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de Plevitz, Loretta --- "No School, No Funds: Shared Responsibility Agreements and Indigenous Education" [2006] IndigLawB 55; (2006) 6(22) Indigenous Law Bulletin 16


No School, No Funds: Shared Responsibility Agreements and Indigenous Education

by Loretta de Plevitz

Since their inception in 2003 as part of the Council of Australian Governments’ commitment to reconciliation, 187 Shared Responsibility Agreements (‘SRAs’) have been signed between the Federal Government, state and territory governments, ‘stakeholders’ and Indigenous communities or groups.[1] According to the Federal Government’s Office of Indigenous Policy Coordination (‘OIPC’), SRAs are documents which ‘formalise what all the partners will agree to do… [to improve] outcomes for Indigenous people’.[2]

A substantial proportion of these SRAs appear to be concerned with education.[3] They cover a broad spectrum of activities including community elders providing culturally appropriate school programs, the use of schools as centres for extra-curricular activities, and transport for school students. The majority, however, focus on school attendance as a means of fulfilling Indigenous communities’ goals of an education for their youngsters.[4]

No government party negotiating an SRA has promised to deliver good education. Instead, offers turn on the tangible and countable: computers, swimming pools and buses. In exchange, governments want quantified outcomes such as better test results, high school completions and post-secondary enrolments. They are especially interested in increased attendance as a quantifiable indicator of ‘better education outcomes… for local children.’[5]

Attendance

In a random survey of 200 government schools in March 2004, investigators into Indigenous education in New South Wales found that the rate of absenteeism among Indigenous students was approximately twice that of non-Indigenous students at all levels of schooling. The same inquiry found that attendance positively correlated with Year 7 Indigenous students’ performance on the English Literacy and Language Assessment Test.[6] Nevertheless, absenteeism is not the only cause of poor educational results. For Indigenous peoples, perhaps the most important reason is that governments persistently fail to hear the reports of so many inquiries and surveys: current educational programs fail to incorporate Indigenous knowledges or ways of learning; or do so, albeit in a very tokenistic way.[7] Nor is attendance wholly within the power of Indigenous students or their guardians – itinerant parents might be looking for work; community members have to fulfil spiritual obligations; and rates of illness are significantly greater than for other Australians.[8] In many schools, especially those in rural and remote communities, there is a high turnover of staff, leading to a lack of stability and continuity of schooling.[9] Even the highly successful education programs devised by Dr Chris Sarra as Principal of Cherbourg State School in Queensland only reduced ‘unexplained absenteeism’.[10]

In the SRA bargaining process Indigenous communities do not have access to the reports and expertise available to governments which spell out that poor educational achievement is due to many factors.[11] Communities are encouraged to fasten onto the most obvious and quantifiable factor: poor attendance at school. Some communities are using SRAs to address the underlying causes of absenteeism however. The Minjilang and Warruwi communities in the Northern Territory (‘NT’) identified a lack of community interest in students’ education. The Federal Government has since agreed to employ and train family members as full-time Indigenous Education Workers (‘IEWs’). Under the Port Augusta-Davenport SRA, parents and students have active obligations to participate in mentoring programs and to ensure students complete their studies.

‘No School, No Pool’

A particular obligation which appears in a number of SRAs[12] is ‘no school, no pool’. Senator Amanda Vanstone, who oversaw the introduction of SRAs, attributes its ‘invention’ to the Ngukurr community in Arnhem Land, NT.[13] There are now variations including ‘no school, no scouts’,[14] ‘no school, no (sports) play’,[15] and ‘no school, no access to sporting facilities’.[16] The negative rule-based formulation obviously resonates with government; the obligations are binary, and the phrase provides a good ‘sound bite’. However its punitive nature hardly sits well with the Federal Government’s expressed social justice aim of improving the ‘way services are provided to Aboriginal and Torres Strait Islander people and communities.’[17]

To ensure school attendance, communities have made promises such as setting up a transport roster or properly preparing the students for the school day. However, it is the students who are denied access to the pool if parents neglect these obligations.

In Wadeye, NT, the community implemented a ‘no school, no pool’ policy in 2005 and ran community workshops on the value of education as part of their obligations under their SRA. The initiatives were so successful that 600 students went to school in the first week of term. The NT Government however, had not anticipated such a response and had not provided enough desks, teachers or classrooms for the students. By the end of the year, enrolments had fallen to 100. At the beginning of 2006, after promises from the NT Government, 700 students enrolled, but the promised resources were still not there.[18] The Governments have lost the impetus engendered by the community’s goodwill and the students’ change in behaviour.

