Australian Human Rights Centre (AHRC)   WORKING PAPER 2003/4

 

 

Taking Steps.....

Australia's Draft National Action Plan for Human Rights - The Enjoyment 'Without Discrimination' of Rights Under the International Covenant on Economic, Social and Cultural Rights

Janet Cechanski & Leon Ioannou

Australian Human Rights Centre October 2002

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In 1994, Australia demonstrated an intention to become a world trendsetter in the observance of human rights. In an almost immediate response to the 1993 United Nations World Conference on Human Rights, Australia implemented a proposal endorsed by all parties present at that conference which was aimed at improving State observance of human rights. The initiative embodied in that proposal was that of the National Action Plan.

The Commonwealth Government will soon release for comment Australias draft new National Action Plan for Human Rights. This event provides the opportunity for all Australians to constructively contribute to the formulation of this vital document  one that will exemplify current international standards of best practice and serve as a model of its kind.

This submission is a contribution towards that process. Specifically, it focuses on Australias commitments under the International Covenant on Economic, Social and Cultural Rights (ICESCR). One such commitment obliges a signatory to the Covenant to take steps towards the progressive realisation of the rights detailed within that document, to the maximum of available resources, and without discrimination.

There may be groups within any society for whom the enjoyment of social, economic and cultural rights is significantly less than for the population as a whole. The Committee overseeing ICESCR asks States parties, in their periodic reports, to address the situation of such groups. In Australia, there are several groups that could fall under this obligation including migrants, recent refugees, youth and women. The group which, overall, experiences the most severe levels of disadvantage, and was recognized by the Committee in 2000 as being such a vulnerable group, is Indigenous Australians. For this reason, Aboriginal people and Torres Strait Islanders represent the primary focus of this submission.

The concerns expressed by the Committee were echoed by the recommendations and comments made by the Council for Australian Reconciliation (CAR). As this submission will illustrate, the Australian Government, whilst disagreeing with the recommendations in some parts, has declared its commitment towards alleviating the disadvantage of Aboriginal and Torres Strait Islanders through practical reconciliation. Whilst these proposals partially converge with the fulfilment of Australias ICESCR obligations, Australia has fallen short in taking steps under practical reconciliation, and should implement new strategies, that perceive the elimination of disadvantage as a fundamental human right. 

In light of such a human rights-based approach to the reduction of poverty and disadvantage, this report examines four areas of importance under the ICESCR that are matters of immediate priority: health, education, housing and employment. The report highlights key features that ought to form the foundation of Australias National Action Plan: the establishment of a national framework which is committed to Indigenous rights, the empowerment of Indigenous communities and the forging of partnerships between Indigenous and non-Indigenous groups.  The National Action Plan should strive to attain the establishment of ambitious yet realistic short term-benchmarks and long-term targets based on key Indigenous-specific indicators, and provide for transparent monitoring and evaluation procedures to hold duty-bearers accountable.

This submission does not seek to set those specific targets or benchmarks, as that is a task to be done by involving key Indigenous organisations in consultation with the Indigenous community and in negotiation with other non-governmental bodies. Rather, it aims to set the tone for the new National Action Plan in order that Australia can aim to fulfil its international human rights obligations, and more specifically, those detailed in the ICESCR.

At the World Conference on Human Rights in 1993, the United Nations General Assembly [1] endorsed the proposal of States drawing up a National Action Plan which would serve as a practical measure for States to improve their observance of human rights standards, as expressed in the various International Covenants. 

Australia took a proactive stance in the international Human Rights arena by compiling Australias National Action Plan, which not only reaffirmed Australias commitment to Human Rights, but identified specific challenges that were unique to Australia which required special attention.

Australias National Action Plan in 1994 did, to an extent, set a clear direction in which Australia was to head in human rights observance. Almost a decade later, however, several identifiable sub-groups of the population are still not experiencing substantive equality and several key covenants have not been incorporated into domestic legislation. This shows a lacuna in Australias fulfilment of its obligations under the international covenants to ensure the attainment of fundamental human rights, without discrimination.

