Legally invisible: stewardship for Aboriginal and Torres Strait Islander health

Abstract

Objectives: The need to improve access to good health care for Aboriginal and Torres Strait Islander people has been the subject of policy debate for decades, but progress is hampered by complex policy and administrative arrangements and lack of clarity about the responsibilities of governments. This study aimed to identify the current legal basis of those responsibilities and define options available to Australian governments to enact enduring responsibility for Aboriginal health care. Methods: This study used a framework for public health law research and conducted a mapping study to examine the current legal underpinnings for stewardship and governance for Aboriginal health and health care. More than 200 pieces of health legislation were analysed in the context of the common and statutory law and health policy goals. Results: Very little specific recognition of the needs of Aboriginal people was found, and nothing that creates responsibility for stewardship and governance. The continuing absence of a legislative framework to address and protect Aboriginal health can be traced back to the founding doctrine of terra nullius (unoccupied land). Conclusions: We considered the results applying both a human rights perspective and the perspective of therapeutic jurisprudence. We suggest that national law for health stewardship would provide a strong foundation for progress, and should itself be based on recognition of Australia's First Peoples in the Australian Constitution, as is currently proposed.

A potential Human Rights Act in Queensland and inclusion of the right to health

“…12,15,[38][39][40] If enacted, a Human Rights Act could have tremendous impact on the health and wellbeing of all Queenslandersparticularly the most marginalised -in years to come. The right to health's inclusion in a HRAQ would be particularly important for the 3% of Queenslanders that reside outside of the state's south-east corner in remote and very remote areas.…”

“…Geographic isolation and invisibility has all too often served to reinforce lack of leadership and prioritisation for improving the divergent health needs of geographically isolated Queenslanders, especially Queensland's heterogeneous fabric of Aboriginal and Torres Strait Islander people. 12,15,[38][39][40] If enacted, a Human Rights Act could have tremendous impact on the health and wellbeing of all Queenslandersparticularly the most marginalised -in years to come.…”

Implementing Indigenous community control in health care: lessons from Canada

“…Aboriginal and Torres Strait Islander peoples are not recognised in the Australian Constitution and government responsibility for Indigenous health is not defined in health law. 26 Thus, there is no enduring basis for accountability by governments for improvements in Aboriginal health care, including for transferring PHC provision to community-controlled healthcare providers, despite continuing policy commitments. 26,27 Further, despite earlier policy commitments to self-determination, 28 the policy discourse has largely shifted away from Indigenous rights and towards a focus on 'closing the gap' in social, economic and health status indicators between Indigenous and non-Indigenous Australians.…”

“…26 Thus, there is no enduring basis for accountability by governments for improvements in Aboriginal health care, including for transferring PHC provision to community-controlled healthcare providers, despite continuing policy commitments. 26,27 Further, despite earlier policy commitments to self-determination, 28 the policy discourse has largely shifted away from Indigenous rights and towards a focus on 'closing the gap' in social, economic and health status indicators between Indigenous and non-Indigenous Australians. 29 Second, First Nations are taking on pre-existing services, previously delivered by the federal government in discrete communities, whereas this is not usually the case in Australia, where community-controlled services have more often been created de novo.…”

“…26 Although constitutional reform may be required to fully address this issue, other solutions include: (1) the allocation of responsibility for PHC to the federal government, as recommended by the National Health and Hospital Reform Commission; 37 or (2) federal and state agreements enacted in matching legislation, clarifying roles and responsibilities and harmonising contractual and accountability requirements. 26 Recognition that administrative simplification is necessary in order to strengthen accountability, as articulated in the Blue Ribbon Panel report to the Canadian Treasury Board, 22 could provide the basis for the reform of approaches to funding contracts in Australia. The development of a national system of meaningful indicators of health care effectiveness in PHC for Aboriginal people 38 is an important step in that direction.…”