Human rights and reconciliation in contemporary Australia (1991–2006)


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Human rights and reconciliation in contemporary Australia (1991–2006)


The Honourable John von Doussa QC and Tom Calma1




Part 1: Background


Reconciliation could be as significant in Australia’s history as the federation process in 1901. It is a process that can allow for an acknowledgment of the wrongs of the past, the making of amends where appropriate, and moving forward with a renewed and principled relationship involving the full recognition and respect for the human rights of all Australians, including Indigenous peoples.2 However, for reconciliation to be true and lasting, the parties need to participate on equal terms and enter into genuine consultations in a spirit of goodwill, in order to repair and recast their relationship.


Australia’s decade of reconciliation began with great promise in 1991 when, for the first time, the federal Parliament set out to transform positively the relationship between Indigenous and non-Indigenous Australians. It established the Council for Aboriginal Reconciliation (CAR) to undertake extensive national consultations on the potential scope of reconciliation, and to make recommendations to the federal Parliament about how to achieve reconciliation in the longer term.


However, on its election in 1996, the Howard Government began to distance itself from the CAR process and to define its own reconciliation process. It announced its intention to focus on practical measures to address Indigenous disadvantage primarily in the areas of health, education, housing and employment, believing that ‘[p]ractical measures in these key areas [will] have a positive effect on the everyday lives of Indigenous Australians’.3



Characterising much of the CAR reconciliation process as ‘symbolic’ and of little practical value, the government rejected out of hand what many Indigenous peoples regarded as essential elements. These included the negotiation of a treaty, an apology and the payment of compensation to members of the Stolen Generations, and formal acknowledgment of Indigenous peoples’ legal rights as the First Australians. The government regarded negotiation of these issues as a potential threat to national unity that would give Indigenous peoples separate rights and privileges as compared to the rest of the population. These views were encapsulated in the Prime Minister’s oft-repeated suggestion that all Australians should ‘focus on the things that unite us, rather than the things that divide us’.4


The government’s ongoing focus on practical reconciliation has meant that issues of critical concern to both Indigenous and non-Indigenous Australians remain outside the narrow parameters of the debate, in the territory of ‘unfinished business’. It was therefore not unexpected, when CAR presented the Australian Parliament with the Reconciliation Documents5 and its Final Report6 in 2000, that these met with a cool reception from the government. While affirming recommendations in the documents that aligned with its practical reconciliation agenda, the government rejected almost all of CAR’s recommendations7 and, in effect, emasculated the reconciliation process.


The Human Rights and Equal Opportunity Commission, and in particular the Aboriginal and Torres Strait Islander Social Justice Commissioner, have been among the critical voices of the government’s record on reconciliation. Successive Social Justice Commissioners have monitored and analysed the government’s record on practical reconciliation and its conformity with Australia’s human rights obligations.8 They have publicly reported to the federal Parliament in the annual Social Justice Reports and the Native Title Reports on the inadequacies and shortcomings of the government’s approach, as well as steps that need to be taken to achieve reconciliation and address Indigenous disadvantage. This chapter summarises many of the findings and recommendations that are elaborated in those reports.9




Part 2: A human rights perspective on practical reconciliation


One of the criticisms from successive Social Justice Commissioners is that practical reconciliation denies human rights principles their rightful place in the reconciliation process. It asks Indigenous peoples to participate in the existing mainstream system, rather than requiring that system to adapt or accommodate Indigenous cultural distinctiveness. It therefore seeks to maintain, rather than to transform, the relationship of Indigenous peoples to the mainstream society, which runs counter to the spirit of reconciliation.


A human rights-based approach to reconciliation would begin with an acknowledgment of the impact of historically derived disadvantage on Indigenous peoples, and facilitate measures that are both culturally appropriate and responsive to the inequity already experienced by Indigenous peoples. The only way to renew a lasting and meaningful reconciliation process is by adopting an approach that recognises and protects all Indigenous peoples’ rights in the social and economic, civil and political, and cultural spheres.


This section of the chapter outlines the key areas where Australia needs to incorporate human rights-based approaches in order to address Indigenous disadvantage effectively and progress genuine reconciliation. It refers to the international human rights standards against which Australia should be measuring its performance and specific reforms that governments need to embrace and champion so as to ensure that the human rights of all Australians are advanced.


The recommendations contained in this section are not exhaustive, given the limited scope of this chapter. However, they encapsulate the minimum acceptable level of action required of governments if real progress is to be made to achieve a reconciled Australia.




