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Indigenous people and human rights: a litmus test for social policy

by Professor Larissa Behrendt

Monday, 1st June 2009 - Sydney

It is a great honour to deliver this lecture that pays tribute to the life and work of Juanita Nielson. There is much to admire about her fearlessness, her honesty and her commitment to working on what she believed in. Her leadership on anti-corruption and anti-development issues is what we have come to remember her most by in terms of her contribution to public life.

The aspects of her legacy I want to pay tribute to this evening is her sense of community and her determination to be unwavered in working on what she believed was the community good.

Tonight I want to look at some of the barriers to achieving social justice for Aboriginal people. More than just "closing the gap" - which is in danger of becoming a synonym for "practical reconciliation" - this aim of social justice includes the aspiration of creating the space within Australian society and life to ensure that Aboriginal cultures remain strong and vibrant.

The Indigenous affairs portfolio is one in which the challenges are great. It concerns the poorest socio-economic group in Australia with a distinct cultural identity who have been dispossessed and historically marginalised and who asserts a unique cultural and political identity.

There are some structural reasons that explain why and they are the same barriers that occur in other areas of social policy but they are pronounced in Aboriginal affairs.

The first is classic cost-shifting between federal and state/territory governments. Since the 1967 referendum delivered to the federal government the power to make laws in relation to Aboriginal people - but left the states and territories with residual powers - there has been an increase of areas where responsibility is shared between those two tiers of government, including across key areas such as health, housing, education and heritage protection. But instead of working in a co-operative spirit to ensure targeted policies, programs and resources we see either the unnecessary duplication of services or the under-investment in key areas as these two levels of government seek to shift the blame for policy failure and the responsibility for resourcing to each other. The end result is we see an underfunding on basic Aboriginal health, housing and education.

And while these key areas remain under-resourced we see a targeting of funding at other programs that are not proven to solve underlying issues that lead to poor socio-economic status. Take these following two examples from of the previous governments attempts to deal with key issues within the Indigenous affairs portfolio that make this case:

There is a theme amongst these examples of top heavy and cumbersome bureaucracy. There is also a more subtle but related theme about the inadequate and non-functioning relationship between Aboriginal people and their communities and the government and their service providers.

But I argue that one of the clear reasons why we see underfunding on Indigenous health, housing, education and employment but money on shared responsibility agreements, home ownership schemes and, of course, the failing aspects of the Northern Territory intervention - which I will talk about in more detail in a moment - is because too often in Indigenous affairs the solutions are driven by ideologies, not by what the research shows works and what it shows doesn't work.

Indigenous affairs is full of ideologies. They permeate the shaping of its policies and programs, many of them recycled from previous eras where they were equally unsuccessful. These include:

These ideologies influenced many of the mechanisms used in the Northern Territory Emergency Response or, "the intervention":

The complex set of strategies designed to deal with, supposedly, systemic child abuse. The whole response was designed in two days (and perhaps there is a lesson in there about the dangers of designing complicated policy approaches in a forty-eight hour period because an election is looming...)


In many ways, the intervention in the Northern Territory is a textbook example of why government policies continue to fail Aboriginal people:

The most powerful example of this is the quarantining of welfare payments and its spurious links to improving school attendance. I want to use it as the example because not only does it illustrate why key policy approaches in the intervention were flawed, it is a policy that, despite the evidence that it is problematic, is increasingly being rolled out across the country.

The quarantining of welfare payments included as part of the intervention with the seductive rhetoric that it would be linked to school attendance. This played well with an electorate who probably assumed that poor attendance rates and poor educational outcomes for Aboriginal children were caused by the poor parenting of Aboriginal parents.

However, the only evaluated trial of a scheme linking welfare payments to school attendance - the Halls Creek Engaging Families trial undertaken from February to July 2008 - found that the attitudes of parents of Aboriginal children were only one of the factors that affected school attendance. The evidence pointed to the pivotal role that teachers and the school culture itself plays in a community where children decide their own time use patterns at a very early age.

The evaluation also showed that poor or good attendance did not necessarily run in families. In one family of five children, attendance ranged from 14% to 88%. It was also found that the housing situation in Halls Creek - where overcrowding is a critical problem - is unlikely to provide an environment where families can be "school ready".

There is no evidence that shows that linking welfare to behaviour reforms is effective. In fact, there is evidence to suggest that the imposition of such punitive measures in an already dysfunctional situation will exacerbate the stress in a household.

