“Legally invisible”: Law reform matters for Aboriginal health

A recent Croakey post suggested that Constitutional reform could bring important health benefits for Indigenous Australians.

The article below argues that a clear legal framework is needed for better Aboriginal health, citing a paper recently released by the Lowitja Institute, Legally Invisible – How Australian Laws Impeded Stewardship and Governance for Aboriginal and Torres Strait Islander Health.

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The law is a powerful lever for improving Aboriginal and Torres Strait Islander health

By Adjunct Associate Professor Genevieve Howse (LaTrobe University), Mr Dave Moodie (The Lowitja Institute), and Professor Judith Dwyer (Flinders University and The Lowitja Institute)

Australia is one nation, yet its federal structure and Constitution have not encouraged laws creating a clear governance structure for Aboriginal and Torres Strait Islander health.

At present, health services are governed by a bewildering array of laws and policies that differ across the States and Territories. In particular, apart from a few recent exceptions, these legislative arrangements do little to create clear governance and accountability for the provision of appropriate health services to Aboriginal and Torres Strait Islander people.

With a national conversation now taking place about recognising Aboriginal and Torres Strait Islander people in the Constitution as Australia’s First Peoples, the Lowitja Institute – Australia’s National Institute for Aboriginal and Torres Strait Islander Health Research 0 has recently published a paper entitled Legally Invisible–How Australian Laws Impeded Stewardship and Governance for Aboriginal and Torres Strait Islander Health.

Written by La Trobe University legal academic Genevieve Howse, the paper argues the time has come to consider implementing a consistent and comprehensive national legislative framework to support the delivery of Aboriginal and Torres Strait Islander health services, with constitutional recognition of Australia’s First Peoples as the cornerstone. As the paper says, ‘recognition in law is powerful’.

‘Legislative duties and functions are the focus of public service departments and agencies. Ministers and secretaries must report compliance and progress against them. Agencies receive recurrent funding in budgets for legislated functions, and policy making and planning activities concentrate on them. International obligations, and the human rights-based approach to health, also favour legislation and national policy.’

Statistics clearly identify that Aboriginal and Torres Strait Islander people have substantially worse health outcomes and lower life expectancy than other Australians, and this has prompted an unprecedented bipartisan approach at all levels of government to close the health gap.

However, this work is undercut by the conflicts and contradictions inherent in the diffuse way that government responsibilities for health and health care for Australia’s First Peoples are currently set up.

‘Stewardship and governance for Aboriginal and Torres Strait Islander health is difficult for two reasons: first, the awkward, piecemeal and historically discriminatory approach to the legal recognition of Australia’s First Peoples; and second, the fragmentation of laws and administrative responsibilities in relation to health. The levers of policy, administration, program development, funding and reporting requirements are spread across several laws, governments and ministerial portfolios. These features of Australian law create systemic constraints on good governance for Aboriginal and Torres Strait Islander health.’

The paper’s comprehensive review of existing health legislation in Australia found little specific recognition of the needs of Aboriginal and Torres Strait Islander people in any of Australia’s nine jurisdictions. It showed that:

• Of 69 principal Acts administered by the Commonwealth Department of Health and Ageing, only three specifically refer to Aboriginal and Torres Strait Islander people and none create responsibility for stewardship or governance.

• Of the approximately 200 Acts administered by State and Territory health authorities, only South Australia has included specific provisions in its public health law or health service delivery law that mention Aboriginal and Torres Strait Islander people.

• Among the approximately 250 principal Acts administered by the Commonwealth, State and Territory health portfolios, there is no Australian law or series of laws which, taken together, create a legislative structure to secure stewardship and governance for the health of Aboriginal and Torres Strait Islander people.

So how does this compare with other countries whose colonial experiences might be compared to Australia’s?

The paper looks at legislative frameworks and health delivery to Indigenous peoples in three countries: Canada, the United States and New Zealand. It finds that the United States and New Zealand have clear legal recognition of their Indigenous peoples through treaties and constitutional arrangements, and both countries have laws today that better enable coherent national approaches to stewardship and governance for Indigenous health.

By contrast, the Canadian experience is closer to Australia’s, with a lack of constitutional clarity on allocating responsibility for health care. This results in a shifting mix of federal, provincial and territorial programs and services as well as services provided directly by some Aboriginal communities, with the Federal Government limiting its responsibility to being ‘payer of last resort’. However, in contrast to Australia, Canada has recognised that constitutional uncertainty about responsibility for Indigenous health affects stewardship and governance, and is reviewing its health system and governance arrangements.

Constitutional/legal recognition of an Indigenous people’s existence and particular needs provides a basis for responsibility and governance for the health of Aboriginal and Torres Strait Islander people. It provides a clear basis for the creation of other laws to ensure that the specific health needs of Indigenous peoples are catered for.

The paper identifies three relevant but different ways of approaching a change to laws and legal policy for Aboriginal and Torres Strait Islander health and health care:

Human rights – this approach gives weight to advocacy for health system reform based on Australia’s official participation in international treaties, such as the United Nations Declaration on the Rights of Indigenous People and the International Covenant on Civil and Political Rights.

Therapeutic jurisprudence – this approach sees laws as having both positive (therapeutic) and negative effects on individuals and groups of people, with the purpose of lawmakers being able to understand and recognise the effect of laws in this context and to seek an increase in the positive (e.g. the Native Title laws flowing from the Mabo judgment) and a decrease in the negative (e.g. the legal concept of terra nullius).

Legal pluralism – this approach acknowledges more than one source of Australian law, and justifies recognition and use of customary as well as common law where possible in legislative approaches to stewardship and governance for Aboriginal and Torres Strait Islander health.

Laws intended to achieve stewardship and good governance in Aboriginal and Torres Strait Islander health should aim to deliver a number of core elements, including:

• Constitutional recognition of Aboriginal and Torres Strait Islander people as a basis.

• Governance arrangements that bring together the levers for policy making.

• Clarity of responsibility.

• An active role for Aboriginal and Torres Strait Islander people.

Three options for law reform are derived from this analysis. The first is a Commonwealth law that establishes government responsibility for the health of Aboriginal and Torres Strait Islander people. It would establish important functions and principles to guide interpretation of the law and administration of all programs to advance the health of Aboriginal and Torres Strait Islander people.

The second would be nationally consistent laws at State and Territory level, using legislative mechanisms similar to those used to create the national health practitioner registration laws. The third is the development of model provisions for adoption, as required, into State and Territory law.

Legal invisibility of Australia’s First Peoples was an ugly beginning for their engagement with British common law and it continues to have tragic consequences for their health, but Australian jurisprudence need not continue to be a ‘prisoner of history’. The current push for constitutional reform gives us an opportunity to establish a real basis for responsibility to provide for the health and wellbeing of our nation’s original inhabitants.

The last time Australians considered constitutional change to recognise the existence of Australia’s First Peoples, we overwhelmingly embraced it. When we are given the opportunity to change the Constitution again to recognise Aboriginal and Torres Strait Islander people, a similar enthusiasm for reform can help to close the health gap. We should grasp this opportunity.

• This work was commissioned by The Lowitja Institute. Pdf copies of the report can be obtained from www.lowitja.org.au