It is imperative that Australias revised National Action plan, soon to be circulated for public comment, addresses the concerns that have been expressed by the Committee on Economic, Social, and Cultural Rights in its Concluding Observations in 2000 [2] , which will be discussed in detail hereafter.

The foundation upon which the United Nations derives its human rights activities is the International Bill of Human Rights. One of the pillars that comprise this instrument is the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The ICESCR is premised on the right of every human being to live a dignified life, which in turn depends upon access to basic necessities such as work, food, housing, health care, education and culture.

Australia signed the ICESCR on 18 December 1972 and ratified it on 10 December 1975. It entered into force for Australia on 10 March 1976. As a party to the covenant, Australia has accepted the responsibility to honour and apply the obligations detailed by the covenants articles within its own borders.

To this end, the Committee on Economic, Social and Cultural Rights (CESCR), a body established by the United Nations to monitor compliance by States with the ICESCR, reports on the extent to which Australia has fulfilled its commitments with respect to economic, social and cultural rights. The last such report on Australia issued by the Committee was released on 1 September 2000. [3]

A.     Commitments & Obligations of State Parties Under the ICESCR

Article 2 of the ICESCR imposes specific obligations on ratifying States, including Australia.

Article 2(1) details the nature of a States legal obligations under the Covenant and dictates the manner in which these States must approach the implementation of substantive rights contained in later articles.

This clause lends itself to several important observations: [4]

·                    The obligation to take steps connotes a positive undertaking by governments aimed at achieving the full realisation of the substantive rights detailed in the ICESCR. Whilst some specifically detail the steps that are to be taken, albeit in very broad terms (see, for example, articles six and 11 through 15), others do not provide such guidance in stipulating the steps that are to be taken. This latter class therefore allows implementing governments a broad discretion with respect to the manner in which they approach implementation.

·                    In spite of this demand, the article implicitly acknowledges that satisfying the Covenant may occur only following a concerted effort over a period of time: achieving progressively the full realisation of the rights recognised.

·                    The priority that States need to accord to the ICESCR is alluded to by the obligation to take steps to the maximum of its available resources.

·                    The article contemplates that a variety of instruments (all appropriate means) might be utilised in carrying out the obligations specified in the Covenant. Use of statute is clearly a preferred avenue of implementation (including particularly the adoption of legislative measures) due to its transparent nature and being open to redress (from the judiciary, for instance). Nonetheless, other methods, such as administrative, political and educational, will necessarily be required to fully carry out the ICESCR obligations.

Crucially, article 2(2) specifies that the pursuit of this species of rights be carried out without discrimination of any kind.

Consequently, States must address themselves to all those social groups deprived of economic, social and cultural rights, and not unfairly favour any particular group after affirmative action has substantially removed the disadvantage that previously afflicted that group. It is significant, therefore, that States, in their periodic reports to CESCR, [5] are asked to make specific reference to groups within their borders that are particularly vulnerable and/or disadvantaged. [6] Such groups include, for example, refugees, recent migrants and youth.

As the remainder of this report will illustrate, the most disadvantaged group within Australias population is the countrys Indigenous peoples. Given this reality, coupled with the CESCRs apprehension that Australias commitment to eliminating Indigenous disadvantage is far less than optimal, the remainder of this report addresses the situation of Aboriginal and Torres Strait Islanders, in the light of the ICESCR and with a view to the release of Australias new National Action Plan.

Deep concern [7] has been expressed by CESCR that Australia has not satisfactorily fulfilled its obligations under the ICESCR with respect to its treatment of Aboriginal and Torres Strait Islanders. The Committee stated that

despite the efforts and achievements of [Australia], the Indigenous populations of Australia continue to be at a comparative disadvantage in the enjoyment of the economic, social and cultural rights, particularly in the field of employment, housing, health and education. [8] (Emphasis added).