And what the evidence does show works in getting Aboriginal children into schools are the following:

These effective programs and strategies show the importance of building a relationship between Aboriginal families and the school in order to target issues like school attendance. It also shows that there is much that the schools can also do to engage children with schooling. It suggests that, rather than simply punishing parents for their children's non-attendance, the government should be providing schools and teachers that meet the needs of the Aboriginal community.

It should be noted that it cost the taxpayer $88 million to make the initial administrative changes in Centrelink to facilitate the welfare quarantining but not one dollar was spent in the intervention on any of the types of programs that have been proven to engage Aboriginal children in schools. (Did I hear someone ask why it is that we spend all of this money on Aboriginal issues but do not see much for the money?")

All this in communities where only 47c is spent to the $1 spent on non-Aboriginal student; in communities where there are not enough teachers and classrooms. A punitive measure placed on families to ensure their children come to school is hypocritical from any government that neglects the same children by failing to provide adequate funding for a teacher and a classroom. Even if it did work to physically bring more children into a classroom, what is the quality of the education they will receive when there has been underinvestment in teachers and educational infrastructure.

So here we have a clear example of a policy that has been rolled out that lies completely in contradiction to what the evidence shows works in getting children to school.

And of course, the dismal aspects of this policy do not stop there. The policy wasn't applied simply to parent's whose children did not attend school. It applied to anyone who lived in a prescribed area who was on a welfare payment - whether their children went to school or not, whether they even had children or not. There were people who had fought in wars and managed their money their whole lives who suddenly found their veteran's pensions quarantined.

When this policy was rolled out, the legislation suspended the Racial Discrimination Act from applying (meaning that complaints could not be made to the Australian Human Rights Commission), suspended protections and rights of appeal under the Northern Territory anti-discrimination legislation and suspended the rights to appeal to the social security appeals tribunal. It took away the rights of the most marginalised within our community to complain about unfair treatment or unfair impact to just about anyone.

It has become fashionable in the pro-intervention, pro-welfare reform quarters to use slogans such as "you can't eat rights" to justify this kind of trampling on human rights in order to achieve a particular outcome. A kind of "the ends justify the means" reasoning, a modern "this is for your own good" morality tale. But this insipid resort to slogans trivialises (intentionally) the importance of human rights frameworks as a basis for good policy making.

And surely a good policy maker could come up with policies that are both designed to protect women and children and don't infringe on basic human rights like due process. Surely our policy making capacity isn't so impoverished that we have to cling to a false dichotomy and assert that it is an either/or when it comes to protection against violence and protection of human rights.


While I am unashamedly advocating for the need to shift from ideologically driven policy to research or evidence based policy, I do acknowledge that there is evidence - and there is evidence.

For example, the government claimed it had evidence that the intervention was increasing the consumption of fresh food because more was being sold through community stores. When questions were asked in senate estimates about how these claims were arrived at it was revealed that the basis of the "evidence" were a series of ten phone-calls to community stores asking whether there was an increase in fresh food sales. Six said "yes", three said "no" and one said they didn't know. Now, I don't want to denigrate the usefulness of phone surveys but one needs to ask more complex questions. For example, who was buying the food? Those whose income was quarantined or the people - the army and an army of public servants - coming in to roll the intervention out.

Despite the claims of Minister Macklin that there is more fresh food being consumed, she has supplied no hard evidence of this, especially since there was no survey done of fresh food consumption before the intervention to compare current consumption rates with.

Let me give you an example now of what I do call evidence. The Sunrise Health Service has been at the frontline in dealing with the health components of the intervention. It operates in the region east of Katherine and covers an area of some 112 000 square kilometres and all but one community in that area are "prescribed areas" and so subject to the intervention including welfare quarantining. Sunrise has been collecting data since before the intervention and has been able to compare that with data collected now.

For obvious reasons, anaemia is a key measure in monitoring child health. Anaemia in children may be the direct result of poor nutrition. If the diet does not contain foods that contain iron, the child will become anaemic. This suggests that if the family is not able to afford good foods, or if good foods are not available, then the child will become anaemic and growth and development will be affected.

The data indicates anaemia rates in children under the age of five in the Sunrise Health Service region have jumped significantly since the Intervention. From a low in the six months to December 2006 of 20 per cent - an unacceptably high level, but one which had been reducing from levels of 33 per cent in October 2003 - the figure had gone up to 36 per cent by December 2007. By June 2008 this level had reached 55 per cent, a level that was maintained in the six months to December 2008. In two years, 18 months of which has been under the Intervention, the anaemia rate has nearly trebled in our region. It is nearly double the level it was before the Sunrise Health Service was established, and more than twice the rate measured across the rest of the Northern Territory.

