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What Does A Human Rights Approach Offer In Improving The Health Of Indigenous Australians?

By Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

MENZIES SCHOOL OF HEALTH RESEARCH 2007 ORATION

DARWIN, 8 NOVEMBER 2007

 

Slide 1: introduction



Slide 1: Introduction





Part 1: Introductory material

I would like to begin by acknowledging the Larrakia people, the traditional owners of the land where we meet today, and to pay my respects to their elders and thank Bilawara for her warm welcome. Our Kungarakan lands share a common border with the Larrakia so I am doubly pleased to acknowledge good neighbours.

Can I also thank the Menzies School of Health Research and Professor Jonathan Carapetis for inviting me to speak tonight. It is an honour to be asked to deliver the first Menzies Oration in 6 years before such a distinguished group of people, and in my home town to boot.

I would also take this opportunity to congratulate the Menzies School of Health Research for the enormous contribution that it has made, and continues to make, in improving our understanding of the health situation faced by Aboriginal and Torres Strait Islander peoples in Australia.

Through its research, we have a better understanding of the cultural, social, geographical and other factors that influence the health in Australia’s Indigenous societies. The result is a significant body of research, recording and reflection on Indigenous knowledge systems, and more than a few hints as to the directions we will need to go if we are to face the gravest challenge facing the Australian nation – namely, the inequality in life chances that exists for our First Nations peoples in this most prosperous and generous of countries.

The Menzies school has a good working relationship with the Human Rights and Equal Opportunity Commission. Together we have collaborated on many occasions – together and through the Cooperative Research Centre for Aboriginal Health. Most recently, this cooperation has been through the campaign for Indigenous health equality within a generation – or ‘Close the Gap’. This campaign emerged from the recommendations and research contained in my Social Justice Report 2005 to the Federal Parliament.

In particular Dr Ngiare Brown, in her role as Deputy Director of Menzies, has contributed extensively to the various committees and working groups that have kept the campaign in the public eye and contributed so much to its success. And so I give a big ‘thank you’ to Ngi, and to ‘Menzies’ for supporting her in this work. Congratulations also to Ngi and her husband Dave, and a big welcome to their recently arrived daughter Yve.

As the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission, or HREOC, I am required to report annually to the federal Parliament on the status of enjoyment and exercise of human rights by Indigenous Australians. This is called the Social Justice Report.

My Social Justice Report for 2005 spoke at length to the poor state of Indigenous health and health inequality (when compared to the non-Indigenous population) and the right to health. That research was titled Achieving Aboriginal and Torres Strait Islander health equality within a generation – A human rights approach.

In the report I argued that human rights, and specifically the right to health, ought to be guiding the development of policy and the delivery of programmes to Indigenous peoples. And I set out a model for Australian governments to follow based on the right to health.

In the eighteen months since that report was released, it has received extensive consideration domestically and internationally. It has, for example, been cited as world’s best practice in developing a scheme for implementing the right to health by the United Nations Special Rapporteur on Health as well as being of considerable interest to the World Health Organisation and other UN agencies.

The reason why is that it is one of the first comprehensive attempts to apply the right to health to the situation of Indigenous peoples.

What I am going to do today is set out the main features of the right to health strategy in this report, and the Close the Gap campaign that has emerged from it. I am also going to frame some of the discussion as a response to an article that appeared late last year in the Australian and New Zealand Journal of Public Health authored by Ross Bailie and Natalie Gray, both of the Menzies School, that was titled: Can human rights discourse improve the health of Indigenous Australians?

In a spirit of engagement, I welcome the opportunity to address some of the points that were raised in this article because -- in my opinion – I think the conclusions reached in that article got it wrong and significantly under-represent the potential and the capacity of a rights to health approach to improve Indigenous health in Australia.

My central message tonight is to highlight the transformative value of a rights based approach to achieve the lasting, sustainable improvements in Indigenous health that we have all been striving for now for some time.

Part 1: The right to health and Indigenous health inequality in Australia

There currently exists in Australia significant disparities in the enjoyment of health status for Indigenous peoples. This exists across all areas ranging from life expectation to chronic and communicable diseases, and across all age groups. This is well known and for too many, it no longer shocks and is a fact greeted with antipathy. And this should not be so.

The health statistics reflect children who do not have the same chance at life as their non-Indigenous friends. It reflects as grief and trauma and depression and sadness at the loss of children, brothers and sisters, and parents. It reflects as grandparents who spend their latter years caring for grandchildren.

