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Constitutional recognition could drive health law reforms, paper argues

Australian laws are failing to provide a system-wide structure to promote the health of Aboriginal and Torres Strait Islander people, but the current national conversation about recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution has provided an opportunity to achieve more effective stewardship and good governance.

At the launch of Legally Invisible: Kim O’Donnell (Flinders University), Tom Calma, Genevieve Howse and Judith Dwyer (The Lowitja Institute and Flinders University) Photo courtesy of Ben Searcy Photography

That’s according to a paper commissioned by the Lowitja Institute and launched by former Aboriginal and Torres Strait Islander Social Justice Commissioner Dr Tom Calma (pictured right with Kim O’Donnell, Genevieve Howse and Judith Dwyer) in Adelaide on 5 December 2011 at the Biennial Conference of the Health Services Research Association of Australia and New Zealand.

The paper, Legally Invisible – How Australian Laws Impede Stewardship and Governance for Aboriginal and Torres Strait Islander Health, was written by La Trobe University legal academic, Adjunct Associate Professor Genevieve Howse, and was the key outcome of the Lowitja Institute’s ‘Options for Enduring Government Responsibility for Aboriginal Health’ project.

The paper reviews existing health legislation in Australia and finds that with the exception of some in South Australia, there is very little specific recognition in law of the needs of Aboriginal and Torres Strait Islander people in any of Australia’s nine jurisdictions.

‘Thus, 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,’ the paper says.

Dr Tom Calma, founding Chair of the Close the Gap for Indigenous Health Equality Campaign, said the paper was an important contribution to the debates about health and wellbeing and constitutional change.

‘This study highlights another issue brought about by the absence of recognition of Aboriginal and Torres Strait Islander people in our Constitution,’ he said. ‘Recognition would provide the basis for clarifying responsibility for the health of Australia’s First Peoples in legislation. Now is a good time to consider how things might be different.’

The paper identifies a number of elements to achieve the necessary changes, including:

  • constitutional recognition as a basis;
  • governance arrangements that bring together the levers for policy-making;
  • clarity of responsibility; and
  • an active role for Aboriginal and Torres Strait Islander people.

Three options for law reform are put forward, including Commonwealth law to establish government responsibility for important health system functions; nationally consistent laws at State and Territory level; and the development of new legal models for adoption into State and Territory law.

‘Laws and legal systems are capable of change. Recent shifts, and the continuing national conversation about recognition of Aboriginal and Torres Strait Islander people in our Constitution, encourage optimism that the national consciousness may be more open to reform,’ the paper says.

The National Health Leadership Forum Co-Chairs, Jody Broun and Justin Mohamed, welcomed the paper and said its findings added weight to the importance of having a national body to monitor Aboriginal and Torres Strait Islander health programs and to plan and lobby for better outcomes.

Mr Mohamed said the report showed that responsibility for Aboriginal and Torres Strait Islander health is subject to shifts in policy and funding with little responsibility shared with Aboriginal and Torres Strait Islander people.

‘The report compares different approaches to First Nations’ health in New Zealand, Canada and the United States,’ he said. ‘The common denominator in improving health outcomes is ensuring First Nations’ peoples make decisions about their health and health services.’

To listen to an SBS radio interview with Adjunct Associate Professor Howse and Dr Calma, go to: www.sbs.com.au/podcasts/Podcasts/radionews/episode/195105/Constitutional-recognition-will-Close-the-Gap-report. Go to Lowitja Publishing to download a PDF of the paper or to purchase a hard copy. 

Photo courtesy of Ben Searcy Photography

ISSUE FIVE / DECEMBER 2011 Page 2
Created: 17 June 2012 - Updated: 02 November 2018