Is a Shared Responsibility Agreement a Legally Binding Contract?

Much community work and time goes into clarifying obligations in the lead-up to signing SRAs, however the manner of their performance and their time-frames are vague. This raises the question of the legal standing of an SRA and whether it is enforceable.

While some of the early agreements did not place obligations on the Indigenous partners, all SRAs are now constructed with reciprocal promises. The Federal Government avoids calling SRAs legally enforceable agreements, however the Senate Select Committee on the Administration of Indigenous Affairs describes an SRA as ‘a type of contract between members of a community to carry out certain agreed actions in return for an additional government benefit.’[19] The language of contract is also used by the OIPC: the ‘government invests… [and] [i]n return the community agrees to take steps to implement local solutions’, for example.[20] Some legal and academic commentators suggest that SRAs are similar to a memorandum of understanding,[21] or ‘a good faith agreement designed to provide greater flexibility and responsiveness to individuals, families and communities, through a range of transactions concluded by mutual undertaking’.[22] While these views may reflect the political rhetoric, in practice a completed SRA sets out certain specific obligations in a manner which looks suspiciously like a contract, no matter what the parties call it.

Agreement

The formation of a contract requires the fulfilment of a number of specified elements. First, there must be agreement through an offer and subsequent acceptance. The government proposal resembles the calling of a tender: Indigenous groups can propose projects relating to education, health and so on in return for access to the government’s ‘discretionary funds’. To use contract terminology, the government has made ‘an invitation to treat’. It is then up to Indigenous groups to make an offer which the government can accept, reject or modify until agreement is reached.

Since the abolition of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) in 2005, Indigenous communities have been obliged to deal directly with governments. Clearly there is unequal bargaining power. Many communities are at a legal and economic disadvantage with minimal, if any, independent legal advice and few sources of information to draw upon. There is little in-depth community consultation. Communities may be subject to economic duress when they have no other sources of income for infrastructure. The fact that more and more communities are engaging in SRAs is hardly the measure of success that the Federal Government trumpets; it is desperation for access to basic resources.

Intention to Establish a Legal Relationship

The formation of a contract also requires intention on both sides to establish a legally binding agreement. It must be assumed that in the minds of Government and communities, each intends to fulfil its side of the bargain. The Federal Government has stressed its good faith and expects Indigenous communities to act likewise. Former Indigenous Affairs Minister Vanstone maintained that though she was unlikely to dig up a pool if the children didn’t attend school, she was ‘approaching this on a good faith basis that Indigenous communities will live up to their agreements.’[23] Her tone suggested that her ‘good faith’ could dissipate if the community did not fulfil its promise. If there is a contract, it is political nous, not the law, which would stop the Senator from digging up the swimming pool.

Legal Formalities

A valid contract must have completed all legal formalities. Sam Jeffries, Aboriginal leader of the Murdi Paaki COAG trial and a former Regional Council Chair of ATSIC, suggests that this aspect has been rather overdone: ‘[the Agreement is] already 122 pages and… [it] just keeps growing…’[24]

Legal Capacity

The parties must have legal capacity to enter a contract. This raises an ethical question. When a community promises to fulfil a school attendance obligation, presumably it is acting on behalf of its students who are minors. A minor can enter into a contract, but generally the contract is not binding unless the subject-matter of the contract is beneficial for his or her education, or is ‘necessary for the minor having regard to his means, his station in life and whether he is already adequately supplied with the same’.[25] In some SRAs the Federal Government has promised to provide goods or services which will have a direct beneficial effect on the students’ education, for example, the funding and training of IEWs, setting up a School of the Air, or providing computers. More concerning however are the SRAs where there is no apparent connection between children attending school and the Government’s promise to provide a bus for the 220 kilometre journey to Alice Springs so that community members can get to health clinics, sporting events, and art and craft markets;[26] new fuel tanks and bowsers for the community;[27] or Government labour and materials for a stockyard and a water supply.[28] These are hardly related to students’ education.

