the principle of free, prior and informed consent17, which includes governments and the private sector providing information that is accurate, accessible, and in a language the indigenous peoples can understand;
Mechanisms should exist for parties to resolve disputes, including access to independent systems of arbitration and conflict resolution;

Mechanisms for representation and engagement

Governments and private sector should establish transparent and accountable frameworks for engagement, consultation and negotiation with indigenous peoples and communities;
Indigenous peoples and communities have the right to choose their representatives and the right to specify the decision making structures through which they engage with other sectors of society;

Design, negotiation, implementation, monitoring, and evaluation

Frameworks for engagement should allow for the full and effective participation of indigenous peoples in the design, negotiation, implementation, monitoring, evaluation and assessment of outcomes;
Indigenous peoples and communities should be invited to participate in identifying and prioritising objectives, as well as in establishing targets and benchmarks (in the short and long term);
There should be accurate and appropriate reporting by governments on progress in addressing agreed outcomes, with adequate data collection and disaggregation;
In engaging with indigenous communities, governments and private sector should adopt a long term approach to planning and funding that focuses on achieving sustainable outcomes and which is responsive to the human rights and changing needs and aspirations of indigenous communities;

Capacity-building

There is a need for governments, the private sector, civil society and international organisations and aid agencies to support efforts to build the capacity of indigenous communities, including in the area of human rights so that they may participate equally and meaningfully in the planning, design, negotiation, implementation, monitoring and evaluation of policies, programs and projects that affect them;
Similarly, there is a need to build the capacity of government officials, the private sector and other non-governmental actors, which includes increasing their knowledge of indigenous peoples and awareness of the human rights based approach to development so that they are able to effectively engage with indigenous communities;
This should include campaigns to recruit and then support indigenous people into government, private and non-government sector employment, as well as involve the training in capacity building and cultural awareness for civil servants; and
There is a need for human rights education on a systemic basis and at all levels of society

The remainder of the chapter considers the impact of the new arrangements in relation to four elements of the effective participation of Aboriginal and Torres Strait Islander peoples. These are issues relating to:

Indigenous representation at all levels of decision making;
Indigenous participation through agreement making and planning processes;
Processes for government engagement with Indigenous peoples; and
Mechanisms for ensuring accountability and transparency.

3) Indigenous representation and the new arrangements

A challenge for the new arrangements is to ensure that there are processes through which Indigenous peoples can be represented at all levels of decision making.

In announcing the abolition of ATSIC, the Government stated that it intended to address this issue by:

Supporting the creation of a network of regional representative Indigenous bodies to interact with governments;
Negotiating agreements at the regional level with representative Indigenous structures which link to local level decision making processes; and
Utilising existing ATSIC Regional Council structures (until 30 June 2005) and building on ATSIC Regional Plans.18

Last year's Social Justice Report noted that, at that time, these proposed new mechanisms were either not in place or had not been operating for long enough to determine their effect. Accordingly, the adequacy of the government's approach would need to be revisited in twelve months time when these aspects of the new arrangements were in place.19

i) Progress in establishing regional Indigenous representative structures

The Minister for Immigration and Multicultural and Indigenous Affairs confirmed in June 2005 that the Government remains committed to establishing representative bodies at the regional level:

We have always stated that, following the dissolution of ATSIC Regional Councils from 1 July this year, there will be room for genuine Indigenous representative bodies to emerge in their place...
Indigenous Coordination Centres are taking the lead in consulting with communities about their interest in and preferences for new representative arrangements from July 1 and many are well advanced...
In keeping with the Government's desire to engage at the community level, the new bodies are to act as the interface between communities and governments. They will help articulate community views and provide a framework for contributing to Regional Partnership Agreements.
We want communities to tell us how they could best be represented and we are seeing diverse and flexible arrangements emerge as a consequence.
Where communities have not yet formalised arrangements for the future, ICCs are talking with a range of individuals and community organisations, particularly in relation to the establishment of Shared Responsibility and Regional Partnership Agreements.
To ensure that the new bodies have the opportunity to meet and consult with their communities we, along with State and Territory Governments, will provide modest, targeted funding.20

Consultations have been conducted across many regions to identify replacement representative structures during the past year. The Office of Indigenous Policy Coordination has noted that they have:

provided funds through the ICCs for Indigenous people to convene local and regional meetings to discuss options for new regional representative arrangements. The funding has varied among regions depending on requirements but has generally covered the cost of advertising and printing, venues, lunches, travel expenses for participants, and the fee of a consultant or facilitator. Where possible, these consultations have been undertaken with State government counterparts.21

No replacement Indigenous representative bodies were actually in place when ATSIC Regional Councils ceased to exist on 30 June 2005.22

At that time, the Minister reflected on the status of the consultations and stated that 'arrangements have already been finalised in 10 of the 35 regions covered by the ATSIC Regional Councils and consultations and negotiations are ongoing in others.'23 The Office of Indigenous Policy Coordination subsequently confirmed to my Office that this statement meant that a regional structure had been developed for those 10 regions and did not mean that arrangements were actually in place or funded.

A map released by the government on 30 June identified the areas where representation arrangements 'are in place and where consultations are continuing.'24 The map suggests that:

Representative arrangements are in train for the entire Northern Territory, through the movement to a local government based regional authority model.25
New representation is 'finalised' in the following 10 regions: Bourke and Coffs Harbour in New South Wales; Cairns, Mt Isa and Rockhampton in Queensland; Port Augusta in South Australia; and Broome, Geraldton, Kununurra and Warburton in Western Australia.
Community consultations are 'continuing' in the following regions: Ceduna and Adelaide in South Australia; Sydney, Tamworth and Wagga Wagga in New South Wales; Brisbane, Cape York and Townsville in Queensland; Derby, Perth and Kalgoorlie in Western Australia; and across the whole of Victoria and Tasmania.
Community consultations are 'to begin shortly' in the following regions: Queanbeyan (which includes the Australian Capital Territory) and New South Wales; Roma in Queensland; and South Hedland in Western Australia.26

An overview of the 10 structures identified by the Minister as 'finalised' are provided in Text Box 3 below.

Text Box 3 - Regional representative Indigenous models proposed as at 30 June 2005 (by ICC region)

The Murdi Paaki Regional Assembly (Bourke ICC region, NSW)

The Assembly has already met a number of times and consists of one representative from each of the 16 existing Community Working Parties. Shared Responsibility Agreements have been negotiated which support the operation of the Community Working Parties through the provision of secretariat and administrative support, employment for an administrative trainee and the provision of computer hardware and software.

It is intended that the Assembly shall be recognised as the peak Indigenous regional body and the primary point of Indigenous community coordination and input, while the Community Working Parties shall be the primary points of Indigenous contact at the community level.

Many Rivers region, (Coffs Harbour ICC region, NSW)

A two-tier model has been designed to provide flexibility of representation at the local level and deliver delegates to a regional body. At the community level, local coalitions of organisations, groups and individuals will meet to identify needs and priorities, and have input to the development of Shared Responsibility Agreements. At the regional level, a coalition of organisations, consisting of representatives from the local level, will provide a liaison point for the delivery of services.

Cairns and District Regional Reference Group (Cairns ICC region, Qld)

A two level model has been agreed at a recent regional workshop after meetings with each community in the region. At the local level, Community Reference Groups will involve community service delivery organisations as well as representatives from youth, women and elders groups. At the regional level, delegates will be drawn from the Community Reference Groups to form a Regional Reference Group. The regional body will negotiate a Regional Partnership Agreement, provide input to government decisions, and provide regular reports to communities. This model focuses on community and regional planning as a central part of the relationship between Indigenous communities and governments.

Gulf & West Queensland (Mt Isa ICC region, Qld)

An Indigenous Regional Coordination Assembly has been finalised that will consist of 15 representatives from Community Issue Groups and Community Negotiating Teams, as determined in different communities. The Assembly will develop and maintain working partnerships with all levels of government, monitor services, and enter into regional agreements as needed. The model will develop procedures to remove and replace representatives on the Assembly.

