Social Justice Report 2003: Executive Summary

Social Justice Report 2003

Executive Summary

Chapter 1: Overview

The Social Justice Report 2003 is the fifth report by Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr William Jonas. It was tabled in federal Parliament, along with the Native Title Report 2003, in March 2004.

Chapter two of the report focuses on developments relating to reconciliation and ensuring accountability of government. It highlights progress in addressing Indigenous disadvantage; initiatives of the Council of Australian Governments (COAG) such as the COAG national reporting framework on Indigenous disadvantage, COAG whole-of-government community trials and ministerial action plans.

Chapter three focuses on processes relating to Indigenous participation in decision-making and changing the relationship of Indigenous peoples with government. It highlights capacity development and governance reform, and proposals for ATSIC reform.

Chapter four analyses current progress by governments in addressing petrol sniffing on the Anangu Pitjantjatjara Lands, with an emphasis on the implementation of the recommendations of the South Australian Coroner and the progress of the COAG whole of government community trial on the AP Lands.

Chapter five identifies the responses of governments to issues of family violence in Indigenous communities.

Appendix One provides a statistical overview of the current circumstances of the Aboriginal and Torres Strait Islander population in Australian and, where possible, changes over the last five or ten years and international comparisons. Appendix two provides an overview of the COAG whole-of-government community trials.

Findings and recommendations

Overall, this report concludes that there are a number of recent initiatives which are moving us in the right direction, as well as small gains being made in some areas. Of particular note are recent developments in implementing the Council of Australian Government's commitments to reconciliation through the finalisation and first release of the national indicators on overcoming Indigenous disadvantage and the whole of government community trials ...

There is a level of optimism created by the determined words of senior government members to pursue a changed approach, particularly through their efforts in the eight Council of Australian Governments whole-of-government community trial sites ...

This optimism that there might be change in the air is accompanied, however, by a level of uncertainty for Indigenous peoples. This uncertainty relates in large part to the upheaval that has centred on the role of the Aboriginal and Torres Strait Islander Commission (ATSIC) over the past year ... (p2)

Addressing this uncertainty, principally through renewing the role of ATSIC, is a critical issue that is dealt with at length in this report. It is a central feature of an agenda for change in Indigenous policy.

These developments are also accompanied by serious concerns that the pace of progress, where it exists, is too slow and may not necessarily be sustainable into long term. The release of Census data from 2001 shows that such progress is in fact minimal. Overall, it is difficult to see any progressive trend towards reducing the level of inequality experienced by Indigenous peoples compared to non-Indigenous people (even in areas where there might have been some marginal improvement in absolute terms).

There is an overwhelming sense that the crisis situation that Indigenous peoples face is highly likely to worsen substantially over the next decade due to the faster growth rate of the Indigenous population (in other words, that government programs will not be able to keep up with the growth of the Indigenous population with the result that it will become increasingly difficult to maintain the status quo or prevent a further deterioration in key areas of well-being). The absence of a clear accountability framework for governments, including benchmarks and targets, is a matter of great urgency in addressing this situation.

Consequently, rather than having an overwhelming sense of optimism that there is a consistent forward trend in addressing Indigenous disadvantage and well-being, I feel apprehensive that the genuine efforts being made by governments at this time may not be sufficient to overcome the significant legacy of Indigenous disadvantage and marginalisation.

For a range of reasons that are outlined in this report, there is not sufficient commitment by governments at any level to do whatever it takes to progressively improve the life chances and opportunities for Indigenous people, in terms of both absolute improvement in socio-economic conditions and in terms of reducing the level of inequality that exists compared to the life chances and opportunities for non-Indigenous Australians. I am encouraged that there is recognition by government of the scope of the issues faced, within the confines of practical reconciliation, and some significant movement towards addressing these problems. But ultimately, we are not progressing as well as we can or as well as we need to. This needs to change ... (p3)

The report contains twelve recommendations directed to COAG and the federal government relating to:

data collection issues to support COAG's national report on overcoming Indigenous disadvantage (recommendation 1, p31);
the status of COAG's ministerial action plans for addressing Indigenous disadvantage (recommendations 2-5, p39);
the progress of the COAG whole-of-government community trials (recommendations 6-9, p44, p48); and
Capacity building and governance reform (recommendations 10-12, p89).

Recommendations - Social Justice Report 2003

Recommendation 1 on reconciliation: Data collection

1. That the federal government request the Australian Bureau of Statistics (ABS) to provide to COAG information on the actions that need to be taken in order to improve Indigenous data collection. The ABS should respond to the suggestions made by the Steering Committee for the Review of Government Service Delivery in the Overcoming Indigenous Disadvantage Report 2003, as well as identify actions that they consider necessary to ensure the availability of relevant data on a regular basis. In providing this information, the ABS should:

identify those issues that could be addressed through improvements to its existing data collection processes, as well as those issues which would require additional one-off funding allocations and those issues which would require additional recurrent funding from the federal government or COAG;
estimate the cost of any additional one-off and recurrent funding needs, including the cost of conducting the Indigenous General Social Survey on a triennial basis; and
consult with the Steering Committee for the Review of Government Services, the Aboriginal and Torres Strait Islander Commission, and other relevant agencies.

Recommendations 2 -5 on Reconciliation: Ministerial Council Action Plans

2. That the federal government, through its leadership role in the Council of Australian Governments, ensure that all Commonwealth / State Ministerial Councils finalise action plans on addressing Indigenous disadvantage and reconciliation by 30 June 2004. These action plans must contain benchmarks, with specific timeframes (covering short, medium and long term objectives) for their realisation. Where appropriate, these benchmarks should correlate with the strategic change indicators and headline indicators reported annually by the Steering Committee for the Provision of Government Services.

3. That the federal government, through its leadership role in the Council of Australian Governments, request the Aboriginal and Torres Strait Islander Commission (ATSIC) to advise COAG whether it endorses these action plans and the benchmarks contained within, following consultations through its Regional Councils. ATSIC should be required to advise COAG of its endorsement or any concerns about the action plans within a maximum period of six months after being furnished with the action plans.

4. That the federal government ensure that all Commonwealth / State Ministerial Council Action Plans are made publicly available as a compendium of national commitments to overcoming Indigenous disadvantage.

5. That COAG publicly report on progress in meeting the benchmarks contained in each Commonwealth / State Ministerial Council Action Plan on an annual basis.

Recommendations 6 - 9 on reconciliation: COAG Whole-of-government community trials

6. That the federal government, through the Department of Immigration, Multicultural and Indigenous Affairs, commit to the existence of the Indigenous Communities Coordination Taskforce for a minimum of the five year duration of the COAG whole-of-government community trials and accordingly commit resources to the Taskforce until 2007.

7. That federal government departments participating in the COAG whole-of-government trials increase their staffing commitments to the Indigenous Communities Coordination Taskforce by placing additional officers in the Taskforce's Secretariat.

8. That COAG request the Productivity Commission (as Chair of the Steering Committee for the Review of Government Service Provision) to provide advice on aligning the benchmarks and outcomes agreed at the local level with COAG's National Framework for Reporting on Indigenous Disadvantage. This advice should include any recommendations for adapting the Indigenous Communities Coordination Taskforce Database to enable reporting of outcomes against this National Framework.

9. That COAG agree and fund an independent monitoring and evaluation process for the whole-of-government community trials initiative. The Productivity Commission, Commonwealth Grants Commission or ATSIC's National Office of Evaluation and Audit would be suitable agencies to conduct this review.

Recommendations 10-12 on capacity building and governance reform

10. That COAG adopt ATSIC's Integrated framework on capacity building and sustainable development as a central component of its Reconciliation Framework.

11. That COAG also provide funding for research into best-practice models of governance reform and capacity building relating to Indigenous peoples in Australia. Such research should be based on overseas models such as the Harvard Project on American Indian Economic Development, and build on the findings of existing work on governance reform in Australia.