The lack of mutuality in the agreements was commented on by Jon Altman in relation to the most notorious of SRAs: washing children’s faces in exchange for petrol bowsers:

It's pretty strange ... you could look at the installation of fuel bowsers as something a community should have, or something which might assist a tourism opportunity, but to then link it to issues such as the reduced instance of trachoma, secondary skin infections, worm infestations, etc ... doesn't make much sense.[29]

Providing Consideration – An Ethical Issue

At the heart of a contract each party promises ‘consideration’; the price paid for the other party’s promise. Who is providing the consideration for the school attendance agreements? Parents have a statutory obligation to send their children to school.[30] An existing legal obligation cannot usually constitute consideration unless that party is asked to go beyond their duty.[31] Therefore it falls to the students to provide the consideration for the community’s buses, bowsers and stockyards by going to school. Though in contract law one party can fulfil a promise for the benefit of a third party,[32] the legal and ethical question here is, can the parties negotiate for a minor to fulfil a contractual promise in exchange for a benefit flowing to all community members? While going to school might not be considered by some to be ‘work’, the obligation may be in breach of ‘the right of the child to be protected from economic exploitation.’[33]

Evaluation

The template SRA[34] includes clauses such as:

4. The Community and Government(s) agree to monitor and evaluate progress against agreed benchmarks and milestones, as well as agree to make such performance evaluation information available for national evaluations,

7. Progress with activities … will be reviewed after six months and again at regular intervals as agreed by the Community and Government(s).

Despite this guide and the OIPC commitment to evaluation,[35] most SRAs lack built-in evaluation and performance indicators. The Productivity Commission has also recommended the development of performance indicators which should be ‘simple, readily collectable and relevant to the objectives of the SRA.’[36] No evaluations of SRAs have been completed, though I am advised that independent evaluations are currently being conducted.[37]

After ATSIC - Life in the Mainstream?, the 2005 Senate Committee report on Indigenous governance issues after the abolition of ATSIC, recommends evaluating the effect of mainstreaming services on Indigenous peoples and communities. With respect to SRAs the Committee was concerned that the Federal Government had failed to turn its mind to the following foreseeable scenarios which could lead to significant inequities:

• What if either party did not fulfil its obligation?

• Who would determine whether a failure had occurred and what penalty, if any, would apply?

• Who should be held responsible for community failure? The entire community – which will include penalising those who did meet the obligation – or just the person who signed the SRA?

• What if the Government and its agencies failed to meet their obligations? How does a remote Indigenous community penalise the Government?[38]

To maintain good faith with Indigenous communities there must be clear statements in the agreements as to what, when, where and how the obligations are to be carried out, and the sanctions to be imposed if an obligation is not fulfilled; by either party. At present it is impossible to judge whether the bargain has been completed and the party is entitled to rely on the promise. Without clear indicators for the success of these agreements, reached with genuine consent and consultation with the communities, the Federal Government cannot show that this policy is working.

Loretta de Plevitz teaches Discrimination Law and Indigenous Legal Issues in the Faculty of Law at Queensland University of Technology. Her doctoral thesis examined systemic racism which prevents Australian Indigenous people from fully enjoying their right to work.


[1] Figure at 31 July 2006, <http://www.indigenous.gov.au/sra/search/srasearch.aspx> at 18 September 2006.

[2] Commonwealth, Office of Indigenous Policy Coordination, <http://www.indigenous.gov.au/icc/qa.html#anchor2> at 18 July 2006.

[3] <http://www.indigenous.gov.au/sra/search/srasearch.aspx> at 19 September 2006.

[4] See, for example, Minjilang (Mamaruni School), Northern Territory; Gelganyem, Western Australia; and Port Augusta-Davenport SRAs.

[5] ‘Vanstone to Sign Shared Responsibility Agreements with Kimberley Indigenous Communities’, ABC Message Stick, 3 August 2005, <http://www.abc.net.au/message/news/stories/s1428868.htm> at 22 July 2006.

[6] New South Wales Aboriginal Education Consultative Group Inc and New South Wales Department of Education and Training, The Report of the Review of Aboriginal Education: Yanigurra Muya: Ganggurrinyma Yaarri Guurulaw Yirringin.gurray Freeing the Spirit: Dreaming an Equal Future (2004).

[7] See, for example, Law Reform Commission of Western Australia, Aboriginal Customary Laws, Discussion Paper Part II ‘Aboriginal People in WA’ (2005) 35.

[8] The Fred Hollows Foundation, Indigenous Health in Australia, <http://www.hollows.org/upload/8679.pdf> at 22 July 2006.

[9] In one such community recently visited by the author, no teacher, including the Principal, had been at the government primary school more than 18 months.

[10] Chris Sarra, ‘Strong and Smart’ (2004) 364 New Internationalist 14.