Central Queensland (Rockhampton ICC region, Qld)

A three-tiered Central Queensland Forum Model has been supported through Indigenous community consultation for the Central Queensland region. The Forum is a three-tier structure:

The first tier is comprised of eight local shire clusters, or Community Working Parties, which represent all 36 communities/towns in the Central Queensland area. They will meet on a monthly basis to identify priority issues;
The second tier consists of local groups which feed into eight Regional Assemblies that will meet quarterly to develop strategic regional plans that focus on the delivery of services;
The third tier is an overarching Central Queensland Aboriginal and Torres Strait Islander Regional Forum that will meet twice each year to compare initiatives that may be working across the region.

Local communities will identify the selection processes with an emphasis on the representation of women, men, youth and elders at each level. It has been anticipated that funding for the regional representative structure will be negotiated through the Regional Partnership Agreement process.

Nulla Wimila Kutja (Port Augusta ICC region, SA)

The proposed regional representative model draws a representative from eight 'community-focused' bodies, where the arrangement is based on the idea of 'smaller regions co-existing within a larger representative body'. It is proposed that the new entity will have input to government policy and program development, monitor the effectiveness of service delivery, and identify Indigenous people or groups that can liaise with government bodies, such as the Aboriginal Housing Authority and Indigenous Land Corporation.

Wunan, East Kimberley District Council (Kununurra ICC region, WA)

A model of local governance has been proposed to establish Community Representative Committees or Local Development Committees, depending on the preferences of communities, which provide delegates to a regional East Kimberley District Council. The model creates strong links between the regional body and local communities, thereby providing significant opportunities for community participation.

Discussions are continuing with communities on selection processes, the boundaries used to define groupings, input of portfolio bodies, and the role of the Chair of the District Council.

Kullarri Regional Indigenous Body (Broome ICC region, WA)

The Kullarri Regional Indigenous Body will consist of three representatives from each of four discrete areas or wards. This body will be supported by a panel of Aboriginal experts on key issues, including education, economic development, communications, employment and training, governance and strategy, health, housing, and infrastructure, justice, land and natural resources, women's issues, families and youth. The representative body proposes to provide regional plans, monitor outcomes of service providers and government agencies, offer independent advice and advocate for the improvement of the wellbeing of Indigenous people in the region.

Yamatji Regional Assembly (Geraldton ICC region, WA)

The proposed Yamatji Regional Assembly includes nominees from 12 organisations or communities representing specific issues or groups: land, housing, health, justice, education, employment and training, women, youth, remote communities, town based communities, as well two other community representatives. The Assembly is designed to provide an interface between communities and government at all levels. The roles and responsibilities of the Assembly will include: advising governments on regional needs, policy development and program design; input to regional planning; monitoring and evaluating service delivery; promoting cultural issues; providing leadership; and advocating for the Indigenous people of the region.

Ngaanyatjarra Council, (Warburton ICC region, WA)

The Australian Government, Western Australian Government and Ngaanyatjarra Council have finalised a Regional Participation Agreement which establishes the Council as the regional representative body in August 2005. The agreement is discussed further below.

All state and territory governments have also acknowledged the importance of representative structures and have committed to supporting their operation. Most have collaborated with the OIPC in the conduct of consultations to establish new structures post-ATSIC.

Text Box 4 below provides an overview of the commitments of each state and territory government to representative arrangements.

Text Box 4 - State and Territory developments in supporting regional Indigenous representative organisations

Australian Capital Territory

The ACT Government have provided their support for both national and regional elected Indigenous representative bodies. They have stated that:

The ACT government has proposed to establish an elected body to provide advice on issues and needs of the ACT and Australian Governments, and the Aboriginal and Torres Strait Islander community... [and is] exploring how to link community and regional planning processes with the ACT Government's planning processes.27

Consultations with Indigenous people in the ACT regarding alternative representative structures are currently occurring and a final structure has yet to be decided. The ACT government also gains advice on Indigenous policy and issues from its Aboriginal Consultative Council and Ngunnawal Council of Elders.

New South Wales

In September 2004, the New South Wales Department of Aboriginal Affairs and the ATSIC State Council co-hosted the Our Future, Our Voice summit to discuss options for Indigenous representation. Delegates were presented with three different models:

Regional Assembly Model - based on the Murdi Paaki model;
Coalition of Peak Aboriginal Bodies - building on the organisations that already exist on the ground as the foundation for any future representative model; or
Combined ATSIC/Land Council model - with local land councils provide input to regional councils which input to the state land council. Embedded within the local, regional and state land councils are 'cultural councils' and with the state and regional councils directly linking to a national representative body, if it exists.28

In addition to the summit, DAA in conjunction with the Office of Indigenous Policy Coordination, through its State Indigenous Coordination Centre, hosted a series of forums in early 2005 for Indigenous people across New South Wales to discuss the federal Indigenous affairs reforms as well as alternative regional representation structures post-ATSIC.

Part of these consultations touched on DAA's policy framework, Two Ways Together.29 It is intended that local 'cluster groups' comprised of representatives from NSW government agencies, Commonwealth Governments and peak Aboriginal organisations will be formed for each of the priority areas of the strategy. Local groups will advise these cluster groups on the priorities and needs for their particular areas.

Northern Territory

In April 2005, the Northern Territory and Commonwealth governments entered into the Overarching Agreement on Indigenous Affairs between the Commonwealth of Australia and the Northern Territory of Australia 2005-2010. It states that, 'Governments will work with Indigenous people to determine arrangements for Indigenous consultations and representation at the regional or local level.'30

The agreement establishes that the NT government's Building stronger regions - Stronger futures Strategy will be the basis for representative bodies in remote areas. The government has stated that it:

The NT Government's Building stronger regions - Stronger futures Strategy is directed towards the creation of larger, more effective local government bodies with legitimate authority to represent and deliver services to their communities. By encouraging the voluntary transformation of existing remote local governing arrangements in regional Authorities these bodies to aim to marry contemporary governance requirements with Indigenous traditional and cultural values.
The NT Government sees the development of Regional Authorities as a mechanism for facilitating strong Indigenous representation at the local level in the aftermath of the Aboriginal and Torres Strait Islander Commission Regional Councils.31

Under this strategy, Regional Authorities will be established where existing community councils agree to amalgamate; Partnership Agreements between regions and government will be negotiated; and Regional Development Plans will then be negotiated.32

The bilateral agreement also notes that in urban areas, the NT government and Australian government will look to flexible arrangements (including options that bring together Indigenous peak bodies).

Queensland

The Queensland Government has stated that it 'has a commitment to engaging at the local level with Indigenous communities, using negotiation tables as the primary mechanism of engagement. The local level is preferred over the regional level because of the diversity of communities in Queensland.'33 The Government's new strategy for Indigenous affairs, Partnerships Queensland, emphasises the importance of the negotiation table process. As outlined in Text Box 3 above, consultations on regional structures have been advanced in several former ATSIC regions.

South Australia

The South Australian government's Doing it Right policy is aimed at targeting the needs of Indigenous South Australians on a local and regional level. The Department of Aboriginal Affairs and Reconciliation has stated that it will work with the Office of Indigenous Policy Coordination to consult with the Aboriginal community about alternative representative structures.34

As part of the Doing it Right policy the South Australian government has developed an Indigenous Advisory Council. The role of the Council is to 'oversee the application of the Doing it Right policy framework and report to the Premier'.35 Members of the Council include the 'Minister for Indigenous Affairs, representatives from the ATSIC State Council, leaders of land councils, other Aboriginal peak bodies and community leaders'.36 It is undecided at this stage how the gap left by the ATSIC representatives will be filled.

Tasmania

The Tasmanian government has advised that no progress has been made in establishing formal representative structures. The government is currently relying upon existing community organisations and groups which have an informal representative mandate from communities.

