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Munro, Kate --- "The Indigenous Education (Targeted Assistance) Amendment Bill (2005): A Threat to Self - Determination in Indigenous Education?" [2005] IndigLawB 36; (2005) 6(12) Indigenous Law Bulletin 12


The Indigenous Education (Targeted Assistance) Amendment Bill (2005): A Threat to Self-Determination in Indigenous Education?

by Kate Munro

Introduction

This article outlines concerns about the possible consequences of the introduction of the Indigenous Education (Targeted Assistance) Amendment Bill (2005) (‘the Bill’). The Bill seeks to reduce funding to Indigenous independent education providers by approximately $4 million. Tranby Aboriginal College (‘Tranby’) is one such college currently providing a Diploma in National Indigenous Legal Advocacy (‘NILA’) to students throughout Australia. Now in its eighth year of operation, the legal studies program at Tranby continues to deliver some of the best outcomes in Indigenous education in the Vocational Education and Training (‘VET’) sector. The introduction of this Bill will call into question the possibility of the NILA course remaining within an Indigenous community-controlled college. The Bill also proposes to change funding arrangements for access to funds hitherto reserved for Indigenous community-controlled education providers. As a result, such colleges will be forced to compete in a tender process with registered training organisations in each state and territory.

This article sets out the history of the NILA course, its operation and aims, and highlights some recommendations and findings of the Royal Commission into Aboriginal Deaths in Custody[1] (‘the Royal Commission’) which concern Indigenous education. The principle of self-determination in education and its protection in international law is briefly discussed, as is the funding of the Course and how this is threatened by the proposed Bill.

History of the NILA Program

The NILA Course came into existence due to the work of the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner (‘the Office’). The Office was given responsibility for implementing Recommendation 212 of the Royal Commission into Aboriginal Deaths in Custody.[2] Recommendation 212 states:

The Human Rights and Equal Opportunity Commission and State and Territory Equal Opportunity Commissions should be encouraged to consult with appropriate Aboriginal organisations and Aboriginal Legal Services with a view to developing strategies to encourage and enable Aboriginal people to utilise anti-discrimination mechanisms more effectively, particularly in the area of indirect discrimination and representative actions.[3]

The original legal studies curriculum was designed for the benefit of field officers and developed in consultation with the Attorney-General's Department, the Department of Employment, Education and Training, the Aboriginal and Torres Strait Islander Commission and the Aboriginal and Torres Strait Islander community.[4] A nationally-accredited training course was established which allowed Indigenous people to be offered training and education in legal studies at three levels: Certificate III, Certificate IV and Diploma level.[5]

Tranby delivered the course for the first time in 1997 as the National Indigenous Legal Studies Course (‘NILS’). In 2003, the course was re-accredited, largely rewritten and renamed as the NILA course. It was run for the first time at Tranby and North Queensland TAFE in 2004.

Aims and Operation of the NILA Course

The aims of the NILA course are to assist legal advocates, from the more inexperienced recent appointees working in an administrative capacity through to supervisory and/or managerial workers in Indigenous legal services or related social justice areas.[6] The course consists of over thirty units and takes up a total of 1,141 hours of teaching and assessment over two years of study. Course content includes legal areas such as an overview of the Australian legal system; procedures in arrest and bail; custodial and care matters; law reform; family law and family violence; customary law; land, culture and native title; ethical practice; mediation, and employment law.

The assessments are designed to assist students in a vocational context and involve preparation of case studies, role plays, class presentations, moot courts, written submissions and discussion forums. The Course is designed to meet the vocational needs of the participants while reflecting their unique and historical experience of the law.

In delivering the NILA course Tranby works closely with the Human Rights and Equal Opportunity Commission, the State Attorney-General’s Department, the network of community legal centres, the Aboriginal Legal Services, government departments and agencies, community organisations, the legal profession, and the Indigenous community. Members of the judiciary have also offered their expertise to students and have made their courts available for visits and forums where students may meet with judges and magistrates and develop open dialogue with them.