According to the World Health Organisation, levels of anaemia above 40 per cent represent a severe public health problem. At 55 per cent, the Sunrise Health Service results can be equated to early childhood anaemia levels in Brazil, Burundi, Iraq and Zambia; and are worse than Zimbabwe, Swaziland, Pakistan, Peru, Jamaica, Indonesia, Bangladesh and Algeria.

The Sunrise Health Service has also seen a worrying rise in low birth weight amongst babies, from 9 per cent in the six months leading up to the Intervention; to 12 per cent in December 2007. In the next six months it rose again to 18 per cent, and the figure stood at 19 per cent by December 2008 - more than double the pre-Intervention rate. The national figure for Indigenous babies is 14.3 per cent; so from doing better than the national average, they are now 20 per cent worse off. Low birth rate has a variety of causes - including poor nutrition amongst mothers and is, associated with anaemia.

Government sources may dispute or seek to discredit these figures, Sunrise Health Service has been doing medical checks on 96 per cent of children in their area; the intervention health checks only screened 74 per cent.

While there is no conclusive proof that the rise in anaemia rates can be causally linked to the Intervention and its effect, it is clear that the Intervention has failed to address a severe health problem that appears to be further deteriorating. It also shows the critical need to investigate claims of improved diet as a result of welfare quarantining.

Other health concerns have been raised by the Sunrise Health Service about the compulsory quarantining of welfare payments. They have documented instances in which the roll out affected people's capacity to purchase food. This included diabetics, with no local store access, unable to access food for weeks at a time. Their response to this situation was to sleep until food became available.

They also believe that the regime of income management has not reduced alcohol or drug consumption, indeed alcohol restrictions on prescribed communities has merely shifted the problems to larger towns or bush camps. And it has not stopped "humbug" or the conversion of Basic Card purchases into cash for grog. There is also no evidence that it has increased the consumption of fresh food amongst Aboriginal families, which is vital to fighting anaemia.

Underlying all of this is a key mistake that policy makers continue to make about the Indigenous affairs. They continue to overlook and dismiss the knowledge that Aboriginal people have about solving their own problems. This isn't just crazy, leftest, touchy-feely stuff.

We need to move away from only concentrating on the communities that are in crisis to looking at where the successes are. In the face of government neglect and failed policy, many Indigenous communities continue to flourish, creating successful and viable institutions and continuing to keep their cultural values strong and their children safe. We could learn much from what it is that successful organisations and communities do to ensure their effectiveness and viability in this climate and use that information as a basis for developing similar conditions in the communities that fail.

The research in Australia and in Indigenous communities in North America shows consistently that the best way to lessen the disparity between Indigenous and non-Indigenous people is to include Indigenous people in the development of policy and the design and delivery of programs into their communities. Apart from sounding like common sense, the research shows that this engagement assists with ensuring the appropriateness and effectiveness of those policies and programs and ensures community engagement with them therefore better ensuring their success.

This actually requires a commitment to something that policy makers often overlook: the need to invest in human capital. If participation by Indigenous people is a central factor in creating better policy, program and service delivery outcomes, there needs to be more to build up the capacity for that kind of engagement. This would include:

And here is one of my key points: Indigenous policy is always targeted at intervention, at emergency. It rarely seeks to look at the underlying issues. Addressing disadvantage requires long term solutions, not just interventions. Rather than always reacting to a crisis, a long-term sustained approach requires addressing the underlying causes of disadvantage. This means resourcing adequate standards of essential services, adequate provision of infrastructure and investment in human capital so that communities are developing the capacity to deal with their own issues and problems and have the skill sets necessary to ensure their own well-being. There are no short-cuts, quick fixes or panaceas here.

Whatever the perceptions of the electorate, the fact is that there is not enough money spent on Aboriginal housing, education and health. The pot is too small and no government will fix the problems while all they do is engage in trying to redirect the scarce resources to one pressing need at the expense of others.


An editorial in The Australian on 26 October 2007, titled "Let them Eat Rights" gave a classic account of the false rhetoric that dismisses human rights as merely an idealistic concept - devoid of any practical purpose. The editorial begins -
"Over the last 11 years a chasm has emerged in Australia between upper-middle-class Howard-hating elites on one hand and the hoi polloi on the other, both Howard's battlers on Struggle Street and those living happily in McMansions."
This oversimplification of the divide highlights the way in which anti-rights proponents link human rights advocacy with the out-of-touch, over-privileged elites.
As an aside, my experience with the Community Consultation process about whether the ACT should have a Bill of Rights showed the complete opposite divide - those who had not experienced any infringements of their rights took a "if it ain't broke, don't fix it" approach and those who had experienced discrimination and disadvantage were the most interested in better human rights protections. This experience showed that it is the elite who is least interested in change that would improve human rights.

