16 August 2004

Election 2004: Indigenous rights and institutions

Larissa Behrendt, University of Technology, Sydney

John Howard was in opposition when the Australian and Torres Strait Islander Commission (ATSIC) was established and during the parliamentary debates when its enabling legislation was introduced was one of its staunchest critics. His criticism was based on the rhetoric that the creation of a representative body like ATSIC was divisive and antagonistic to the philosophy that all Australians should be treated the same way.

It should come as little surprise, then, that a key part of the Howard Government’s agenda on Indigenous policy included the abolition of ATSIC. This decision was consistent with the swift rejection by the Howard Government of the findings of the Council for Reconciliation who, after a decade of consultation and negotiation had recommended a broad agenda for change including recognition of Indigenous rights and a treaty. In rejecting this agenda, Howard had flagged a policy of ‘practical reconciliation’ as his preferred approach. This, he said, would target policy making at socio-economic areas such as housing, health, education, and employment.

The Howard Government's focus on socio-economic problems included a campaign against rights.

This supposed focus on socio-economic problems included a campaign against rights. It included opposition to native title claims, the extinguishment of native title in the Native Title Amendment Act 1998—Howard’s attack on the Wik decision—and the strident defence of the stolen generations compensation claim by Lorna Gunner and Peter Cabillo. Carried out in unison with this very practical attack on Indigenous rights was an attack on the principle of rights, the trivialising of the rights agenda as the privilege of the elite, and an arrogant dismissal of the finding of United Nations human rights organisations. During this period, the government treated the monitoring of its own human rights record as dismissively as it did international human rights monitoring mechanisms. The Human Rights and Equal Opportunity Commission’s (HREOC) budget was severely cut, its reports buried, and its advice ignored.

In this climate, organisations like ATSIC, which were independent enough of government to be critical of it and develop alternative and competing policies, were in danger of having their budgets cut or of being abolished. The behaviour of members of the ATSIC board only made that abolition more likely. The sexual assault allegations against the Chair and the allegations of misappropriation against the Deputy Chair allowed media attention to focus on the personalities of the Board rather than the policy and program successes of the institution. The media coverage also fed common stereotypes of Aboriginal people as unable to govern with transparency and accountability.

The demise of ATSIC was triggered as much by the announcement by Labor leader Mark Latham that he would, if elected, abolish ATSIC as by Howard’s ideology of mainstreaming. The Howard Government moved swiftly to pass legislation that eradicated ATSIC and although the Senate had decided to put the Bill into a committee, the Federal Government effectively dismantled ATSIC by transferring most of its budget and programs to Commonwealth departments responsible for employment, workplace relations, education, income support and community services, and indigenous affairs, so only the shell remains with no money. ATSIC’s Regional Councils are to run for one more year under the Howard plan.

Although it was Latham’s finger that pulled the trigger, he had said that as part of his policy that he would replace ATSIC with another national representative body. The details of this new body have yet to be revealed by the Labor Party, which has now said that it will announce this after consultation with Indigenous people. If Labor wins the next election, they will face the challenge of building an Indigenous representative body that has the support of the very constituency that it failed to consult before announcing its decision to abolish ATSIC.

Only the Liberal and National parties do not support the principle of Indigenous self-determination.

The Report Card on Indigenous Affairs, prepared by Australians for Native Title and Reconciliation (ANTaR) is the most comprehensive check of the position of the major parties in the lead up to the next election. In comparing the platforms of the Liberals, Nationals, Labor, the Democrats, and the Greens, it is clear that the Coalition has the least to offer Indigenous people. The Liberal and National Parties are still opposed to recommendations of the Council of Aboriginal Reconciliation, particularly the idea of an agreement or treaty. The Labor Party and the Greens support the Council’s recommendations and the Democrats have tried to have them introduced through a private Members Bill. Noticeably, only the Liberal and National parties do not support the principle of self-determination that would see Indigenous involvement in decision making about their own future.

If the result of the next election is another Howard government there will be nothing to prevent the complete abolition of a representative Indigenous voice at the national level. In fact, there is every reason to believe that the Howard government will continue to spread its mainstreaming ideology through other national Indigenous organisations. Institutions such as the Australian Institute of Aboriginal and Torres Strait Islander Studies, the Aboriginal and Torres Strait Islander Board of the Australia Council, the Indigenous Land Corporation, Indigenous Business Australia, and the Torres Strait Regional Authority all have reason to fear that the barrel of the Howard ideological shot-gun will be levelled at them next.