As a direct consequence of this observation, the Committee specifically advocates and recommends that Australia pursue its efforts in the process of reconciliation with Australias Indigenous peoples and its efforts to improve the disadvantaged situation they are in. [9]

Furthermore, the CESCR strongly recommends that Australia incorporate ICESCR in its legislation. [10] This general suggestion echoes an obligation inherent in article 2(1) of the Covenant (discussed above) which emphasises the importance of the ICESCR finding expression in domestic law as a means to ensuring compliance with its provisions. Thus, provision of judicial review, as well as the existence of other procedures for recourse, is a necessary prerequisite before ICESCR will be more fully realised within Australia.

The Commonwealth Government has not positively responded to either of these critical recommendations. On one level, the failure to implement the ICESCR provisions into Australian municipal law constitutes a critical shortfall of the obligations Australia committed to fulfil by ratifying the Covenant. Only once such implementation has taken place will the legitimate expectations [11] created by the Covenant by clarified and be available to be utilised more effectively throughout Australian political and administrative decision-making.

On another, more basic level, however, the efforts pursued by the Commonwealth in seeking to remedy the disadvantage experienced by Indigenous Australians have not been effective. As will be outlined below, the CESCRs deep concern that Indigenous Australians significantly lag behind the rest of the Australian population in their enjoyment of cultural, social and economic rights is not at present adequately addressed, perpetuating the disadvantage historically derived and deep-rooted within Australias socio-economic make-up.

The four areas identified by the Committee of particular concern to Indigenous Australians  employment, housing, health and education  are explored in greater depth within this paper. Accompanying this analysis, areas for improvement within these categories, vital for any National Action Plan, will also be outlined.

The most recent and authoritative studies made into the health and welfare of Australias Aboriginal and Torres Strait Islander persons illustrate their enduring socio-economic disadvantage in comparison with the countrys non-Indigenous population.

A.     Background [12]

The 2001 Census revealed that Aboriginal and Torres Strait Islanders comprised roughly 2.2% of Australias total population. It also indicated that the Indigenous people are younger than the general Australian population: 40% of the former group are aged under 15 and only 2.8% over 65 years. This younger age demographic, and the rapid growth of this young Indigenous population has an important bearing on social indicators and the formation of appropriate policies, especially in relation to education and employment.

Significantly, nearly 20% of the Indigenous population live in areas classified as very remote, compared with only 1% of the non-Indigenous population. [13] This fact has important implications for the provision of and access to services such as health, housing, education and employment for the indigenous community. As highlighted by the Aboriginal Justice Advisory Council, [14] it is vital that funding is directed towards appropriate and available culturally appropriate community services that meet the specific needs of individual Indigenous communities. Moreover, these unique communal needs must be elicited through genuine and interested consultation with Aboriginal people and Torres Strait Islanders with a view to ensuring that their thoughts and concerns are considered in the determination of issues affecting them.

Data illuminating the disadvantage at which the Indigenous population is placed in the areas of employment, housing, health and education is presented later on in this paper.

B.     The Australian Commonwealth Government, and its Commitment to Practical Reconciliation

The Australian population has raised its awareness of, and activism for, addressing Indigenous issues generally, and reconciliation with the Indigenous population specifically. These popular opinions gained an increased resonance as the 1990s moved towards and into the 21^st Century. The movement fostered in that decade commenced with the landmark High Court Mabo decision, followed by the enactment of the Native Title Act 1993 (Cth). Public support for the Reconciliation cause reached a crescendo in May 2000 with a nationwide series of events, of which the Sydney Harbour Bridge Walk Towards Reconciliation received particular media attention, coinciding with the largest gathering of Australian leaders at Corroboree 2000.