12. That the Minister for Aboriginal and Torres Strait Islander Affairs (Cth) ensure that reform of the Aboriginal Councils and Associations Act 1976 (Cth) is treated as a high priority of the federal government and ensure extensive consultation is undertaken with Indigenous peoples about proposed amendments to the legislation. Any proposed legislative reforms should be in accordance with the recommendations of the 2002 review of the Act's operation. In particular, proposed amendments should recognise the need for special regulatory assistance for Indigenous organisations and maintain a distinct legislative framework for regulation outside of the Corporations Act as a special measure.

Chapter 2: Reconciliation and government accountability

A 'highly controlled' commitment to 'practical' reconciliation

There has been a high level of commitment by the federal government to continuing to implement programmes in accordance with its 'practical reconciliation' agenda. There have been significant developments in implementing the commitments of the Council of Australian Governments (COAG) to conduct a number of whole-of-government community trials across Australia and to establishing an annual reporting framework on Indigenous disadvantage. There has also been an increased focus on debilitating problems affecting Indigenous communities such as family violence.

The report does not suggest that there is an absence of a commitment to reconciliation by the government. Instead, the commitment is to a particular type of reconciliation around which the boundaries are tightly proscribed.

The report identifies the following concerns about the government's approach:

the limited scope of the commitments that they make;
the lack of a process for dealing with issues that fall outside the parameters set by the government;
the derisive and somewhat arbitrary way that the government discards issues which it does not agree with as 'symbolic' and then simply ignores them; " the lack of a rigorous monitoring framework to hold the government accountable for its commitments; and
the lack of progress in areas which it has chosen to ignore (pp 11- 12).

The continuity over several years of this 'highly controlled' approach of the government towards reconciliation has inevitably seen policy debates shift towards the government's framework. This was increasingly the case in 2003. Progressively each year has seen less focus on issues that do not fall within the government's approach, such as an apology, the plight of the stolen generations, the treaty debate and native title. These issues have not gone away. Rather, those involved in reconciliation have chosen to engage with the government where constructive progress can be made. This reflects political reality rather than an endorsing or embracing of the government's position (p12).

Progress in addressing Indigenous disadvantage

The government has emphasised time and again that the key focus of reconciliation should be on practical and effective measures that address the legacy of profound economic and social disadvantage that is experienced by many Indigenous Australians. Newly released data in 2003 provided the opportunity to establish whether we are progressing towards this ultimate goal of the government's reconciliation agenda and to determine whether the pace of such progress is adequate.

The government's view is that it is making progress in addressing Indigenous disadvantage. However, there are number of notable features about various statements made by members of government that amount to a misrepresentation of progress being made (pp 14 - 16):

First, there are almost no references to progress in reducing the gaps that exist between Indigenous and non-Indigenous Australians (p16).
Second, there are significant omissions in the indicators that the government presents as demonstrating 'real improvement' in absolute terms (p17).
Third, some of the measures of success are presented purely as raw numbers and as percentages of increases in raw numbers. The ABS cautions against such presentation of statistics as they do not account for changes in the accuracy of data collection or increased rates of identification of people as Indigenous. This can result in the presentation of the level of progress being misleading (p17).

Appendix one of the Report provides a statistical profile of the Aboriginal and Torres Strait Islander population. It includes information on the current status of Indigenous peoples on key measures of socio-economic well-being including health status, employment, income, education, housing, and contact with criminal justice and care and protection systems. The main findings of the Appendix in terms of progress in addressing Indigenous disadvantage across these areas are summarised below.

Progress in addressing Indigenous disadvantage

Income

Gross household income for Indigenous people increased by 11% between 1996 and 2001. In 2001, it was 62% of the rate for non-Indigenous Australians, compared to 64% in 1996.
Median gross individual income for Indigenous people increased by 19% from 1996 to 2001, compared to an increase of 28.4% for non-Indigenous people. There has been a considerable increase in the disparity in individual income between these two groups between 1996 and 2001, as well as over the decade from 1991 to 2001.

Employment

In 2001, 54% of Indigenous people of working age were participating in the labour force compared to 73% of non-Indigenous people.
In 2001, the unemployment rate for Indigenous people was 20% - an improvement from the rate of 23% in 1996. This is three times higher than the rate for non-Indigenous Australians.
18% of all Indigenous people in employment in 2001 worked on a CDEP scheme. If CDEP were classified as a form of unemployment, the Indigenous unemployment rate would rise to over 34%.

Education

69% of Indigenous students progressed from year 10 (compulsory) to year 11 (non-compulsory) schooling, compared to 90% of non-Indigenous students in 2001.
38% of Indigenous students were retained to year 12 in 2002 compared to over 76% for non-Indigenous students. This was an increase from 29% in 1996.
In 2001, Indigenous people participated in post-secondary education at a similar rate to non-Indigenous people, although they had a slightly higher attendance rate at TAFE colleges and lower attendance rates at universities. The proprtion of Indigenous youth (aged 15-24 years) attending a tertiary institution declined between 1996 and 2001.

Housing

In 2001, 63% of Indigenous households were renting (compared to 27% of non-Indigenous households), and 13% owned their home outright (compared to 40%).
Indigenous people are 5.6 times more likely to live in over-crowded houses than non-Indigenous people.

Contact with criminal justice system

Indigenous people have consistently constituted 20% of the total prisoner population since the late 1990s, compared to 14% in 1991.
Indigenous people are imprisoned at 16 times the rate of non-Indigenous people. Indigenous women are imprisoned at over 19 times the rate of non-Indigenous women. These rates are higher than in 1991, when the Royal Commission into Aboriginal Deaths in Custody reported.
Since 1997, Indigenous juveniles have constituted at least 42% of all incarcerated juveniles, despite constituting 4% of the total juvenile population. In 2002, Indigenous juveniles were incarcerated at a rate 19 times that of non-Indigenous juveniles, an increase from 13 times in 1993.

Contact with care and protection system

Indigenous children come into contact with the care and protection system at a greater rate than non-Indigenous children, and are increasingly represented at the more serious stages of intervention.

Of particular concern is the lack of achievement in relation to improving the health status of Indigenous Australians.

Progress in addressing Indigenous disadvantage - Health status

Life Expectancy

Life expectancy for Indigenous females declined slightly from 1997 - 2001 to 62.8 years. This rate is lower than the life expectancy rate for females in India and sub-Saharan Africa (with the impact of HIV-AIDs factored out).The gap with non-Indigenous female life expectancy increased from 18.8 to 19.6 years in the same period.
Aboriginal and Torres Strait Islander females can also expect to live between 10.9 and 12.6 years less than Indigenous females in Canada, the United States of America and New Zealand.
Life expectancy for Aboriginal and Torres Strait Islander males increased slightly from 1997-2001 to 56.3 years. This rate is lower than the life expectancy rate for males in Myanmar (Burma), Papua New Guinea and Cambodia. The gap between Indigenous and non-Indigenous male life expectancy increased slightly from 20.6 to 20.7 years in the same period.
Aboriginal and Torres Strait Islander males can also expect to live between 8.8 and 13.5 years less than Indigenous males in Canada, the USA and New Zealand.

Median death age

In 2001, the median age of death was 24 years lower for Indigenous Australians than for non-Indigenous Australians. There has been no identifiable trend towards a reduction in this gap for either Indigenous males or females over the past decade.

Infant health

There are twice as many low birth-weight babies born to Indigenous mothers than to non-Indigenous mothers. The rate of low birth-weights has increased for both groups in recent years, with a slight increase in the disparity between the two groups over the decade.
There are higher rates of low birth-weight babies among Indigenous Australians than there are for mothers in countries that are classified as low development countries by the United Nations, such as Ethiopia, Senegal, Zimbabwe, Lebanon and Indonesia.
There are 2.5 times as many deaths among Indigenous infants than non-Indigenous infants in Australia, with no discernable reduction in the number of deaths or the rate of inequality since 1995.
Rates of infant mortality for Indigenous people in Australia are significantly higher than rates for Indigenous people in Canada, the USA and New Zealand.

These figures indicate that there are clear disparities between Indigenous and non-Indigenous people, and limited progress in reducing these disparities across many key areas of socio-economic status (pp 18 -20).

