Report of the 6th National Conference

Day One - Wednesday 23 May 2007

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Xavier Schobben, Chair, enHealth Working group on Aboriginal and Torres Strait Islander Environmental Health

Tribute to Phil Donohoe

“Tragically, last December the Environmental Health community lost one of its favourite colleagues in Phil Donohoe. I would like to take a moment to pay tribute to Phil, his work and his life. Phil was in the Environmental Health profession for over 20 years. I met him as a pimply-faced student (like me) at Swinburne University in 1981. He had a penchant for life, a bohemian dress sense and a remarkable way with words.

For those of you who knew him, his cup was always half full. He was an eternal optimist, and a bit of a perfectionist as well. He started to work for local government in the city of Werribee in the mid-1980s, and I was working for the Melbourne City Council in those days. He loved to argue on issues and would often debate public health law - particularly precedent law from past English judgements handed down over a hundred years ago, and how a binding precedent from Lord Denning may affect the latest case he was working on in trying to prosecute a food business owner for trying to sell fly-blown chicken.

After working in local government and unbeknown to many people Phil, with his young wife, Amanda, took over the running and management of a boarding house. It was a boarding house that operated for the benefit of society’s less fortunate. Some boarders were alcoholics, whilst others had mental health problems, etc. Phil, being a devout Christian, took it upon himself and his family to take over the management of that boarding house, and he managed those premises successfully for a number of years. On one occasion a boarder actually bashed him, but he carried on regardless. He then moved to Nhulunbuy, in the East Arnhem region of the Northern Territory in the mid-1990s, where he worked as an Environmental Health Officer extensively in Aboriginal communities. He was involved in many activities that had a public health prevention and promotion focus, and had a penchant for dog health. Phil once organised, with ATSIC funding, a conference called the ‘Big Lick’ and it was very well attended. Such was his devotion to dog health and in trying to improve conditions on Aboriginal communities that he helped form the organisation, ‘Animal Management in Rural and Remote Indigenous Communities’ known as AMRRIC. We’ll hear later from Dr Jennie Churchill, Dr Sam Phelan and Senator Nigel Scullion, Minister for Community Services, on the launch of the AMRRIC manual about conducting animal management in Aboriginal communities, with which Phil was involved.

Phil had a great passion for life and was always colourful. In many cultures when people pass on, they don’t celebrate a person’s wealth or fame, they simply ask if the man had passion. Well, Phil had many passions in his life. His first was his wife, Amanda, and their five children, Jeremy, Patrick, Alistair, Grace and Ruby. His work passion was to help improve conditions for Aboriginal communities, particularly remote communities.

On a lighter note, one of the many ‘Phil stories’ that still makes me laugh happened back in 1999, when I seconded Phil to assist in reviewing the NT Public Health Act. For those of you who knew him, you’d remember he loved to wear purple shirts. It must’ve been his favourite colour, because the Public Health Act Review Discussion Paper - all 67 pages of it - was printed in purple font! It still remains the only Northern Territory government publication to be totally purple. Whilst working on that particular document with me, he was a perfectionist. He proofread every page, did the art and page layout, and was as proud as punch one day when he came to see me and gave me one of a thousand printed copies he had sent to stakeholders.

I scanned the document, and looked at the contents page, then started frowning. I told him that it was a fantastic document except for the contents page title, which read ‘Pubic Health Act’ rather than ‘Public Health Act’. I said that while ‘pubic health’ was an important component of sexual health, nonetheless I considered ‘public health’ to be more important overall. He was absolutely mortified at first, but then his face soon lit up with that big grin of his and we soon broke down into uncontrollable fits of laugher. He had a great sense of humour, which I am sure we’ll all miss.
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So on behalf of enHealth, WGATSIEH and our colleagues in the environmental health profession, I’d like to acknowledge the wonderful work done by Phil. He was taken from us too early, and as some would say, only the good die young. It shouldn’t have been the case, but it was. Our thoughts are obviously with his family and indeed he does leave a lasting legacy as well as the good work that continues with AMRRIC.

So, Phil Donohoe, thanks for the memories. Gone but not forgotten, mate”.

Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner and A/Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission “Senator Scullion, distinguished guests and participants, can I begin by paying my acknowledgement to the Irukandjii Peoples, the traditional owners of the land on which we are meeting, and pay my respects to their Elders. I would also like to thank the National Indigenous Environmental Health Forum, the conference organising group and Queensland Health for organising this event and for inviting me to address you. Thank you to Shane for his opening words and introduction.

For those who don’t know in July 2004, I took up my five-year appointment as Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission. This role was created in 1992 to provide an ongoing monitoring agency for the human rights recognition of Indigenous Australians. I am conscious of the relatively short period of time I have here today, so of the various functions that I do, I would like to highlight that I am required to report annually to the Federal Parliament on the status, enjoyment and exercise of human rights by Indigenous Australians, and this is called the Social Justice Report. I also produce a Native Title Report which covers both native title and other Indigenous land issues such as economic development and so forth. With that come a lot of EH issues. I was pleased to be offered the chance to address this conference, as it gives Indigenous EHWs and others at the coal face of Indigenous communities, a forum for your voices to be heard, and from which to influence policy and decision-making that touches on the vital issues of EH. Forums such as this one should not be taken for granted in the current post- ATSIC Indigenous affairs era. After four years of tracking these so called ‘new arrangements’ in Indigenous Affairs through the Social Justice Report, to me there has been no more apparent flaw in the way things are organised now than in relation to the processes for engagement, or more accurately, the absence of these processes with Indigenous peoples at both the national and regional levels - and increasingly at the community level.

Since ATSIC has been dismantled, government has consistently emphasised that engagement with Indigenous peoples is a central requirement for the sustainability of the ‘new arrangements’. Yet there has been little progress to ensure that appropriate forums and mechanisms exist to facilitate this. Policy is being developed in a vacuum at the national level, with no connection to Indigenous peoples’ experiences at the local and regional levels, and without applying what I call ‘the reality test’ that comes with Indigenous peoples’ participation and local engagement in the design of policy and programs that affect them.

So I acknowledge you, the participants of this forum, not only for the vital work that you do in communities, but also your commitment to keeping this channel for engagement open. My acknowledgement also goes to the federal and various state level health departments and the enHealth Council for maintaining their commitment to the Forum over the many years that it has been going, and for publishing the excellent reports from these conferences. These are a valuable resource for anybody interested in, or working in, Indigenous EH or Indigenous health generally.
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Indigenous health has been a major focus of my time as the Aboriginal and Torres Strait Islander Social Justice Commissioner. Many of you may know that in the 2005 Social Justice Report I recommended to Australian
governments that they commit to a campaign to achieve equality of health status and life expectation between Aboriginal and Torres Strait Islander and non-Indigenous people within 25 years. Further, that this overall commitment be supported by the sub-targets of achieving equality of access to primary health care and health infrastructure within 10 years for Aboriginal and Torres Strait Islander peoples, irrespective of whether we live in urban or remote areas.

It is this health infrastructure aspect of my recommendation that I would like to focus on today.

And I am pleased to tell you that there has been a tremendously positive response to recommendations of the report. A coalition of over 40 Indigenous and non-Indigenous organisations (all the major peak health organisations) have begun working in partnership for Australian governments to adopt the recommendations for Indigenous health equality set out in the Social Justice Report. The health campaign is built around the right to health, which is of direct relevance to the health inequality Indigenous people suffer in Australia today (and hence, the policy environment within which Indigenous EHWs operate in). Therefore, I thought it may be useful to hear what the right to health is, and how it may touch on your work and the recommendations that you feed back from this conference.

So what is the right to health? Well, it is found in Article 12 of the International Covenant on Economic, Social and Cultural Rights. The Australian Government ratified, or signed onto, this treaty in 1966, and it applies to all Australians (not just Indigenous Australians). The right to health is not an abstract right to be healthy. No state can guarantee the health of its citizens in an absolute sense against the forces of old age, personal choice, and so on. What the right to health does say, however, is that the State, meaning Australia, and all the governments of Australia have an obligation to provide opportunities for all their citizens to be as healthy as possible. What this means in practice is that the Australian Government provides or ensures two things.