But I digress. The editorial in The Australian, when referring to the "elites" was not talking about High Court judges, members of the Australia Club or members of the Forbes 100 Australia's richest. The elite being ridiculed by the Australian was an Aboriginal woman who happened to have been given one benefit - the benefit of an education.

The object of fury on which The Australian was unleashing was Aboriginal member of Parliament Marion Scrymgour and it was her criticism of the Northern Territory intervention - which she described as "the black tampa" - that drew the venomous attack.

It is not surprising to me that Marion Scymgour values human rights. As someone who has was also born into the Aboriginal community and through the advantages of eduction was able to emerge as part of an emerging black middle class I can, literally and metaphorically, understand where she is coming from.

And like Marion, I grew up seeing my father's generation denied the same opportunities and I saw him and his generation fight for access to them. The language and the idea of human rights was central in this fight. From the Tent Embassy to the land rights movement, to the fight to rights to education, health, land, language, cultural heritage and self-determination - all used the idea of inherent human rights.

We saw, over my father's generation, the practical gains that accumulated from a political movement that focused on the importance of rights protection.

In the same way that unions used the idea of rights to improve the conditions of Australian workers - even using a campaign of "Your Rights at Work" to counter WorkChoices - and in the same way that the struggle for equality for women has focused on notions of fundamental rights, so too have Aboriginal people used the language of human rights and relied on the notion that there are international human rights standards which we are all entitled to.

Underneath the ideological bent of The Australian editorial is a deep hypocrisy. While claiming to be proponents for the advancement of Aboriginal people, they denigrate Aboriginal people who succeed in overcoming disadvantage and disparage the improved access to basic rights such as the right to education that have been instrumental in those successes.

In a similar vein to The Australian editorial, Professor Marcia Langton at the 2020 Summit made the comment that "Aboriginal children can't eat the Constitution." Megan Davis and Sarah Maddison, who participated in this stream of the talkfest observed afterwards that she, and others who share her view, are wrong in their interpretation of what a rights agenda is.

Langton, in the same style as The Australian, has directed these attacks at those who have challenged the intervention on the basis of its violation of international human rights standards. Like The Australian, she saves her most stinging attacks for those who are educated and members of the emerging middle class. It is the same line of argument though: Because you are an educated, black person who does not live in the same squalor as the Aboriginal people who the intervention is targeting, you have no right to have an opinion about their human rights and their protection.

And the point about these kind of attacks is they do not answer the criticisms made of the policies or the rights violations in the Northern Territory intervention. They are merely personal attacks that perhaps point to the lack of intellectual depth in their position.

So let me explain why they are wrong about the protection of rights being merely a luxury for the elites, meaningless and without practical effect.

In refuting these notions about human rights, perhaps the first point that needs to be made is that no-one who advocates for improved human rights protections is arguing that they are the panacea to all the ills that Aboriginal and Torres Strait Islander communities are trying to cure. The assertion that human rights can cure all is a straw man that the anti-rights proponents put up.

The second is that human rights frameworks provide very practical outcomes. Let me give you two examples.

The Racial Discrimination Act does not just instil a principle of non-discrimination into our society. It provides a mechanism through which people who feel they are being discriminated against on the basis of their race can make a complaint to the Australian Human Rights Commission. It gives an avenue of redress when a wrong has occurred. And the process allows for policies and processes to be improved to make them compliant with the standards of non-discrimination that the Act expects.

The suspension of the Racial Discrimination Act as part of the Northern Territory intervention takes away right of a person to complain to the Australian Human Rights Commission so when someone suffers a wrong, there is no mechanism by which those policies can be adjusted.

The second example relates to the framework that a legislative bill of rights can provide. Legislative bills of rights also offer a rights framework. They require public servants to ensure that the legislation they draft is compliant with the rights in the human rights legislation. They also require parliament to indicate that legislation is compliant with those same standards and, if not, they need to indicate in what way it is not and to justify why it is not. Both of these processes require policy makers and legislators to think about human rights in their decision-making processes. And while the rights in legislation can be over-ridden, there is greater transparency and accountability by government to the community about when and why rights are infringed.

In these ways, Australia would be enriched if there was a national Charter or Bill of Rights that required this level of scrutiny and accountability when public servants draft legislation and when parliaments pass them into law.