The incumbent Liberal-National Coalition Commonwealth Government has publicly recorded its commitment to represent these views and sentiments. As far back as the beginning of the 1990s, however, the Coalition has perceived the appropriate approach to representing the views of the country as being one revolved around the concept of practical reconciliation. In 1991, the then Shadow Minister for Aboriginal and Torres Strait Islander Affairs, Dr Michael Wooldridge, articulated the thrust of this approach:

If anything is to be achieved in the area of Aboriginal Affairs, it will be achieved with simple practical solutions, with realistic, measurable and achievable goals, with cooperation rather than confrontation. [15]

More recently, the Motion of Reconciliation moved by the Prime Minister John Howard in 1999 reaffirmed the central importance of practical measures leading to practical results that address the profound economic and social disadvantage which continues to be experienced by many Indigenous Australians. [16] Prima facie, the Governments proposed approach to achieving reconciliation through addressing disadvantage [17] fulfils article 2(1) of the ICESCR, which obliges States Parties to take steps towards the realisation of social, economic and cultural rights. This commitment (which has not, at present, been adequately discharged) towards practical reconciliation has been noted by the CESCR in its Concluding Observations on Australias Periodic Report in 2000. [18]

1.         The Governments Response to the 2000 CAR Report

The reference made by the Committee on Economic, Social and Cultural Rights in its 2000 report (highlighted above) draws attention to the work of the Council for Aboriginal Reconciliation (CAR), established in 1991 by the Council for Reconciliation Act 1991 (Cth). The Council, which ceased existence in December 2000 in conformity with the Acts sunset clause, was charged with the responsibility of making recommendations as to the manner in which reconciliation between the Indigenous and non-Indigenous Australian community could be best achieved.

In the Councils final year, it presented three key documents. Two of these  Roadmap for Reconciliation and Declaration towards Reconciliation  detailed a national strategy to not only eradicate the disadvantage suffered by Indigenous Australians, but to promote the broad recognition of Aboriginal and Torres Strait Islander rights. The third document, the Councils final report (Reconciliation: Australias Challenge), offered six recommendations, which the CAR perceived to facilitate the process of reconciliation.

The Commonwealth Government again reaffirmed its commitment to practical reconciliation in its September 2002 Response to The Council for Aboriginal Reconciliation (CAR) Final Report. In it, it focuses upon the socio-economic disadvantage experienced by Australias Indigenous peoples in the areas of education, health, employment and housing. The Government is quick to mention that its commitment to these issues is measurable by its record $2.5 billion outlay in the 2002-3 Federal Budget. [19] Indeed, the Response cites some comparative quantitative data indicating that in some areas, Indigenous Australians have seen improved standards of living over the last six to eight years.

2.         The Governments Policy Hole

The argument presented by this paper is that Australia, in spite of its present efforts, is failing to discharge its obligations under article 2 of the ICESCR: the realisation of & rights by undertak[ing] & steps to the maximum of its available resources and by all appropriate means.

The primary reason why the governments attempts to substantially eliminate disadvantage amongst Aboriginal and Torres Strait Islanders is failing is that it does not perceive the task from a human rights-based perspective. Such an approach emphasises the empowerment of Indigenous peoples by requiring their participation in matters of which they are the subject, and ensuring equitable treatment and non-retrogression of rights. [20] As stated in the recommendations of the Royal Commission into the Aboriginal Deaths in Custody, true reconciliation requires a level playing field, a negotiation based upon mutual respect and an acceptance of equality. [21] This method is as dependent upon the proper political, rights-based guidance being provided, as is the adequate deployment of economic resources to eliminate social, economic and cultural disadvantage. The focus of the current Commonwealth Government is quite clearly on the latter, with its disdain of symbolic reconciliation indicative of its attitude towards the former. As discussed above, it is reluctant to incorporate the articles of the ICESCR into Australian law, revealing a lack of full commitment towards the Covenant.

The Aboriginal and Torres Strait Islander Social Justice Commissioner argues that as a highly-developed, industrialised country, Australia has the potential to increase its present commitment in clos[ing] the gap between Indigenous and non-Indigenous Australians. He cites Canadas policies towards its own Aboriginal peoples as one grounded in a rights-based approach to overcoming rather than merely managing, Indigenous disadvantage. Such an approach involves acknowledging past injustices that have led to Indigenous disadvantage, and ensuring the full participation and contribution of Indigenous peoples in decision-making. This methodology has led to a reduction in the overall costs of managing Indigenous disadvantage as well as the social problems associated therewith. [22]

But even in its preoccupation with providing funding for indigenous programs, the Commonwealth Government has not sufficiently articulated a transparent system by which it can be held accountable. The $2.5 billion has not definitively been delineated into the various programs made available by the Government. Also absent is a time-line or set of targets and benchmarks (agreed by both Government and Indigenous communities) against which progress can be monitored and duty-bearers scrutinised. Significantly, the efforts of the present Government reflect an input-based approach to resolving Indigenous disadvantage, instead of a results-based approach under which the needs of such communities (as defined by the communities themselves) are met. The present system involves dividing Federal funds between the States and Territories without attaching performance conditions, accountability measures or evaluation processes to such funds.