Students attend Tranby from across Australia on a block release basis; they attend for one-week sessions of study six times a year over the two-year Diploma. Their retention and completion rates far outstrip the national average. Last year’s graduates of the NILS course delivered a 92.5 per cent retention rate. With the national average of Indigenous retention rates in the VET sector at 54 per cent, Tranby can state confidently that it is a model of best practice in the industry.[7]

Tranby, the Royal Commission and Self-Determination

The establishment of Tranby in the late 1950s was the achievement of Indigenous people and their allies working in the civil rights movement. Its establishment was an open challenge to the education offered to Indigenous people which was more concerned with efforts to suppress language and culture, and promote assimilation.[8] A decade after it opened its doors, the Institute of Aboriginal Development (‘IAD’) was established. With the assistance of Commonwealth funding during the 1970s, further community-controlled education providers were established. All of the independents that now make up the Federation of Aboriginal Education Providers (‘FAEP’) were established by the end of the 1970s.

The Royal Commission, as well as observing that Indigenous people were grossly overrepresented in the custodial system, found that education was a major underlying issue that contributed to the high incarceration rate. Its findings are as relevant today as they were in the early 1990s. Recent custodial figures show that Indigenous imprisonment rates are on the rise, and are 13 times higher than the rate for non-Indigenous persons.[9] Indigenous prisoners comprise 21 per cent of the total prisoner population rate – an increase of 14 per cent since 1992, the year after the Royal Commission handed down its final report.

A further concern is the disengagement of Indigenous students with the VET sector, with findings of a sharp decline in the numbers of Indigenous VET students in the government system.[10] At the same time a recent report reiterated the success of the community-controlled sector in attracting and retaining Indigenous students and noted that completion rates were still well above the national rate.[11]

All the community-controlled education institutes were mentioned positively in the Royal Commission, with Tranby described as ‘a pioneer in Aboriginal adult education’; providing education that was described as ‘highly responsive’ to Aboriginal needs and learning styles’.[12] It was against this backdrop that Recommendation 298 advised that:

(a) Governments support Aboriginal community controlled adult education institutions and other institutions which provide a program of courses which have the support of the Aboriginal community.[13]

The Commission reported that community-controlled organisations ‘receive the most broad-based support from the Aboriginal people as the appropriate agencies to address concern’ and ‘that they had overwhelmingly stood the test of time’.[14] The Royal Commission, in making these statements, gave sweeping support for the principle of self-determination which is reflected in a recommendation to be read in conjunction with every other of the 338 made in the final report.[15] Advocating that the principle of self-determination be upheld in an educational context further highlighted the international basis that Indigenous people have to such a right.

International Authority

It is important to briefly discuss self-determination in an international context to prevent it being sidelined by government as a mere domestic matter. Self-determination is an internationally recognised human right which is affirmed by Article 55 of the Charter of the United Nations, and enunciated by Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is worded thus:

(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.[16]

The Draft Declaration on the Rights of Indigenous Peoples replicates the above but rewords ‘all peoples’ with ‘Indigenous peoples’.[17]

The Coolangatta Statement on Indigenous Peoples’ Rights in Education[18] further outlines Indigenous peoples’ aspirations to determine the course of their education, describing itself as ‘a living document which addresses the educational rights of Indigenous peoples now and into the future’.[19] It lists a number of international conventions to which it aspires to hold governments accountable. Australia is a party to most of those listed including the UNESCO Convention against Discrimination in Education,[20] which clearly prohibits discrimination in education based on race, and refers to all types and levels of education, including access to education, its standard, quality and the conditions under which it is given.[21]

The mooted changes proposed by the Bill could further disadvantage Indigenous people wishing to pursue an education of their choice, because it targets funding set aside for the independent colleges. The Federal Government may argue that it is not legally obliged to provide such education, but it should implement law that upholds international conventions to which it is a party. Before the Australian Parliament considers the Bill again, it should perhaps review its obligations under the Convention on the Elimination of all Forms of Racial Discrimination and in particular its duty to rescind policies, laws and regulations which have the effect of creating or perpetuating racial discrimination.[22] Another noteworthy principle for the Government to consider is that of pacta sunt servanda; that treaties are binding on parties and should be acted upon in good faith.

The right of self-determination is therefore embedded in a universal human rights framework. Without adherence to this principle Indigenous educational outcomes cannot be enhanced or improved.