We all know the stories. And we share a common desire to address this legacy.

So what does the right to health have to offer for this situation?

(a) Equality of opportunity

Of particular relevance to Indigenous peoples in Australia is that the right to health is the right to have opportunities to be healthy.

What this means, in practice, is that the State provides two things:

Further, the right to health obliges a state to ensure that everyone – regardless of sex, race, age, sexuality and so on – has an equal opportunity to be healthy.

And this is where the right to health is of direct relevance to Indigenous people in Australia.

And of particular importance in relation to equality of opportunity to be healthy is primary health care with its preventative emphasis. It is universally recognised that ensuring health equality among the various groups in a population will, to a great degree, depend on the access those groups have to primary health care services, as well as health education and promotion.

It is a simple fact that in twenty first century Australia, Indigenous peoples do not enjoy the same opportunities to be as healthy as the non-Indigenous population. This is particularly evident in relation to access to primary health care, medicines and health infrastructure.

From a human rights perspective, securing Indigenous peoples' equality of opportunity in relation to health is the foundation challenge facing Australian governments. In other words, if healthy living conditions and accessible primary health care existed in communities, targeted and sustainable health programs aimed at reducing the burden of specific diseases, could be put into place, with the overall goal of achieving health equality within a short a time as is possible.

(b) Towards equality of opportunity – progressive realisation

But the right to health does more than simply allow us to identify this problem. It also speaks as to how the inequality gap could be closed and it is this aspect of the right to health upon which the Close the Gap campaign proposed in the 2005 Social Justice Report is based.

Slide 2  - progressive realisation

SLIDE 2 – PROGRESSIVE REALISATION

Article 2 of the International Covenant on Economic, Social and Cultural Rights sets out the obligation to ‘take steps’ towards equality of opportunity.

Now these are not steps in an unqualified sense. Steps towards equality in terms of progressive realisation require a state to:

The current framework for Indigenous health – the National Strategic Framework for Aboriginal and Torres Strait Islander Health and associated programs -- does not have the core requirements to constitute steps in terms of progressive realisation. Ambitious yet realistic equality targets are striking in their absence from the current response and that means that the National Strategic Framework cannot be characterised as a rights based response. And the absence of targets creates a lack of urgency around Indigenous health, and helps contribute to the under-resourcing of it.

Slide 3

SLIDE 3

A rights based approach would ensure that commitments are accompanied by targets and benchmarks over the short, medium and long term. And on the slide above me are the targets that I recommended in the Social Justice Report last year. The main ones are for health equality within 25-years and equality of opportunity in relation to primary health care, housing and so on within 10-years.

(c) Other rights issues

Engagement

In part, the failure of the existing commitments and strategies to address Indigenous health is also because of the failure of Australian governments to engage appropriately with Indigenous peoples and develop strategies and programs with the full participation of Indigenous communities.

Governments must ensure that Indigenous peoples have the opportunity to participate effectively in all aspects of policy development and service delivery that impact upon their communities.

Slide 4

SLIDE 4

Principles relating to self-determination, non-discrimination, equality before the law and minority group cultural rights have been interpreted as requiring this. It is also set out in the Declaration on the Rights of Indigenous Peoples that was adopted by an overwhelming majority of the General Assembly of the United Nations this year.

The requirements for participation have been expressed as the principle of free, prior and informed consent. At the international level, this is gaining wide acceptance. It is based on the recognition that people are key actors in their own development, rather than simply being passive recipients of services.

In fact – legal obligation aside - it is common sense that governments risk failure if they develop and implement policies about Indigenous issues without engaging with the intended recipients of those services. Bureaucrats and governments can have the best intentions in the world, but if their ideas have not been subject to the  ‘reality test’ of the life experience of the local Indigenous peoples who are intended to benefit from this, then government efforts will fail in the medium to long term.

Empowerment

And best practice indicates that primary health care services should be community controlled services.

Community controlled services are culturally, physically, and economically accessible. Crucially, they empower Indigenous communities and people to look after their own health. They literally speak the language of the community, know the communities problems and are best placed to work out solutions – for example, choosing to invest more of its funds into integrating drug and alcohol counselling or mental health programs into its practice.