The Government justifies its delegation of funds and hence responsibility by asserting that all levels of government, the Human Rights and Equal Opportunity Commission (HREOC), ATSIC and Reconciliation Australia all play significant leadership, reporting and monitoring roles in the reconciliation process. This piecemeal approach not only lacks national co-ordination, but is also flawed in several respects.

·                    HREOC has repeatedly raised the issue of the Governments failure to set outcome-based benchmarks and monitoring processes in consultation with Indigenous communities. [23]

·                    ATSIC is not given sufficient funding to provide for communities beyond the Community Development Employment Programme (CDEP) and the Community Housing and Infrastructure Program (CHIP), and it is often the sole service provider in remote areas. Refer to the Right to Work and Employment heading (below) for a greater explanation of the schemes that constitute the Commonwealth Government employment program.

·                    Although the Government has earmarked Reconciliation Australia, an independent, non-profit organisation, as the body responsible for driving the reconciliation process, it is chronically starved of funds. Its importance in exemplified in its establishment of Reconciliation Place within the parliamentary triangle, a project costing $5 million. Nevertheless, it has been forced to look outside government grants for further funding after receiving $5.6 million in 2000 to establish its operations.

Quite clearly, the Commonwealth Government commitment to rectifying Indigenous disadvantage is well intentioned, but misguided. A rights-based approach necessitates the design of a framework that focuses on results, where the Indigenous communities themselves define those outcomes, thereby empowering Indigenous people. This framework must be tied to a time-bound plan of action  detailing benchmarks and indicators  which can be monitored and evaluated.

In light of the failure of the current political approach to achieving practical reconciliation, and in order to fulfil the obligations created by the ratification of ICESCR, the following sections propose recommendations considered vital to the preparation of Australias new National Action Plan.

This paper will concentrate on the key areas of concern recognised to be present within Australia by the CESCR: health, education, employment and housing. It is important to bear in mind that these areas are interdependent, predominantly between themselves, but also with other rights such as access to law, culture and native title.

A.     General Features of the National Action Plan

In spite of the Governments misdirected policy initiatives (articulated in the previous section), it has, however, taken one step towards remedying this situation by empowering the Council of Australian Governments (COAG) to submit a regular report examining the change in key indicators of Indigenous disadvantage. Over time, therefore, the impact of changes in policy and service delivery will be more transparent and of greater utility in assessing the Governments commitment to (practical) reconciliation.

Success of this initiative is contingent upon selecting a comprehensive set of accurate indicators, and advocating the alteration of government policy based upon the analysis of the temporal change in such indicators. Towards this end, any national action plan must encompass the following aspects.

Commitment to rights. A commitment to rights is one evidenced by a rights-based approach to satisfying the obligations assumed under the International Covenant on Economic, Social and Cultural Rights. The Australian Government claims to be ardent in its alleviation of socio-economic disadvantage generally and promoting reconciliation with Australias Indigenous peoples specifically. [24] Indeed, if this were so, then a serious consideration is required of possibly incorporating the ICESCR provisions into domestic legislation, as has been urged by the CESCR since 2000. [25]

Identify Areas of Priority. Recognising the characteristics of disadvantage is the first step in answering the question which population groups and sub-groups are most vulnerable, or suffering the greatest from inadequate achievement of basic capabilities? Prioritising resource allocation as these characteristics are monitored can then take place, with a view to fine-tuning such allocations depending upon the specific attributes of the group or sub-group targeted.