Funding the NILA Course

The NILA course is funded through the State Contracted Training Provision, the Federal Indigenous Education Strategic Initiatives Program and the National Indigenous English Literacy and Numeracy Strategy. The bulk of the funding is granted pursuant to the Indigenous Education (Targeted Assistance) Act 2000, and is provided through the Federal Government. This funding is not recurrent and is allocated according to student retention and completion rates. The allocation is often based on figures that are up to two years out of date. In terms of supporting community-controlled education providers as was recommended by the Royal Commission, this style of funding and negotiating of capital grants has been described as ‘a case study of worst practice’.[23]

The Indigenous Education (Targeted Assistance) Amendment Bill 2005

The Bill before Parliament provides for a decrease in the appropriation of funding to Indigenous providers of education by a net $3.7 million over 2006 to 2008. The Bill will transfer funds otherwise provided to the four independent Indigenous community-controlled providers to be spent under the Skilling Australia’s Workforce Bill 2005. What this means is that Tranby, the IAD, the Aboriginal Dance Theatre Redfern, and Taundi Incorporated will be required to compete against each other and against every other registered training organisation for funds in a common pool hitherto set aside for Indigenous education.

The Bills are of obvious concern to Tranby which runs two other courses, namely the Diploma in Community Development in Aboriginal Communities and the Advanced Diploma in Aboriginal Studies. All the courses are accredited and provide skills which are relevant and meaningful to Indigenous students. This is reflected by the retention and completion rates reported to National Parliament.[24]

Conclusion

Since its beginnings in 1997, students have graduated from the legal studies program at Tranby with skills that have enhanced their educational and vocational opportunities. Reducing funds to such colleges will have a detrimental effect on student retention rates as uncertainty in funding will promote disengagement with courses currently on offer. The funding allocated to the community-controlled sector should be recurrent, secure and certain. It should not be auctioned off and given to the lowest bidder, which is likely should the Bill become law.

The imposition of the Bill, the diminution of funds to the tune of nearly $4 million, and the tender process, are all indicators that the NILA course is under threat. The effect of the Bill could seriously jeopardise the excellent participation and retention rates delivered in the course to date. The ultimate cost of the Bill will be borne by potential students who may disengage with the education system if they cannot access the course in the community-controlled sector, where cultural sensitivity and self-determination operate within the curriculum to deliver a model of best practice in Indigenous education.

Kate Munro is Coordinator/Lecturer in the National Indigenous Legal Advocacy Course at Tranby Aboriginal College and is completing a Masters in Education.


[1] Royal Commission into Aboriginal Deaths in Custody, National Report (1991).

[2] Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report 1997, (1997) 119.

[3] Royal Commission into Aboriginal Deaths in Custody, above n 1, 78.

[4] Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 121.

[5] Ibid 123.

[6] Human Rights and Equal Opportunity Commission, National Indigenous Legal Advocacy Courses (2005) <http://www.humanrights.gov.au/social_justice/nilac/index.html> at 12 July 2005.

[7] Commonwealth of Australia, National Report to Parliament on Indigenous Education and Training (2003) iv.

[8] D Durnan and B Boughton, Succeeding Against the Odds (1999) 3.

[9] Australian Institute of Criminology, Australian Crime: Facts and Figures, (2004) 1.

[10] Commonwealth of Australia, above n 7, ii-iv.

[11] Ibid iv-xix.

[12] Royal Commission into Aboriginal Deaths in Custody, above n 1, 343.

[13] Ibid 345.

[14] Ibid 6.

[15] Ibid 73.

[16] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, art 1 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, art 1 (entered into force 3 January 1976).

[17] Draft United Nations Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub.2/1994/56, 1994, art 3.

[18] The Coolangatta Statement on Indigenous Peoples’ Rights in Education, August 6 1993.

[19] Ibid.

[20] United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention Against Discrimination in Education, opened for signature 14 December 1960 (entered into force 22 May 1962).

[21] Ibid art 1.

[22] United Nations International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, art 2(c) (entered into force 4 January 1969).

[23] B. Boughton and D. Durnan, Education for Self-Determination: A Review of the Implementation of the Recommendations of the Royal Commission Into Aboriginal Deaths In Custody in Relation to Aboriginal Community-Controlled Adult Education (1997) 18.

[24] Commonwealth of Australia, (2001 & 2003), National Report to Parliament on Indigenous Education and Training.


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