[T]he claim of the government that 'the wellbeing of Indigenous people is improving under this Government' cannot be verified across many core areas of practical reconciliation. There are undoubtedly some areas where improvements are being realised. Overall, however, there is no consistent forward trend in improving the well-being of Indigenous peoples, and particularly no forward trend towards a reduction in the disparity between Indigenous and non-Indigenous Australians (p17) ... There is some evidence that in relation to key measures, this situation may deteriorate further in the coming decade. The outcomes being achieved by governments are not adequate on any measure of success and despite the investment of significant resources by governments. This situation needs to change (p24).

Implementing the commitments of the Council of Australian Governments

There has been significant progress in implementing the commitments made by the Council of Australian Governments (COAG) towards reconciliation in 2003. The report reviews developments in relation to the three main areas of commitment by COAG.

i) Overcoming Indigenous disadvantage - Annual report against key indicators

In its communique of 5 April 2002, COAG agreed to commission an annual reporting framework on key indicators of Indigenous disadvantage which was released in November 2003. The reporting framework was developed by the Steering Committee for Government Service Provision (see pp25-30). A recurring theme of the framework is acknowledgement that areas such as health, education, employment, housing, crime and so on are inextricably linked. Disadvantage or involvement in any of these areas can have serious impacts on other areas of well-being. The Steering Committee published its first report against this framework, titled Overcoming Indigenous Disadvantage - Key Indicators 2003, in November 2003.

The endorsement of the framework by COAG in August 2003 and the production of the first report by the Steering Committee in November 2003 are both substantial achievements (p33).

There are two main issues relating to the framework which have a bearing on how influential it will be in promoting change to policy and program approaches by governments and ultimately in improving the well-being of Indigenous peoples:

First, a critical issue for the reporting framework is the availability of adequate and regular data. It is critical that the recommendations and suggestions of the Steering Committee in relation to improved data collection are addressed as a matter of urgency in order to ensure that the reporting framework is able to fully realise its potential and to be viable into the longer term (pp 30 -31). The report makes 1 recommendation on these issues.
Second, how the framework is to be incorporated into policy design and programmes across governments and between government departments (pp 32 - 33).

If the reporting framework is not integrated into policy development then the Steering Committee's report risks becoming, in the words of the Chairman of the Steering Committee, 'an annual misery index' which simply reminds us on an annual basis of continuing Indigenous disadvantage without action to change this situation. (p32).

ii) Developing Ministerial Council action plans and benchmarks

It has now been three years since COAG agreed to the production of Ministerial Council action plans and benchmarks. A summary of those that have been released is at pp35 -37 of the report. Many of these action plans are rudimentary in scope and deal almost exclusively with data collection and performance monitoring issues. Very few have any benchmarks or targets.

Benchmarking is a critical aspect of ensuring human rights compliance and accountability. Even the most sophisticated of these action plans, in education, does not meet the attributes necessary for adequate benchmarking (pp 36-38).

the establishment of benchmarks requires ... an identification of an agreed rate of progress towards (the goal of equality), within a short, medium and longer term context, and an evaluation of issues relating to the prioritisation, resourcing and re-engineering of programs and services that will be needed in order to achieve this. The action plans and strategies adopted at the inter-governmental level to date do not contain critical elements for benchmarking.

The absence of appropriate benchmarks is perhaps the most significant failure of governments in implementing practical reconciliation since the year 2000 (p38).

The report contains 4 recommendations aimed at addressing the lack of government accountability through improved benchmarking and action plans.

iii) The COAG whole-of-government community trials

In its communique of 5 April 2002, COAG agreed to trial a whole-of-government cooperative approach in up to ten communities or regions of Australia. Appendix 2 of the report provides a detailed overview of the structure of the trials, and progress in each trial site.

While the trials remain in the preliminary stages of development, rapid progress has been made during 2003 ... In meetings and correspondence about the trials, I have noticed an air of enthusiasm and optimism among government departments about the potential of the trials. Government departments are embracing the challenge to re-learn how to interact with and deliver services to Indigenous peoples. There are no illusions among government departments that the trials are as much about building the capacity of governments as they are about building the capacity of Indigenous communities.

Through the active involvement of Ministers and secretaries of federal departments in the trials, a clear message is being sent through mainstream federal departments that these trials matter and that government is serious about improving outcomes for Indigenous peoples. Even at this preliminary stage, this is a significant achievement for the trials. ATSIC have stated that to date 'there has been clear success through improved relationships across governments at trial sites' (p42).

It is too early to determine whether the trials will have a positive impact in improving government service delivery to communities in each trial region in the longer term or whether transferable lessons will be learnt which are able to more broadly benefit other Indigenous communities. At this stage, the report makes the following observations and concerns about the conduct of the trials and their potential:

First, it appears that the Indigenous Communities Coordination Taskforce (ICCT), the Commonwealth government's coordinating mechanism, is inadequately funded and it is not clear that it will exist for the full five years of the trials and if it does, in what form (pp 42-44).
There is a clear need for the Commonwealth to commit to the existence of the ICCT for the full five years of the COAG trials and to increase staffing levels to ensure that the ICCT is able to be fully responsive and continue to make high quality contributions to the COAG trials (p43).

The report makes 2 recommendations relating to this concern.

Second, there are concerns relating to the use of the Flexible Funding Pool that has been established to support the trials, in particular, there is no commitment to any funding pool for the final two years of the trials (p45). The ICCT expects that funding will ultimately be provided in 'a more informal way' through the joining up of existing programs and changes to program approaches. This is an important goal for the trials and a way of ensuring that the outcomes of the trials are sustainable and able to be more broadly applied to other Indigenous communities. There will, however, need to be close attention paid in the implementation of the trials to the reality of this goal and a degree of flexibility from the government to allocate funding to the ICCT for the final two years of the trials should such funding ultimately prove necessary.
Third, there is concern from ATSIC that it is not being sufficiently engaged in the trials (pp 45-46).
Fourth, it is not clear at this stage that the performance monitoring framework for the trials will be sufficiently rigorous. It is anticipated that the first two years of the trial will be reviewed in mid-2004 and a further review conducted at the end of the 5 year trial phase. It is not clear at this stage how these reviews will be conducted, by whom or whether the results of the reviews will be made public (pp 46-48).
The lack of a clear evaluation strategy is of great concern. It may be that the uncertainty in this regard is largely the product of the evolving nature of the trials and that there will be much greater clarity during 2004. I have previously, however, expressed concern at reliance by COAG on internal monitoring and evaluation strategies. In particular, I have expressed concerns about the lack of information that is publicly reported about such evaluations (thus limiting government accountability), the lack of appropriate consultation with Indigenous peoples and lack of independence in the monitoring process.

My concern about such processes is reinforced by the failure in recent years of the Ministerial Council on Aboriginal and Torres Strait Islander Affairs to complete two significant evaluations on COAG's behalf and in a timely manner. The first is the review of progress by all levels of government in implementing the recommendations of the Bringing them home report. The second is an audit of family violence programmes to guide the response of COAG to this crisis issue. Approximately three years after these reviews were announced, neither has been presented to COAG nor made public (p46).

A related issue is the existence of adequate data to contribute to the monitoring and evaluation process. In the initial stages of the trials, there has been a significant focus on developing local level priorities, outcomes and benchmarks. It is not, however, clear how the local level data will be able to be matched up to the national level.

It is quite likely that it will not be possible to match up local level indicators with the national reporting framework, other than through the provision of case studies which can illustrate links between particular types of policy interventions and outcomes. This will, of itself, be valuable information. The concern is that the trials have set objectives for data analysis and performance monitoring that will not be able to be achieved because of the existing limitations in data quality and collection (p47).

The report makes 2 recommendations relating to this concern.

Fifth, it is not clear how the lessons learnt from the trials will be transferable and contribute to broader reform of program design and service delivery for Indigenous peoples. Concerns identified by ATSIC in this regard include that:

there is limited experimentation of new approaches by Lead Agencies in the trials;

there is a blurring in some instances of Commonwealth and state responsibilities, 'attracting the possibility of cost shifting between parties'; and

initiatives in one trial are not being identified as having potential application in other trials.