But we should not stop there. In addition to a legislative bill of rights there is a case for Constitutional reform too. There has been much advocacy around the recognition of Aboriginal people in a Preamble to a Constitution but I also advocate for the inclusion of three rights into the body of the Constitution - the right to due process before the law, the right to equality before the law and the right to be free from racial discrimination. While you may not be able to eat these rights, they would offer advantages to Aboriginal people every time they wished to challenge a law that treats them in a discriminatory manner. And it is only through this constitutional protection that we can stop the government from simply suspending the Racial Discrimination Act every time it wants to discriminate against Aboriginal people. (Many of you would know that the only three times that the RDA has been suspended since it was passed in 1975 were in relation to the NT intervention, the Hindmarsh Island Bridge case and the Native Title Amendment Acts.)


The final point I want to make tonight goes back to the spirit of community and care for others that the work of Juanita Nielsen embodied.

It is with the sadness and anger that I see Minister Jenny Macklin overlook all of the evidence of the failure of the intervention, especially welfare quarantining and her continual and acknowledged breaches of international human rights standards with the hollow justification that she is only interested in "protecting women and children". Her Labor colleagues seem to find comfort behind this rhetoric but seem oblivious to the fact that they are justifying this appalling set of policies with the justification that they are only interested in the "best interests of the children" and they have "the best of intentions". Have we been so quick to forget why there was need for an apology to the stolen generations? In his speech on 13 February 2008 Rudd said we must remember our history and not repeat the mistakes of the past. It was a policy that justified its human rights breaches and its cruelty with the rhetoric of "the best interests of the children" and "the best of intentions".

With similar sadness and anger I hear some Australians say "at least we are doing something". It reflects an attitude of indifference to Aboriginal people, a disinterest in the impact of laws and policies on the lives of Aboriginal people and their families. It is when we have this level of disinterest in the way that the government is dealing with the most disadvantaged within the community that we run the risk of turning a blind eye to the most appalling policies. So many Australians said that they didn't know about the stolen generations but yet it affected every Aboriginal family. Too many Australians comforted themselves with "at least they are doing something" while this policy went on for decades.

When it comes to the Northern Territory intervention, I despair when I hear people say, "well, it is complicated. Some Aboriginal people are for it and some are against it."

Again, this reflects the fact that they have not cared to look deeply enough at the issue. To these people I ask: Would you have been so ambivalent about whether this was right or wrong if the person arguing that suspending the human rights protection of the poorest within the community was white rather than black?

Of the things that have been positive about the intervention - additional money for health and promised for housing, additional police in some communities - all of this could have been done without the need to suspend the Racial Discrimination Act.

But underneath all of this is the question of "whether it is appropriate for policies concerning Aboriginal people to breach international human rights standards and our own legal standards of protection against racial discrimination" and this is not just a question for the Aboriginal community.

The issue of whether Australian laws should breach international human rights standards is not an "Aborginal issue" and cannot be dismissed as such. After all, we were not the ones who enacted the legislation. The Australian parliament did that. As Australians we should demand that our government be able to develop policies that both protect women and children and do not breach basic human rights.

We need to care about whether our laws and policies do not just work for the elite but work for the hoi polloi. And when that is the measure, the treatment of Aboriginal people becomes a litmus test against which we can judge ourselves as a country.

It is a test that I am afraid we are failing. And until we move from ideology to research based approaches and have a human rights framework that will provide adequate benchmarks, we will continue to fail. And we will also continue to fail while Australians take little interest in the greatest human rights breaches occurring in the country - those against Aboriginal people as part of the Northern Territory intervention.


I will finish on this next point because I have focused a lot tonight on the Northern Territory but I live in Sydney and I am part of the community here. It is another issue that policy makers have not grappled with and a by-product from the focus on the Northern Territory and Cape York in Indigenous affairs. Much of Indigenous policy is targeted at remote communities - resources too. Look at where the previous government and the current government are directing resources for social housing and you will see it is primarily focused on remote communities.

Yet the largest Aboriginal communities do not live in remote areas. They live in cities. The largest is here in Sydney - in Mount Druitt and Blacktown. Over 14 000 Aboriginal people live in the Mount Druitt area alone. And on the recent Australian Bureau of Statistics figures it is one of the most socio-economically disadvantaged communities in the country. More disadvantaged than many of the Aboriginal communities being targeted by the federal government.

The cultivation through neglect of urban Aboriginal slums should surely be a policy impact of the past that we definitely do not want to reproduce now or in the future.

Professor Larissa Behrendt
Monday, 1st June 2009