Slide 5

SLIDE 5

And it goes without saying that community control should also be subject to human rights standards for participation, accountability and transparency. A minority of Aboriginal community controlled services do face governance and capacity issues that render them less effective in addressing the overwhelming challenges facing the communities they serve. Addressing poor governance is critical to success, as is addressing the lack of capacity faced by some services – whether it be through under-resourcing, lack of skills capacity or other reasons.

Part II: An address to Gray and Bailie’s argument

As indicated earlier, I wanted to make some comments about the article that appeared late last year in the Australian and New Zealand Journal of Public Health authored by Ross Bailie and Natalie Gray, titled: Can human rights discourse improve the health of Indigenous Australians?

The article argues that one of the major reasons for the ongoing and entrenched Indigenous health inequality in Australia has been because of (and I quote):

The traditional tendency of public health interventions to focus on the provision of, and access to, health services rather than attempt to understand, and have an impact on, the complex and multi-factorial root causes of the poor health outcomes experienced by Indigenous Australians. (para 2) – end quote

This, they suggest, has been because addressing many of these social determinants falls into the ‘too hard basket’: that is, they require a treaty, a thorough and meaningful reconciliation process or some such other major 'structural' changes in order to shift. Or else, complex inter-sectoral action outside of the health sector that the Australian government system does not do well.

Slide 6

Slide 6:

Two strands of human rights discourse

Against this background, they examine the utility of two strands of the human rights discourse around health. So what are the two strands from a human rights perspective?


Slide 7

SLIDE 7

 

To put it in a nutshell, the right is not a guarantee of good health (no government can guarantee that against the vagaries of life), but it does oblige governments to provide their citizens with opportunities to be healthy. What this means is that governments provide health care services (the things that Gray and Bailie highlight as being the focus of Indigenous public health interventions so far), and also ‘health hardware’ or ‘health infrastructure’ which are defined as healthy food, housing, sanitation, potable water and other conditions that support health. And particularly in relation to health hardware, there is some crossover with other social rights, for example in relation to housing.



Slide 8

SLIDE 8




What Bailie and Gray argue is that policy focuses on addressing health through the provision of health services, and does so at the expense of an address to the social determinants that also determine health status. In this context they argue that a focus on a ‘right to health’ – as defined more narrowly - may ultimately be counterproductive and miss some of the key ingredients for delivering improved health status.

In short, they argue that the right to health is something of a blind alley. And that as a line of discourse it may be something that distracts energies from the address to the social determinants and structural issues that contribute to poorer Indigenous health.

This they say is because (and I use their terminology) no ‘legal imperative’ nor ‘moral imperative’ attaches to the right to health. In part, they say this is because the right has poorly defined content.

Notably, they cite the Social Justice Report 2005 as providing a way forward and a ‘positive step’ in the right direction to addressing the concerns they raise.

In many ways, the difference between the arguments made by Gray and Bailie and those in the Social Justice Report are semantic. But I think there are some flaws in the arguments put in this article which could undermine the importance and understanding of a rights based approach to Indigenous health.

In particular, I would challenge the articles’ findings relating to the ‘legal imperative’ that they argue is lacking from the right to health. The article begins by correctly pointing out that the international treaties to which Australia is a signatory to (like ICESCR) are not self executing. The significance of this they identify as being (and I quote) that this:

significantly compromises not only the legal imperative of the human right to health, but also the capacity of Indigenous Australians to claim that the Government has an obligation to consider their economic and social rights (para 11).

My answer to this is that Gray and Bailie are fundamentally confusing the idea of legal enforceability (in the sense of there being mechanisms that a citizen can utlilise to hold governments to account for their human rights obligations) with this notion of a legal imperative.

The lack of accountability and procedural mechanisms through which citizens can hold the government to account for its human rights obligations is a major weakness in our legal system. Some of you may have attended a lecture I gave here in Darwin back in early June this year relating to a Bill of Rights for the Northern Territory in which I detailed the concerns about the lack of entrenched human rights protections in the Territory. The NT intervention has clearly demonstrated this lack of protection and the ease with which human rights can be displaced by the Commonwealth government in the NT.

Providing appropriate protection – including constitutional guarantees of non-discrimination - remains one of the main challenges facing us as a Nation to ensure that the rhetoric of the commitments that our government has made to us – the Australian people – is matched with action.

But let us not confuse the idea of legal imperative and a lack of political will to implement human rights obligations. It is the lack of political will that is the issue here, not the legal imperative itself.