Ultimately, the transferability of outcomes from the trials in the longer term will depend on whether the trials are able to more broadly change the status quo of service delivery and program guidelines. A significant challenge will be ensuring that the adoption of more holistic, whole-of-government approaches is not a transient feature and that departments do not simply slip back into their usual ways of doing things once the trials have ended. Factors that will need to be addressed to ensure that this is not the case include the following:

Continued engagement of mainstream departments and programs: It is clear that a significant factor in the early success of the trials has been the high level involvement and commitment of ministers and departmental secretaries at the federal level in taking responsibility for particular communities (as the lead agency) and harnessing the services and programs of mainstream departments. The lead agency approach is not sustainable beyond a limited number of communities in its current format. Mechanisms such as the Minister's group and the Secretaries group may be more sustainable, so long as departments continue to have a significant investment in promoting improved coordination of services.
Coordinating funding of proposals in non-trial sites: The identification of a region or community as a trial site has naturally elevated the priority with which the service delivery needs of that community or region are dealt with. Governments and departments have been able to look to how they can relax program guidelines or join up funding from different programs and areas for more holistic solutions. A significant challenge is identifying how proposals in non-trial sites can also benefit from this approach where such proposals do not enjoy such priority attention.
Resource constraints: While the emphasis of the trials is not on new money but on better coordinating and getting value from existing money, there is a broader context of significant under-funding of key areas of Indigenous disadvantage. The focus on a limited number of communities, and the availability of a short term funding pool, shields the trials from this broader issue. Funding restrictions will become a significant issue when seeking to more broadly implement the lessons learnt from the trials. This will be complicated further by an emphasis on addressing relative need and reallocating funding towards those areas and issues of greatest disadvantage.
Capacity development of Indigenous communities: Each of the trials has built on local Indigenous initiatives that were already under development to improve service delivery to their communities. The trials have undoubtedly greatly advanced processes that were previously underway in these and other trial areas. However, the broader concern is how transferable lessons will be drawn from the trials for those communities which experience a high degree of dysfunction and which are not, at least at this stage, capable of organising themselves so that they can better interact with governments. In other words, how do we avoid the situation where governments focus their attention on improved coordination of service delivery to those communities that are relatively organised? It is critical that in the longer term other communities do not get left behind because they do not have such capacity.

There are also a number of processes available to ATSIC and Indigenous peoples to build on the achievements of the trials and more broadly inform policies and programs. There are three significant processes which ATSIC currently utilises which provide ATSIC with some leverage for advancing inter-governmental coordination and improved service delivery:

ATSIC has entered into a number of partnership agreements with states and territories, as well as agreements and compacts with federal government departments.
through the operation of ATSIC's Regional Councils and the development of their regional plans. Regional plans offer a significant opportunity for coordinating government activity within regions.
ATSIC leads the Community Participation Agreements (CPA) initiative under the Australians Working Together package. The CPA process provides ATSIC with a significant tool for advancing the objectives of Indigenous communities or regions as they relate to aspects of government service delivery.

A further tool which is available to Indigenous communities to build on the advances of the COAG trials are the Indigenous Land Use Agreement provisions of the Native Title Act 1993 (Cth).

Overall, the COAG whole-of-government community trials have advanced significantly during 2003 and offer much potential for reforming inter-government and whole-of-government approaches to service delivery to Indigenous peoples. There have already been a number of achievements from the process. There remain a number of challenges and some structural issues (particularly relating to monitoring and evaluation) that remain to be addressed. The long term success of the process will, however, depend on how the trials promote structural change in the way that governments go about delivering services to Indigenous peoples (p54).

Conclusions - Government accountability for reconciliation

During 2003, the government's approach to reconciliation has continued to be restricted to measures that fall within its 'practical' reconciliation approach. This has the consequence of there being a partial framework for progressing reconciliation with significant issues of unfinished business left in abeyance. The report establishes that progress in advancing 'practical' reconciliation over the course of the year has been variable.

The statistical data indicates that there has been limited progress over the past five years in achieving the central purpose of practical reconciliation, namely improved Indigenous well-being. Of particular concern is the fact that the disparities that exist between Indigenous and non-Indigenous Australians have remained substantially the same, or have widened over the past five and ten years. Indigenous Australians also presently endure health standards worse than those in some so-called 'third world' countries. The lack of progress in achieving substantial improvement in Indigenous well-being is also in marked contrast to outcomes in similar settler countries such as the United States of America, Canada and New Zealand (p54) ...

The year 2003 saw the development of significant measures for advancing reconciliation within the framework of the Council of Australian Governments. The national reporting framework on Indigenous disadvantage and whole-of-government trials under COAG are in fledgling stages and there are a number of issues that remain to be addressed before success is assured.

These initiatives have not, however, been backed up by a range of other commitments and processes that are necessary to ensure the long term sustainability of improvements in the well-being of Indigenous peoples. There remains an absence of an appropriate national commitment to redressing Indigenous disadvantage, sufficiently rigorous monitoring and evaluation mechanisms, and benchmarks with both short term and longer term targets agreed with Indigenous peoples. There are also critical issues relating to the depth of inequality experienced by Indigenous people, the size and growth of the Indigenous population and under-resourcing of services and programs to Indigenous peoples that cannot continue to be ignored if there is to be any genuine improvement in Indigenous peoples' circumstances.

Ultimately, the process of practical reconciliation is hampered by its lack of a substantive action plan for overcoming Indigenous disadvantage in the longer term, with short term objectives to indicate whether the rate of progress towards this goal is sufficient.

The failure of the government to address these factors as part of its practical reconciliation approach reflects a fundamental flaw in the process. By committing to provide full access to citizenship entitlements and nothing more, practical reconciliation is a 'blank cheque' and amounts to a commitment into the foreseeable future to pay the increased economic and social costs associated with Indigenous disadvantage. In relation to employment alone, this cost is estimated by the Centre for Aboriginal Economic Policy Research to rise to the vicinity of 0.5 to 1% of gross domestic product within the decade.

At this stage, it is not possible to foresee a time when 'record levels of expenditure' of the Commonwealth on Indigenous services will not be necessary. It is also not possible to foresee a time when a continuation of the current approach will result in significant improvements in the lives of Indigenous peoples. Practical reconciliation does not have a plan for overcoming rather than simply managing Indigenous disadvantage.

Ultimately, deficiencies in monitoring and evaluating processes for reconciliation indicate that there are problems of accountability of governments for their contribution to reconciliation. This lack of accountability allows governments to unilaterally establish the boundaries of issues that they will address in the first place and then to avoid public scrutiny when material improvements in Indigenous well-being are not achieved and sustained. A number of recommendations have been made throughout the course of this chapter to address this situation (pp55-56).

Chapter 3: Indigenous participation in decision making - Transforming the relationship between government and Indigenous peoples

There has been increased attention over the past year to the nature of the relationship between government and Indigenous peoples. There has been a lot of talk from governments about the need to change the way they interact with and provide services to Indigenous peoples and communities. This has largely occurred as a result of the significant policy focus of Indigenous peoples and governments on capacity building and governance reform in recent years, progress in 2003 in advancing the whole-of-government community trials by the Council of Australian Governments.

Debates during the year about the relationship of Indigenous peoples and government have identified three key, inter-connected, issues. First, the need to change the way government interacts with Indigenous peoples. For governments, the emphasis here has been on the need to change the way services are provided to Indigenous peoples, including through improved coordination between governments and among government agencies. Second, the need to build the capacity of Indigenous communities, coupled with demands for improved corporate governance among Indigenous organisations. Third, the need to review the structures and operations of ATSIC, such as through introducing improved corporate governance mechanisms and by making ATSIC more representative and participatory. Indigenous peoples and governments alike have focused on the importance of these issues during the past year. There are, however, differences on how to best address these issues.

A relationship of dependence - Challenging the existing service delivery approach

Indigenous peoples seek to challenge the underlying basis of their relationship to governments in Australia. Indigenous peoples have increasingly come to realise that the current system perpetuates a cycle of dependency and is also not contributing to or promoting sustainable improvements in Indigenous communities and individual well-being.