While individual portfolio strategies exist to target the needs of Aboriginal Tasmanians, there is no one whole-of-government strategy which guides the engagement between government and Aboriginal communities.

Victoria

In 2004-2005, the Victorian government and the Tumbukka and Binjurru ATSIC Regional Councils have conducted consultations with Indigenous peoples to discuss alternative representative structures. Three alternative models of representation have emerged from these consultations. The consultations have consisted of local community meetings and a questionnaire, with a second round of return meetings planned in late 2005. At the second round meetings, each community will be asked to nominate 2 local delegates to represent that community at a regional forum at which the preferred model for the regional will be confirmed. Two delegates will then be nominated from each regional forum to attend a state forum to determine the model for a state-wide representative body.37

Western Australia

The Western Australian Department of Indigenous Affairs, in collaboration with ICCs in Western Australia, is undertaking the Western Australia Indigenous Representation Project. The government notes that:

An emerging trend from consultations has shown that each region has different views and expectations and is formulating their own model of representation for consideration by the State and Commonwealth Governments. Any new arrangements will be based on building partnerships with Indigenous people and will recognise the diversity and needs of Indigenous peoples across the State.38

The government's state-wide Indigenous Affairs Advisory Committee is in abeyance subject to the outcomes of the consultation project on representation models.

In 2001 the Western Australian Government and ATSIC signed the Statement of Commitment to a New and Just Relationship between the Government of Western Australia and Aboriginal Western Australians. The Western Australian Government has advised that it will continue its commitment to the Statement as well as use ATSIC Regional Plans to inform priority setting within the state.39

This overview shows the progress made in the first twelve months of the new arrangements. There are promising developments in determining culturally appropriate regional representative models.

Most of the models for regional representation as highlighted above are premised on connecting local services and decision-making bodies to a regional council (and in some instances, a state-wide forum). Members of the regional structure are derived from elected nominees from the local working groups or organisations. Some of the models deviate from this approach with membership being based on traditional ownership as opposed to service/organisations affiliation.

At this stage it seems that the primary role of all of the proposed regional bodies is to connect local and regional needs to all levels of government through advocacy. They are not intended to deliver services or administer funds (and the federal government has made clear that it will not support models that seek to do so). This differentiates all these models from the Torres Strait Regional Authority model, and the more extensive models for regional autonomy that were recommended by ATSIC through consultations in 1999 and 2000.40

There remain, however, gaps in these representative structures. For example, the Northern Territory Government's preferred model of regional authorities relates to remote areas. It is not clear what arrangements will apply in urban centres. Indeed, it is notable that none of the representative structures that are finalised to date are in regions that encompass major urban centres such as capital cities.

Common to all the existing proposals is that the federal government has not as yet outlined in concrete terms how they will support them. There are concerns about how regional representative bodies will be funded and the type and level of administrative support they will be provided.

The representative models that have been designed need to be finalised and supported so that they can become operational. Greater progress is needed in other regions where models have not yet been finalised.

The consequence of the current status of these models is that there are few mechanisms for Indigenous participation at the regional level. This issue needs to be progressed as an urgent priority.

ii) Regional agreement making processes

Along with regional representative bodies, regional agreement making processes are an integral component of the new arrangements. As noted in the Social Justice Report 2004, Regional Partnership Agreements (RPAs) are intended to 'provide a mechanism for guiding a coherent government intervention strategy across a region, eliminating overlaps or gaps, and promoting coordination to meet identified priorities for the region.'41 RPAs will also operate in tandem with Shared Responsibility Agreements, particularly as SRAs move towards a more comprehensive model.42 Some consideration has been given to using RPAs to develop industry strategies for a region, i.e. tourism, economic development, pastoral, mining and employment strategies.

Where states and territories have agreed, RPAs may also incorporate state and territory investment. This is in accordance with the National Framework of Principles for Government Service Delivery to Indigenous Australians as agreed by the Council of Australian Governments (COAG) in June 2004.43

At the time of announcing the new arrangements, the Government indicated that Indigenous Coordination Centre Managers would negotiate RPAs outlining the priorities in that region with such representative bodies.44

As at 30 June 2005, there were no Regional Partnership Agreements in place.45 This is not surprising, given that regional representative arrangements had not been finalised by this time and since RPAs will establish the role of such representative structures.

The first Regional Partnership Agreement was subsequently signed on 12 August 2005. It relates to the Ngaanyatjarra lands in Western Australia. The OIPC has advised my Office that other RPAs are under currently under discussion, including with the new Murdi Paaki Regional Assembly; in Cape York; on the Anangu Pitjantjatjara lands; in the East Kimberley region; and, in southwest Western Australia.46

Each RPA will reflect the specific circumstances of the Indigenous communities of the region that it covers. Bearing this in mind, the Ngaanyatjarra RPA still provides a useful demonstration of the content and purposes of the RPA process.

The agreement relates to twelve discrete communities on the Ngaanyatjarra lands. It 'sets out strategic approaches and projects for joint innovative action by Governments and Council in partnership with Ngaanyatjarra people and communities'. It is intended to:

establish the principles and engagement processes necessary to enable a range of agreements, including Shared Responsibility Agreements (SRAs), which address jointly agreed issues, to be developed through cooperation and partnership;
ensure that all Parties have the capacity and capability to effectively jointly develop agreements including SRAs and their respective Service or Funding Agreements where appropriate; and
increase Indigenous people's access to Governments and maximise access of Indigenous people to all levels of service delivery.47

Table 1 below outlines the main elements of the Ngaanyatjarra RPA.

Table 1: Overview of the Ngaanyatjarra Regional Partnership Agreement48

Parties to the agreement	Australian Government; Western Australian Government; Ngaanyatjarra Council; and Shire of Ngaanyatarraku
Objectives	establish partnerships and sharing responsibility for achieving measurable and sustainable improvements for people living in the Ngaanyatjarra lands; provide better coordinated and resourced programs and services to achieve improvements in priority areas; establish mainstream programs and ensuring improved access to them; reduce inefficiencies; and develop a Strategic Investment Plan for the region.
Principles that underpin the agreement	National Framework Principles for Service Delivery to Indigenous Australians, endorsed by COAG on 25 June 2004. The vision of COAG for Indigenous peoples to 'have the same rights and opportunities and participate equally in society as do other Australians.'49 'Key Ngaanyatjarra Principles that the Ngaanyatjarra people hold to be important'50. These are: recognising existing capabilities and capacity; maintaining control of our own affairs; recognising the role of the Ngaanyatjarra Council and its capacity to drive planning and negotiation; maintaining and strengthening traditional Ngaanyatjarra cultural and social values and connection to land; recognising the need for change and innovation to improve living conditions; wishing to live in communities on traditional country that have the best achievable standard of living and a healthy and safe environment; wishing to secure core infrastructure funding for all Ngaanyatjarra communities and to develop all participating communities in the agreement; and supporting an educational system that provides children with relevant and useful mainstream education while also reinforcing culture.
Representation Issues	The Ngaanyatjarra Council will: represent the communities within its area that wish to be represented by the Council; conduct consultations and then advise government of which communities wish to be represented by it; and facilitate closer working relationships between Governments and communities, including through the facilitation of SRAs. Governments will: commit to support the Council in its representative role through active engagement with the Council as the peak regional body and through funding for Ngaanyatjarra Council to fulfil that role; and not seek to establish any other representative arrangement in respect of those communities that have endorsed Ngaanyatjarra Council's representative status.
Outcomes & Priorities (four projects) 1.	Improved Regional Capacity - all parties review their capacity to achieve the objectives of the RPA and make appropriate changes to structure, behaviour or capacity. 2. Establishment of effective structures to manage the RPA - establish, maintain and use the Tiered Coordination Structure (which includes a Regional Partnership Committee and Agreement Coordinators Group) to monitor and develop the partnership described by the agreement. 3. Reducing 'red tape' - implement an on-going process to identify 'red tape', create new efficiencies and address the accessibility of mainstream services, initially in relation to housing and housing maintenance issues and the provision of municipal and essential services. 4. Develop and implement a Ngaanyatjarra Strategic Investment Plan - develop and agree to a 20-30 year vision for the Ngaanyatjarra people and communities.
Monitoring & Evaluation processes	Project progress is to be monitored by all Parties in accordance with the timeframes and performance indicators as outlined in Project Plans. An independent evaluation will be completed in the third year of the agreement's operation. The agreement notes that there is no baseline data required to establish whether the indicators have been met, and some of the measurements are subjective and not easily measured, such as 'improved communication' and that Secretarial support to the Committee set up under the agreement is effective. It is anticipated that more detailed indicators, referenced to baseline data, will be developed as the initial projects under the Agreement are completed.
Legal status and dispute settlement processes	The agreement is described as a 'statement of the mutual intentions of the Parties and is not intended to give rise to any enforceable rights or binding obligations'. It includes an 'escalation procedure' as a dispute settlement process which can be activated where: Another party has not met timeframes or performance measures contained in this Agreement and a satisfactory arrangement for dealing with that lack of performance has not been agreed; Agreement between parties can not be reached about prioritisation of projects and/or SRA development; and any other matter of importance to one of the parties has not been dealt with satisfactorily.
Duration	The agreement will continue until 30 June 2008.