Meaningful data collection. Collection of data and statistics must then aim to quantify the characteristics of disadvantage (see previous paragraph). One example of a specific data collection was the NATSIS survey of 1994. Such data collections must occur regularly in order to facilitate comparison and evaluation of performance across a period of years and decades. Furthermore, including the disadvantaged groups themselves as key stakeholders in selecting those indicators that are the most culturally pertinent heightens the relevance of such measures.

Short-term benchmarks and long-term targets. Selection of appropriately chosen indicators enables aligning ambitious yet realistic and achievable short-term benchmarks and long-term targets which will gauge the success of policy implementation. Again, calibrating these milestones, under a rights-based approach to policy formulation, necessitates joint consultation between Government and representatives of the disadvantaged group: in the case of Indigenous Australians, this would involve consulting key community spokespeople.

Empowerment and capacity building through partnership and participation. The abovementioned methodology clearly serves to empower the poor, disadvantaged and vulnerable as their rights (and not merely their needs) not only give rise to legal obligations on the part of government bodies, but are also given primacy in policy formulation. Indeed, the United Nations High Commissioner for Human Rights (UNHCHR) perceives active and informed participation at all stages of policy decision making as not just a means to an end, but also as a fundamental human right in and of itself. [26] The provision of institutions and frameworks, of course, is necessary for allowing full participation of disadvantaged groups and allowing them to express their own opinions and judgments.

In the context of Indigenous disadvantage, therefore, service providers such as ATSIC and all levels of government must:

·                    Involve Indigenous communities in the design, development, delivery and evaluation of policies, programs and services.

·                    Design and deliver the programs and services in a way that is driven by local Indigenous people, strengthens local communities, forges partnerships, makes links with the corporate sector and draws on resources within the community to achieve agreed outcomes.

·                    Build the capacity and skills base of the Indigenous people so that they are able to sustain the infrastructure and deliver the services to the community.

·                    Support and fund Indigenous community organisations to participate in policy development, planning, service delivery, and monitoring processes.

Accountability: monitoring and assessment. Stakeholders must monitor and assess duty-bearers in the implementation of their policies. Such procedures must be transparent and publicly available, with proper institutional arrangements in place to which aggrieved stakeholders have recourse.

Long-term funding. Implementing the steps just outlined is solely dependent upon the provision of long-term funding. Those responsible for achieving long-term targets must be secure in the knowledge that their policies will be put into action in their entirety over the period of years required to alleviate Indigenous disadvantage. This security and hence sustainability of the practical reconciliation process will exist once the deployment of resources (in the form of Government expenditure and funding) is made. The present Government approach to funding, involving an arrangement of flexible, annual grants, is not only short sighted but also not indicative of a long-term commitment to meeting long-term targets. [27]

Thus the generic features of any National Action Plan must include the following.

 

The Right to Health

Ill health is both a cause and a consequence of socio-economic disadvantage. On the one hand, poor health destroys livelihoods, reduces productivity, inhibits educational achievement, limits opportunities and burdens households. On the other hand, poverty leads to diminished access to medical care, increased exposure to environmental risks, and heightened exposure to malnutrition. [29]

The right to health is broad and encompasses the right to enjoyment of medical goods, services, and conditions necessary for the realisation of the highest attainable standard of health. This necessarily implies not only access to health-care facilities, but also ready availability of potable water, food, adequate sanitation and housing, healthy occupational and environmental conditions and access to health-related information and education. Further still, the generic right to health includes more specific rights including the right to maternal, child and reproductive health, and the right to prevention, treatment and control of diseases.

Under a rights-based approach to health, a developed country such as Australia must strive to offer easily accessible (i.e. physical) and always-available health services, without discrimination. As a direct consequence, this involves the provision of information to Indigenous communities as to the existence of such health services, and that they are economically accessible (i.e. not prohibitive). [30] Across the broad Australian continent, this obligation entails ensuring that there are adequate health services made available to geographically isolated and remote communities. In the context of Indigenous Australians, it is also incumbent upon the government under ICESCR to provide health services that are culturally sensitive and accepted by the community.

