Senior partner Mark Leibler and Public Interest partner Peter Seidel comment on the results of the Productivity Commission's review of the 'Closing the Gap' agreement.
While last week’s report from the Productivity Commission offers a “groundhog day” analysis of how governments continue to fail Aboriginal and Torres Strait Islander Australians, it shines a bright and timely light on where business can and must channel its cumulative experience post-referendum.
The upshot of what the Productivity Commission found after its two-year review of the Closing the Gap Agreement, signed in 2020 by every government in Australia, is encapsulated in this paragraph:
“The gap is not a natural phenomenon. It is a direct result of the ways in which governments have used their power over many decades. In particular, it stems from a disregard for Aboriginal and Torres Strait Islander people’s knowledges and solutions.”
If the wording appears indelicate, it’s hardly surprising, given that the Productivity Commission and countless other agencies, including government agencies, have been making the same essential point for decades. Yet here we are, with just four of the 17 national socio-economic targets on track, while a further four are trending backwards.
And although the initiatives announced this week as part of the federal government’s latest Close the Gap Report are welcome, there’s no apparent rethink of how they will be delivered.
If the failure of governments to acknowledge and act on the reality that Aboriginal and Torres Strait Islander people know what’s best for their communities remains the central stumbling block to overturning persistent, intolerable disadvantage, ignorance is no excuse any more, if it ever was.
Over the last two decades, in particular, Australian businesses, alongside philanthropic and community organisations, have picked up the baton and shown how it’s done. Acting with enlightened self-interest, resources companies like BHP have engaged with communities in remote areas where they operate, all four of the big banks have created products and services that meet the needs of Indigenous consumers, and major retail companies, notably Wesfarmers, have devised strategies to recruit and retain Indigenous employees in regional locations.
Member companies of the Business Council of Australia have made a strategic decision to invest in Indigenous businesses by establishing active partnerships and a tailored, publicly reportable procurement drive.
Being more pragmatic and outcomes-driven than the public sector, Australian businesses and philanthropists have found, and demonstrably proven, that devising programs in partnership with Aboriginal and Torres Strait Islander stakeholders is the only way to get meaningful things done.
As lawyers, we are creatures of instruction, so being guided by the aspirations, knowledge and instincts of clients comes more naturally to us than it does to bureaucrats.
For nearly 30 years, Arnold Bloch Leibler has worked with Aboriginal and Torres Strait Islander communities, organisations and individuals, often pro bono, on matters and issues that go to the heart of their resolve to achieve self-determination.
From representing the Yorta Yorta peoples in their seminal native title claim through the 1990s, to securing the rightful return of the copyright in the lifetime works of iconic Aboriginal artist Albert Namatjira to his family in 2017, and supporting Indigenous entrepreneurs in establishing and growing successful enterprises, our work with Aboriginal and Torres Strait Islander peoples spans the spectrum of legal challenges.
We are acutely aware of the importance of using our best efforts to ensure that the decisions and instructions conveyed to us by Aboriginal and Torres Strait Islander clients are based on their free, prior and informed consent, and that traditional decision-making processes are respected and supported.
Central to this cross-cultural exchange, we are alive to and consciously work to avoid paternalism by making sure our engagement with clients is founded on establishing, nurturing and maintaining true and equal partnerships, often over decades.
We don’t only adopt this approach because it’s the most effective – we are very mindful that it’s also good for the firm and for our people. It sharpens our skills, buoys morale, and helps attract and retain the brightest and best talent to the firm. The value-add is reciprocal, whereby we provide advice and support and, in turn, have the opportunity to learn from fellow Australians with rich and diverse cultures, the most ancient on the planet.
It was experience and insight that led many businesses, business groups and charities to support the establishment of a Voice to Parliament, and while the model taken to last year’s referendum was rejected, the imperative of overcoming Indigenous disadvantage remains. The Productivity Commission highlights the shocking reality of government rhetoric that “business as usual” isn’t cutting it.
Despite the significance of business and other non-government input to closing the gap, governments are still the big players here.
As the Commission report points out, governments across the country are stepping up efforts to improve how they work with Aboriginal and Torres Strait Islander people to design policies that affect their lives. Several jurisdictions (including Victoria, where Arnold Bloch Leibler advised the Aboriginal Treaty Working Group in its ground-breaking negotiations with the Victorian Government leading to the enactment of Australia’s first Treaty legislation) have established processes to facilitate Treaty negotiations and the SA Government has passed legislation to establish a First Nations Voice.
Since the failure of the referendum last October, it remains unclear how the federal government will progress its commitment to implement the Uluru Statement from the Heart.
While the Productivity Commission doesn’t specifically recommend it, Australia’s private and non-government sectors have a critical, frontline role to play in shaping the required bureaucratic transformation that will give Aboriginal and Torres Islander Australians a respected voice at the table, enabling tangible improvement for them, for the nation, our economy and our psyche.