This agreement establishes a comprehensive basis for the relationship between governments and Indigenous communities in the Ngaanyatjarra region. I particularly welcome the following structural aspects of the agreement:

it seeks to integrate the activities of all four levels of government - federal, state, local and Indigenous nation;
it commits to a community development approach, building the capacity of all participants (including through identifying existing capital) and developing a longer term strategic plan;
it is incremental in its approach;
it involves requirements for communities to endorse the representative agency, guaranteeing their participation in the formulation of the new structures;
it focuses on the delivery of mainstream services in addition to Indigenous specific services;
it sets a strategic framework through which local level agreement making processes can take place, which has the potential to contribute to a more holistic and systemic approach to SRA development;
through recognising the Key Ngaanyatjarra Principles, is built on an acknowledgement of the rights of the Ngaanyatjarra peoples;
establishes clear goals and targets, and commits to evaluation processes to determine how well the objectives of the agreement are met; and
acknowledges existing deficiencies, such as the absence of baseline data, that are necessary to support a rigorous evaluation framework and commits to joint efforts to address these as the long term strategic directions for the region are developed.

One aspect of the agreement that I consider can be improved over time is to provide a more solid basis to the relationship between the regional authority and governments, as well as to enshrine governance principles for the regional authority.

As noted in the table above, the agreement does not give rise to any enforceable rights or binding obligations. This has two main consequences.

First, the relationship with governments is dependent on good will. It may ultimately be preferable for the regional authority to have a legislative base to ensure a clear understanding (from both government and the regional authority) of its functions and role, and to ensure that the regional authority has the legitimacy to engage with government. A legislative basis to the powers of the regional authority would provide clear guidance to government agencies and departments into the future. It would assist in ensuring that attention from government to issues with the regional authority does not wane as the processes lose their 'newness' or that the engagement process deviates from its original purpose over time.

Second, the non-binding nature of the agreement also provides limited ability for Indigenous communities within the region to hold either the governments or the regional authority to account. Regulatory provisions guiding the operation of the regional authority are limited to those provisions for the incorporation of Aboriginal organisations. It is not clear how a community, or part of a community, that is unhappy with the operation of the regional authority will be able to have their concerns addressed formally.51 In the longer term, it may be advantageous to establish a minimum set of common standards for governance for regional bodies in legislation to enshrine the rights of communities and ensure their full participation in the process.

In both these regards, the RPA approach (as illustrated by the Ngaanyatjarra Agreement) falls below the standard set by the Torres Strait Regional Authority (TSRA) model. The TSRA operates with a high degree of autonomy, administers government funding and has legislative backing through the Aboriginal and Torres Strait Islander Act 2005 with a detailed set of functions, powers and obligations.

While it may be advantageous in the initial stages for agreements to have the maximum flexibility by not being tied to legislative requirements, in the longer term there should be a more secure basis for the operation of regional bodies. This could be achieved through the introduction of new provisions to the Aboriginal and Torres Strait Islander Act 2005 to support the role of regional representative bodies on the mainland. Regional Participation Agreements could be given legislative backing by introducing provisions which enable the government to schedule such agreements to the Act. The adequacy of the legal status of regional representative bodies should be considered as part of monitoring processes for RPAs within the next two years (that is, during the life of the Ngaanyatjarra Agreement).

Accounting for this concern, the Ngaanyatjarra Agreement demonstrates that the Regional Partnership Agreement approach has the potential to contribute to governments working together in a coordinated manner and in true partnership with Indigenous communities in a structured and systemic manner.

The Department of Family and Community Services has also proposed additional processes to support Regional Partnership Agreements. They state:

FACS is proposing the formulation of regional support committees of four types - economic, human, social and environmental - consisting of staff from relevant departments, from both levels of government, to support the development processes in families and communities. It is also proposing the formulation of regional development plans to integrate regional development with community and family level development needs. These regional development plans would then guide the prioritisation of funding within the region. It is likely that these bi-level government committees would have an important role in the formulation of regional development plans, as would the (currently) emerging forms of regional Indigenous representation.52

My Office will monitor developments relating to this proposal over the coming year.

iii) Utilising ATSIC Regional Councils and Regional Council Plans

ATSIC Regional Councils continued to operate until 30 June 2005. Broadly, the Councils had two main roles that remained of central importance in the introductory phase of the new arrangements. First, to represent 'Aboriginal and Torres Strait Islander residents of the region and to act as an advocate of their interests'53 and second, to develop Regional Plans 'for improving the economic, social, and cultural status of Aboriginals and Torres Strait Islander residents of the region.'54

The past twelve months has been a difficult time for Regional Councils. The demise of ATSIC was not confirmed in legislation until March 2005, creating great uncertainty for the Councils in their operations. They also faced severe resource constraints during the year to support their activities.

Despite this, most Regional Councils assisted in the transition to the new arrangements and worked with the OIPC and ICCs in developing alternative regional structures.

Federal government departments also engaged with the Regional Councils on a variety of issues relating to the transition to the new arrangements. For example, the Department of Employment and Workplace Relations state:

The Department has worked with Regional Councils in a formal and informal way on the following issues:
CDEP reforms;
Regional Council meetings;
Reviewing of Regional Plans;
Development of Indigenous employment strategies such as the Structured Training and Employment Project (STEP) and the Indigenous Small Business Fund (ISBF).55

Similarly, the Attorney-General's Department state:

As part of the Government's new arrangements, agencies were required to continue to engage with ATSIC Regional Councils and their planning processes in the administration of the Government's programs and services. AGD staff have liaised with ATSIC Regional Councils and Indigenous organisations on matters relating to Indigenous service delivery in their regions.56

The Department of Family and Community Services, in particular, 'undertook a concerted approach to engage with the ATSIC Regional Councils in its planning processes'57. This included:

meeting with various regional councils to discuss draft regional plans and subsequently analysing the finalised plans in accordance with FACS' service responsibilities;
inviting Regional Council Chairpersons in Western Australia to strategic planning workshops to present their views from a regional Indigenous perspective on matters which may impact on the planning processes;
continuing involvement of regional councils on consultative committees such as the Joint Indigenous Housing Consultative Committee and working parties such as the Family Wellbeing Curriculum Development committee, both in Tasmania; and
relying on ATSIC planning documents, such as the Regional Housing and Infrastructure Plans, as a basis for allocating funding in relation to housing, family violence and in assessing submissions received for 2005-2006 funding.58

