The discussion so far has been concerned with whether the CDEP scheme itself operates in ways that are racially discriminatory. I now turn to a consideration of how the CDEP scheme relates to the broader landscape of initiatives to address Indigenous inequality and disadvantage, and whether it can be considered a special measure in regard to unemployment.
Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Australia is a party, places obligations on states to ensure that economic, social, and cultural rights are exercisable in a non-discriminatory manner, as well as ‘to take steps’, that is, to apply special measures, to achieve the full realisation of these rights, which includes the right to work. In interpreting the scope of the obligation ‘to take steps’, the Committee on Economic, Social and Cultural Rights (CESCR) has indicated that there is a threshold level of enjoyment of economic, social and cultural rights that states must provide. State parties to ICESCR have a ‘minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’, and must be able to demonstrate that ‘every effort has been made to use all resources…to satisfy…those minimum obligations’ (CESCR 1999: Para. 10). The Committee has also acknowledged that full recognition of these rights will be realised progressively, over a period of time, since ‘the full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time’ (CESCR 1999: Para. 10).
Despite all the rhetoric championing ‘practical reconciliation’ in recent years, a concerted approach to the progressive realisation of Indigenous people’s economic, social and cultural rights in Australia is still clearly lacking. In 1999 the Australia Institute published a study on ‘Public expenditure on services for Indigenous people’ (Neutze, Sanders & Jones 1999) across the ‘four pillars’ of the government’s stated commitment Indigenous disadvantage—education, emplyment, health and housing. One of the findings of this study was that: ‘While Indigenous people benefit substantially more than other Australians from specific programs, they benefit substantially less from many, much bigger, general programs’ (Neutze, Sanders & Jones 1999: xii). In the area of unemployment, the CDEP scheme is a major element contributing to this pattern. While the Indigenous unemployed receive 35 per cent less expenditure from general programs, they receive 48 per cent more when Indigenous-specific programs are added. This is a reflection of the significant role of the CDEP scheme in supporting the Indigenous unemployed. While the total number of CDEP participants is difficult to identify in census data, the Australia Institute study found that even with conservative estimates, ‘[t]he figures suggest that about as many Indigenous people participate in CDEP as access general unemployment payments’ (Neutze, Sanders & Jones 1999: 25–6.)
Even so, government expenditure on Indigenous employment is still relatively low in comparison to need. Using CDEP-adjusted figures for the Indigenous unemployed, the Australia Institute study found that the Indigenous unemployment rate was approximately four and one-half times the non-Indigenous rate. Indigenous people also experienced higher levels of long-term unemployment than any other group. The study concluded that given the greater level of need, ‘[i]t would seem reasonable then to suggest that specific measures to encourage Indigenous people into employment are well justified, alongside general measures’ (Neutze, Sanders & Jones 1999: 28).
It should also be noted that CDEP accounts for approximately one-third of ATSIC’s program budget. This is reflective of a general trend to see ATSIC as the main provider for Indigenous affairs rather than as a supplementary provider created to take up the slack of provision that should be coming from all levels of government to address Indigenous disadvantage. The CDEP scheme itself takes up the slack by providing specific employment, training, and community development initiatives for Indigenous people. At times, it even substitutes for a lack of service delivery and programs, becoming the ‘entry point’ for government in some instances.
A further issue that needs consideration is the potentially greater level of Indigenous employment need in the near future because of the age structure of the Indigenous population (see also Ch. 11, this volume). The Indigenous population aged 15 years and over is expected to grow at 2 per cent per annum over the decade from 1996, compared to 1 per cent for the rest of the population. About 65 000 Indigenous people will be added to the working-age population within this decade. It is estimated that, as a result, ‘at best the unemployment rate of Indigenous people will remain unchanged, at worst it will increase’ (Altman 2000: 16, citing Taylor & Hunter 1998). Altman has predicted that as a consequence of greater Indigenous employment need in the first decade of twenty-first century, ‘[t]he costs to government of low income disparity are estimated to grow and maintenance of unemployment levels at current unacceptably low levels will remain dependent on continued expansion of the CDEP Scheme’ (2000: 16).