The first is directly relevant to your work -- What is called ‘health infrastructure’, that which lays the foundations for good health: safe drinking water, hygienic conditions with sewerage and garbage safely disposed of, healthy housing and the supply of healthy food. The right to health requires that these things are both established and effectively maintained at a standard that supports good health. The second are health goods and services, and in particular, primary health care services. I won’t be speaking on this part of the right to health today, apart from noting that it obviously covers a vital part of any overall approach to Indigenous health. You can read more about this if you have a look at my Social Justice Report. And, I will soon be releasing a stand alone publication which extracts Chapter 2 of the 2005 Report, (that contains the Indigenous health equality recommendations) and which will become a good reference guide for everybody working in the health industry.

Further, the right to health obliges the State to ensure that everybody, regardless of sex, race, age, sexuality and so on, has an equal opportunity to be healthy. For health infrastructure this means that communities across Australia - whether Indigenous or non-Indigenous - should enjoy a similar healthy standard of drinking water, can access fresh vegetables, fruits and meat, and have their sewerage and garbage removed. It also means that they enjoy - from a health perspective - the same standard of housing that is in good repair, with functioning sanitation, and is not overcrowded.
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We all know that despite some areas where real improvements have occurred - particularly the water supplies in many communities - Indigenous people do not enjoy the same equality of opportunity in relation to health infrastruture. I am not going to list the well-known statistics that highlight the glaring inequalities particularly in relation to housing stock in terms of its condition. And I am sure that we are all aware that it is far too often overcrowded and how this then impacts on sanitation, and so on. I am sure this is something that everybody here would have had some direct experience with.

A key component of the right to health is planning, which requires that if gross inequalities exist (such as exist in relation to health infrastructure) that there should be a plan to reach equality as soon as possible.

And this leads to the first point I want to make today --That there is no overall national plan or strategy for specifically addressing the total need in communities in relation to health infrastructure. Programs and policies that deal with parts of this need (such as the Indigenous component of the National Environmental Health Strategy, the Dog Strategy that Senator Scullion will be launching today, the Eat Well Australia Strategy, the Building a Better Future Strategy, and programs such as Community Housing and Infrastructure Program (CHIP), which is soon to be replaced by the new Australian Remote Indigenous Accommodation Program) are welcome in that they address parts of this total need. However, an overarching, coordinated national strategy addressing the totality of health infrastructure needs is yet to be developed.

(Let me also clarify that I am not supporting the government for closing the housing associations, but I am supporting the CHIP program.)

There is still a need for a comprehensive intersectoral and intergovernmental approach that aims to coordinate all these strategies into an overall plan which is clearly stated, time limited, with goals for securing equality of opportunity for Indigenous communities in relation to their health infrastructure. As noted, in my Social Justice Report, I have recommended that this goal be set within a time limit of ten years.

And in relation to this, I welcome that there is a National Indigenous EH House Strategy under development by the EH Forum following a recommendation made at the Fifth National Conference. And I congratulate the conference for making this recommendation. I am pleased to hear that the National Indigenous EH House Strategy aims to be as holistic in its approach as possible in relation to Indigenous EH, and that it looks to integrating as many of these smaller strategies I have referred to into something approaching what I am suggesting here: an overall national strategy. However, such a national, overall strategy is, in a sense, beyond the Forum to initiate. It is ultimately dependent on an agreement at the level of Australian Health Ministers Conference, and the Health Ministers need to take this responsibility on board: the development of a national overall Indigenous health infrastructure strategy should be a priority.

And as I have noted, such a national, overall strategy should be time limited, in terms of when it would secure for Indigenous communities equality of opportunity in relation to health infrastructure: ten years is what I recommend.
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So why do I link such plans to time limits or targets? It is because according to the right to health, governments have an obligation to take steps to progressively achieve the full realisation of rights such as the right to health, and to do so without delay. Steps must be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognised in the International Covenant on Economic, Social and Cultural Rights.

Such an approach also uses benchmarks that allow for the monitoring of progress. And targets and benchmarks should be set with the participation of people whose rights are affected, to agree on an adequate rate of progress and prevent the targets from being too slow. Progress should be reassessed independently, with accountability for performance.

And this links to the second point I want to make today, that a National Indigenous Health Infrastructure strategy aside, there is a failure to set targets and benchmarks even within existing sub- strategies: in relation to housing, sanitation, food supplies, and so on. Certainly beyond broad brush goals of equality and EH justice, there are no clear targets in the National EH Strategy, Eat Well Australia or Building a Better Future. Without such benchmarks Australian governments are simply not accountable for progress or lack of progress, because there is nothing against which to measure their commitment.