There are two levels of dependency:

First, of Indigenous organisations to government agencies.
Second, of Indigenous people to these organisations. The activities of Indigenous organisations are substantially defined and controlled by government decision making processes over which Indigenous peoples exercise minimal, if any, control. As a result, such organisations are based on non-Indigenous models of governance and do not necessarily reflect the priorities and needs of Indigenous communities.

Concerns about dependency on permanent government service delivery are accompanied by concerns that this service delivery model is not delivering long term and sustainable improvements in Indigenous communities ... The current approach reduces the idea of development 'to one of 'community development' devoid of any economic dimension' and provides 'little encouragement to Indigenous economic development since the resourcing of Indigenous organisations does not increase with increases in economic activity in their local area'. Service delivery of itself brings few economic benefits (p61).

Indigenous people seek to move from a position of dependency on government service delivery to being active participants in governing their own communities. This requires a changed approach by governments and Indigenous organisations and communities.

Overall, it requires two main but inter-related changes. First, it requires changes to the approach of government to funding in order to increase Indigenous participation and control. Second, it raises challenges for Indigenous people to develop structures that are capable of interacting with governments while also being representative of and accountable back to Indigenous communities and people. This requires building the capacity of Indigenous communities to be self-determining as well as reforming the structures of ATSIC to provide effective representation within government at the regional, state and national levels. It is this second set of challenges that this chapter focuses on.

Facilitating Indigenous participation and moving beyond welfare dependency - The government's 'shared responsibility' approach

[T]he government's approach, and their efforts to date to engage Indigenous peoples, do not seek to transform the existing model of service delivery to Indigenous peoples. Instead, they focus on improving the effectiveness of the existing approach and consequently, the outcomes achieved by it in relation to Indigenous disadvantage ( p66).

The report notes that although government has made a series of commitments in relation to the 'shared responsibility' approach, it appears reluctant to relinquish any control over decision making or resource allocation (pp 64 - 65). Other observations are that:

The primary focus of the government is not on transforming the current approach, rather engaging Indigenous to make the system more responsive to their needs.
It is not based on recognising Indigenous jurisdictions (and in turn on distinct Indigenous identities) or on sharing power.
the government's focus in on achieving greater efficiency in service delivery, not radical change to existing financial commitments (p66).

Capacity building in Indigenous communities and governance reform

The report identifies four main features of the developments over the past few years relating to capacity building and governance reform:

The identification of significant capacity in Indigenous communities

The first is that much capacity at the community level has been identified. A key challenge of reform is therefore to identify existing capacity in Indigenous communities and to understand and deal with the circumstances that prevent this capacity from being fully utilised (pp 67-71).

The importance of capacity building in building a more effective service delivery framework

There is a growing realisation of the integral role that capacity building plays in addressing the deficiencies of the existing service delivery approach. It is only when effective governance strategies are in place that economic and other development projects have the chance of becoming sustainable. In developing capacity, international best practice and research suggests it is more productive for Indigenous communities to focus on issues over which they already exert a high level of control, rather than get embroiled in issues over which they have little control (p72) .

The importance of corporate governance standards

It is estimated that there are nearly 3000 associations incorporated under the Aboriginal Councils and Associations Act (the Act). Whole Indigenous communities may be dependent on the services provided by a corporation. The standard of corporate governance thus has a major impact on service delivery and accessibility of programs for Indigenous peoples. The recent review of the Act concluded it is out of date and has now itself become a source of disadvantage for Indigenous people (p73).

The corporation is not always a culturally appropriate structure for Indigenous organisations. This cultural mismatch is significant because incorporation is often 'involuntary', being a requirement of legislative provisions and government policy. This:

exposes Indigenous people to technical requirements they may not understand;
forces together Indigenous groups which would not otherwise have joined together;
can result in confusion as to proper roles as members of the community or group and as members of the corporation;
has led to organisations being 'dominated by larger families' (pp 74-75).

Ultimately, incorporation had not contributed to social capital and undermined existing capacities such that 'the effects of this history now have to be 'undone'. On 15 January 2004, the Minister for Immigration and Multicultural and Indigenous Affairs announced that the government was shortly to introduce proposed legislative reforms to the Act. The report supports such amendments, and recommends that amendments must be subject to broad consultation into order to achieve an appropriate 'cultural match' with the needs of Indigenous people (p76).

Definitions of capacity building and a reform agenda

[D]espite the convergence of views on the need for capacity building and governance reform, there is no commonly agreed definition of what capacity building is, nor an agenda for progressing capacity building and governance reform in a whole of government and holistic manner (p76).

The report notes there is no commonly agreed definition of what 'capacity building' is and what a reform agenda based on 'capacity building' should be. The lack of a common understanding promotes policy confusion and has the potential to render commitments by governments to support such processes meaningless. It also raises the possibility that the emphasis of governments on capacity-building could amount to nothing more than a bureaucratisation of what was formerly called community development (pp 76-77).

ATSIC has developed an integrated framework for progressing capacity building and promoting sustainable development in Indigenous communities. There are three defining features of ATSIC's approach:

First, it is a people-centred approach focused on building the human and social capital necessary for Indigenous participation in programs.
Second, it emphasises process elements such as access to choice, participation in planning, and access to decision making.
Third, is a focus on sustainability, continually re-assessing whether a program or project can become self-sustaining (pp 82-85).

This framework highlights that there are three levels of interventions for capacity development - the community level; Indigenous organisations; and government level (including ATSIC). There are different approaches needed for each level (pp 86-88). The report recommends that this framework be adopted by COAG as part of its reconciliation framework. The adoption of this framework would provide a focus to overcome the concerns raised above.

Overall, ... there have been significant advances in the past three years in relation to capacity building initiatives. There is a broader acceptance of the need for capacity building and governance reform within Indigenous communities and to changing the way that governments go about delivering services. There is also a broader acknowledgement of the breadth of initiatives currently underway to address the overall circumstances of Indigenous peoples. This is let down, however, by the lack of a consistent understanding of what capacity building entails which promotes a more limited focus purely on the operations of existing service delivery mechanisms.

The proposal of an integrated capacity development approach by ATSIC demonstrates the potential for transforming the relationship of Indigenous peoples and government through a focus on governance reform and capacity building. It provides a holistic, whole-of-government approach that serves as an agenda for change. The adoption of this framework would not only provide a long term framework and vision for improving Indigenous well-being, it would also ensure that all governments proceed in addressing capacity development issues with a consistent understanding of the goals and objectives of such a process. Many current initiatives of governments - such as the COAG whole-of-government trials, proposals to reform corporate governance standards relating to Indigenous corporations, and agreement making with ATSIC - fit within or is consistent with this integrated framework (p88).

The report makes 3 recommendations relating to capacity building and governance reform (recommendations 10-12).

Strengthening the role of the Aboriginal and Torres Strait Islander Commission

In 2003, an ATSIC Review Team made 67 recommendations which broadly address the reform of ATSIC and issues of the relationship between ATSIC and Indigenous peoples, the federal government, the states and territories, and between its elected and administrative arms (pp 94 - 95).

The Report supports the following recommendations of the Review Team:

to retain ATSIC's 35 Regional Councils and accord higher priority to the Regional Council planning process as the basis of national policies;
to reunify ATSIC and ATSIS in one organisation;
to retain the conflict of interest directions within ATSIC (p95).

In supporting the reunification of ATSIC and ATSIS, I support the retention of the conflict of interest directions within ATSIC by which ATSIC's elected representatives would continue to set policy priorities and to decide the broad program allocation of funding but not have any involvement in making individual funding decisions. The reunification of ATSIC's structure would overcome a potential tension that has been created through the creation of ATSIS whereby it is required to 'take all reasonable steps to ensure that ATSIS conforms to the policies and strategic priorities established by ATSIC' on the one hand, and 'coordinate its activities to achieve effective synergies with overall Government policies and priorities as well as have appropriate regard to overall Government policies and priorities' on the other hand. (p95).

The report also identifies significant problems with the proposals of the ATSIC Review Team:

I also have reservations about the Review Team's proposals for the creation of a national body and national executive in the format that they propose. I also consider that the Review Team's model does not provide adequate support to ATSIC's national structure and consequently would not provide ATSIC with sufficient leverage or powers to undertake a broader role of monitoring performance by other government agencies (at all levels) and in setting priorities to apply across government.

