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Legally Invisible – Options for enduring government responsibility for Aboriginal health

Legally Invisible report coverThe issue

Australia’s health services are governed by a bewildering array of laws and policies that differ across the States and Territories due to our federal structure and Constitution. This has negative consequences for Aboriginal and Torres Strait Islander people in particular, given their special need for nationally coordinated services and policies to reduce their burden of ill-health.

The paper

To address this problem the Institute commissioned legal academic Genevieve Howse to write a Discussion Paper, Legally Invisible – How Australian Laws Impede Stewardship and Governance for Aboriginal and Torres Strait Islander Health. Launched on 5 December 2011, the paper reviews existing health legislation in Australia. It finds that with the exception of recent changes in South Australia, there is little specific recognition in law of the needs of Aboriginal and Torres Strait Islander people in any of Australia’s nine jurisdictions, and nothing that creates a framework for enduring stewardship and governance for Aboriginal and Torres Strait health.

A policy brief, Building a Legal Framework for Aboriginal and Torres Strait Islander Health, was produced in March 2012 to highlight key points from the paper.

The way forward

The paper finds that a number of elements are necessary to achieve stewardship and good governance, including:

  • Constitutional recognition of Aboriginal and Torres Strait Islander peoples
  • Governance arrangements that bring together the levers for policy making
  • Clarity of responsibility
  • An active role for Aboriginal and Torres Strait Islander people and organisations.

Key recommendations

With Constitutional recognition as a pre-requisite, the paper puts forward three options to secure legislative change:

  • A Commonwealth law that establishes Federal Government responsibility for important functions, and principles to guide interpretation and administration of all Commonwealth health legislation, OR
  • Nationally consistent laws at State and Territory level (on the model of the national health practitioner registration laws), OR
  • The development of model legal provisions for adoption, as required, into State and Territory law.


The Discussion Paper was submitted to the Expert Panel considering constitutional reform, and in March 2012 the Policy Brief summarising the paper’s key points was sent to all Premiers and Chief Ministers in Australia. The Lowitja Institute briefed the South Australian Health Authority on the health implications of constitutional recognition shortly before the SA Government announced on 28 May 2012 that it would begin a process to recognise Aboriginal people in the State’s constitution which has now been completed. Consultations and representations around this issue are ongoing.


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Created: 14 June 2012 - Updated: 12 October 2018