The current direction of the Howard government’s plan for a policy and program delivery framework post-ATSIC is one that sees regional and state co-ordination centres that will co-ordinate between the various government departments responsible for policy making and service delivery for Indigenous people in those areas. The co-ordination of federal departments has always been a challenge and highlights the recognition of the past failure of government agencies to co-ordinate their efforts to deliver effective outcomes for Indigenous people. The recognition of this failing—and the need to address it within the new arrangements—is a confession by the Government that they had been using ATSIC as a scapegoat for its own failings.

Indigenous disadvantage is just as prevalent in both rural and urban communities.

ATSIC never had fiscal responsibility for education and health, two key socio-economic indicators for Indigenous people and two key targets for breaking cyclical poverty. ATSIC was only a supplementary funder of other key areas such as domestic violence, legal services, housing, and languages. That is, it was not solely responsible for the areas that it was so often blamed for having failed. The rhetoric employed by ATSIC’s critics—especially the federal government—was that ATSIC was failing because it was not fixing the socio-economic problems that continue to plague Indigenous people and their families and communities. These were usually matters that ATSIC did not have the mandate to fix and were areas in which the federal government’s own departments were failing to produce effective outcomes. This scapegoating of ATSIC ensured that the Federal government’s own performance on Indigenous policy and programs has been subject to little scrutiny, analysis, and critique over the past twelve years.

The other worrying trend is that the new arrangements primarily focus on Indigenous specific programs and policies for remote areas only. This has been a policy trend over the last decade but is becoming more pronounced as the ideology of mainstreaming asserts that Indigenous people within cities and regions should be taken care of by mainstream departments and organisations. While remote areas have always been a challenge for policy and program delivery, the socio-economic data shows that Indigenous disadvantage is just as prevalent in both rural and urban communities. The triggers that led to the recent Redfern violence—substance abuse, criminal recidivism, child truancy, unemployment, poor levels of literacy, the legacy of sexual abuse—are a poignant example of how complex and pervasive the issues in urban communities are and the challenge this poses for policy makers and service providers. The focus on remote communities will redirect the focus from large populations of Indigenous people and the problems that keep them in cyclical poverty.

It should also be noted that education, heath, and housing are often as much the responsibility of state governments as they are of the federal government and state governments have managed to dodge much criticism of their own failed policies and programs. State and territory governments also sat by quietly while the Commonwealth blamed ATSIC for the situation of Indigenous Australians. Overall, in the era of ATSIC, there was little scrutiny of the programs and policies run through mainstream departments but the socio-economic areas for which they were responsible have shown no improvement under their management.

ATSIC was not just an experiment in public administration.

In abolishing ATSIC, the federal government labelled it as a ‘failed experiment’. In ATSIC’s stead the government claimed that new arrangements were premised on the success of a series of trials by the Council of Australian Governments (COAG) that were taking place in eight Aboriginal communities across Australia. These trials are focusing on the difficulty of coordinating responses to policy and program issues through various government departments. These trials are yet to be evaluated so it is hard to see how they could provide a sound basis for determining an alternative direction. In fact, because their success is yet to be assessed, it can be asserted that the new government arrangements are just as much an ‘experiment’ as ATSIC was.

ATSIC was not just an experiment in public administration. It was an attempt to provide a representative voice to Indigenous people in the development of policy and program delivery. One of its real strengths was that it provided that voice—an independent voice—at the national level. This was particularly important in areas where the federal government’s own position was vastly different to that of Indigenous people. In areas such as native title, Australia’s obligations under international human rights conventions and the protection of rights within the Australian legal system, Indigenous people had a view that conflicted with the federal governments’. Their view was often voiced by ATSIC.

And it is in understanding the ability to provide independent criticism that the real threat ATSIC posed to government’s could be found. ATSIC criticised government policy—both in Australia and overseas—in a time when the voice of dissent has been consistently silenced. From the charitable organisations who were forced to sign contracts that prohibited them from public criticism of governments when they took on contracts under the Job Network, to the cutting of funding to monitoring institutions such as HREOC, to the continual erosion of the independence of the public service, government tolerance for active dissent in the public political domain has been severely curtailed. With the passing of ATSIC, the active and representative voice of Indigenous people will also be silenced.

Larissa Behrendt is Professor of Law and Indigenous Studies at the University of Technology, Sydney. Her book, Achieving Social Justice is published by The Federation Press.