Indigenous ill health. The evidence available suggests that Indigenous people continue to suffer a greater burden of ill health (both physical and mental) and have a higher mortality rate than that of non-Indigenous Australians. [31]  Not only have the Indigenous remained that Australian sub-group least likely to thrive in health; the health data suggests that the disparity between Indigenous and non-Indigenous persons has widened in recent years. [32]

·                    The average life expectancy for an Indigenous male is 57 years, compared to 76 years for the non-Indigenous male. [33]

·                    The average life expectancy for an Indigenous female is 62 years (compared to 82 years for the non-Indigenous female). [34]

·                    In 2000, the Indigenous infant mortality rate of 13.6 infant deaths per 1,000 live births was 3 times the Non-Indigenous rate of 4.6. [35]

Factors that increased the Indigenous health risk included alcohol consumption, poor nutrition, obesity and exposure to violence. 

Poor access to health services for Indigenous Australians. Overall, Indigenous people experienced lower levels of access to health services than the general population. They were more likely to be more geographically removed from a range of health facilities, or otherwise did not receive visits from a wide range of health care professionals. [36] The concern that Aboriginal communities are not being serviced to the same extent as non-Indigenous Australians is confirmed by the fact that ATSICs funding is insufficient to cover Indigenous-specific primary health care services. [37]

Government recognition of misdirection of its spending. Health expenditure has increased for Indigenous people compared to non-Indigenous people (in a ratio of 1.22:1). However, the increase in the above ratio is more than negated by the cost of providing services to these remote areas. It is in these areas that Indigenous communities experience the greatest need.

This observation is consistent with the conclusion that the Governments spending is misdirected; with increased expenditure not yielding improved outcomes for Indigenous people. Importantly, this fact was acknowledged in the Commonwealth Governments Response to The Council for Aboriginal Reconciliation Final Report:

The Governments suspicion, confirmed by the [Commonwealth Grants Commission], was that socioeconomic disadvantage is highest among Indigenous people living in remote locations. However, the distribution of Commonwealth resources does not match the distribution of need. (Emphasis added). [38]

Comparative study. The lack of any real improvement in Indigenous mortality in Australia stands in contrast to the situation among Indigenous people in New Zealand, Canada and the United States. The success achieved in those countries generates considerable confidence that effective action in Australia will produce substantial changes in Indigenous health. [39] Achieving these changes requires progress in a number of areas: infrastructure (physical, environmental and socio-economic); self-determination of health services; access to a network of community-controlled primary health-care services; an adequate level of resources; a skilled workforce; and the availability of same-sex Indigenous health workers.

B.     The Right to Education

Education is the primary vehicle by which disadvantaged children and adults can lift themselves out of the poverty cycle. The right to education is fundamental to the enjoyment of the rights to work, health, and social and political participation.

Secondary schooling: greater attendance, poorer achievement. Though the available 2001 Census data indicates that the number of Indigenous children attending school has increased over the past five years, Indigenous people are still achieving poorer educational outcomes than their non-Indigenous counterparts.

·                    15.8% of Indigenous students complete Year 11 or 12, compared to 39.3% of non-Indigenous students.

·                    23.6% of Indigenous students acquire post-school qualifications, compared to 40.2% for non-Indigenous students.

Lower involvement in tertiary education. In spite of the financial encouragement ABSTUDY provides, Indigenous participation in post-secondary school studies has been stemmed in the last two years. This is the result of the combination of two factors. Firstly, changes to the ABSTUDY scheme in January 2000 in which it was aligned with Youth Allowance and New Start rates (serving to reduce the availability of assistance to Indigenous students) has led to a decrease in Indigenous tertiary enrolments. [41] Secondly, these financial disincentives have compounded cultural inhibitions fostered by Indigenous students towards further education. They are reported to suffer from a lack of self-esteem, lack of encouragement, lack of school and family support and racism. [42]

Thus removing financial disincentives alone will not in and of itself increase participation in education to the same levels as the rest of the Australian population. Greater support for communities and families, especially women, to continue educational pursuits is required from an external source. In this way, a culture valuing education is passed down from generation to generation. This goal might possibly be achieved by granting a body such as ATSIC long-term funding to pursue Indigenous specific educational schemes. No such initiative or funding source currently exists.