These comments draw attention to the inadequacy of CDEP as a special measure in the face of the continuing escalation in levels of Indigenous employment need and inequality. One of the advantages of the CDEP program is that it has evolved and adapted in response to the uniqueness of Indigenous labour force circumstances, and has significant social, economic, and cultural benefits such as supporting traditional cultural aspects of community life, and contributing to social cohesion and the viability of communities in remote areas. It is arguable, however, whether the CDEP scheme constitutes a ‘special measure’ or a merely ‘form of reasonable differentiation’. A ‘form of reasonable differentiation’ is the term used by the ICERD Committee for differential practices or treatment adapted to the circumstances of a particular racial group that are not able to be characterised as ‘special measures’ but do not constitute racial discrimination.[2] The HREOC Review noted that the CDEP Scheme ‘is beneficial in nature and contains elements that could be described as “special measure” under the RDA [or Racial Discrimination Act 1975]’ (1997: vii, emphasis added). The Australia Institute study described the CDEP scheme in qualified terms as:
not as clearly and unequivocally an ‘Indigenous specific’ program as some others. Indeed it can in some ways be thought of as ‘appropriate’ adaptation of general unemployment payments to the different economic and labour market circumstances of Indigenous Australians (Neutze, Sanders & Jones 1999: 29).
One of the features of ‘special measures’ is that they should provide targeted assistance to particular disadvantaged groups within a prescribed time-frame—that is, they must have assessable objectives to be met within a certain period—until equality is achieved. Special measures are to be withdrawn when they have completed the job that they were established to do. This is when the cycle of discrimination is broken and the target group is no longer in need of special treatment.
While the CESCR acknowledges that the full realisation of all rights will occur progressively over a period of time, there is an obligation for states ‘to move as expeditiously and effectively as possible towards that goal’. This requires the implementation of special measures in ways that are ‘deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant’ CESCR 1990: Para 2).
As recent analyses of Indigenous levels of health, housing, education, and employment indicate, there is certainly no evidence that Indigenous Australians no longer suffer the effects of past discrimination. In the case of the CDEP scheme, when it is considered as a measure for meeting employment need, its lack of a prescribed time-frame and employment goals implies that it exists to support a problem perceived as intractable or maybe just not worthy of significant commitment to redress. As ATSIC’s 1997 Spicer Review observed, CDEP runs the risk of becoming a ‘life-time destination’ for the Indigenous unemployed rather than a ‘conduit to other employment options’ (Spicer 1997: 4).
In assessing the question of what kind of special measures or what form of progressive realisation of Indigenous employment rights is necessary, it is worth considering the notion of social cost rather than looking to programs such as CDEP to maintain the status quo. In its Final Report (1996), the Canadian Royal Commission on Aboriginal Peoples (CRCAP) argued that the current approach to Indigenous disadvantage results in two forms of ‘social cost’ to the nation: costs associated with the economic marginalisation of Indigenous people, and costs incurred as governments attempt to address social problems through remedial programs (CRCAP 1996: 23). The Commission proposed that an extensive effort to overcome indigenous disadvantage was necessary, and that it would require the application of substantial resources by government, over a 20-year cycle, to restructure the relationship between indigenous and non-indigenous people. The Commission argued that this type of commitment would not only change the circumstances of aboriginal people but lead to the progressive reduction and eventual elimination of the social costs accrued due to indigenous disadvantage.
In the Australian context, CAEPR has made similar observations about the social cost of the lack of parity between Indigenous and other Australians in the labour force. Taylor and Hunter estimate that:
If Indigenous unemployment was reduced to the same level as that commensurate with the rest of the population, and assuming that this latter rate remained constant, then the savings to government in payments to the unemployed, in 1996 dollars, would be around $193 million by the year 2001 and $274 million by 2006 with much lower unemployment bills of $112 and $126 million respectively.
On the credit side, the tax return of achieving parity in labour force status would approximate $177 million by 2006. However, by shifting all Indigenous people who want to work from welfare dependence to unsubsidised employment would increase tax revenue by $250 million (in 1996 dollars). Furthermore, this would enhance national production and provide large social policy returns in areas such as health (1998: iv).
[2] The ICERD Committee observes ‘that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention are legitimate.’ Cited in the HREOC Review (1997: 41).