I am also concerned that there are also significant gaps in the Review Team's analysis which overlook issues relating to the broader service delivery environment in which ATSIC operates, as well as deficiencies in the model that it proposes. (pp95-96)

The report also notes the following concerns:

The Review Team had on the one hand acknowledged that ATSIC has wrongly been used as a scapegoat for failures by governments in addressing key areas of Indigenous disadvantage yet on the other hand replicated this scape-goating itself (p96).

The Review Team's report does not acknowledge the broader framework of government policy making and service delivery in which ATSIC operates. This includes recognition of the significant under-funding in key areas of Indigenous marginalisation, which is a key factor in preventing needs-based funding from being implemented (p96).

The ATSIC Review Team fails to acknowledge a number of recent initiatives undertaken by ATSIC to reform the way that it operates and to advocate for changes to the way the existing service delivery environment operates (for example, ATSIC's Integrated framework for capacity building and sustainable development discussed earlier in this chapter).

The Review Team's final report contains no detailed discussion and recommendations relating to supporting more flexible structures at the Regional Council level.

The Review Team's discussion paper devoted significant attention to proposed reforms to strengthen ATSIC's Regional Council structure. The ... final report contains no recommendations relating to including provisions in the ATSIC Act to allow regional council structures to evolve over the longer-term in accordance with the aspirations of Indigenous peoples within the various council regions. Such proposals have now been under discussion since the conduct of ATSIC's Section 26 review in 1998 and the regional autonomy consultations of 1999 and 2000 without result.

The Review Team's proposals for ATSIC's national representative structures are flawed.

I note however that in general, there is much potential in the Review Team's proposal that there be a new mechanism such as the proposed 'national body' to involve Regional Council Chairs in establishing national priorities and policies. It is desirable that such a 'national body' determine ATSIC policy, primarily through the development of a national plan which would be drawn from ATSIC Regional Council plans.

It is fanciful, however, to suggest that a national body comprised of such a membership and charged with such responsibilities could effectively acquit their responsibilities to Indigenous peoples through the national body, particularly when the national body would only be meeting once every two years.

The infrequency of meetings of the proposed 'national body' combined with the reduced size of the national board (or new 'national executive') could significantly impact on the ability of ATSIC to advocate for reform at the national level, and on its ability to develop national policies. This would consequently affect its ability to influence the approach of other government departments and different governments (pp98-99).

The report suggests that consideration could be given to an intermediate position whereby the ATSIC Board of Commissioners or equivalent 'national executive' is retained and charged with the day to day responsibilities of advocating ATSIC's position at a national level. Such a body would need to address issues of representativeness. Such a body could then be supported by a national congress or 'national body' made up of all Regional Council Chairs which meets with the Board of Commissioners on a regular basis (perhaps 3 to 4 times per year) to determine ATSIC's national policies and priorities (p99).

The report then proposes how ATSIC could be reformed to meet the key objectives identified by the ATSIC Review. This requires change to their powers at each of the national, state/territory, and regional levels.

Reform to ATSIC at the national level

There must be sufficient attention paid to the importance of ATSIC maintaining a strong voice at the national level. Any diminution of ATSIC's role at the national level will ultimately affect its ability to influence the national policy agenda and will lead to less effective advocacy for Indigenous peoples. This will be the case even where a diminution of the national focus is accompanied by an enhanced role for regional councils (p100).

ATSIC's existing powers should be enhanced by strengthening the scrutiny role of ATSIC over service delivery and program design by other government departments. This could be achieved through amendments to the ATSIC Act which:

empower ATSIC to set the objectives and guiding principles for service delivery to Indigenous peoples across all issues (which they can do under the present legislation), but also to empower them to be able to develop legally binding directions for service delivery agencies that accord with these principles;
require the Minister to table in Parliament all such directions set by the ATSIC Board;
provide that all directions issued by the ATSIC National Board and subsequently tabled in Parliament have the status of legislative instruments (or delegated legislation);
require all government departments to include in their annual reports to Parliament information as to how they implement the directions of the ATSIC Board in delivering relevant services and programs;
empower ATSIC to evaluate how government departments and agencies (at all levels) comply with these directions in delivering services;
provide for regular scrutiny of compliance with these directions by the Australian National Audit Office or through an enhanced Office of Evaluation and Audit within ATSIC; and
provide for scrutiny processes by the Parliament, including through ATSIC reporting to Parliament about deficiencies in department's complying with directions and for parliamentary committees to scrutinise the actions of departments through specific inquiries or senate estimate processes. (pp100-101)

Reform to ATSIC at the state / territory level

The report supports enhancing the structure of ATSIC for interface with state and territory government through improved support for ATSIC's State Advisory Committees. In particular, the report proposes a role for ATSIC's Office of Evaluation and Audit (OEA) in monitoring state and territory level service delivery (p102).

Reform to ATSIC at the regional level

The report supports the ATSIC Review report's emphasis on the need for enhanced powers at the regional level and for input from the regional and local levels to inform policy development and decision-making processes at the state / territory and national levels (p 103). The following issues must be addressed:

The provision of the ability for regional councils to enter into agreements.
The need to enhance the profile of ATSIC representatives at the state level to ensure that regional needs are prioritised.
The creation of flexibility for regional councils to adapt to their local needs through developing alternative governance arrangements (p104).

The report highlights the need for flexibility in developing new forms of governance and the unworkability of 'one-size-fits-all' models (p104).

Overall, the report concludes on the need for ATSIC reform that:

The ATSIC Review goes part of the way to identifying an agenda for change to ATSIC ... There is, however, a need to go beyond what the Review Team have proposed and ensure that there is no relative weakening in ATSIC's national structure while also increasing the focus on supporting innovation at the regional level. Reform of ATSIC is a critical aspect in achieving the effective participation of Indigenous peoples in decision making processes and supporting sustainable development. The extent to which the government supports ATSIC over the coming year to more effectively drive an agenda for change, including by providing it with sharper legislative powers, will be the litmus test of their commitment to achieving sustainable improvements in Indigenous communities (p105).

Chapter 4: Responding to petrol sniffing on the Anangu Pitjantjatjara Lands: A case study

[G]iven the smallness of the Anangu population, and the proportion of petrol sniffers within it, why has there been so little progress in addressing these problems, despite the plethora of governmental service delivery agencies and committees already in existence? (p152).

Over the past year, there has been significant concern expressed about petrol sniffing in Aboriginal and Torres Strait Islander communities at the national level. The phenomenon of petrol-sniffing is, however, not well-understood and there is no reliable national data on the number of people involved and the extent of resulting damage to individuals and communities.

There are, however, reported instances of petrol sniffing being a significant issue in several Indigenous communities across Australia. The limited research also suggests that there are different patterns of use of petrol and other volatile substances by Indigenous people compared to non-Indigenous people.

It has been argued that there are structural problems in the way governments address issues of petrol sniffing in Indigenous communities. Because of the lack of reliable data and the absence of any powerful lobby groups or other agencies with the capacity to ensure that petrol sniffing remains on the public agenda in anything more than a transient manner, petrol sniffing as a public issue owes almost everything to media outbursts. Petrol sniffing is, consequently, unlikely to become the subject of a long-term, sustained policy focus.

In these circumstances, it is difficult to consolidate an evidence base, to build and sustain links with existing expertise, or to maintain extensive corporate knowledge on the subject. By identifying petrol sniffing as an 'Indigenous problem' it has also been marginalised as a policy issue, with the result that it has not received the attention and resourcing that it may have if it had been positioned within mainstream substance misuse policy frameworks.

Petrol sniffing on the Anangu Pitjantjatjara Lands: A case study

In September 2002, the South Australian Coroner brought down his findings in the inquests into the deaths of three Anangu who were chronic petrol sniffers and lived on the Anangu Pitjantjatjara Lands (AP Lands) of South Australia. Data collected in 2000 indicates that, despite an overall decline in the 1990s, the number of people engaged in petrol sniffing on the AP Lands has begin to increase in recent years. Approximately 6% of the total Anangu population and 12% of the population aged between 10 and 35 years of age were sniffers in 2000. Petrol sniffing had caused at least 35 deaths in the last 20 years in a population of between 2,000 and 2,500 (pp 118-120).