The relationship between education and employment. A report issued by the Australian Bureau of Statistics described the interplay between education and employment. It noted that in communities in which employment opportunities are sparse, this tends to dissuade people from participating in education beyond the compulsory years of schooling. [43] In turn, the resulting poor record of educational achievement limits the ability of Indigenous people to secure more permanent employment. The cycle of poverty is henceforth reinforced.

C.     The Right to Work and Employment

The right to decent work is vital to ensure individual and community livelihood and wellbeing. It encompasses productive and sufficient work of acceptable quality in which rights are protected and which generates an adequate income with adequate social protection. [45]  In a developed country such as Australia, this implies that all people should have full access to income-generating opportunities (including self-employment, the opportunity to work from home) and should be given support in order to increase opportunity for skilled labour. Thus, the right to decent work this extends from the preconditions for income-generation such as availability of assets, credit and favourable regulatory environment, to the availability of adequate employment opportunities.

States parties, under article 6 of the Covenant, acknowledge the right to work and the right of everyone to the opportunity to gain his living by work as a means of generating income on which subsistence depends. Clause 2 of this article identifies steps mandatory to the fulfilment of the article: these include, inter alia, technical and vocational guidance and training programmes. Moreover, the right to work is, under article 7, accompanied by the right to just and favourable conditions of work. This encompasses consideration of remuneration, safe and healthy work environment, equality of opportunity, as well as periods of rest/leisure.

The Covenant identifies in article 9 the right to social security. The CESCR has stated that, ideally, countries that have ratified the ICESCR seek to publicly maintain social security schemes for disadvantaged groups such as the unemployed, injured and elderly (among others). This article may be seen to underline the obligation made out in the ICESCR to improve the socio-economic circumstances of underprivileged groups. 

Costs of Indigenous unemployment. In a comprehensive study, Boyd Hunter and John Taylor have explored the costs of unemployment, and specifically Indigenous unemployment, to Australia. [46] From a fiscal perspective, they illustrate that by shifting willing and capable people from welfare dependence to unsubsidised employment, the Government would gain from increased tax revenue.  From a social perspective, they point out that the far-reaching social costs of unemployment range from poor health, stress, suicide, criminality and arrest, to social exclusion, depreciation of human capital and pressure on families and communities.

In the late 1990s, discrepancies in the enjoyment of the right to decent work existed in the comparison of Indigenous and non-Indigenous working groups. [47]

·                    The Indigenous unemployment rate is 22.7%, compared to 9% for Non-Indigenous people.

·                    The Indigenous labour force participation rate is only 52%, compared to the non-Indigenous figure of 62%.

·                    25.9% of Indigenous workforce comprises of unskilled labourers, compared to 8.8% of the non-Indigenous workforce.

·                    Only 14% of the Indigenous workforce have obtained the status of manager, administrator or professional, compared to 26% of the Non-Indigenous workforce.

·                    The Indigenous median average weekly income per adult ($190) or per family ($502) is substantially lower than that of the non-Indigenous workforce ($292 and $730 respectively).

Government initiatives. As a short-term initiative, the Community Development Employment Program (CDEP) scheme (which is the Governments largest Indigenous employment program) has been successful in enabling more Indigenous Australians to engage in employment and receive minimum-income support. Indeed, without CDEP, the unemployment rate would be closer to 40%. CDEP does not double, unfortunately, as a long-term job-creation initiative, given that it does not provide Aboriginal and Torres Strait Islanders with the appropriate skills to either remain within the mainstream workplace or attain employment status equal to that of non-Indigenous people. Given this situation, other Government schemes, including Job Network, Indigenous Employment Programme (IEP) and the Indigenous Small Business Fund, ought to be given greater attention with a view to promoting long term Indigenous employment sustainability.

D.     The Right to Housing