Commitments to address Indigenous disadvantage


Many indicators highlight that, in contemporary Australia, Indigenous peoples are still excluded from the social and economic life of the nation. For example:10




• in 2002, Indigenous peoples were less than half as likely as a non-Indigenous people to have completed a post-secondary qualification;11


• at the 2001 Census, the unemployment rate for Indigenous peoples was 20 per cent; three times higher than the rate for non-Indigenous Australians;12


• in the period 1996–2001, there was an estimated difference of approximately 17 years between Indigenous and non-Indigenous life expectancy.13


There is now a prospect that the inequality gap could get worse. With a significant proportion of Indigenous peoples in younger age groups, there is the additional challenge to programmes and services of being able to keep up with the future demands of a burgeoning population.14


Successive Australian governments have acknowledged that Indigenous disadvantage is a serious human rights issue that has to be addressed through the reconciliation process, and more broadly through legislative and policy reforms.15


One of the benefits of linking reconciliation to the need to address Indigenous disadvantage has been the conclusion of a series of national commitments at the intergovernmental level that are designed to progress both. For example, the Council of Australian Governments (COAG) committed to its Reconciliation Framework in November 2000.16 It noted that while ‘governments have made solid and consistent efforts to address disadvantage and improvements have been achieved … much remains to be done in health and the other areas of government activity’.17 Subsequent COAG communiqués have built on this commitment and given content and meaning to it.



In April 2002, COAG agreed to commission a regular report against key indicators of Indigenous disadvantage in order ‘to measure the impact of changes to policy settings and service delivery and provide a concrete way to measure the eect of the Council’s commitment to reconciliation through a jointly agreed set of indicators’.18 Known as the Overcoming Indigenous Disadvantage Framework, it reports on progress in addressing both the larger, cumulative or ‘headline indicators’ that provide a snapshot of the overall state of Indigenous disadvantage (such as life expectancy) and a number of supporting ‘strategic change indicators’ to measure progress within the shorter term.19 Ultimately, the Framework is built on the vision that: ‘Indigenous people will one day enjoy the same overall standard of living as other Australians. They will be as healthy, live as long, and participate fully in the social and economic life of the nation.’ 20


In June 2004, COAG then agreed to a National Framework of Principles for Government Service Delivery to Indigenous Australians in order to ‘underpin government e3ort to improve cooperation in addressing (Indigenous) disadvantage’.21 This was followed in July 2006 by COAG’s decision that a long-term, generational commitment is needed to overcome Indigenous disadvantage. It agreed on the importance of closing the inequality gap in key areas of disadvantage as identified in the Overcoming Indigenous Disadvantage Framework. 22


At time of writing, a working group has been established to propose how to build clearer links between (among others) the Overcoming Indigenous Disadvantage Framework, the National Framework of Principles for Delivering Services to Indigenous Australians and the Reconciliation Framework. The working group will report back to COAG by December 2006.(23)


In some areas of disadvantage, national strategic frameworks have been created, notably the Indigenous housing(24) and health(25) frameworks. At the federal and State government levels, many plans and strategies also exist.



The combination of these commitments provides a substantial foundation from which to address Indigenous disadvantage.




A whole-of-government approach to the restructure of administrative arrangements for Indigenous affairs26


Changes were introduced in July 2004 to the administration of Indigenous affairs at the federal level. Known collectively as the ‘new arrangements’, they form the basis of inter-governmental efforts to implement COAG’s commitments to Indigenous disadvantage, including the Reconciliation Framework.


There are both positive and some negative aspects to the changes.


Particularly in areas like health, it has long been recognised that developing a whole-of-government approach was a necessary first step to any sustainable effort to address Indigenous inequality and disadvantage.27 Thus it is a welcome development that, under the new arrangements, all government departments are required to coordinate their service delivery to Indigenous peoples through the adoption of whole-of-government approaches, with a greater emphasis on regional planning and service delivery. It is also an objective that bilateral agreements between the federal and state and territory governments be arranged and service delivery be coordinated and complementary.


New agreement-making processes also hold great promise. Under the new arrangements, it is intended that governments will directly engage with Indigenous peoples at the local level through Indigenous coordination centres, where Indigenous communities can interface with ‘solution brokers’, who navigate through all the levels and sectors of government to negotiate solutions for community problems.


Agreement-making, where possible and/or appropriate, is to be done in accordance with the principle of mutual obligation. That is, a community will be expected to give something in return for service delivery through, for example, shared responsibility agreements.


Some of the negative and concerning aspects of the new arrangements will be discussed below. However, as a result of the commitments listed above and the whole-of-government approach now developing, we have perhaps never been as well placed to turn around much of the disadvantage faced by Indigenous peoples.




Linking practical reconciliation commitments to targets and benchmarks


While the COAG commitments and the whole-of-government approach to Indigenous disadvantage are welcome and significant changes, the ‘practical reconciliation’ approach does not represent a significant departure from the way in which Indigenous disadvantage was addressed prior to its introduction.


Perhaps the factor that is most striking in its absence from the practical reconciliation approach is the lack of a time frame for achieving equality. As a result, there is no sense of urgency associated with overcoming Indigenous disadvantage which one might expect given the extent of the inequality.


We should not be timid about setting a time frame for realising the solid commitments of government. For example, the goal of equality in health and life expectation contained in the National Strategic Framework for Aboriginal and Torres Strait Islander Health has not been set within an achievable time frame. In fact, it explicitly avoids imposing health status targets or benchmarks on progress. Each jurisdiction will be responsible for determining its own specific initiatives, priorities and time frames. Progress will be monitored against baselines set out in the Aboriginal and Torres Strait Islander Health Performance Framework.28


Also striking in their absence from the practical reconciliation approach are achievable targets and benchmarks against which governments’ performance can be measured and evaluated. Appropriate targets or benchmarks that are negotiated between governments and Indigenous peoples, for example, could supplement the Overcoming Indigenous Disadvantage Framework and provide a mechanism whereby governments could be held accountable for any shortcomings.


As a result of this failure to link practical reconciliation to targets and benchmarks, practical reconciliation is not aligned with Australia’s human rights obligations to progressively realise Indigenous equality.


Australia’s ratification of international human rights instruments requires that our government does much more than simply acknowledge the existence of inequality and make general commitments to overcome this situation at some unspecified time in the future. Human rights laws provide a system for ensuring the accountability of governments and ensuring equality is achieved as quickly as is reasonably possible, as set out in Text box 1.




Text box 1: Progressive realisation


The human rights instrument most relevant to Indigenous disadvantage is the International Covenant on Economic, Social and Cultural Rights (ICESCR). Important rights in the Covenant include the right to an adequate standard of living, including adequate food, clothing and




housing (Article 11); the right to the enjoyment of the highest attainable standard of physical and mental health (Article 12); and, the right to education (Article 13)29. Other instruments also touch on social and economic rights.30


Article 2 sets out how governments should realise the rights in the Covenant. It is the activating provision in the ICESCR: It states:



1. Each State Party to the present Covenant undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (emphasis added)


2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.


The non-discrimination principle outlined above (in Article 2(2)) applies to all human rights. It establishes a baseline position that all people are entitled to be treated equally and to be given equal opportunities. Where this does not occur, Article 2(1) allows governments to introduce special measures to address the lack of equality experienced by a particular group within society. This includes a group defined by race, such as Indigenous peoples in Australia. Practical reconciliation is consistent with a human rights approach to the degree it reflects this sense of obligation.


The obligation ‘to take steps’ in Article 2(1) means that governments must progressively fulfil the rights set out in the Covenant and must do so without delay. Steps must be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognised in the Covenant.31 This is known as the ‘Progressive Realisation’ Principle.


Progressive realisation requires that governments identify appropriate




indicators, in relation to which they should set ambitious but achievablebenchmarks, so that the rate of progress can be monitored and, ifprogress is slow, corrective action taken. Setting benchmarks enablesgovernment and other parties to reach agreement about what rate ofprogress would be adequate. Such benchmarks should be:



The following description (in relation to the right to health) serves to illustrate the content of the obligation to undertake steps ‘to the maximum of available resources’ in Article 2(1):



In determining whether an action or an omission amounts to a violation of the right to health, it is important to distinguish the inability from the unwillingness of a government to comply with its obligations. A government which is unwilling to use the maximum of its available resources for the realisation of the right to health is in violation of its obligations. If resource constraints render it impossible for a government to comply fully with its obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations.33




Adequate funding of policies and programmes


The history of approaches to Indigenous disadvantage both before and after they were linked to reconciliation show that Australian governments have been unwilling to fund policies and programmes based on need and, as a result, plans have failed.34



Again, to use health as an example, current spending on programmes is inadequate to meet the need in Indigenous communities. There remains an estimated $250–570 million per annum shortfall in funding required to provide equality of access to primary health care for Indigenous peoples when compared to that enjoyed by the non-Indigenous population.35 The Commonwealth Primary Health Care Access Program is the main vehicle for funding Aboriginal community-controlled health organisations and the establishment of new services in this area. It has a recurrent funding base of $54.8 million.36 The 2005–06 Budget announced an additional $40 million for primary health care for the four years until 2008–09,37 but there remains a significant budget shortfall in this vital area.


However, there are no incentives for, or requirements on, Australian governments to commit resources to improving Indigenous health that are commensurate with need in the National Strategic Framework. As it states:



Provision of financial resources to implement the [National] Strategic Framework will depend on fiscal management strategies and competing funding priorities as determined by each jurisdiction’s budget processes.38


It is not acceptable to state continually that Indigenous disadvantage is tragic and ought to be treated with urgency, and then fail to fund programmes so that they are capable of meeting need or of raising the standard of Indigenous health to that of the general population. We must start stating loudly that a plan that is not adequately funded to meet its outcomes cannot be considered an effective plan.


It cannot be said that government efforts are operating (as required by Article 2 of the International Covenant on Economic, Social and Cultural Rights) at the ‘maximum of available resources’. A projected 2006–07 Budget underlying cash surplus of $10.8 billion, on top of nine successive budget surpluses39 at the federal level, suggests that resource availability is not the issue. It is not credible to suggest that government efforts have been, or are being, held back by an inability to take action. Resourcing should be increased to the maximum extent possible and rolled out in accordance with regional plans and benchmarks.


In the Social Justice Report 2005, Commissioner Calma presented a human rights-based campaign to address Indigenous health inequality that serves as a model for the alignment of the government’s practical reconciliation approach with human rights-based approaches.40 The primary recommendation was that the governments of Australia commit to achieving equality of health status and life expectation between Indigenous and non-Indigenous people within 25 years. Commissioner Calma emphasised that in rolling out a human rights-based approach to Indigenous health, governments must build on existing structures such as the National Strategic Framework, and incorporate a number of monitoring mechanisms to make sure that governments are accountable.41