This report examines the implementation of the Coroner's recommendations for addressing petrol sniffing issues on the AP lands.

The findings and recommendations of the Coroner can be grouped into two key issues:

Coordination, funding and action by Government: Concerns were expressed about the failure of governments to consult appropriately and significant delay in implementing programs, with a need for governments to move beyond the 'information gathering' stage. The Inquest highlights the need for governments to re-assess their coordination of policy and funding approaches to service delivery on the AP Lands;

Specific interventions for addressing petrol sniffing: The Inquest identifies the need to adopt a combination of primary, secondary and tertiary interventions relating to health and justice issues in order to combat petrol sniffing, combined with strategies to address the significant disadvantage and lack of services on the AP Lands, which forms the environment in which petrol sniffing takes place.

Overall, the report finds that:

The Coronial Inquest identified the need for 'prompt, forthright, properly planned, properly funded action' and the importance of effective inter-governmental coordination to achieve this and sustain it into the longer term. In the year since the Coronial Inquest, there has been some movement in this direction but overall not enough (p150).

There is no lack of inter-departmental and inter-governmental forums for tackling issues relating to petrol sniffing, with the existence over the past few years of the APLIICC (Tier One Committee and Task Forces), CBRG, Petrol Sniffing Task Force (now submerged within APLIICC Tier One Committee) and Tri-Jurisdictional Justice Group. The COAG whole of government community trial is also now super-imposed over these structures.

There have been some positive initiatives emerging from these committees, such as the agreement to conduct a study of demographics on the AP Lands and to explore coordination and sharing of facilities and programs across the NT, SA and WA; the creation of an Office of the APY Lands within the South Australian Indigenous affairs department; the allocation of additional funding by the SA government to address related issues on the AP Lands; and the creation of an Allocation Committee to coordinate funding on the AP Lands. The decision to conduct the COAG trial on the AP Lands is also a positive acknowledgement of the urgent needs of the area and of the importance of governments changing the way they work with the Anangu.

The establishment of these committees has also been met favourably by communities on the AP Lands in general. However, communities on the AP Lands have expressed concerns about the continuing piecemeal approach to petrol sniffing and a reluctance to act by governments in the twelve months following the Coronial Inquest. Governments cite the intractable nature of the issue and the need for appropriate consultation as reasons for the slow progress to date.

There is significant concern that the discrete focus on petrol sniffing is potentially being obscured by the level of bureaucracy. There is concern that petrol sniffing will be submerged within a sea of other significant issues and not receive the focussed attention called for by the Coronial Inquest and communities on the AP Lands.

Concerns that have emerged in the initial twelve months since the Coronial Inquest include that the COAG trial might, in the name of being more 'streamlined', in fact be distancing key representative bodies on the AP Lands from service delivery and decision making as it relates to substance misuse. This is particularly due to concerns about the over-reliance on the APY Executive as the 'gateway' and peak body representing all Anangu interests. This seems to extend beyond its community acceptance and expertise. Significant concerns about its corporate governance and service delivery performance have also been raised as related concerns.

There are also concerns that the emphasis of the COAG Trial and these processes on community ownership obscures the bigger picture of a lack of adequate and appropriate service delivery and funding. The expectations that appear to be placed on the APY Executive to take carriage and responsibility for issues, beyond coordinating consultations and participating in priority setting, is indicative of this. The Coronial Inquest makes clear the need for outside assistance and improved government performance. This may be being obscured by the emphasis on joint responsibility.

There is also, however, optimism that the COAG trial may ultimately breakthrough and achieve improved inter-governmental and inter-agency coordination where it has not been achieved in the past, and that it may result in greater accountability for all levels of government. There is also hope that the involvement of the Commonwealth may also provide greater leverage and ultimately achieve more effective outcomes. It is, however, too early to say whether these potential benefits will be realised.

A barrier to achieving such results remains the clear under-resourcing of service delivery on the AP Lands. The allocation of nearly $12 million by the SA government specifically to petrol sniffing related issues over the next 4 years is a welcome announcement. Concerns have been expressed that this quantum may not be enough. There is a need for ongoing assessment of the resourcing need, and for funding to be ongoing beyond the 4 year budget cycle. In particular, there is concern at the failure to date to fund projects beyond the pilot stage. The Coroner's suggestion of moving to block funding on a triennial basis is aimed to addressing this concern.

It remains of great concern that alongside the establishment of the various committees and inter-governmental forums, there is no clear, long term commitment to do whatever it takes to overcome the petrol sniffing problem or movement towards establishing benchmarks and targets towards this end. It may be that the Commonwealth government's community participation agreement process (coordinated by ATSIC) may provide a way forward in this regard.

At a practical level, there has been variable progress in implementing initiatives at the primary, secondary and tertiary intervention stages, relating to both health and justice issues. There have been practical problems in placing youth-workers and a youth work coordinator, with differing views as to the potential role of the CDEP scheme, where such workers are placed and whether more part time appointments would be more appropriate to the needs of communities. Significant issues relating to homelands / outstations, a changed approach to child protection issues and the provision of appropriate disability services and a secure care facility for offenders remain under consideration or subject to feasibility studies.

There have been positive developments relating to service delivery with an increased presence of correctional services officers, police and expansion of the community constable scheme as an interim measure. This has resulted in an improved response time from police. These issues require much greater attention, but there is greater optimism about the ability of police to have a more effective presence on the AP Lands, with consequent benefits for community safety.

The police continue, however, to face pressures of being heavily relied upon in the absence of other necessary forms of service delivery. Overall, there also remains a significant challenge of balancing law and order responses with adequate provision of services, particularly those which are health related.

Chapter 5: Addressing family violence in Indigenous communities

There is no issue currently causing more destruction to the fabric of Indigenous communities than family violence. This has been acknowledged by all levels of government in recent years, with a number of significant inquiries and initiatives undertaken or commenced at the federal, state and territory level to address its impact.

Recent initiatives such as the Prime Minister's family violence roundtable in July 2003 and subsequent commitment of $20 million as a 'down payment' to address family violence issues, the response of the Western Australian government to the Gordon Inquiry's findings, and the focus on family violence issues in several of the COAG whole-of-government community trials, demonstrate a genuine commitment from governments to address family violence issues. The report notes, however that:

The intensive scrutiny and public awareness of this issue has not, however, led to sufficient commitments of resources and effort to date. Nor has it led to continuous support for innovative, community led solutions to address the violence or the adoption of an holistic, coordinated approach to it. Overall, there is still not enough action being taken to address this issue with the priority and urgency that it requires (p155).

Indigenous perspectives on family violence

Indigenous concepts of violence are much broader than usual mainstream definitions of domestic violence. Many current approaches to family violence derive from a model of 'domestic violence' - violence against women, underpinned by western models of female oppression. These do not 'fit' Indigenous experience. The identity of many Indigenous women is bound to their experience as Indigenous people. Rather than sharing a common experience of sexism binding them with non-Indigenous women, this may bind them more to their community, including the men of the community. Indigenous people may also have a negative perception of police and welfare authorities.

Indigenous women's experience of discrimination and violence is bound up in the colour of their skin as well as their gender. Strategies for addressing family violence in Indigenous communities need to acknowledge that a consequence of this is that an Indigenous woman 'may be unable or unwilling to fragment their identity by leaving the community, kin, family or partners' as a solution to the violence (p159).

Liberal feminist approaches to domestic violence also tend to emphasise the experience of the victim, as opposed to the experiences of the perpetrator. This differs from an Indigenous community-based perspective, which includes the issues of both perpetrator and victim. Indigenous women are saying that men's issues must also be addressed if real solutions are to be found and lasting changes are to happen.

Of particular concern is that the typical 'western' response to family violence is to criminalise such behaviour through specific domestic violence legislation, with the strong possibility of imprisonment being the outcome for those convicted of offences. An emphasis on criminal justice responses to family violence poses two main concerns for Indigenous women. The first is that the system is generally ineffective in addressing the behaviour of the perpetrator in the longer term. The effect of imprisonment is to remove them from the community and then, without any focus on rehabilitation or addressing the circumstances that led to the offending in the first place, to simply return them to the same environment.