Government departments have also engaged with ATSIC Regional Councils in order to match their programs and activities with the priorities identified in the ATSIC Regional Council Plans. The Office of Indigenous Policy Coordination notes that:

The ATSIC Regional Council plans have provided useful information to ICC managers and staff on community needs and priorities, strategies for service delivery and community consultation methodologies.59

The Department of Family and Community Services states:

In all States and Territories, FaCS has ATSIC Regional Council Plans to assist in determining communities' needs. For instance:
FaCS Tasmania discussed the ATSIC Tasmanian Regional Plan with the Chairperson and provided comments regarding housing and family matters to the Hobart ICC.
FaCS Victoria used the ATSIC Regional Housing and Infrastructure Plan for its funds allocation of capital purchases in 2005-2006 as well as a supplementary allocation of $3.7million received late 2004-2005.
FaCS ACT Aboriginal and Torres Strait Islander Bilateral Housing Agreement Steering Committee utilised the ATSIC Queanbeyan Region Council Plan to develop its ACT Housing Plan 2004-2005.
In NSW, FaCS Coffs Harbour utilised the ATSIC Many Rivers Regional Plan to inform decisions and as input to the Housing Bilateral Plan and the Family Violence Action Plan.
FaCS SA used ATSIC Regional Plans as a basis for its appraisal of the Family Violence Regional Activity Program (FVRAP) appraisal process and to inform the formulation of projects.
FaCS WA referred to ATSIC Regional Plans to provide strategic focus and prioritisation for each of the regions, as well as inviting the participation of regional councilors in their strategic planning workshops.
FaCS NT used ATSIC Regional Council Homelands policies as an information tool in determining program funding agreements in 2004-2005 and 2005-2006.60

The Department of Employment and Workplace Relations noted:

A number of DEWR State Offices have engaged ATSIC Regional Councils in relation to their Regional Plans, including reviewing the plans with the Councils as these pertain to this portfolio and exploring mechanism for achieving the objectives set out in those Plans.
During the current financial year the Northern Territory (NT) Office will be developing employment and business development strategies with each CDEP, which will recognise Regional Plans.61

The Department of Education, Science and Training also stated that they have utilised the Murdi Paaki Regional Council Plan in the COAG trial for that region. They have also continued the relationship with the Regional Council through the use of Community Working Parties and the development of local Community Action Plans which will form basis of the development of a new regional plan.62

The ATSIC Regional Council Plans have ongoing significance in the administration of services to Indigenous people and communities. Regional Council Plans have identified regional priorities through a process of consultation and evidence-based analysis. As such, the Plans provide a workable platform for government and alternative regional representative structures to begin to establish commitments and processes to address regional need through RPAs, SRAs and Strategic Investment Plans.

In some instances further work is required to be able to 'operationalise' the Regional Council Plans. For example, the Department of Family and Community Services have stated in relation to the Sydney Regional Council Plan that it:

provided limited added value. This is not a criticism of the plan itself. More acceptance of their relevance is required in... policy, program and service development.
Firstly, the broad strategic areas identified in the plan, frequently match the needs identified in specific communities. This should be no surprise because the regional plans were developed in consultation with the community.
Secondly, they lack a detailed operational level. This level is the advantage of the new approach, where specific solutions can be recommended and lead agencies can be nominated for delivering against a specific strategic priority. No instructions in the regional plans have been directed to a lead agency nor are there any specific project details for strategic priority.63

As noted above, section 94(b) of the ATSIC Act envisaged a role for Regional Councils (or alternative representative structures from now on) 'to assist, advise, and co-operate with... Commonwealth bodies and State, Territory and local government bodies in the implementation of the regional plan'. Negotiating the operational level of the plans was intended to be an ongoing role of the ATSIC Regional Council.

The Chairperson of the Sydney Regional Council explained the significance of their plan at its launch on 15 September 2004:

The Plan is the result of a process of engagement by Regional Council with our Aboriginal community throughout the region... (It) is built entirely on community knowledge and expertise, through the process of community engagement, and enhanced by Council through a lengthy process of discussion, debate and analysis. Regional Council's are mandated to undertake planning on behalf of our communities...
The Sydney Regional Plan reflects the aspirations of the Sydney Aboriginal community and will become the template for government and community action over the next few years. Our greatest challenges during that time will be in ensuring governments adhere to the broad outcomes expressed in the plan, and effectively negotiating with the community on localised priorities and concerns...
While our future role is currently subject to Parliamentary debate, Council is very serious about assisting the community to identify future processes of engagement in a landscape of public policy that is vastly different to what we have seen before. This becomes even more important in negotiating the implementation of the Plan, and indeed, monitoring performance against the Plan's objectives.64

The fact that ATSIC does not exist to build on the strategy should not deter from the importance of Regional Plans. Without reliance on the plans, there is currently no mandate and no informed basis for governments to determine the regional priorities of Indigenous peoples and communities.

Appendix 2 of this report provides an overview of the key issues identified in each of the 35 ATSIC Regional Council Plans, and the strategies proposed to advance these issues. It is notable that a number of the plans include models for regional representation post-ATSIC, as well as identifying relevant indicators to measure progress in addressing the key issues raised in the plan. This includes by linking to the headline and strategic change indicators of COAG's Overcoming Indigenous Disadvantage Framework.

A whole of government approach should surely include utilising existing research and consultation outcomes to ground the new arrangements. The Regional Council Plans provide such a basis. They are particularly important in light of local Indigenous participation in their development and in the absence of replacement representative structures to guide policy development and service delivery in most regions.

iv) Representative arrangements for Torres Strait Islanders on the mainland

A particular concern in the new arrangements is the absence of specific mechanisms at the regional level for consulting with, and ensuring the participation of, Torres Strait Islander peoples living on mainland Australia.

The ATSIC Act provided mechanisms to ensure the interests of mainland Torres Strait Islanders were represented. Despite this, ATSIC had noted in 2000 as an ongoing challenge that 'mainland Torres Strait Islanders are experiencing problems with access and equity issues to funding bodies, programs and services'.65

With the abolition of ATSIC these mechanisms no longer exist. Participation of mainland Torres Strait Islanders is no longer assured.

The Office of Indigenous Policy Coordination has described the options for participation of mainland Torres Strait Islanders in the new arrangements at a regional level as follows:

Torres Strait Islander people living on the mainland have been invited to, and participated in, meetings on the new arrangements in Indigenous affairs, particularly community consultations on new regional representative bodies, and will be able to continue their involvement in planning through the new representative mechanisms. They can also be part of the development of SRAs in communities.66

The federal budget in May 2005 indicates that specific funding to assist Torres Strait Islanders living on mainland Australia totalling $480,000 per annum has been incorporated into the Shared Responsibility Agreements and Community Engagement - Implementation Assistance Program. The Minister announced:

The new whole-of-government arrangements for service delivery to Indigenous people are based on shared responsibility. This measure will provide resources for SRA development and fund SRA priorities that do not fall neatly into individual government agencies' responsibilities, while also supporting existing and new Communities in Crisis interventions and continuing assistance for Torres Strait Islanders on the mainland.67

The OIPC have advised my Office that the 'guidelines for the SRA Implementation Assistance Program allow for funding activities previously funded under the Torres Strait Islanders on the Mainland program, not necessarily through SRAs.'68

They have also advised that there has been some discussions on funding arrangements for 2005-06 for the National Secretariat of Torres Strait Islander Organisations Ltd (NSTSIOL). This organisation was previously funded by ATSIC/ATSIS through the Torres Strait Islanders on the Mainland Program to:

advocate for the protection and maintenance of Torres Strait Islander culture, language and heritage;
provide secretariat services and corporate governance assistance for member organisations;
develop strategic plans for the engagement of Torres Strait Islander people and community organisations on the mainland; and
conduct conferences and workshops designed to bring people together to discuss issues, priorities and aspirations of Torres Strait Islander people on the Mainland.