Slide 9

Slide 9: Section 46(C)(4) Human Rights and Equal Opportunity Commission Act (HREOCA)

But the issue of political will and enforceability aside, it is an error to assert -- as Gray and Bailie do in their article -- that social and economic rights have not been incorporated into Australian law at all. In fact, they are incorporated into federal law in a few ways.

First, in section 46(C)(4) of the Human Rights and Equal Opportunity Commission Act (HREOCA), the section that sets out my functions as the Aboriginal and Torres Strait Islander Social Justice Commissioner. I am mandated to consider the rights of Indigenous Australians with regard to the International Covenant on Economic, Social and Cultural Rights and a range of other instruments as set out on the slide above me.

I am also the National Race Discrimination Commissioner and in this role I am charged with the responsibility to monitor Australian governments and other actors compliance with the Racial Discrimination Act (or RDA as I will call it). This Act -- as I am sure we are all aware -- is the domestic enactment of the Convention on the Elimination of all forms of Racial Discrimination. And the RDA also incorporates the right to health into Australian law.

Sldie 10

Slide 10: RDA s9


Section 9(1) of that Act, states that:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.


Section 9(2) clarifies that a reference in section 9(1) to a human right includes any right of a kind referred to in Article 5 of the Convention on the Elimination of all forms of Racial Discrimination. Here at Article 5(e)(iv) under the heading ‘economic, social and cultural rights’ is listed ‘the right to public health, medical care, social security and social services’.

Section 10 of the RDA also provides for a right to equality before the law in relation to economic, social and cultural rights – including the right to health.

So clearly, the right to health of Indigenous peoples and other racial minorities in Australia is explicitly protected from discriminatory incursions in Australian law.

I note, however, that there have been limited attempts to hold governments accountable for implementing this right to date.

Slide 11: RDA s(8)

Slide 11: RDA s(8)


If we continue looking at the RDA, section 8 refers to ‘special measures’ as defined in Article 1(4) of the Convention on the Elimination of all forms of Racial Discrimination.

Special measures are particularly well designed to address deficiencies in any racial group’s enjoyment of their social and economic rights. And this is particularly so in relation to inequality caused by historical discrimination over many years. And I am sure we can all see how this (in terms of both a legal and moral imperative) might apply to Indigenous Australians and our right to health.

It is notable that Article 2(2) of ICERD explicitly refers to the imperative to adopt special measures to address historically derived disadvantage and inequality in the enjoyment of economic and social rights, such as the right to health. That provision states that governments shall “take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms”.

This has been interpreted by many internationally as a positive obligation on governments to take steps. In other words, if the situation of inequality exists then it is required that steps be taken to address this.

So again I do not think it can be argued, as Gray and Bailie have done, that Australian law provides no leverage for Indigenous peoples in relation to their right to health. We do, however, face a significant issue of a lack of implementation of these existing human rights obligations.

Make no mistake, the right to health discourse around Indigenous health equality is fundamentally an argument to be treated equally: to have the same opportunities as other Australians to be healthy and, where appropriate, (and I believe the Indigenous health crisis in this country makes it appropriate), to have enacted special measures to improve our health and our opportunities to be healthy. That is what the Close the Gap campaign for Indigenous health equality is all about.

I also want to briefly comment on the article’s contention that a right to health is too vague or ill-defined. I mentioned earlier the progressive realisation principle that sets out how the right to health should be realised. Like the right to health itself, this principle is defined in broad terms, so to allow for flexibility in addressing particular circumstances.

The rights based approach to health provides a framework in which this clarity, as to what outcomes you are actually seeking, is fundamental to how the programs are designed and implemented.

And this is something that is striking due to its absence from the existing Government response to Indigenous health – including through the National Strategic Framework for Aboriginal and Torres Strait Islander Health and associated programs.

As I have said many times, I don’t want to hear about how a record amount of money is being spent by the government on Indigenous issues. Instead I want to hear about the vision for what that funding is meant to achieve. When will the life expectancy gap be halved and then eliminated? What does the government see as an acceptable rate of progress? And so on.

Through the Social Justice Report and the Close the Gap campaign we have identified some broad over-arching commitments that we believe should be made. These are achievable, and are based on evidence. And remember, the main targets that we propose are as follows:

Slide 12

SLIDE 12


There is much work still to be done to specify the components for achieving this, including in the short term and on specific diseases and across the social-determinants that impact on Indigenous health.