The second is that there are a range of barriers in the accessibility and cultural appropriateness of legal processes which discourage Indigenous women from using the criminal justice system in the first place.

It is not being suggested that incidents of family violence in Indigenous communities should be condoned or that responsibility of perpetrators be diminished. Instead, these barriers, highlight a failure to acknowledge the unique characteristics of Indigenous family violence has the potential to render approaches for dealing with this violence ineffective, with the consequence that Indigenous women ultimately do not enjoy the protection of the law. Accordingly, responses to family violence in Indigenous communities need to be cognisant of these broader issues and responsive to them (pp160-161).

The extent of family violence in Indigenous communities

There are significant deficiencies in the availability of statistics and research on the extent and nature of family violence in communities. An overview of recent statistics and research into the extent and nature of Indigenous family violence is provided in the report (pp161-168). What data exists suggests that Indigenous people suffer violence, including family violence, at significantly higher rates than other Australians do. This situation has existed for at least the past two decades with no identifiable improvement.

Government Responses to Family Violence in Indigenous communities

Addressing family violence is a shared responsibility between all levels of government with prime responsibility resting with health and community service agencies in federal, state and territory governments. The report provides an overview of recent developments in programs for family violence at the federal level and in all states and territories. It particularly notes:

the funding for 1000 CDEP placements in 2003-04;
the Prime Minister's national roundtable on Indigenous family violence in July 2003;
the development of ATSIC's National Family Violence Policy, which has since been endorsed progressively by regional councils and is intended to be supported by regional plans of action;
Putting People First, the WA Government's implementation plan in response the Gordon Inquiry;
developments in COAG trial sites, such as the focus of the Northern Tasmanian site on family violence issues.

The report also notes that failure of MCATSIA to complete an audit of existing family violence strategies that it committed to undertake in 2001 (p174).

Improving the programmatic responses to family violence in Indigenous communities - Future challenges

Promoting greater coordination and an holistic approach to family violence programs

There are a patchwork of programs and approaches to addressing family violence in Indigenous communities among federal, state and territory governments. There remains a lack of coordination and consistency in approaches to addressing these issues between governments and among different government agencies. Significant gaps also exist.

Existing family violence programs that are available to Indigenous peoples are limited in number, ad hoc and often of limited duration. Due to the inter-connections between family violence and other issues faced by Indigenous peoples, work being done at a grass roots level may also be overlooked and programs may not necessarily be identified or identify themselves as violence prevention programs. Proposed programs may also have difficulty obtaining funding, on either a pilot or ongoing basis, due to the overlap in jurisdictional and departmental responsibilities.

Three recurring strategic aspects need to be present to address family violence in Indigenous communities, namely that programs be community-driven; that community agencies establish partnerships with each other and with relevant government agencies; and that composite violence programs are able to provide a more holistic approach to community violence (pp 183 - 184).

Review of existing approaches identifies a critical need to adopt an holistic approach to the problem of family violence and identifies the crucial importance of engagement with Commonwealth and State government agencies and communities to work in partnership on family violence strategies, as well as supporting and strengthening the capacity of ATSIC Regional Councils to develop, implement and monitor family violence action plans.

Ensuring access to justice for Indigenous women

A matter of great concern in relation to current debates about addressing family violence in Indigenous communities is the lack of attention paid to issues of access to justice for Indigenous women. ATSIC note that Indigenous women have been identified as the most legally disadvantaged group in Australia. A matter of particular concern is the limited ability of ATSIC/ATSIS, through its funding role of Aboriginal and Torres Strait Islander Legal Services (ATSILS) to provide access to justice for Indigenous women through legal representation and family violence services.

ATSIC have introduced the Family Violence Prevention Legal Service Program (FVPLS) as a response to Indigenous women's lack of access to Legal Aid services. However with only 13 services across Australia, they do not provide coverage to all regions. ATSIS notes that 'This relatively small and under-resourced program is unable to address the barriers Indigenous women face in accessing Indigenous Legal Aid services, nor to provide the range of legal services available through ATSILS'.

ATSIC/ATSIS note further that while they and the ATSILS that it funds are committed to stamping out family violence, the prioritising of scarce resources to criminal matters means that 'in practice, victims are not assisted while those responsible, are'. Accordingly, constraints of existing resources for legal support limits the capacity of ATSIC/ATSIS 'to give its own policies concrete substance. This contradiction will be overcome only through additional resourcing of ATSILS and Indigenous women specific legal service providers'.

In the context of the increased focus on family violence in recent years coupled with the lack of progress in reducing the over-representation of Indigenous people in custody in general, it is a matter of great concern that there is not a greater emphasis on the legal needs of Indigenous women.

There is an urgent need to ensure appropriate funding levels for ATSILS in order to provide a greater focus on the legal needs of Indigenous women as well as a greater focus on preventative action and community education. At the very least, there is also an urgent need for the federal government to allocate additional, quarantined, funding to expand the Family Violence Prevention Legal Service Program. Such funding needs to be new money as there is clearly no capacity for ATSIS/ATSIC, through its support for ATSILS, to re-allocate existing resources (p186).

Community justice responses to family violence

The criminal justice system is extremely poor at dealing with the underlying causes of criminal behaviour and makes a negligible contribution to addressing the consequences of crime in the community. One of the consequences of this, and a vital factor that is often overlooked, is that Indigenous victims of crime and communities are poorly served by the current system.

Accordingly, the current system disadvantages Indigenous people from both ends - it has a deleterious effect on Indigenous communities through over-representation of Indigenous people in custody combined with the lack of attention it gives to the high rate of Indigenous victimisation, particularly through violence and abuse in communities. Reform to criminal justice processes, including through community justice initiatives, must be responsive to these factors.

The past decade has seen an increased emphasis on restorative justice mechanisms for addressing criminal behaviour in Indigenous communities to address the needs of victims (including of family violence) as well as to make the system more meaningful to offenders.

There are numerous new initiatives in Australia developing community based justice mechanisms for Indigenous people which are based on restorative justice principles. Some of these processes, such as Law and Justice Committees in the Northern Territory and Community Justice Groups in Queensland incorporate an holistic response to family violence into strategies for addressing offending in communities (pp 188 - 191).

The last two years has also seen the development of community justice mechanisms for involvement of Indigenous peoples in sentencing. Examples include the Ngunga Court and Ngunga Youth Court in South Australia; the Murri Court in Queensland; the Koori Court in Victoria and circle sentencing in New South Wales. Generally, these processes seek to incorporate an Aboriginal traditional customary law approach to the sentencing of Aboriginal offenders within the framework of existing legislation. While there are variations between the various models, they all involve Aboriginal Elders sitting alongside the magistrate to advise on sentencing options, with members of the offender's family, the victim, the victim's family and other interested community members participating in the sentencing process.

These processes have been extremely successful in their initial years. Currently, however, they are limited to dealing with particular non-violent offences. Accordingly, offences relating to violence and sexual offences cannot be addressed within these sentencing processes.

Examples such as the Northern Territory Law and Justice Committee and Queensland Community Justice Group approaches, the roles and services established under ATSIC's Family Violence Prevention Legal Service Program, and Canadian models for addressing sex offending by Indigenous people suggest that the full potential of community justice mechanisms for addressing family violence has not been explored sufficiently, and may provide an appropriate way forward for addressing some aspects of need (p191).

Conclusions

Overall, the report concludes:

[The] commitments and recent initiatives by all governments ...are welcome and long overdue. As yet, they are not sufficiently wide-ranging in their scope or effectively funded. There are also significant gaps in service provision, including through a general paucity of programs and lack of legal assistance to Indigenous women in many areas. As a consequence, there remains a need for ongoing, continuous support for innovative, community led solutions to address family violence and the adoption of an holistic, coordinated approach by governments. ATSIC's Family Violence Plan provides a platform for improving this situation, with the development of regionally targeted programs and action plans. The escalating and debilitating affects of family violence on Indigenous people and communities requires urgent attention (p191).

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