OIPC advise that NSTSIOL had some grant funding carried over from 2004-05 to cover operational costs in 2005-06 and to conduct a workshop for members of NSTSIOL to start future planning for the organisation.69

The Queensland Government has noted that in Queensland (where a large proportion of mainland Torres Strait Islanders live):

There are no specific measures for Torres Strait Islander living on the mainland. However... Partnerships Queensland explicitly recognises that Queensland has two distinct Indigenous cultures - Aboriginal and Torres Strait Islander. It is anticipated that the Bilateral Agreement (with the Commonwealth on Indigenous Affairs) will also make this distinction clear.70

The ATSIC Central Queensland Regional Council advised my Office that they did not consider these arrangements appropriate:

(We are) not confident that mainland Torres Strait Islanders will be able to effectively participate based on early observations, as the focus from a national perspective has been on Aboriginal issues, mainly in relation to DOGIT / remote communities and there has been no specific documentation focusing specifically on ways to capture engagement of Torres Strait Islander issues...
Part of the problem relates to the carry over of the emphasis on program delivery, including financial accountability, rather than being proactive and devising strategies to capture all disadvantaged groups, which includes Torres Strait Islanders on the mainland. There is also a need for ICCs to have an understanding of Torres Strait Islander cultural protocols around engagement.71

Ms Kerry Arabena, a Torres Strait Islander woman specialising in Torres Strait Islander policy and research and living on the mainland, has expressed concerns about the options for representation of Torres Strait Islanders as follows:

Very few Torres Strait Islander corporations on the mainland will have the capacity to negotiate about services to benefit our communities with governments. To my knowledge, very few Torres Strait Islander groups have even been approached by bureaucrats to discuss regional representation, or to fully engage in the development of SRAs that might deliver resources to provide services for specific purposes within my community.
Governments have articulated that models of representation must be workable, affordable, effective and efficient and have a membership and capacity to provide informed advice about regional priorities, service delivery methods and assist in the development of a 20-30 year vision for the region. Yet very few attempts have been made to engage Torres Strait Islanders on the mainland to work out what our aspirations are at a regional level, particularly for those residing in the southern part of Australia. These discussions have highlighted how much of a minority within a minority we are, and a preparedness by bureaucrats to homogenise our experiences into the singular descriptor of 'Indigenous'. This is an unsatisfactory outcome for all concerned, and not at all what was promised by the reform agenda.72

My Office will continue to monitor how mainland Torres Strait Islanders are able to participate in the new arrangements over the coming year, particularly once regional representative Indigenous bodies exist.

v) Linking community and regional level structures to the national and international levels.

The majority of attention over the past year has been devoted to establishing alternative processes at the regional level and engaging with communities at the local level.

There has been very little focus on ensuring national level input of Indigenous peoples into policy making processes. Issues of concern that have arisen with the abolition of ATSIC at the national level include:

establishing replacement processes for the participation of Indigenous peoples in Commonwealth-State framework agreements;
the absence of requirements for government to consult with Indigenous organisations;
facilitating Indigenous participation in national policy debates through linking local and regional level structures to the national level; and
negotiating with Indigenous peoples on the positions on Indigenous rights adopted by the government in international fora.

Representation of Indigenous peoples in framework agreements

Previously, ATSIC participated as a formal partner on inter-governmental agreements, such as those relating to Indigenous health and housing. It had also been involved in the negotiation of these agreements. Addressing Indigenous participation in these agreements post-ATSIC remains an outstanding concern under the new arrangements.

In relation to health framework agreements, the Department of Health and Ageing has noted:

The (Framework) Agreements on Aboriginal and Torres Strait Islander Health are the primary vehicle for ensuring collaboration in resource allocation, joint planning and priority setting for service delivery between key stakeholders in Indigenous health within each state and territory.
Aboriginal Health Forums or partnerships are established under the Framework Agreements to oversee this collaborative work.
Until 30 June 2004 the signatories to the Framework Agreements and membership of the Forums included: the Australian Government; State/Territory governments; the Aboriginal community controlled health sector; and ATSI and the Torres Strait Regional Authority.
Since the abolishment of ATSIC and ATSIS, Framework Agreements and Forums will in future involve the three remaining partners plus the Torres Strait Regional Authority.73

In terms of the participation of Indigenous peoples in the Framework Agreements and Aboriginal Health Forums the Department also notes that:

The development of Indigenous Coordination Centres at the regional level will provide one mechanism for ongoing representation of Aboriginal communities in whole of government planning and priority setting. State policy managers from the Office of Indigenous Policy Coordination have been invited to participate in the Forums.74

This practice is not appropriate to ensure regional or informed representation of Aboriginal and Torres Strait Islander peoples in decision-making and planning processes relating to health. It is wrong to describe ICCs as providing 'ongoing representation of Aboriginal communities' when they are government offices which are intended to streamline the interaction of government with communities. The involvement of OIPC State Managers in Health Forums may be of assistance in achieving better engagement from non-health sector agencies but it does not assist in assuring Indigenous peoples appropriate representation in the health forums. This issue needs to be addressed.

In terms of housing agreements between governments, the Department of Family and Community Services has indicated that it:

is currently negotiating new bilateral Indigenous Housing and Infrastructure Agreements (IHIAs) with all States and Territories for 2005-08. The Minister wrote to relevant State and Territory Ministers in June 2005 advising of the Australian Government's policy priorities for negotiating new IHIAs. This advice included the need for all jurisdictions to develop and agree to new arrangements for engaging Indigenous participation in policy and planning roles under the bilateral agreement.
The composition, function and powers of Indigenous Housing Authorities (in New South Wales and South Australia) and Indigenous housing advisory groups in all other jurisdictions, are being revised as part of the negotiation of the new IHIAs. The membership of the majority of Indigenous Housing Authorities and Indigenous housing advisory groups will consist of eight members, with at least five members being Indigenous. In a number of jurisdictions the membership will be entirely Indigenous. In all jurisdictions members will be selected based on merit against an agreed criteria.
A key function of Indigenous Housing Authorities and Indigenous housing advisory groups is to assist Government to determine appropriate regional participation in housing and infrastructure planning processes. Jurisdictions are at different stages in the development of new arrangements for regional participation. The New South Wales Government has established Regional Aboriginal Housing Committees, and these provide a best practice model in providing regional Indigenous participation in housing an infrastructure planning.
As well, FaCS has negotiated interim bilateral agreements with the States and Territories over the provision of Indigenous housing. These interim Indigenous Housing Agreements have been or are being negotiated with the ACT, NSW, NT, SA and WA. Basically, they pool Indigenous specific housing funds, with the programs implemented by the State or Territory body. In these jurisdictions, Indigenous Housing Authorities (IHAs) undertake planning at the regional level, resulting in Regional Housing and Infrastructure Plans. These then input into an overarching State or Territory Plan.75

This is a much more satisfactory approach than that adopted in relation to health agreements.

I will continue to monitor developments relating to Indigenous participation in framework agreements over the coming year as negotiations on framework agreements are concluded and as more lasting arrangements are put into place.

Requirements to consult with Indigenous peoples at the national level

The Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) also established requirements for various federal agencies and Ministers to consult with ATSIC on specified issues. These provisions were repealed as part of the abolition of ATSIC. Alternative processes for consulting with Indigenous organisations or peoples were not substituted into the amended Act.

For example, the relevant Minister was previously required to consult with ATSIC when considering the appointment of new Directors to Indigenous Business Australia or the Indigenous Land Corporation, and when selecting a Torres Strait Islander for the Council of the Australian Institute for Aboriginal and Torres Strait Islander Studies. ATSIC could also nominate a member to the National Health and Medical Research Council. ATSIC also had a close relationship with the Australian Bureau of Statistics and was consulted in the setting of data collection processes.76

The impact of these changes is likely to be subtle and not easily identified. There may be practical difficulties in identifying who would be an appropriate body to consult with in relation to certain issues, particularly in the absence of a national representative body or regional representative bodies.

However, the potential impact of these changes is that they distance Indigenous peoples from decision-making processes. Government departments should build into their policy processes, as a minimum standard, engagement with Indigenous peoples about issues that directly or indirectly affect their rights.

The absence of engagement with Indigenous peoples at the national level

This reflects a broader concern about the new arrangements to date. Since the abolition of ATSIC, there has been no national representative body that can participate in national level debates on Indigenous issues. While the new arrangements are built on a commitment to local level engagement, the nature of this engagement is established through national processes that do not consistently involve the participation of Indigenous peoples.

The only mechanisms for participation of Indigenous peoples are through the National Indigenous Council or sector specific organisations - such as national committees on education, the National Aboriginal Community Controlled Health Organisation, the Secretariat of National Aboriginal and Islander Child Care and affiliations of local bodies (such as working groups of native title representative bodies).

Neither of these mechanisms is sufficient to ensure appropriate representation of Indigenous peoples in national decision-making processes.

In relation to the National Indigenous Council (NIC), it is not a representative organisation. It does not claim such a role - indeed, the Chairperson, Dr Sue Gordon, has made clear that the NIC is not a replacement for ATSIC. Rather, the Council is an advisory body to Government.77

The consequence of this is clear. While the NIC is entitled to put positions to government based on the individual and collective expertise of its members, its views can in no way be seen as providing consent or agreement on behalf of Indigenous peoples to any proposal. This is despite the fact that the NIC is made up of Indigenous experts. The NIC also has no capacity to undertake consultations with Indigenous peoples and hence no capacity to seek endorsement of its views among Indigenous communities.

Similarly, while sector specific organisations play an important role in their relevant sector they also do not have the mandate or representative base from which to be able to effectively represent Indigenous peoples across the full range of issues necessary. Many organisations are also service based rather than representative in their structures.

Accordingly, there is presently an absence of a connection between local level participation of Indigenous peoples and regional and national representation. In part, this flows from the absence of regional representative structures. I had proposed in last year's Social Justice Report a number of mechanisms for joining such representative bodies to the national level.78 None of these suggestions is capable of being implemented until there exist operating regional bodies.

Concern at the absence of national representation (connected at all levels) was one of the major themes that emerged from the National Reconciliation Workshop in May 2005. As stated in the final report of the workshop:

discussion centred around the dismantling of ATSIC and the roles legitimately played, and not played, by the National Indigenous Council and Reconciliation Australia. There was broad agreement by participants of the need for a strong, representative voice for Indigenous Australians at the national level, as well as the regional and local level...
Reconciliation Australia used the workshop to reiterate a message it has consistently conveyed since the dismantling of ATSIC - that it strongly supports the need for a body which draws its authority from, and can legitimately speak for, Indigenous peoples. RA believes its structure and establishment are matters for Indigenous Australians to determine with backing from non-Indigenous quarters and to this end, RA continues to support, alongside the Australian Indigenous Leadership Centre, a series of meetings and consultations to canvass options.79

Efforts are also continuing to determine an appropriate structure for a national non-government organisation to represent Indigenous peoples. The OIPC had provided funding to assist in this, along with the support of Reconciliation Australia, the Australian Indigenous Leadership Centre, and the Australian Institute of Aboriginal and Torres Strait Islander Studies.

Consultation with Indigenous communities on international issues

There is also an absence of appropriate engagement of the government with Indigenous communities regarding Indigenous rights in international arenas. There are three aspects to this:

supporting the ability of Indigenous peoples to participate in negotiations in a coordinated manner;
engaging in consultations and negotiations with Indigenous communities about the positions to be adopted by the government in international fora; and
supporting domestic processes for Indigenous organisations to develop a representative position for international meetings and to disseminate information about the outcomes and implications of decisions in international fora afterwards.

The government is an active participant in international negotiations which are directly related to the rights of Indigenous peoples - such as the Working Group on the United Nations Draft Declaration on the Rights of Indigenous Peoples, the Article 8(j) Committee under the Convention on Biological Diversity and the traditional knowledge working group of the World Intellectual Property Organisation. It also participates in processes which guide the development of international standards relating to Indigenous peoples, such as the United Nations Permanent Forum on Indigenous Issues and the United Nations Working Group on Indigenous Populations.

The abolition of ATSIC has severely restricted the ability of Indigenous peoples to input into these international processes. Of the four Indigenous organisations in Australia with accreditation as a non-government organisation at the ECOSOC level80, only the Foundation for Aboriginal and Islander Research Action has maintained an active engagement in international negotiations on Indigenous rights.81 It has done so with minimal funding and on occasion, with funding provided by foreign governments or through the voluntary fund for Indigenous issues at the United Nations (i.e., funding that is usually provided to indigenous representatives in relatively poor countries and regions of the world).

The ATSIC Review had commented on the importance of ATSIC's international advocacy role to Indigenous peoples:

ATSIC's international advocacy role is widely supported by Aboriginals and Torres Strait Islanders and judged as essential in keeping all Australians informed of global human rights issues and providing an Indigenous Australian voice overseas...
The review panel agrees that ATSIC plays an important advocacy and representation role at the international level... Regional council and community meetings highlighted the need for there to be better reporting back mechanisms by the representatives of ATSIC who are attending international forums, detailing the purpose of the involvement, and the outcomes.82

Mechanisms that existed within ATSIC to consult with Indigenous organisations in Australia, such as the Indigenous Peoples Organisations network, have now ceased. There is an absence of routine engagement between the government and Indigenous organisations prior to the commencement of international meetings (with the exception of small scale and limited consultations being held specifically on the Draft Declaration on the Rights of Indigenous Peoples in recent years).

In my view, this absence of dialogue contributes to less effective engagement by both the government and Indigenous organisations in international meetings. Indigenous organisations have every right to participate in international discussions on their rights and interests and I am not supportive of any restrictions on such participation. However, establishing common ground between the government and Indigenous peoples prior to going overseas, and looking to where the government and Indigenous organisations could jointly advance Indigenous issues in such forums, could contribute significantly to the outcomes of these meetings.

HREOC has made a number of recommendations to the government to ensure that a systematic approach is adopted to international negotiations and fora. The proposals include:

funding community education activities on Indigenous rights, including community workshops to inform communities about their rights and corresponding responsibilities and about developments in international fora;
convening domestic fora for Indigenous organisations to collaborate ahead of international meetings, and for negotiations to take place with government ahead of such meetings;
supporting Indigenous involvement in international meetings, including through mentoring Indigenous youth and supporting leadership programs; and
disseminating information back to communities about international developments in Indigenous rights.

The funding necessary to support such proposals is minimal and was carried over to the budget of the Office of Indigenous Policy Coordination from the budget of ATSIS in 2003. As at 30 June 2005, there was no decision on these proposals.83

vi) Conclusions and recommendations

There has been substantial effort made during the first twelve months of the new arrangements to identify processes for engaging with Indigenous peoples in a representative manner and on a regional basis. Despite this, there remain significant gaps relating to Indigenous representation.

In most instances where regional representative structures have been developed, they are not yet operational. In other regions, there are no agreed mechanisms developed. There are no specific mechanisms in place to ensure that the distinct issues of Torres Strait Islander peoples are addressed in mainland areas, with available funding subsumed within the SRA development program, and there is a particular absence of representative arrangements in major urban areas.

Interim steps have been taken to engage with Indigenous representatives in housing framework agreements, and assuring such engagement is a key priority in the renegotiation of these agreements between the Commonwealth and the states and territories over the coming year. Adequate arrangements are yet to be put into place for health framework agreements.

There are also limited mechanisms for engaging with Indigenous representatives at the national level and in relation to international developments, and the need for established links between local and regional levels, and then the regional and national levels.

The legacy of ATSIC Regional Councils is their Regional Planning documents, most of which were updated or revised during the past twelve months. The ATSIC Regional Council Plans provide a useful basis for identifying the regional needs and priorities of Indigenous peoples, as well as proposing mechanisms for engagement. Further work is needed to 'operationalise' the plans - a task that was a central function of the ATSIC Regional Councils themselves. Further effort should be made to utilise the plans in the development of regional structures and in identifying the priorities for each region.

The absence of processes for Indigenous representation at all levels of decision making contradicts and undermines the purposes of the new arrangements.

It severely restricts the ability of Indigenous peoples to participate in decision making and service delivery which affects them in a systematic and coordinated manner. Any regional planning, priority setting or agreement-making made in the absence of Indigenous representative structures is also problematic. Not consulting a representative structure excludes Indigenous people from participating in decision-making processes and does not provide for their active participation in issues that affect their lives.

The first priority must be the establishment of regional representative bodies which can link to the local level as well up to the state and national levels. Regional Partnership Agreements provide a solid basis for this to occur. These agreements should also be evaluated in the coming years with a view to strengthening the recognition provided to representative bodies, including through providing them legislative recognition under the Aboriginal and Torres Strait Islander Act 2005.

Addressing the absence of regional representative structures is an urgent priority for the 2005-06 financial year. It would be wholly unacceptable for regional structures to not exist and not be operational in all ICC regions by the end of this period.

In producing this report I am required to make recommendations to address issues of concern. I make the following recommendation in relation to the absence of appropriate representation for Indigenous peoples in the first twelve months of the new arrangements. I have also identified follow up actions that my Office will undertake for the next Social Justice Report to retain a focus on issues of concern.

Recommendation 1

That the federal government, in partnership with state and territory governments, prioritise the negotiation with Indigenous peoples of regional representative arrangements. Representative bodies should be finalised and operational by 30 June 2006 in all Indigenous Coordination Centre regions.

Follow Up Action by Social Justice Commissioner

1. The Social Justice Commissioner will consider the adequacy of processes undertaken by all governments to consult and negotiate with Indigenous peoples and communities on policy development, program delivery and monitoring and evaluation processes. This will include:

identifying best practice examples for engaging with Indigenous peoples on a national, state-wide and regional basis;
identifying existing protocols or principles for engaging with Indigenous peoples;
identify existing processes for engaging with Torres Strait Islander communities on the mainland; and
developing a best practice guide to negotiating with Indigenous communities from a human rights perspective.

4) Indigenous participation through local level agreement making

An integral component of the new arrangements is direct engagement with local communities. A major focus of activity in the past twelve months has been the negotiation of local level agreements within Indigenous communities, known as Shared Responsibility Agreements (SRAs).

The term 'Shared Responsibility Agreement' (SRA) was first used to describe agreements within the eight sites of the Council of Australian Governments' whole of government community trials initiatives (COAG trials) that commenced in 2003.84

SRAs are based on the principle of 'mutual obligation.' It is intended that:

communities... take responsibility for determining their own priorities for change and to work out what they can contribute to making things better. This contribution could involve using community assets, such as a community centre, upgraded sports facility or tourism business; or it could be a commitment to invest time and energy towards outcomes. For real change, the community is expected to actively contribute, in some way, to achieving better outcomes for its people.85

With the introduction of the new arrangements from 1 July 2004, the government set a target of finalising 50 -80 SRAs by 30 June 2005.86 A target of 100 SRAs has now been set for the 2005-06 financial year.87

This section of the report considers developments during the first twelve months of the new arrangements in relation to the negotiation of SRAs.88 It sets out relevant human rights standards to ensure the effective participation of Indigenous peoples at the local level and to ensure that the content of SRAs do not breach human rights standards.

i) Human rights principles and Shared Responsibility Agreements

As Social Justice Commissioner, my primary interest in SRAs is how they impact on the well-being of Indigenous peoples and whether they promote the achievement of social justice. To do so, SRAs must be consistent with human rights standards.

There are two aspects to whether SRAs comply with human rights standards.

First, is whether SRAs operate as a tool that promotes the enjoyment of human rights (i.e. as a positive mechanism for human rights protection). SRAs have the potential to provide a significant breakthrough in policy and program implementation. By achieving a direct relationship between government and Indigenous peoples, SRAs could overcome the flaws of the approach of government adopted over the past thirty years.

This approach has misunderstood and misapplied the principle of self-determination. This is by governments walking away from a direct relationship with Indigenous people themselves, and avoided any responsibility and accountability for this relationship. In the place of government, Indigenous peoples have had to deal with organisations and people of varying capacity, and in the case of some community advisers, store managers and administrators, of varying honesty. SRAs potentially signal the return of government to communities through direct engagement.

SRAs have the potential to improve the enjoyment of human rights by Indigenous peoples in the following ways:

by being based on local level negotiation and consultation, they could ensure the effective participation of Indigenous peoples in decision-making that affects them;
by tailoring services to the specific circumstances of the community, they could lead to culturally appropriate service delivery and improved accessibility of mainstream services;
by supporting the development of local enterprises that are culturally relevant, they could expand the existence of otherwise limited economic development opportunities in remote communities; and
by being part of a comprehensive plan to address the needs and build the capacity of communities, they could lead to the empowerment of Indigenous communities.

As such, SRAs could be tools for promoting:

the realisation of the right to self-determination (in accordance with Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR);
the protection of minority group cultural rights (in accordance with Article 27 of the ICCPR and Article 30 of the Convention on the Rights of the Child);
the achievement of culturally appropriate delivery of economic, social and cultural rights (in accordance with various provisions of the ICESCR);89 and
the achievement of equality before the law (in accordance with Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Article 26 of the ICCPR and related provisions in other instruments).

Second, and conversely, is whether SRAs impact negatively on the enjoyment of human rights by Indigenous peoples. SRAs may negatively impact on the enjoyment of human rights if they do not address the issues raised above - for example, if they do not ensure that service delivery is appropriately adapted to cultural circumstances or do not ensure the effective participation of Indigenous peoples.

In particular, SRAs could be problematic if they are not negotiated with the appropriate representatives of the Indigenous community (in cultural terms). Government has to be under a clear responsibility to find ways of negotiating with Indigenous communities that do not simply rely on existing community councils, regardless of whether they are culturally inclusive, representative, well governed or the reverse.

Additionally, SRAs have the potential to restrict the enjoyment of human rights by Indigenous peoples in the following ways:

if they impose conditions on Indigenous peoples' access to services where such services are otherwise available to other sectors of the community without condition;
if SRAs make the progressive realisation in enjoyment of rights for Indigenous peoples contingent upon conditions being met (this is particularly given the existing state of inequality experienced by Indigenous peoples); and
if they make Indigenous peoples' access to core minimum entitlements conditional (as matters which constitute core minimum obligations are required to be met with immediate effect and are not subject to negotiation).

As such, SRAs could raise issues of non-compliance with human rights standards in relation to:

the principles of non-discrimination on the basis of race and equality before the law (as set out in Articles 2 and 5 of ICERD, Articles 2 and 26 of the ICCPR, Article 2 of ICESCR, and related provisions);90
the progressive realisation principle (as set out in detail in Chapter 2 of this report, and contained in Article 2 of the ICESCR, Articles 1 and 2 of ICERD, and related provisions);
the obligations for governments to respect, protect and fulfil the enjoyment of human rights, especially economic, social and cultural rights, and the satisfaction of core minimum obligations (as set out in various provisions of ICESCR in relation to economic, social and cultural rights).91

To assist in determining whether the SRA approach as a whole, as well as individual SRAs, comply with human rights standards I have developed the following overview of key considerations for making SRAs. They relate to the process of SRA making as well as to the content of SRAs.

Human rights standards relating to the process of SRA making

Text Box 2 in this chapter outlines a checklist for engaging with indigenous communities, based on human rights principles and best practice. It notes the following guiding principles that are of relevance to SRA making:

Non-discrimination and equality: All policies and programs relating to Indigenous peo

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