[11] See, for example, Northern Territory Department of Education, Learning Lessons: An Independent Review of Indigenous Education in the Northern Territory (1999); S R Zubrick et al, Western Australian Aboriginal Child Health Survey: Improving the Educational Experiences of Aboriginal Children and Young People - Volume 3 (2006) <http://www.ichr.uwa.edu.au/waachs/publications/volume_three.lasso> at 18 July 2006.

[12] For example, Woorabinda, Queensland (‘Qld’); Warmun, Western Australia (‘WA’); Bidydanga, Western Australia; and Coober Pedy, South Australia (‘SA’).

[13] ‘Vanstone Discusses Indigenous Welfare Shake-Up’, AM (ABC), 11 November 2004, <http://www.abc.net.au/am/content/2004/s1240874.htm> at 22 July 2006.

[14] Yatala Anangu, SA.

[15] Mungullah, WA; Ninga Mia, WA.

[16] Hope Vale, Qld.

[17] Commonwealth, Sharing Responsibility: Governments Working Together with Indigenous People, <http://www.indigenous.gov.au/sra/kit/sharing.pdf> at 18 July 2006.

[18] ‘Wadeye: The Forgotten Face of Government Underspending’, National Indigenous Times (Canberra), 23 February 2006, <http://www.nit.com.au/news/story.aspx?id=6553> at 22 July 2006.

[19] Commonwealth, Senate Select Committee on the Administration of Indigenous Affairs, Parliament of Australia, After ATSIC - Life in the Mainstream? (2005) [5.109].

[20] Office of Indigenous Policy Coordination Secretaries’ Group on Indigenous Affairs, Annual Report on Indigenous Affairs 2004-05 (2005), 9, <http://www.oipc.gov.au/performance_reporting/sec_group/> at 22 July 2006.

[21] Ruth McCausland, Negotiating Shared Responsibility Agreements: A Toolkit (2005) 5.

[22] Kari Kristiansen and Kerrianne Cox, ‘Shared Responsibility Agreements: Legally or Morally Binding?’ [2005] IndigLawB 26; (2005) 6(11) Indigenous Law Bulletin 8, 8.

[23] ‘Senator Amanda Vanstone’, Speaking Out (ABC Radio National), 20 March 2005, <http://www.abc.net.au/message/radio/speaking/stories/s1324685.htm> at 22 July 2006.

[24] ‘"Mutual" MIA in Govt’s MO’, National Indigenous Times (Canberra), 10 November 2005, <http://www.nit.com.au/News/story.aspx?id=6057> at 22 July 2006.

[25] Nash v Inman [1908] 2 KB 1, 9. Legislation covering contracts with minors has adopted the common law concepts.

[26] Areyonga, Northern Territory (‘NT’), SRA announced November 2005.

[27] Billiluna, WA, SRA announced November 2005.

[28] Emu Point, NT, SRA announced May 2005.

[29] Mark Coulton and Mark Metherell, ‘A New Deal’, Sydney Morning Herald (Sydney), 11 December 2004, 25.

[30] For example, s 114(1)(b) Education (General Provisions) Act 1989 (Qld) provides that a parent must ensure the child attends the institution or school, on every school day. A contravention of s 114 without reasonable excuse can result in a fine: s 118(1).

[31] Collins v Godefroy (1831) 109 ER 1040.

[32] Coulls v Bagot’s Executor and Trustee Co Ltd [1967] HCA 3; (1966) 119 CLR 460.

[33] United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, art 32 (entered into force 2 September 1990).

[34] Commonwealth, Shared Responsibility Agreement 2005, <http://www.icc.gov.au/coag/docs/SRA_Header_agreement.doc> at 22 July 2006.

[35] Commonwealth Office of Indigenous Policy Coordination Secretaries’ Group on Indigenous Affairs, Annual Report on Indigenous Affairs 2004-05 (2005), <http://www.oipc.gov.au/performance_reporting/sec_group/> at 22 July 2006.

[36] Commonwealth, Productivity Commission, Overcoming Indigenous Disadvantage - Key Indicators 2005 Report (2005) A2.3, <http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2005/keyindicators2005.pdf> at 18 July 2006.

[37] Interview with Ms Denise McFadden, Executive, Communications Unit, Office of Indigenous Policy Coordination (telephone interview, 19 September 2006).

[38] Senate Select Committee on the Administration of Indigenous Affairs, Parliament of Australia, After ATSIC - Life in the Mainstream? (2005) [5.113].


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