And as I have advocated, such benchmarks and targets should link in with the indicators set out in the Overcoming Indigenous Disadvantage Framework, and the Aboriginal and Torres Strait Islander Health Performance Framework.

Targets and benchmarks also help ensure that resources needed are devoted to the task. There is no excuse for the shortfalls we have seen year after year in state and federal budgets - there have been enormous surpluses. Recently the Federal Government announced a surplus of over $10 billion dollars, yet the Australian government has not chosen to use this surplus to end the health crises faced by 3% of its citizens.

Finally, referring back to my earlier comments (and this is the last point I want to make today). It is vital that Indigenous people participate in, and are engaged in, the planning and delivery of services that affect them, particularly in the setting of targets and benchmarks. Now this requirement is more than just a nicety. It is the backbone of international human rights law as it relates to Indigenous peoples. It relates to our right of self-determination, non- discrimination and equality before the law, as well as to our rights as cultural minorities to enjoy and practise our culture.

However, the necessity for engagement also comes from practical experience. Bureaucrats and governments can have the best intentions in the world, but if their ideas have not been subjected to the reality test of the life experience of local Indigenous peoples who are intended to benefit from those programs, then government efforts will fail. Specifically in relation to Indigenous peoples, these requirements for participation have been expressed as the principles of ‘free’, ‘prior’ and ‘informed consent’.

In brief, ‘free’ requires no coercion, intimidation or manipulation. ‘Prior’ requires that consent has been sought sufficiently in advance of any authorisation or commencement of activities, and respects the time requirements of Indigenous consultation and consensus building processes.
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‘Informed’ requires that information is provided that addresses the purpose, scope, obligations and impact of any proposed activity. ‘Consent’ requires that consultations be undertaken in good faith, on a basis of mutual respect, and with full and equitable participation. It also requires that Indigenous peoples can participate through their own freely-chosen representatives and customary or other institutions, and ultimately it must allow the option for Indigenous people to withhold their consent.

And it seems now that what we are seeing at best is the winding back of the potential for Indigenous participation in these planning processes. For example, the federal government’s decision to abolish the CHIP and replace it with the Australian Remote Indigenous Accommodation Program looks like an attempt to lock Indigenous people out of the planning and management of their own lives and communities, by cutting out communal ownership and getting control of Aboriginal housing.

The recent agreement with the Tiwi People is also of concern. You may have heard that the Tiwi people have bowed to the federal government’s wishes and signed an MOU to give away their right to control their coastal
township of Nguiu by granting the government a 99-year head lease over Nguiu; this means they will only have a limited say of what can occur on their land. In return they will get $5M cash, $1M worth of health services, over $13M towards a new school, repairs to an existing school, and some repairs to recreation areas.

I respect the rights of the Tiwi peoples to enter such agreements if they are conducted according to the principles of free, prior and informed consent. However, I visited the Island in January this year and asked the community meeting of over 150 people whether they understood the 99-year lease proposal. Only one person said that they did. Perhaps this is not surprising given that the federal government rushed this plan through in only three months.

However, there is another matter from a human rights perspective that is wrong with this agreement. The provision of health services, schools and so on are rights – And no one should have to trade their land for these
citizenship rights.

And these concerns are relevant to the making of Shared Responsibility Agreements (SRAs). I am sure that many of you are aware or may have even been involved with the making of such agreements.

On one hand, SRAs provide a significant opportunity to advance infrastructure provisions and management within communities, and many have proven of benefit to the community, such as the no pool, no school policy.
In cases like this, SRAs can be entirely appropriate.

On the other hand, however, SRAs must be negotiated according to the free, prior and informed consent principles and they should not be used to bargain for basic rights, as I noted in last year’s Social Justice Report. This includes health infrastructure (such as water supplies, sanitation and sewerage systems). Such rights subject matters should not be provided on the basis of mutual obligation. Governments remain under an obligation to ensure all its citizens enjoy equal enjoyment of such rights and to take steps to ensure such equal enjoyment at all times, and without conditions attached. Accordingly, programs and services cannot be withdrawn or not offered in the future to a community if a SRA or any other form of agreement does not achieve its stated goals.

Governments must also ensure that they provide the core minimum of entitlement of rights at all times. The following are examples of core minimum obligations that would not be appropriate for inclusion with SRAs or any other such agreements:
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  • Access to the essential minimum amounts of water, that is, efficient and safe for personal and domestic use to prevent disease.
  • Physical access to water facilities and services that provide sufficient safe and regular drinking water.
  • Measures to treat and prevent diseases linked to water, in particular ensuring access to adequate sanitation.
  • The minimum essential food which is nutritional, adequate and safe to ensure freedom from hunger for everyone.
  • Basic shelter, housing and sanitation, and essential medications and medicinal drugs.
This doesn’t mean that SRAs have no place in some aspects of these matters, but you have to look at the detail to determine whether the SRA is acceptable from a human rights perspective.

For example, a SRA or another form of an agreement would be appropriate to ensure that there is appropriate health education in communities concerning the hygienic use of water, the protection of water sources and methods to minimise water wastage. But it would not be appropriate in relation to the supply of water itself. These distinctions are vital.

Guidelines for making SRAs according to the human rights based framework and principles are set out in the Social Justice Report for 2005. I would recommend that you look at these, particularly if the communities that you are working in are considering entering into a SRA in order to address some of the EH or health infrastructure issues.

I believe that SRAs can be better used, and we should all be looking at maximising the benefits our communities get from all programs and benefits available to them, including though SRAs. But this must not involve compromising our human rights.

In finishing, closing the life expectancy gap of 17 years between Indigenous and non-Indigenous peoples in Australia will not happen without a significant focus on the provision of health infrastructure that supports good health. This is not enjoyed equally by all Indigenous peoples at present, and there is no overall, national plan for when this lack of equality of opportunity will be provided. It will take time to reach a situation of equality. And it will only happen with determined action and commitments from across society and from all governments working together. It also requires Indigenous leadership and participation to ensure that decisions and resources are appropriate and targeted to the areas of greatest need.

Governments cannot do it alone. They should not dictate how services are to be delivered. If they do, the successes will be short- lived and not sustainable. Government’s role should be to assist us through listening, funding, and guidance to develop our capacity to enable to us to take control of our lives and our futures. This is the least that we can expect in the 40th anniversary year when the Australian population voted so overwhelmingly for Indigenous people to be treated equitably.

So again, thank you for the invitation to address the conference. I wish you well in your discussions in identifying pathways forward in relation to EH, and what recommendations come out of this conference. And I look forward to any questions you might have.
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Thank you.

Questions:

Q1. Tom of Wujal Wujal - “As the Human Rights Commissioner can I ask your opinion on the push for the disbanding of Aboriginal Community Councils and the amalgamation of shire councils?”

A1. Mr Calma - “There are two aspects to that question. One is the approach taken by all the mainstream councils and their constituents, and their concerns about the amalgamation. I think governments need to listen to people in relation to that. I think there are some specific issues that relate to us and our communities, the DOGIT communities that recently became shires. The whole process for me is just ridiculously short – the conversion from DOGIT communities to shire communities hasn’t even settled. Most communities are just trying to come to grips with that and now we have a new set of arrangements that will have potentially a very detrimental impact on Indigenous communities and Indigenous peoples. It may also have some good impacts in relation to the utilisation of resources and so forth. However, what we will have to think about is that on some of those communities, what will happen when a major shire takes control of them - what sort of representation does the existing Indigenous Council have on the larger shire (that’s one key issue), and the other is what guarantee is there that services will be provided to the community? There will be a fairly significant cost imposed, I imagine, because if some of our remote communities have to pay the rates that exist in the larger shires, how has that been discussed? How is that going to impact on low income Indigenous peoples? That financial aspect of it hasn’t been considered. The other is what safeguards are in place to ensure Indigenous land lots are not taken over and controlled or sold by larger shires, which have under their current arrangements the capacity to subdivide and sell land? They can do that. This is fine if they do that in their shires, but should that happen to Indigenous communities”?

Q2. Paul Endres (Cairns) – “Just a comment, Tom. You have thrown out a few challenges in your address this morning which we hope to take up in our planning efforts. I am not sure you have the time to see any of the presentations today as I know you are a busy man, but I think you will be pleasantly surprised at some of the reports you will hear today about the work that’s being done in this country and in this area. In our role of planning with the National Environmental Health Strategy we will certainly incorporate your comments, and we already have, using your previous report. It’s a pleasure to hear what you have to say today”.

A2. Tom Calma – “I fully acknowledge your efforts, and the key issue for me is how we ensure other activities in the community are coordinated and synergised so that we do see a way forward. For me that seems to be the biggest shortfall in communities at the moment - that lack of planning and that long-term strategic planning from town planners right through to all the various service infrastructure. To suggest that will all happen overnight if somebody owns their home is only part of the solution. There’s a lot more to it than that. We all need to work collectively and cooperatively, and that is the whole issue. If we go back to what existed prior to the abolition of ATSIC - for good or bad (and I think the opinion differs), but ATSIC Regional Councils were working towards establishing regional plans in a very collaborative process in the communities. That has generally been thrown out, and now we are starting afresh again and from what I hear from a lot of Indigenous peoples is why do we go telling another lot of people what we want, when no-one ever listens? So that’s the key message in planning and engagement”.

Q3. John Wayne, West Australian Local Government Association – “Tom, I was interested to hear your comments regarding local government. Western Australia, as you know, has huge expanses of land between Indigenous communities and local governments, especially the more remote Indigenous communities. Ngaanyatjarraku is our only Indigenous Shire Council and hopefully there are more to follow. With regard to local government, how do you see a way forward to get more financial assistance for local government regarding provision of services to remote Indigenous communities, especially where they are particularly remote? I’m thinking of communities like Jigalong, which is some 850 kms from their local government in the Pilbara shire. How do you see a way forward with this”?

A3. Tom Calma – “That’s a very important question for a number of reasons. Firstly, the Feds have a responsibility. In fact, they have made announcements that they are putting more money into shires and into local government areas around Australia, from infrastructure to major infrastructure by the way of roads, and that level of investment. It is a key question that I think government is grappling with in relation
to homelands or outstations - is how do you fund those, and how do you fund the bigger communities? That’s the problem I see. At the moment there is a whole range of bureaucrats and maybe Ministers all thinking they know the solutions or different approaches forward, but no-one is engaging with the Indigenous residents.
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What we have to do is consider the impact of all of these, and determine the key way forward. As you know, local governments get their funding in part through rates they are able to generate, rather than only through
federal or state funding. A lot of us don’t know what questions to ask, so we rely on people to inform us. Once we start to look at things like home ownership we need to be realistic. The cost of rates, insurance and
maintenance - all things people don’t have to pay when renting. Mortgage insurance will be significant because everyone says an Indigenous home lasts only 10-15 years. Therefore, what company would insure it for a
low premium? You can bet your bottom dollar the premium for mortgage protection and insurance is going to be high when it happens. The thing that irks me most in relation to Tiwi is the suggestion that after 10-15 years all rates that are earned from land, with the exception of operational costs of the entity, will go to the traditional owners. Well firstly, we haven’t defined how much of those rates will be the on-costs, and secondly, if all the traditional owners are getting all the money through rates, what is the shire council going to survive on? How are the roads going to be built? Does that again become the responsibility of maybe the State or Federal government? Who knows? Otherwise we see degradation of those communities.

There are a lot of issues I believe that - and I have talked to Senator Scullion and others about these - we really need to consider to ensure people are able to make a well-informed decision. I am not against home ownership, nor am I against economic development, but it needs to happen within a person's own frame of reference. As a home owner myself, and all of you who are home owners, know the costs, which are not cheap. These expenses will be in addition to current outlays. We know on communities the issues that you face all the time - people can't get access to good food because it is too expensive - so if your home costs are going to increase, what money are you going to have to rely on to buy the good food and to address these health issues? Therefore, we need to look at this holistically, and we have to look at it from the many different agencies approaches to it.

For further information:

Tom Calma
Aboriginal and Torres Strait Islander Social Justice Commissioner and National Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission

Phone:02 9284 9603 Email: tomcalma@humanrights.gov.au

Homepage: www.humanrights.gov.au/ social_justice/index.html

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