This is clearly not ill-defined or vague. On the contrary –it provides a focus and a level of accountability that has been lacking for too long.

I believe that we now have before us a historic opportunity to advance these issues and to achieve health equality for Aboriginal and Torres Strait Islander peoples. And the right to health provides us the pathway to achieve this. Importantly, it provides the pathway that inspires us to believe once again that achieving health equality is not a pipe-dream, but something that is utterly achievable and realistic.

It is perhaps ironic that we now have a historic opportunity to achieve this due to the NT intervention. You may know that I have serious concerns about aspects of the intervention and have consistently called for it to be:

  1. non-discriminatory in its impact;
  2. developed with the full and effective participation of Indigenous people and communities; and
  3. based on a human rights based approach that incorporates a capacity development approach so that the outcomes are sustainable for Indigenous communities to take responsibility and function into the longer term.
Sldie 13



SLIDE 13

What we have seen in the initial stage of the intervention is the conduct of health checks that have identified the serious shortfall in health services for Indigenous peoples in these communities. This has been a primary task of the survey teams in communities combined with the health check teams.

The Prime Minister and the Minister for Indigenous Affairs have made clear that their commitment extends to addressing the health crisis in Aboriginal communities in the Territory. And they have already committed big dollars to address this.

We need to harness this opportunity. An opportunity that is, in essence, a commitment to Close the Gap. There can be no excuse for avoiding this major issue any more.

The federal government has made clear that the NT intervention is proceeding in stages, with phase one being the ‘securing’ of communities and phase two being the addressing of the longer term issues facing those communities.

Ultimately, it comes down to the process and the method used to achieve this aim. From a health perspective, I would question the current method being adopted which circumvents the Aboriginal community controlled health sector to a large degree. If we are serious about long term, sustainable results then we have to be concentrating on building the capacity of these services, as well as monitoring and evaluating progress so we can better identify what the success factors are.

Slide 14

SLIDE 14


We won’t achieve anything more than short term results by sending volunteers into communities outside of the community controlled sector.

Why can’t the doctors be going to work for community controlled organisations?

Why can’t the needs assessment be based on building the capacity of community organisations as the focal point for delivery of services to the community?

These are serious questions and they need to be answered as the intervention unfolds. Ultimately, they may provide a more cost effective way of providing the services in the first place, with the added effect of building the community’s internal controls with a flow on effect to the self-esteem and sense of dignity of individual community members.

Conclusion

In conclusion, as a Nation we pride ourselves on being the ‘lucky country’ and on giving everyone a ‘fair go’. Yet we remain largely unconcerned that the basic facilities for good health do not exist for many Indigenous people both in the NT and across Australia.

Governments cannot guarantee that their citizens will be healthy – that involves individual choice and freedom. But they can guarantee that every opportunity has been provided to facilitate this outcome. That is the value of a rights based approach to Indigenous health – it keeps this issue in the spotlight and provides an analytical framework that is otherwise missing from policy development.

At present there is not a level playing field - an Indigenous child born today does not have the same life chance as a non-Indigenous child.

The current situation cannot be allowed to simply drift along without accountability and without targeted action.

It is time to stop being disappointed at our lack of achievement on Indigenous health and dare to dream about a positive future for all Australians.

In the Close the Gap campaign that has emerged from the Social Justice Report and its right to health framework, our primary message is not to simply scream ‘crisis’. Our message, and our goal, is to champion hope and to focus on solutions, because the Indigenous health crisis is not insurmountable. We can triumph.

We are making steps, but they are too slow and not broadly focused enough.

It will require additional funds, although this alone is not the solution.

The NT intervention has blown out of the water the fallacy that the funding that is required cannot be made available. There is no longer any excuse for not acting, as we have tangible evidence that action is possible if government thinks it is important enough.

It will also require a focus on the social determinants of health – living conditions, overcrowding in housing, education and employment. This is not just a health sector responsibility. This requires a whole-of-government, cross departmental approach and it will also require meaningful collaboration with State and Territory governments.

Let us work together to commit to a timeframe for action to ensure equality of opportunity to be healthy.

Why, I ask, should we believe we can halve poverty in Africa by 2015 – as the Millennium Development Goals promise to do – and yet we are not bold enough to commit to action for Indigenous health within Australia?

Thank you

Sldie 15: Thank You

Slide 15: