Community Affairs References Committee—Nursing—The patient profession: Time for action;

Community Affairs References Committee—Forgotten Australians: A report on Australians who experienced institution or out-of-home care as children—First report;

Community Affairs References Committee—Protecting vulnerable children: A national challenge—Inquiry into children in institutional or out-of-home care—Second report;

Employment, Workplace Relations and Education References Committee—Office of the Chief Scientist;

Parliamentary Joint Committee on ASIO, ASIS and DSD—Review of administration and expenditure for ASIO, ASIS and DSD;

Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account—Effectiveness of the National Native Title Tribunal in fulfillment of the Committee’s duties pursuant to subparagraph 206(d)(i) of the Native Title Act 1993; and

Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account—19th report—Native Title Act 1993—Inquiry under section 206(d)—Second interim report: Indigenous land use agreements

Australian Government Response Senate Community Affairs References Committee Report on the Inquiry into Nursing “The Patient Profession: Time For Action”

Introduction

The Government Response to the Senate Community Affairs References Committee report on the Inquiry into Nursing, ‘The Patient Profession: Time for Action’ is presented. The response addresses each of the Senate Community Affairs References Committee’s recommendations.

The responses detail a number of Australian Government initiatives aimed at addressing national nursing workforce issues. In keeping with the jurisdictional split of responsibilities between the Australian Government and the States and Territories, these initiatives are mainly education focused and incorporate incentives to attract and retain nurses in priority areas such as aged care and in rural and remote areas.

It is important to acknowledge that, alongside the Senate Inquiry into Nursing, the National Review of Nursing Education (2002) also examined current issues in nursing and made a number of recommendations. This review was commission jointly by the Minister for Education, Science and Training and the Minister for Health and Ageing to examine the future nursing educational needs of the health, community and aged care systems and to advise on appropriate policy and funding frameworks. The table overleaf illustrates the common themes and similar recommendations of the two Reviews.

Due to the similarities, a large number of the recommendations of the Senate Inquiry are currently being dealt with by the activities of the National Nursing and Nursing Education Taskforce. The Taskforce was established by Australian, State and Territory Ministers for Education and Health in 2003, to implement recommendations of the National Review of Nursing Education. Information on the activities being undertaken by the Taskforce can be found at www.nnnet.gov.au.

Common Recommendations—Senate Inquiry into Nursing and National Review of Nursing Education

Area of interest	Senate Inquiry Recommendation	National Review of Nursing Education Recommendation
Unregulated health workers	1 and 37	7 and 35
Workforce planning and data	5,6	31
National registration	9	4 and 6
Minimum level of qualification for registered nurses	10	22
Additional undergraduate places	12	33
Clinical education and development	13,16-17	15-16 and 24
Student nurse employment	14	13
Mentoring and preceptorship programmes	20	15
National framework and standards for transition programmes	21	14
Career pathways and opportunities	22 and 23	12 and 13
Quality nursing education programmes	24 and 25	19 and 21
National consistency for the education and training of enrolled nurses	26	21
Lifelong learning and continuing education	28 and 29	6 and 18
Specialty (postgraduate) and re-entry courses	32 and 33	18 and 25
Nurse Practitioners	35	5
Nursing research	42	8
Clinical education partnerships	44	24
Improving the image of nursing	50 and 77	9
Recruitment	51	31
Remuneration for practice and postgraduate course recognition	53	26
Accessible information on nursing	54 and 60	10 and 12
Multidisciplinary team approaches	55	27
Remuneration for practice and workplace culture	56 and 61	26 and 30
Nursing leadership and management	57 and 58, 67	36
Assistance for speciality and re-entry courses	59	25
Workplace safety	62 to 66	30
Documentation in Aged Care	68	29

Chapter 1—Standard Nomenclature

Recommendation 1: That standard nomenclature be adopted throughout Australia to describe level of nurse and their qualifications, and including unregulated nursing and personal care assistants.

The Australian Government notes that the authority to mandate minimum qualifications for different levels of nursing is the responsibility of State and Territory Governments.

The Department of Employment and Workplace Relations and the Australian Bureau of Statistics are currently working with Statistics New Zealand to review the Australian Standard Classification of Occupations and develop the Australian and New Zealand Standard Classification of Occupations (ANZSCO). This process includes an examination of occupation/job titles and it would be useful for any work on standardising nomenclature to involve continuing consultation with the ANZSCO group to ensure appropriate titles are reflected in ANZSCO.

Chapter 2—Nurse Shortages and the Impact on Health Services

Recommendation 2: That the Department of Immigration and Multicultural and Indigenous Affairs streamline visa arrangements and simplify the process of recognising overseas qualifications for nurses wishing to migrate to Australia on a permanent or temporary basis, and to publicise the capacity to extend and to change visa arrangements.

While the employment of overseas nurses should not be the primary mechanism for overcoming the shortage of nurses in Australia, immigration and temporary entry mechanisms can assist to ease shortages in the short term.

The Committee’s recommendation is in three parts, and each will be dealt with in turn.

1.     That the Department of Immigration and Multicultural and Indigenous Affairs streamline visa arrangements for nurses wishing to migrate to Australia on a permanent or a temporary basis.

There is a range of visa options which can be utilised by overseas trained nurses who wish to live and work in Australia.

Temporary Residence Visas

The subclass 457 Temporary Business (Long Stay) visa is most commonly used by Australian employers wishing to employ overseas trained nurses for periods of up to 4 years at a time. In the programme year 2003-04, 2458 subclass 457 nominations for registered nurses were approved, approximately double the number approved in year 2001-02 (1049).

Working Holiday Maker visa holders can work for up to three months with a single employer. Nurses on Working Holiday Maker visas may also apply for other visas, such as the subclass 457 Temporary Business (Long Stay) visa after arrival in Australia.

Permanent Residence Visas

Employers wishing to nominate overseas trained nurses to migrate or remain permanently in Australia can utilise the Employer Nomination Scheme, Regional Sponsored Migration Scheme or Labour Agreements. These migration visa classes require that the prospective migrant be nominated by an employer in Australia, under normal Australian conditions of employment. In 2003-04, 632 nominations for nurses were approved, compared with 390 in 2002-03 and 258 in 2001-02.

On 2 April 2005, changes were made to the Employer Nomination Scheme to further streamline processes, especially for those who have been working in Australia on the subclass 456 Temporary Business visa.

Nurses who wish to migrate independently of an employer can utilise the general skilled points tested migration categories. These visa classes require that the prospective migrant first has their qualifications assessed by the relevant Australian assessing authority (in the case of nurses, this is the Australian Nursing and Midwifery Council). If their qualifications are acceptable they may be eligible for the grant of a general skilled migration visa, subject to meeting other requirements such as English language proficiency and recent work experience. There were 947 nurses granted skilled migration visas in 2003-04, compared with 906 in 2002-03 and 576 in 2001-02.

On 14 April 2005, the Minister Immigration, Multicultural and Indigenous Affairs, Senator the Hon Amanda Vanstone, announced an increase of up to 20,000 additional places in the Skill Stream for the 2005-06 Migration programme. Nurses are among the occupations listed on the Migration Occupations in Demand List (MODL) which are targeted by this increase.

Enhanced Visa Arrangements

Since 2002, nurses have received priority processing under all visa categories.

As part of DIMIA’s Global Working strategy, processing of all employer-sponsored visa categories used by health professionals has been directed to DIMIA Business Centres in Australia. Similarly, the general skilled migration and working holiday visa programmes have also been centralised at dedicated processing centres in Australia. These measures have significantly enhanced efficiency and consistency in the processing of applications from nurses.

DIMIA has introduced an e-visa facility for subclass 457 and Working Holiday Maker visas, allowing applications to be lodged over the internet and processed electronically. DIMIA has also introduced provisions allowing for label free travel to Australia for nurses holding specified passports who are granted subclass 457 visas.

E-lodgement facilities will be available for those applying for some independent skilled migration visas from 1 July 2005. There are plans to extend this internet lodgement facility to employer-sponsored permanent residence applications in the future.

DIMIA Business Centres have substantially increased use of electronic communication with sponsors and visa applicants to facilitate faster resolution of outstanding requirements.

A number of State-specific and regional migration initiatives have also been implemented in conjunction with State and Territory Governments to attract nurses to their regions.

2.     That the Department of Immigration and Multicultural and Indigenous Affairs simplify the process of recognising overseas qualifications for nurses wishing to migrate to Australia on a permanent or temporary basis.

3.     Recognition of qualifications of overseas nurses is the responsibility of the Australian Nursing and Midwifery Council, and the State and Territory nurse regulatory authorities, neither of which fall under Commonwealth jurisdiction. An applicant for migration in the skilled independent (points tested) categories must first have their nursing qualifications assessed by the Australian Nursing and Midwifery Council before being able to lodge a migration application.

4.     Applicants for visas in other migration or temporary residence subclasses are not required to have their qualifications formally assessed prior to visa application. DIMIA does, however, need to be satisfied that the applicant will meet the registration requirements of the relevant State or Territory registration board.

There are a number of bridging or pre-registration courses that are available in Australia for overseas trained nurses who cannot immediately register with the State or Territory registration boards. To enable them to undertake these courses in Australia, overseas trained nurses may apply for student, or short term temporary entry visas.

5.     That the Department of Immigration and Multicultural and Indigenous Affairs publicise the capacity to extend and change visa arrangements.

DIMIA has a number of strategies to publicise existing visa arrangements and to encourage employers and State and Territory nursing authorities to take advantage of the options available.

On 15 July 2002, the then Minister for Immigration and Multicultural Affairs,

the Hon Philip Ruddock MP, wrote to State and Territory Health Ministers in those States/Territories that do not already have a Labour Agreement in place for the entry of overseas nurses. Mr Ruddock outlined the benefits of the Labour Agreement programme and recommended that the Ministers give consideration to concluding a Labour Agreement with the Australian Government to assist in streamlining the recruitment of overseas nurses. Labour Agreements enable Australian employers to recruit a specified number of workers from overseas in response to identified or emerging labour market (or skill) shortages in the Australian labour market. Employees may come to Australia on either a temporary or a permanent basis. A number of agreements now exist covering the entry of health professionals.

Staff of DIMIA Business Centres have been working with nursing authorities and recruitment agencies in their regions to explain the various visa options available and to assist them with expedited lodgement and processing.

DIMIA Business Centre staff have attended Nursing Expos to provide information on visa options to overseas nurses, employers and recruitment agencies.

Migration and Temporary Residence application booklets contain considerable information about DIMIA visa categories and application procedures, including qualifications assessment requirements. The booklets are available in hard copy and on the DIMIA website at www.immi.gov.au.

DIMIA has developed information material specifically related to overseas nurses which can be provided to employers and nurses outlining the visa options available, including registration requirements. This information is available in hard copy and on the DIMIA website.

While recruitment is the responsibility of the employer, DIMIA supports business sponsors by providing information and advice about sponsorship and visa options, and undertakes to fast-track the visa applications of overseas nurses sponsored by Australian employers.

Recommendation 3: The Committee recommends that the Minister for Health and Ageing undertake an urgent national review of the charges and practices of nursing agencies, including their impact on costs to public and private providers of health services and their impact on the shortage of nurses in Australia.

The charges and practices of nursing agencies, including their impact on costs to public and private providers of health services is a matter for State and Territory Governments as the major employers of nurses.

Recommendation 4: The Committee recommends that the Australian Competition and Consumer Commission conduct a review of the practices of nursing agencies in the health care sector.

The Australian Competition and Consumer Commission advises that aspects of such a review would fall outside of its mandate.

Recommendation 5: That the Australian Government in cooperation with the States and Territories facilitate and expedite the development of a national nursing workforce planning strategy.

The Australian Government has a broad policy leadership role in national health systems and priorities and a strong interest in the supply, distribution and quality of the health workforce. The Department of Health and Ageing participates in the Australian Health Ministers’ Advisory Council, which provides a mechanism for an integrated approach to health workforce planning through a number of committees such as the Australian Health Workforce Officials Committee (AHWOC) and the Australian Health Workforce Advisory Committee (AHWAC).

The Council of Australian Governments has commissioned a study on health workforce issues at its June 2004 meeting. This study, to be undertaken by the Productivity Commission, will examine supply of and demand for the broad range of health professionals, including nurses. The Productivity Commission expects to produce its report in December 2005.

The Department of Employment and Workplace Relations collects data on the labour market for nurses, including skill shortage research and Australian Bureau of Statistics labour force survey statistics. This research complements the work programme of the Australian Health Ministers’ Advisory Council.

The Department of Health and Ageing in partnership with the Aged Care Workforce Committee have developed a National Aged Care Workforce Strategy. The Strategy will enable better planning for an adequate number of aged care workers—nurses and paid care workers with the appropriate skills and qualifications to meet the care needs of consumers of the Australian Government’s aged care system.

Recommendation 6: That the Australian Government provide the Australian Institute of Health and Welfare with the resources required to establish a consistent, national approach to current data collection on the nursing workforce in Australia.

The Australian Government has provided the Australian Institute of Health and Welfare with the resources required for establishing a consistent, national approach to current data collection on the nursing workforce in Australia. Improvements to the approach to national data collection have been made in recent years in consultation with AHWAC and AHWOC. For example, AHWOC has worked with the Australian Institute of Health and Welfare to establish central processing of the annual nursing labour force survey. This collates information on registered nurses from each state and territory nursing regulatory authority and forms the basis of an annual publication on the nursing labour force.

The Department of Employment and Workplace Relations also has in place a skill shortage research programme which uses a nationally consistent methodology to survey employers and collect statistical and qualitative data for occupations and skills including Enrolled and Registered Nurses. This programme underpins the National and State Skill Shortage lists, which are published on the Australian Workplace Internet site, and also feed into Australia’s skilled migration programme.

Recommendation 7: That research be undertaken to examine the relationship between health care needs, nursing workforce skill mix and patient outcomes in various general and specialist areas of care, with a view to providing “best practice” guidelines for allocating staff and for reviewing quality of care and awarding accreditation to institutions.

Issues around health care needs, nursing workforce skill mix and patient outcomes are primarily matters for the State and Territory Governments who are the major employers and regulators of nurses.

The Government participates in the Australian Health Workforce Advisory Committee which oversees health workforce planning in Australia for the nursing, midwifery and allied health workforces.

Recommendation 8: That the Australian Government, as a matter of urgency, establish the position of Chief Nursing Officer within the Department of Health and Ageing.

The Australian Government does not support this recommendation as it does not believe there is a good rationale for taking this step.

Comparisons are often made between a position of Australian Government Chief Nursing Officer, and the appointment of the Australian Government Medical Officer. There is a statutory requirement for an Australian Government Medical Officer. There is no legislative authority or legislated role for an Australian Government Nursing Officer.

The Government does, however recognise the important role of nurses. The Department of Health and Ageing works with the nursing profession through a number of organisations like the Royal College of Nursing, Australia, the Association for Australian Rural Nurses, the Council of Remote Area Nurses of Australia, the Australian Nursing Federation, the Australian Practice Nurse Association and the National Nursing Organisations.

In the area of aged care funding and service provision, where the Government has a strong role, the Department has established the position of Clinical Adviser in Aged Care. The Clinical Adviser provides guidance on clinical and nursing issues in this programme, as well as coordination and liaison on a wide range of issues.

In recognition of the importance of the health workforce at the national level, there is a dedicated Health Workforce Branch within the Department which is responsible for the coordination of policy and programmes to address health workforce issues. This includes national nursing workforce issues relating to the education, supply and distribution of nurses within the broader health workforce.

The Department provides funding support to key nursing organisations for a range of nursing initiatives such as rural and aged care nurse scholarships, conferences, expositions and national meetings, which enable ongoing liaison between the Government and the nursing profession.

Recommendation 9: That national registration be implemented for registered and enrolled nurses.

This is a matter for State and Territory Governments that would require changes to State and Territory legislation that covers nurses, and to the role of State and Territory Nursing regulatory authorities.

Chapter 3—Undergraduate Education

Recommendation 10: That the current university-based system for the undergraduate education of Registered Nurses be continued.

This recommendation is supported.

Recommendation 11: That the Australian Government, in conjunction with the States and universities, implement improved mechanisms to determine the supply and demand for nursing places at universities and in determining how these targets are set.

The Australian Government, through the Department of Education, Science and Training (DEST), supports registered nurse education through the Commonwealth Grant Scheme (CGS). The CGS, introduced in 2005 as part of the Our Universities: Backing Australia’s Future package of higher education reforms announced in the 2003-04 Budget, allows the Government to be more responsive to workforce shortages in areas such as nursing than the previous system of block grants to providers.

Under the CGS, higher education providers receive a contribution, set by discipline cluster, towards the cost of an agreed number of Commonwealth-supported places. The distribution of places between clusters is set out in an annual funding agreement between each provider and the Government. Providers must negotiate any major shifts between clusters with DEST.

The Government has already demonstrated its commitment to consulting with the States and Territories about course provision in Australian universities. The Government asked the States and Territories to provide input into the allocation process for the 9100 new university places that commenced in 2005 at the July 2003 meeting of the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA).

The Government will continue to consult States and Territories about the future allocation of new university places.

For the Health portfolio, the Australian Health Ministers’ Advisory Council is coordinating a national approach to health workforce planning (including nursing) to standardise planning approaches where appropriate.

Recommendation 12: That the Australian Government provide funding for additional undergraduate nursing places to universities offering nurse education courses to meet the workforce requirements set by the States.

The Australian Government has designated nursing as one of two areas (the other is teaching) of National Priority. As a result, nursing was allocated around 2,000 additional university places commencing in 2004 and 2005, building to almost 5,000 by 2008 as students proceed through their courses. These places will support almost 6,500 students to study nursing (part-time and full-time) of whom some 1,600 will be focussing on aged care.

A further 6,700 places will also be provided to universities in 2007 and 2008, some of which may be allocated to nursing and allied health areas.

It is noted that as a necessary adjunct to any additional undergraduate nursing places, health systems will need to work with universities to support clinical placements for additional students.

Recommendation 13: That, while maintaining a balance between theoretical and practical training, undergraduate courses be structured to provide for more clinical exposure in the early years of the course and that clinical placements be of longer duration.

Decisions about the content of undergraduate nursing courses are for the nursing profession, the regulatory bodies, and the universities.

Recommendation 14: That hospitals and other healthcare agencies be encouraged to provide part-time paid employment for student nurses from the second year of undergraduate courses.

It is noted that the paid employment of student nurses is being progressed by State and Territory Governments.

Recommendation 15: That universities, as far as practicable, operate their clinical education programmes across the entire year.

It is not the role of the Australian Government to intervene in the management and administration of clinical education programmes in universities. It is noted that a number of universities currently have programmes that are consistent with this recommendation.

Recommendation 16: That undergraduate courses provide additional theory and clinical experience in mental health, aged care and cross-cultural nursing.

It is noted that the content of university courses, including the clinical component of courses, is determined, with reference to the national competency standards set by the Australian Nursing and Midwifery Council, by both the State and Territory Nursing regulatory authorities and the university.

In relation to the aged care components of nursing curricula, the Queensland University of Technology (QUT) was engaged by the Department of Health and Ageing to develop and disseminate a Principles Paper outlining desirable aged care content for inclusion in undergraduate nursing curricula.

The Principles Paper outlines the core values and learning outcomes for aged care education within undergraduate nursing curricula and was publicly released in early 2004 at the meeting of the Australian and New Zealand Council of Deans of Nurses meeting in Perth.

With reference to Indigenous course content, the ‘getting em n keepin em’ Report of the Indigenous Nursing Education Working Group (INEWG), published in 2002, made 32 recommendations to ensure that all nursing curricula includes Indigenous content and that there is a concerted effort to recruit and retain Aboriginal and Torres Strait Islander people in the nursing workforce.

In 2003, the Australian Nursing and Midwifery Council (ANMC) endorsed the Position Statement for "Inclusion of Indigenous Health Issues in Nursing Undergraduate Programmes" to ensure that nursing courses include clearly identified units about Indigenous culture, history and health, to increase the capacity of all nurses to contribute competently to Indigenous health.

In 2004, an Interdisciplinary Workshop on Indigenous Curricula Development for Health Courses was held to share information and experiences across disciplines on Indigenous health curricula development and explore key issues for the development of a multi-disciplinary undergraduate Indigenous curriculum framework. Participants at the workshop included Deans of medicine, nursing, health sciences, pharmacy, dentistry and Schools of public health, as well as range of educators, professionals and State, Territory and Australian Government representatives.

Recommendation 17: That the Australian Government provide specific funding to support the clinical education component of undergraduate nursing courses; and that this funding provide that the clinical teacher/student be maintained at a ratio of 1:4.

The Australian Government has increased the funding rate for nursing places in recognition of its status as a National Priority area. The higher funding rate will include an extra $54 million over the next four years for universities offering nursing courses. The additional funding, which represents a 7 per cent increase in funding for nursing places, will provide significant additional support for the clinical component of nursing courses.

As part of their funding agreement with the Government, universities are required to ensure the funding provided to support the clinical component of nursing courses is used for the purpose for which it is provided.

The Government is unable to influence directly the clinical teacher/student ratio which is a matter for negotiation between universities and providers of clinical placements.

Recommendation 18: That the Australian and State Governments provide additional targeted scholarships for undergraduate nursing students based on merit directed at students from economically and socially disadvantaged backgrounds, NESB and ATSI backgrounds, and from rural and regional areas.

The Australian Government notes that significant work has already been undertaken in this area through the following initiatives.

• The Government established the Puggy Hunter Memorial Scholarship Scheme, with funding of $2.07 million over five academic years (2002-2006) to address the under-representation of Aboriginal and Torres Strait Islander people in health professions and to increase the number of Aboriginal and Torres Strait Islander Health Workers with qualifications. The Scheme provides undergraduate scholarships for Aboriginal and Torres Strait Islander students in medicine, nursing, allied health (except pharmacy) and Aboriginal and Torres Strait Health Worker courses. So far the Scheme has awarded 79 scholarships; 21 in nursing.
• From 2003, the Government has provided funding to the Australian Rotary Health Research Fund for 25 scholarships at $5,000 each academic year. The Fund targets Aboriginal and Torres Strait Islander undergraduate health students including nursing.
• The Australian Rural and Remote Nurse Scholarship Programme: Undergraduate Scheme provides a minimum of 110 scholarships each year (including 10 Aboriginal and Torres Strait Islander-specific scholarships) at up to $30,000 per scholarship, for undergraduate nursing education for rural and remote students. To date over 650 scholarships have been awarded under this Scheme.
• In 2002-03, the Government committed to invest $47.5 million in the aged care sector to support the sector’s need for improved skills, knowledge and training in its workforce. This commitment includes an allocation of $26.3 million to provide up to 1000 aged care nursing scholarships valued at up to $10,000 per annum for undergraduate, postgraduate and continuing professional development opportunities, particularly for rural and regional students through rural and regional university campuses. These scholarships were available from the commencement of the 2003 academic year.
• The Government’s ABSTUDY scheme provides a means-tested living allowance and a range of supplementary benefits for eligible students undertaking tertiary courses, including nursing qualifications.
• The Commonwealth Learning Scholarships (CLS) were introduced in 2004 as part of the package of higher education reforms. The scheme comprises the Commonwealth Education Costs Scholarships (valued at approximately $2,000 per year) and Commonwealth Accommodation Scholarships (valued at approximately $4,000 per year). Both Scholarships are for up to four years and the value is indexed each year. The Government is committing approximately $427 million between 2005 and 2009 to the CLS to assist students from low socio-economic backgrounds to meet some of the costs of higher education. Significantly, the CLS are for students from low socio-economic backgrounds who incur additional costs in moving from a rural or regional area specifically to pursue higher education studies. The income from these Scholarships, given to disadvantaged students who are in receipt of other income support from the Government, such as Austudy or ABSTUDY, will not affect their social security allowance or pension.

Recommendation 19: That the Australian Government provide general scholarships for undergraduate nursing students based on merit.

The Australian Government is supporting the nursing workforce by providing a range of targeted scholarships as outlined in the response to recommendation 18.

The direct responsibility for the management of the nursing workforce rests with State and Territory Governments as the major employers and regulators of this workforce.

Recommendation 20: That formal mentoring and preceptorship programmes be developed nationally, with enhanced training and the payment of allowances for nurses chosen to become preceptors.

Nurses are required, as part of their professional obligations, to provide support on the basis of seniority and competence. It is noted that most States and Territories have programmes in place which address this recommendation.

The payment of allowances for nurses chosen to become preceptors is an industrial consideration, and this recommendation will require the support of States and Territory Governments and other employers.

The Australian Government recognises that mentor programmes are important in ensuring retention of students throughout the nursing course and in the transition to work. In rural and remote areas the Government has implemented a mentor programme as part of the support measures for scholarships recipients under the Australian Rural and Remote Nurse Scholarship Programme: Undergraduate Scheme. The programme provides a mentor in the workplace to encourage students to pursue a career in rural or remote nursing. Mentors also receive educational support to undertake this role.

As part of the Government aged care nursing scholarships scheme, financial assistance is being provided to the University of Tasmania and the Royal College of Nursing, Australia to provide pilot support programmes for aged care nursing scholarship recipients. The Minister for Ageing announced on 9 August 2005 that this project will be expanded to a national demonstration project, involving universities in Tasmania, South Australia, Western Australia and Queensland.

These projects will assist current scholarship recipients to access quality clinical placements in the aged care sector during their education and training to become an aged care nurse. These projects will also provide scholarship recipients with access to support programmes and aged care nursing mentors for the duration of their studies.

Recommendation 21: That graduate nurse programmes be available for all nursing graduates and that these programmes:

• concentrate on skills consolidation through a structured programme to enable professional development;
• be provided with appropriate supervision and support; and
• be jointly funded by the Australian Government and State Governments.

The Australian Government agrees in principle that graduate nurse programmes should be available for all nursing graduates. However, the funding of these programmes is the responsibility of State and Territory Governments as the major employers and regulators of the nursing workforce. It is noted that State and Territory Governments have progressed work in this area.

However, through the Aged Care Nursing Scholarships Scheme, the Australian Government does offer funding for Continuing Professional Development/Postgraduate nursing scholarships to people with a demonstrated commitment to the aged care sector to assist them to upgrade their skills and knowledge.

Recommendation 22: That formal articulation arrangements and recognition of prior learning between enrolled nurse courses and registered nurse courses by universities and enrolled nurse education providers be further developed nationally.

The Australian Government supports the ongoing development of articulation arrangements and the recognition of prior learning by nursing education and training providers.

Formal credit transfer and articulation arrangements have been developed with some universities and vocational education providers. At its May 2005 meeting, the Ministerial Council on Education, Employment, Training and Youth Affairs endorsed a number of initiatives to improve credit transfer and articulation from vocational education and training (VET) to higher education.

Recommendation 23: That formal articulation arrangements and recognition of prior learning be developed between Certificate III courses for unregulated healthcare workers and enrolled nurse courses, and between courses for ATSI health workers and enrolled nurse courses.

The Australian Government supports the ongoing development of articulation arrangements and the recognition of prior learning by the VET and higher education sectors.

During the development of nationally endorsed Training Packages, links between different qualifications and qualification pathways are documented, with common competencies for related work roles identified. This facilitates recognition of prior learning and vertical or horizontal articulation.

The Health Training Package, which covers a number of different VET qualifications in health service delivery, is currently being reviewed by the Community Services and Health Industry Skills Council, and will include further consideration of the qualification links and articulation arrangements outlined above.

Recommendation 24: That the Australian Nursing and Midwifery Council, in conjunction with key stakeholders, including State regulatory bodies, the universities, professional nursing bodies and nursing unions, develop a national curriculum framework or guidelines for undergraduate nursing courses to ensure greater consistency in the interpretation of the ANMC competencies.

This is a matter for the Australian Nursing and Midwifery Council, State and Territory Governments and other relevant stakeholders.

Chapter 4—Improving Other Aspects of Education and Training

Recommendation 25: That the Australian Nursing and Midwifery Council, in consultation with major stakeholders, develop a national framework for the education of enrolled nurses in relation to course structure, duration and content.

The training of enrolled nurses takes place in the Vocational Education and Training sector. Courses are accredited by State and Territory regulatory bodies, based on the Australian Nursing and Midwifery Council (ANMC) enrolled nurse competencies.

The Australian Government funded Community Services and Health Training Australia, (now known as Community Services and Health Industry Skills Council) is working with ANMC and industry to develop competency standards and qualifications pathways in the Health Training package. The Community Services and Health Industry Skills Council is the recognised national body leading the development of an integrated approach to skills development for the community services and health industries.

Recommendation 26: That State and Territory Governments develop nationally consistent legislation in relation to the administration of medications by Enrolled Nurses.

Legislative changes to achieve national consistency in relation to the administration of medications by enrolled nurses is a matter for State and Territory Governments. Greater consistency will assist in providing better clarity around roles and responsibilities for enrolled nurses across both the acute care and aged care sectors.

In the 2004/05 Federal Budget, the Australian Government announced its commitment of $7.5 million over 4 years to assist up to 5,250 enrolled nurses to access approved medication administration education and training programs. The Aged Care Enrolled Nurse Medication Administration Initiative is providing funding to Registered Training Organisations, who are authorised and approved by the relevant State or Territory Nursing Regulatory Authority, to deliver training in the administration and management of medications.

Recommendation 27: That the Australian Nursing and Midwifery Council, in conjunction with key stakeholders such as state regulatory bodies, professional nursing bodies, universities and unions, develop a national curriculum framework or guidelines for midwifery courses.

This is a matter for the Australian Nursing and Midwifery Council, State and Territory Governments and other relevant stakeholders.

Recommendation 28: That nurses be informed of their continuing education support and options, and encouraged to undertake continuing education courses.

Given the challenging tasks undertaken by nurses and the rapid changes that can occur, continuing education for nurses is an important strategy in the development and retention of a skilled nursing workforce.

Since 2001, the Government has sponsored the Nursing Careers, Educational and Employment Expositions conducted annually by the Royal College of Nursing, Australia to promote and support nursing and other health professions nationally.

The Government provides funding for up-skilling and postgraduate scholarships through the Australian Rural and Remote Nurse Scholarship Programme. These scholarships allow rural and remote nurses to undertake postgraduate study, attend conferences or participate in workshops and clinical placements to improve their knowledge base and further their professional development. To date over 700 postgraduate scholarships and over 400

up-skilling scholarships have been awarded under this Programme.

Through the Aged Care Nursing Scholarships Scheme, the Government offers funding for Continuing Professional Development/Postgraduate nursing scholarships to people in rural and regional areas with a demonstrated commitment to the aged care sector to assist them to enter the aged care sector or to upgrade their skills and knowledge.

The Government has introduced a new income-contingent loan scheme called FEE-HELP from 1 January 2005. FEE-HELP, which replaces the Postgraduate Education Loans Scheme (PELS), assists eligible undergraduate and postgraduate students to pay their tuition fees. Students may borrow up to a maximum of $50,000 to pay tuition fees over their lifetime.

Recommendation 29: That State nurse regulatory bodies examine the feasibility of introducing the requirement of continuing education and professional development as a condition for continuing registration.

Under existing State and Territory legislation the provisions do not require that the regulatory bodies make continuing education and professional development a condition for renewal of registration.

Recommendation 30: That research be undertaken into the costs of providing paid study leave entitlements for nurses.

As the largest employers of nurses, State and Territory Governments are best placed to conduct research into the costs of providing paid study leave entitlements for nurses.

Recommendation 31: That paid study leave arrangements for nurses be negotiated by the Australian Nursing Federation and employers.

This is a matter for negotiation between nurses and their employers.

Recommendation 32: That the Australian Government provide additional HECS places in postgraduate nursing courses currently attracting fees, especially in areas of national skills shortage.

As outlined in response to recommendation 12, the Australian Government has significantly increased the number of Commonwealth supported university places in nursing. The classification of courses as either undergraduate or postgraduate is a matter for individual universities and the nursing profession.

Domestic students in fee-paying postgraduate places can access an income-contingent loan under the FEE-HELP scheme. This will ensure that fees do not pose a barrier to entry for students.

Recommendation 33: That the Australian and State Governments provide additional postgraduate scholarships in specialist areas, including midwifery.

The Australian Government acknowledges that there is a general need for specialised nurses, especially in rural and regional areas where shortages are most acute.

The Government provides funding for up-skilling and postgraduate scholarships through the Australian Rural and Remote Nurse Scholarship Programme. Theses scholarships allow rural and remote nurses to undertake postgraduate study, attend conferences or participate in workshops and clinical placements to improve their knowledge base and further their professional development. To date over 700 postgraduate scholarships and over 400

up-skilling scholarships have been awarded under this Programme.

The Government announced in the 2002-2003 Budget $26.3 million over four years to provide a range of scholarships with a focus on aged care. As at mid 2005 329 Continuing Professional Development/Postgraduate and 17 honours nursing scholarships have been awarded.

It is also noted that some State and Territory Governments have progressed initiatives in this area.

Recommendation 34: That the Australian Government and State Governments promote and support the development and introduction of Nurse Practitioners across Australia as a viable component of healthcare services.

The development of the nurse practitioner role is predominantly a matter for State and Territory Governments, as the employers and regulators of the nursing workforce, in conjunction with the nursing regulatory authority in each State and Territory which administer the Nurses’ Acts. It is noted that all State and Territory Governments have progressed work on the establishment of the nurse practitioner role.

The Minister for Ageing requested that the Aged Care Workforce Committee (ACWC) develop a pilot project to test how a nurse practitioner model might be adopted in the aged care sector. The ACWC considered formal submissions from several organisations that indicated an interest in conducting a nurse practitioner trial within the aged care sector.

A funding agreement for conducting an Aged Care Nurse Practitioner Pilot was signed in June 2004 with the ACT Government through ACT Health. The pilot is being conducted across a range of health care settings (residential aged care, community care and acute care). The nurse practitioner trial in the ACT will provide more information about the effectiveness and efficiencies of nurse practitioners across a range of settings.

Recommendation 35: That the Royal College of Nursing and the NSW College of Nursing, in conjunction with the Department of Health and Ageing, the States and key stakeholders, develop a framework for nationally consistent standards and competencies for Nurse Practitioners.

The development of national standards and competencies for nurses (including nurse practitioners) is largely the responsibility of the Australian Nursing and Midwifery Council.

It is noted that the Australian Nursing and Midwifery Council is collaborating with the Nursing Council of New Zealand in progressing consistent standards and competencies for nurse practitioners. The recently released ANMC Nurse Practitioner Standards Report will provide the foundation for the establishment of educational and practice standards for this new and evolving role in Australian and New Zealand.

Recommendation 36: That the Royal College of Nursing and the NSW College of Nursing, in conjunction with the Department of Health and Ageing and other key stakeholders, such as nurse regulatory bodies, examine the feasibility of establishing a national approach to the credentialling of Advanced Practice Nurses.

The issue of establishing a national approach to the credentialling of Advanced Practice Nurses is a matter for State and Territory Governments, as the major employers of nurses, to consider in conjunction with the nursing regulatory authority in each State and Territory that administers the Nurses’ Acts.

Recommendation 37: That State and Territory nursing regulatory authorities develop a framework for the regulation of unregulated healthcare workers.

The regulation of the health workforce occurs at the State and Territory level and this is a matter for the State and Territory Governments to consider.

The aged care sector is largely reliant on unregulated health care workers, who have no professional representation, to provide basic health care to the elderly. It is important that this group of workers has in place the appropriate skills to perform their role, mechanisms in place to ensure competency, professional support and leadership, and training that has consistent standards and outcomes.

Recommendation 38: That the relevant State and Territory legislation be amended to provide that unregulated healthcare workers not be permitted to administer medications.

This is a matter for the State and Territory Governments to consider. In terms of the safe delivery of health care, the Australian Government supports the development of competency standards rather than a regulatory approach.

Administration of medication by unregulated health care workers is established practice, but this practice must meet State and Territory Government legislation and regulatory requirements. Adequate training in administration and supervision is required (see also response to Recommendation 26). Greater consistency will assist in providing clarity around roles and responsibilities for a significant aged care workforce component.

Recommendation 39: That the standard minimum level of training required for unregulated workers before they can be employed in healthcare facilities be equivalent to Level III of the Australian Qualifications Framework (Certificate Level III).

While the Australian Government supports the provision of appropriate training for all health workers, the level of qualification required for unregulated workers is a matter for State and Territory Governments in the main. The former Minister for Ageing, the Hon Kevin Andrews MP, challenged the sector to embrace by 2008 Certificate Level III as the minimum level of training required for health care workers working in aged care.

In the 2004-05 Budget, the Australian Government provided $56 million over 4 years to assist 15,750 aged care workers to access recognised education and training opportunities such as Certificate Level III to Enrolled Nurse qualifications. This is in addition to the $21 million provided in the 2002-03 Budget to help train personal care workers in smaller less viable aged care homes.

Recommendation 40: That universities continue to promote and develop IT in undergraduate nursing courses, in particular the training needs of mature aged undergraduates.

This matter is the responsibility of University Schools of Nursing.

It is noted that many of the universities in Australia already have compulsory computing courses for undergraduates.

Recommendation 41: That in-service training in IT skills be widely developed and promoted for graduate nurses.

The Australian Government recognises the merits of professional development in the IT area for nurses, particularly as they are the end users of a number of electronic health records systems and decision support systems. However, in-service training is largely an employer responsibility.

Recommendation 42: That the Australian Government, through the National Health and Medical Research Council, increase funding for nursing research as a matter of priority.

Under the National Health and Medical Research Council Act of 1992, the NHMRC is unable to be directed to undertake specific research. In the main, the NHMRC does not determine the topics of the research it funds: these are a function of the applications made each year to the NHMRC. Applications are assessed on the basis of the significance, approach and feasibility of the proposed research, and on the track record of the applicants. In addition, the NHMRC offers a wide range of support to researchers across both the research continuum (basic, clinical, population and health services research) and at different stages of an individual’s career (scholarships to support individuals at undertaking PhD studies through to the most senior research Fellows).

Through these processes, the NHMRC already supports a range of research relevant to nursing.

A wide range of disciplines, including nursing, are involved in the NHMRC’s implementation of the National Research Priorities, announced by the Australian Government in December 2002. One of the four agreed priorities, Promoting and Maintaining Good Health, provides opportunities for researchers from a variety of backgrounds and perspectives to contribute to maximising the Government’s investment in research.

Recommendation 43: That the research funding provided by the Department of Education, Science and Training to universities be increased to facilitate additional university-based nursing research.

The Australian Government acknowledges the vital role Australian universities play in the national research and innovation system and is providing increased levels of funding for research through both of the Backing Australia's Ability packages announced in 2001 and 2004. Through Backing Australia’s Ability- Building Our Future through Science and Innovation (2004), the Government will provide an additional $1,189.2 million over seven years, to maintain the doubled level of funding provided to the Australian Research Council for the National Competitive Grants Programme under Backing Australia’s Ability.

An additional $554.5 million is provided over five years to the Research Infrastructure Block Grants Scheme to support project-based infrastructure and overhead costs for competitive grants in recognition of the continued importance of supporting universities to undertake competitively funded research projects. Each institution is responsible for allocating this funding to faculties and disciplines in line with internal processes. A specific allocation of $200 million over seven years has also been made (through the Health and Ageing portfolio) to provide overhead infrastructure support for health and medical research.

To provide researchers with access to new major research infrastructure, $542 million will also be provided over seven years through the new National Collaborative Research Infrastructure Strategy.

Chapter 5—Interface Between the Education Sector and the Health System

Recommendation 44: That partnership arrangements be further developed between the public and private health sectors and universities and the vocational education sectors to facilitate the clinical education and training of nurses.

The Council of Australian Governments commissioned a study on health workforce issues at its June 2004 meeting. This study, to be undertaken by the Productivity Commission, will be examining the health and education sectors and the interface between the two. Partnership arrangements in relation to the education and training of nurses already exist but could be enhanced at the State and Territory level with the assistance of the relevant regulatory authority.

Recommendation 45: That partnerships be developed between universities to facilitate the sharing of resources and expertise; and facilitate undergraduate student clinical placements in a range of metropolitan and regional clinical settings.

One of the key activities of the University Departments of Rural Health (UDRH) Programme is to provide opportunities for undergraduate health students to undertake clinical placements in rural and remote environments. Another core activity is to contribute to innovation in education, research and service development through collaboration not only with universities, but also health services, and professional and community organisations.

The Department of Health and Ageing also funds 18 university rural health clubs for medical, nursing, allied health and other health students, plus a National Rural Health Network (NRHN) of which these clubs are members. The primary aim of the NRHN is to provide a communication network between rural health clubs, for the sharing of ideas and information to assist the individual clubs in informing students about rural health issues and encouraging them to consider a career in rural health.

Recommendation 46: That improved partnership arrangements be established between the universities and the health sector in relation to curriculum development, including the appointment of clinicians to university curriculum committees.

The Australian Government does not have a role in the appointment of clinicians to universities.

Recommendation 47: That the Australian Government provide funding for the establishment of more joint appointments between universities and health services.

While the Australian Government recognises that there are advantages in joint appointments between the academic and health sector, universities set their own staffing priorities. The establishment of joint chairs is a matter for universities and the health services.

Recommendation 48: That the Australian Government provide funding for the establishment of additional clinical chairs of nursing.

The Australian Government recognises the importance of clinical academic appointments. However, universities set their own staffing priorities. The establishment of additional clinical chairs of nursing is a matter for individual universities.

Chapter 6—Recruitment, Retention and Return to Nursing

Recommendation 49: That the Australian Government support the proposal by the Royal College of Nursing to conduct a pilot project in Australia on the Magnet Hospital Recognition Programme.

Australian, State and Territory Governments continue to consider the broad range of issues impacting on nursing and strategies for addressing nursing workforce issues.

Through the Australian Council for Safety and Quality in Health Care, the Australian Government has progressed a number of initiatives in relation to nursing with a focus on improving patient safety. In March 2004, the Council convened a national workshop, Healthy Hospitals: Transforming the Work Environment for Patient Safety which included discussion of the Magnet Hospital recognition in progress at Princess Alexandra Hospital. The workshop also highlighted the need to provide capacity and support to develop nurses’ and midwives’ leadership qualities and build on their professionalism and commitment, with particular focus on middle managers in the profession.

With the support of the Government, the Council has responded to the outcomes of this workshop by providing $1.5 million over two years to enable all States and Territories to participate in the national implementation of a Clinical Leadership Programme for nurses and midwives at middle to senior levels. The Council also agreed to work with key stakeholders to examine the Magnet programme and how it might be applied in Australia.

Recommendation 50: That the Australian Government and States fund regular, sustained campaigns conducted on a nationally coordinated basis to promote the status and positive image of nursing.

The Australian Government already contributes funding for the promotion and support of nursing through the Australian Nursing Awards and the annual Nursing Careers and Educational Expositions.

Through the Aged Care Workforce initiatives announced in the 2002-03 Budget, the Government is working in partnership with the nursing and aged care sectors to promote and publicise not only the new initiatives, but also the opportunities and benefits of working in the aged care sector. The Aged Care Workforce Committee provides the Department of Health and Ageing with valuable advice and guidance on this activity including through its support of the National Aged Care Workforce Strategy which has as one of its objectives enhancement of the status and image of working in aged care.

The Minister’s Awards for Excellence in Aged Care are designed to reward innovation and excellence in aged care and to encourage other providers to strive for best practice. Through the identification of ‘champions’ in aged care, it is hoped to enhance aged care as a career of choice. The Awards generate confidence in the quality of residential and community aged care and support the Government’s vision of a world class system of aged care that is high quality, affordable and accessible, and meets the needs and preferences of older Australians and their families.

In particular, the Awards seek out examples of excellence in innovation, commitment, professional growth, participation and achievement.

Recommendation 51: That a national nursing recruitment strategy be developed by the Australian Government in consultation with the States and relevant nursing and employer bodies, with recruitment targets established through national workforce planning.

Nursing recruitment strategies are a matter for State and Territory Governments, as the regulators and major employers of the nursing workforce. Nursing recruitment campaigns need to be tailored to meet the differing needs of individual jurisdictions.

The National Aged Care Workforce Strategy provides the aged care industry with a strategic framework to attract, recruit and retain staff.

Recommendation 52: That any recruitment strategy and marketing campaigns specifically include encouragement for more males to adopt nursing as a career.

Recruitment and marketing are the responsibility of State and Territory Governments and other health and aged care employers.

Recommendation 53: That the current career structure be reviewed and revised to provide career pathways that include continued clinical practice, enhanced opportunities for postgraduate study and accelerated pathways through which nurses can move to an advanced practitioner status. The career structure needs to recognise the skills obtained through postgraduate study and remunerate them accordingly.

This is a matter for the nursing profession, nurse educators, and the peak nursing organisations. Further, remuneration for postgraduate studies is a matter for States and Territories to consider as part of their industrial relations frameworks.

The National Aged Care Workforce Strategy provides the aged care industry/sector with key actions to address the creation of career pathways for its workforce. It is important that the aged care industry/sector develop its own responses to address its workforce issues. These can be through the recognition of additional skills and the creation of financial and non-financial rewards.

Recommendation 54: That governments and professional nursing bodies provide detailed information to nurses on career pathways.

This is a matter for the State and Territory Governments, the nursing profession, nurse educators, and the peak nursing organisations.

In relation to career decision making in general, the website www.myfuture.edu.au is a joint initiative of the Australian, State and Territory Governments. Australia’s new Internet based career information and exploration service contains a personal career decision-making tool which guides the user’s career exploration process by matching interests and capabilities with potential occupations. It includes comprehensive information about occupations, including nursing, as well as labour market information, related jobs, earnings data, related courses and State and Territory specific information.

The Australian Government provides copies of Job Guide each year to schools to assist young people to identify career options and to provide helpful hints on how to choose their career. It describes nearly 600 occupations, including nursing, and explains how to choose a job, plan a career and look for work. It details what jobs involve, where the necessary training is available, and where to get future advice and information. The Job Guide is also available on the Internet at www.jobguide.dest.gov.au.

The Department of Education, Science and Training published, No Shame Job, a guide to careers in health for Indigenous students in 2002. This publication also includes an entry and contact information about careers in nursing.

Recommendation 55: That the Australian Government and States encourage providers of health care services to promote multidisciplinary team approaches to patient care which recognise all members of the team as valued and valuable.

The Australian Government recognises the valuable role of multi-disciplinary teams in patient care.

In 2004, as part of the Strengthening Medicare package, the Government introduced new Medicare rebates for practice nurses to provide immunisation and wound management services on behalf of a general practitioner (GP). In January 2005, the Government also introduced a Medicare rebate for practice nurses in regional, rural and remote areas to take Pap smears.

By supporting nurses in general practice, these initiatives will help to encourage a team-based approach to patient care in general practice. These initiatives recognise the important role that nurses play as a member of the general practice team, and help to free up GPs for other clinical matters that need their attention.

The Government also provides grants to general practices in rural areas, and certain urban areas of workforce shortage, to employ practice nurses under the Practice Incentives Programme (PIP). The potential for general practices to provide more effective health outcomes is enhanced where nurses work in the practice and can be further enhanced where the practice nurse works at an advanced level and the role is targeted to health priority areas.

In addition, Since 1 July 2004, Medicare rebates have been available for up to five allied health services a year for patients whose chronic conditions and complex care needs are being managed by their GP under an Enhanced Primary Care (EPC) plan. An EPC care plan is a multidisciplinary team approach prepared with collaboration by the GP and at least two other care providers.

Recommendation 56: That experienced, skilled and educated nurses be recognised and rewarded, both financially and through promotional opportunity, for the work they perform in decision making and the management and coordination of patient care across the continuum of care.

Recognition of, and remuneration for, experienced, skilled and educated nurses is a matter for industrial bodies, employers and State and Territory Governments to consider as part of their industrial relations frameworks.

See also response to recommendation 73 with respect to nurses working in aged care.

Recommendation 57: That the Australian Government and States encourage providers of health care services to support nursing leadership by integrating nurses into the organisational hierarchy through their appointment to and meaningful participation in management; and by promoting nurse involvement in decision-making relating to nursing practice and clinical patient care.

This recommendation is the responsibility of the employers of nurses, including State and Territory Governments.

The National Aged Care Workforce Strategy, which was prepared by the Aged Care Workforce Committee in partnership with the Australian Government, has good leadership and management as one of its objectives.

Recommendation 58: That the Australian Government and States ensure that nursing leaders are provided with the necessary in-service training and development to support them in their constantly evolving roles.

This recommendation is the responsibility of the employers of nurses, including State and Territory Governments.

Recommendation 59: That the Australian Government and States fund re-entry and refresher programmes in all States and Territories, including the employment and payment of salaries for nurses undertaking such programmes.

Ongoing education and training, including refresher and re-entry courses, play an important role in the retention of the workforce.

To this end, the Government provides funding for re-entry scholarships to assist former nurses in returning to the nursing workforce. Initially provided to former nurses in rural and remote areas, the scholarships were expanded in 2004 to support metropolitan nurses as well. To date over 300 rural and remote nurse re-entry scholarships and over 60 metropolitan nurse re-entry scholarships have been awarded.

Recommendation 60: That there be greater coordination of re-entry and refresher programmes provided through hospitals and tertiary institutions and of the content of these programmes.

This matter is the responsibility of individual tertiary institutions and the hospitals with which they collaborate.

Recommendation 61: That the following ‘family friendly’ practices be advocated by all levels of government as best practice for all providers of health care services and nurse employers:

• That flexible rostering be introduced or where appropriate developed further, together with the encouragement of greater use of part-time and job-share options.
• That paid maternity and paternity leave be available to all nurses.
• That adequate, affordable, quality childcare be provided over extended hours at the workplace, or through other forms of direct childcare assistance such as the procurement of places at nearby childcare centres.
• That adequate facilities to meet breastfeeding requirements be provided in the workplace.
• That work practices be established to encourage experienced older nurses to remain in the profession.

Employment conditions and industrial award issues, which are matters between staff and employers, should be addressed at the enterprise level under relevant industrial legislation.

In 2002, the Australian Government commissioned and released the Quality of Working Life for Nurses: Report on Qualitative Research. The primary objective of this research was to explore the reasons that influence the level of job satisfaction or dissatisfaction for nurses working in the aged care sector.

This report also contained ideas for practical, workplace-based interventions to improve the quality of working life for aged care nurses. The Quality of Working Life for Nurses report proposes a three-tiered strategy that identifies the important practical actions that the community, the industry, and the individual aged care services can take to address the quality of working life for aged care nurses. Copies of this report were provided to all aged care service providers to assist them in developing appropriate workplace practices and policies to assist them in the attraction and retention of nurses in the aged care sector. The report is also available on the Department of Health and Ageing website at www.health.gov.au.

Recommendation 62: That governments ensure that providers of health care services guarantee that education and other support measures for managing and responding appropriately to aggressive and violent behaviour are available to, and routinely provided for, nurses as continuing education in the workplace.

On the 11 August 2005 legislation to establish the Australian Safety and Compensation Council (ASCC) to replace the National Occupational Health and Safely Commission (NOHSC) was presented to Parliament.

The Australian Safety and Compensation Council will establish a national approach to workplace safety and workers’ compensation. Under the new arrangements, it is expected that a commitment to the National OHS Strategy will continue however any new initiatives will need to be considered by the ASCC.

The Australian Government has referred recommendation 62 to the ASCC. National activity and guidance on occupational health and safety and workers compensation policy previously undertaken by NOHSC will now be coordinated by the ASCC. The National OHS Strategy 2002-12 will continue to provide a framework for activities to improve Australia’s OHS performance. Its focus is initially on areas of high incidence/high severity risk to achieve material impact in reducing work-related fatalities and injuries. The Health & Community Services sector has been identified as a priority industry under this strategy.

Previously, NOHSC had commenced a collaborative research project with NSW Workcover which is investigating best practice initiatives in the prevention and management of work-related stress within the Health and Community Services. This work is being continued by the ASCC and the project is expected to be completed soon. In addition, a Watching Brief on violence and bullying is being undertaken which periodically provides members with information on recent research and prevention initiatives.

Recommendation 63: That the Australian Government introduce a national reporting system for violence and aggression toward nurses and other health workers in order to understand the factors which give rise to violent incidents, the extent of the problem, and to inform the development of strategies to prevent future violent incidents involving nurses and other health workers.

The Australian Government considers that violence towards nurses and other health workers is totally unacceptable. The Government encourages the industry and the States and Territories to set nationally consistent standards and codes.

Recommendation 64: That the National Occupational Health and Safety Commission urgently develop model uniform OH&S legislation and regulations for the Australian Government, States and Territories relating to the use of safe needle technologies in Australian hospitals and other health workplaces, and work cooperatively with the States and Territories to improve associated safety education and training programmes for health care workers.

The more effective prevention of occupational diseases (including infectious and parasitic diseases) is one of the national priority areas within the National OHS Strategy 2002-2012. Work in this area includes the revision of guidance material on HIV/AIDS and Hepatitis C. Previously the NOHSC Office staff have met and consulted with the Australian Government Department of Health and Ageing regarding the initiative and the new body, the ASCC, will continue to participate in the initiative as required.

The Australian Government will work closely with stakeholders to canvass opportunities to strengthen occupational health and safety regulations relating to the use of safe needle technologies and will work cooperatively with the States and Territories to improve associated safety education and training programs for health care workers.

Recommendation 65: That governments ensure that all nurse education curricula include occupational health and safety theory and practice covering aggression management training, use of safety equipment and devices, manual handling training, and competency assessment.

Under the National OHS Strategy, the National Education and Skills Development Action Plan 2004-1012 includes integration of OHS into vocational and tertiary education. The Community Services and Health Industry Skills Council is currently reviewing the Health Industry training package and the Office of the ASCC is working with them to enhance the OHS component of this package. The management of violence and aggression is one of the key industry hazards to be addressed in the review. The revised package is to include qualifications for enrolled nurses.

The curricula of undergraduate nursing courses and their clinical placements are a matter for determination between the individual University Departments and the relevant State and Territory nursing regulatory authority. Nursing curricula are approved by each State and Territory nursing regulatory authority.

Recommendation 66: That the following ‘occupational health and safety’ practices be advocated by all levels of government as best practice for all providers of health care services and nurse employers:

• That all health and aged care facilities provide nurses with access to peer support, appropriate counselling, post-incident defusing and debriefing, and grievance handling.
• That providers of health care services support their nursing staff in the prosecution of violent offenders.
• That providers of health care services be required to ensure that nurses do not work alone in areas of high risk or where the level of risk is unknown. Where this is not possible, personal duress alarms or similar communications devices should be provided for personnel.
• That staff car parking should be accessible, well secured and well lit for access at all hours. In recurring problem areas, dedicated 24-hour a day security presence should be provided.
• That sufficient funding be available to ensure that hospital equipment, including safe lifting devices, are up to date, readily available for staff use and regularly maintained.
• That research be commissioned into the long-term effects of exposure to glutaraldehyde and that a process be put in place to eliminate the use of glutaraldehyde in health and aged care sectors.
• That alternative equipment be provided for those who are allergic to latex, with a view to eventually replacing the use of latex products by health care workers.

Most of the recommendation relates to the responsibility of the employers of nurses, and State and Territory Governments as their legislation governs occupational health and safety requirements. Employers have a responsibility to ensure their workforce is appropriately skilled, trained and provided with equipment and other resources to ensure that optimum conditions are provided in a safe working environment.

The Australian Government will work closely with stakeholders to advocate best practices in occupation health and safety and will work cooperatively with the States and Territories to improve associated safety education and training programs for health care workers.

To assist the aged care industry meet its occupational health and safety responsibilities, the Australian Government has developed The Guide: Implementing Occupational Health and Safety in Residential Aged Care as a resource to all providers.

Recommendation 67: That governments ensure that all managers in health services receive training in:

• Management styles that promote leadership and consultation;
• Management skills to include conflict resolution and grievance management, improved human resource management, understanding industrial relations and awards, and information technology skills; and

Occupational health and safety responsibilities and risk management.

The provision of training in management skills is the responsibility of employers of the health workforce.

Under the National OHS Strategy the Education and Skills Development Action Plan 2004-12 includes integration of OHS into vocational and tertiary management education. The ASCC will continue to provide advice to Business Services Training Australia on the development of management competencies addressing both risk management, as well as the development and implementation of occupational health and safety systems.

On June 27 2005, the Australian Government announced that aged care homes across Australia would receive an extra $1,000 per resident in a one-off payment to target specific issues that will help ensure they remain sustainable in the long term. One of the aims of these payments, totalling $152 million, was to help aged care providers improve their business practices.

Chapter 7—Aged Care Nursing

Recommendation 68: That the Australian Government review the level of documentation required under the RCS tool to relieve the paperwork burden on aged care nurses.

In 2002, the Australian Government commissioned the Resident Classification Scale (RCS) Review in response to dissatisfaction expressed by industry peak bodies, provider organisations and residential aged care staff regarding the documentation and accountability requirements for RCS funding. The Review Report, released in March 2003, made a primary recommendation that the Department of Health and Ageing support the development of a new model for residential aged care funding. Many of its recommendations, because of their cost implications, were referred for further consideration to the Review of Pricing Arrangements in Residential Aged Care. In the meantime, development projects were commissioned to reduce the number of RCS questions and to trial independent assessment for funding as an alternative to the current system of provider assessed funding and departmental validation of RCS funding claims against care documentation.

As an outcome of these processes a new funding instrument has been developed, called the Aged Care funding Instrument (ACFI). The ACFI has been designed to focus on those areas of care that are the best predictors of differences in the relative cost of care and to measure the need for care, not the care provided when determining funding. It has been designed to support a different model of accountability for funding. With the ACFI, validation would no longer be based upon the care plan and the record of care delivery. Rather it would focus on the resident and on the assessments of need required by the ACFI and completed by the aged care home. It has also been designed to be able to be used by either aged care home staff or external assessors to determine funding.

The ACFI is being tested in a national trial involving up to 750 aged care homes in 2005. The trial will also provide data to assist in decisions about the structure of a new funding model for residential aged care involving reduction in the number of basic funding categories and the introduction of two new supplements for people with complex health and nursing care needs and challenging behaviours related to dementia.

Recommendation 69: That the outcomes of reviews and research be used to establish appropriate benchmarks for resources and skills mix in aged care nursing so as to support improved care for residents, workforce management, organisational outcomes and best practice and that Australian Government funding guidelines be reviewed in light of this research.

Since the 1997 reforms to the aged care system, the Australian Government has focussed on the outcomes for residents rather than on inputs.

The Aged Care Act 1997 requires that providers maintain an adequate number of appropriately skilled staff and have in place a skills mix appropriate to the care needs of the residents. Providers must also have in place arrangements for the ongoing development of staff skills to enure that quality care continues to be delivered. Providers must be able to demonstrate the achievements of these outcomes for residents and this is done during the course of an accreditation audit directed by the Aged Care Standards and Accreditation Agency. The Quality of Care Principles were developed in consultation with, and supported by, the industry and consumers. To assist the industry meet its obligations, the Australian Government has provided over $150 million since 2002 to assist with staff training and education.

A census and survey of the national aged care workforce was conducted in 2003 by the National Institute of Labour Studies, Flinders University to inform the National Aged Care Workforce Strategy. The census and survey identified the workforce profile of the residential aged care sector which will assist in facilitating strategic aged care workforce planning.

In addition, the Government has conducted research into nurses who left nursing, examined why qualified nurses are working in professions other than nursing and identified the factors that would encourage their return to the aged care sector. The result of this research was published in the report Recruitment and Retention of Nurses in Residential Aged Care and this has provided direction for the industry on areas for further development to improve recruitment and retention of staff in aged care. Many of the recommendations in the Report are already being addressed by the Government.

The Aged Care Standards and Accreditation Agency's role extends to the promotion of high quality care and assistance to industry to improve service quality by identifying best practice, and providing information, education and training. The Agency provides education to industry about the accreditation process through a range of strategies including the website, publications and events.

In late 2002, the Agency established an Education Division to strengthen its focus on its education function, which is critical to encourage continuous improvement in the quality of life for older Australians.

An education industry needs analysis was conducted during the second half of 2003, through consultation with a sample of homes and industry association representatives. Staff and management were consulted about education initiatives and needs through staff meetings.

The analysis builds on the information the Agency already has from survey and feedback data, accreditation results, and discussions with approved providers and Agency staff.

Recommendation 70: That universities review the content and quality of clinical placements and experiences of students in aged care in their undergraduate courses and that clinical placements include a range of aged care settings.

The curricula of undergraduate nursing courses and the provision of clinical placements, are matters for determination between the individual university departments and the relevant State and Territory nursing regulatory authority.

Whilst nursing curricula is approved by each State and Territory nursing regulatory authority, and the courses are the responsibility of each university, the Government is working with academia to investigate how a more focused and appropriate aged care and ageing curricula component might be developed and implemented within the existing curricula frameworks.

The Queensland University of Technology developed principles setting out the core aged care nursing curricula that should be demonstrable in undergraduate nursing courses. This framework has been provided to universities to help guide their course development.

In recognition of the importance of quality clinical experiences, especially in aged care, the Government has provided resources to several organisations to pilot a range of support systems that will assist scholarship recipients (particularly undergraduate students) to not only maintain their connection with the aged care sector, but also provide a possible network of mentors and preceptors to guide them during their training and education. It is also anticipated that these support systems will in some cases assist students to access quality clinical placements within the aged care sector.

Recommendation 71: That universities review and develop postgraduate programmes and courses, including the provision of courses by distance education, appropriate for the aged care sector.

While the Australian Government supports the development of appropriate post-graduate training in aged care, the content of post-graduate training is a matter for the universities.

Recommendation 72: That the Australian Government fund the expansion of re-entry/refresher programmes specifically targeted at aged care nurses.

The Australian Government provides funding for re-entry scholarships to assist former nurses in returning to the nursing workforce. Initially provided to former nurses in rural and remote areas, the scholarships were expanded in 2004 to support metropolitan nurses as well. To date over 300 rural and remote nurse re-entry scholarships and over 60 metropolitan nurse re-entry scholarships have been awarded. While not specifically targeting aged care, nurses with an interest in aged care are eligible to apply.

The Australian Government funded Aged Care Nursing Scholarship Scheme also includes nurse re-entry training and scholarship support systems, in partnership with the aged care sector. These systems provide support, not only to nursing students at the undergraduate level, but also to nurses re-entering the aged care workforce.

See also the response to recommendation 18.

Recommendation 73: That the Australian Government provide additional funding to implement wage parity between aged care and acute care nurses in each State and Territory.

The Australian Government does not have the jurisdiction to set wages for aged care staff through either the award or enterprise bargaining structures. Employment conditions and industrial award issues are matters for negotiation between staff and providers at the enterprise level or as determined by the Federal, State or Territory industrial tribunals, under the relevant Australian, State or Territory regulatory frameworks.

The Government indexes its payments to aged care providers annually in line with movements in the Consumer Price Index and with the Safety Net Decision of the Australian Industrial Relations Commission. Pay increases in aged care above those determined in the Safety Net Decision need to be funded through productivity improvement, as they are in the rest of the economy.

The Government provided an additional $211 million over four years ($50 million indexed each year) in the 2002-03 Budget to increase residential aged care subsidies to aged care providers. This assisted providers of aged care services to meet their labour force costs and address the disparity between wages in the aged care and acute care sectors.

In response to the Review of the Pricing Arrangements for Residential Aged Care, the Government provided a further $877.8 million over four years in the 2004-05 Budget for a new Conditional Adjustment Payment (CAP). CAP is calculated at 1.75% of the basic subsidy amount in 2004-05, rising to 7% of the basic subsidy amount by 2007 08. CAP will raise subsidies to Approved Providers by an average of about $500 per resident in 2004-05 rising to about $2000 per resident by 2007-08. These CAP payments will also assist providers pay more competitive wages to their staff.

Recommendation 74: That strategies be implemented to improve the image of aged care nursing.

The Australian Government has supported a number of initiatives to raise the image of aged care nursing in Australia. These initiatives have included highlighting aged care services and individuals that have demonstrated excellence in staff and professional development programmes through Minister’s Awards for Excellence in Aged Care and Better Health and Safety awards (refer to the response to Recommendation 50 for further information).

The National Aged Care Workforce Strategy has a focus on improving the professional and community status and image of working in the aged care sector.

Recommendation 75: That the Australian Government take measures to reduce occupational injuries to nurses working in aged care, including the introduction of ‘no lift’ programmes across the aged care sector in conjunction with the provision of up to date safe lifting devices that are readily available for staff use and are regularly maintained.

This is the responsibility of all aged care service providers in their capacity as an employer. State and Territory Governments are also responsible for these matters as their legislation governs Occupational Health and Safety requirements.

The Australian Government assists the aged care sector to meet its occupational health and safety responsibilities through the provision of resources such as the Practical Guide to Implementing Occupational Health and Safety in Residential Aged Care.

Chapter 8—Needs in Specialist Nursing

Recommendation 76: That the Australian Government fund scholarships for psychiatric/mental health nursing for graduate year students wanting to specialise in the area, and for already qualified nurses wishing to undertake a mental health nursing course.

The Australian Government does not fund scholarships specifically for psychiatric/mental health nursing. However, the Government provides funding for up-skilling and postgraduate scholarships through the Australian Rural and Remote Nurse Scholarship Programme. These scholarships allow rural and remote nurses to undertake postgraduate study, attend conferences or participate in workshops and clinical placements to improve their knowledge base and further their professional development. While not specifically targeting mental health, nurses with an interest in this area are eligible to apply.

The Australian Health Ministers’ Advisory Council through the National Mental Health Working Group subcommittee and the Australian Health Workforce Officials Committee, has recently undertaken a project on issues related to the recruitment and retention of mental health nurses as well as pathways into the workforce and has made recommendations for the future.

At their meeting on 28 July 2005 Australian, State and Territory Health Ministers identified the mental health workforce as a key issue. They have asked the Australian Health Ministers Advisory Council to address a range of mental health workforce issues as part of an updated National Mental Health Policy and Plan.

Recommendation 77: That a targeted campaign be undertaken to improve the status and image of psychiatric/mental health nursing.

Through the work of the National Mental Health Working Group the Government will work with State Governments and other key stakeholders to explore appropriate activities which could be pursued in relation to promoting and improving the status and image of the mental health workforce including psychiatric/mental health nursing.

Recommendation 78: That funding be provided for the development of advanced practice courses in mental health nursing.

Education and training issues for mental health nursing are being considered through the work of the National Mental Health Working Group and the Australian Health Workforce Officials Committee. These findings will help to inform future directions.

Recommendation 79: The Australian Government provide additional funds to universities to extend clinical education in rural and remote regional hospitals.

The Australian Government provides funding to universities for this activity.

The University Departments of Rural Health Programme is a long-term strategy which aims to increase the recruitment and retention of rural health professionals and to improve the quality and appropriateness of health care for rural and remote communities.

The Programme encourages students of medicine, nursing and allied health disciplines to pursue a career in rural practice. It also supports those health professionals who are currently practising in rural settings. One of the key activities of the University Departments of Rural Health Programme is to provide opportunities for health students, including nurses, to undertake clinical placements in a rural and remote environment.

The Government has created a separate, higher funding rate for nursing places in recognition of its status as a National Priority area. The higher funding rate will include an extra $54 million over the next four years for universities offering nursing courses. The additional funding, which represents a 7 per cent increase in funding for nursing places, will provide significant additional support for the clinical component of nursing courses.

Recommendation 80: That the Australian Government increase the amount of funding of rural and remote nursing programmes, including scholarship programmes, in line with funding of medical programmes.

Over the past few years, the Australian Government has introduced a range of initiatives to address nursing shortages. These are mainly education focused and incorporate incentives to attract and retain nurses in rural and remote areas and the aged care sector, where shortages are most acute.

The Australian Rural and Remote Nurse Scholarship Programme offers incentives to nurses wishing to pursue or build on a career in rural or remote nursing. The Programme consists of fours schemes—undergraduate, postgraduate, enrolled to registered nurse and re-entry/up-skilling. The Programme has awarded over 2000 scholarships to date and received continued funding of $20.6 million over three years in the 2005-06 Budget. This represents a significant investment in nursing for rural and remote areas of Australia.

The Government is also committed to encouraging more people to enter or re-enter aged care nursing, especially in rural and regional areas. Additional funding of $26.3 million will provide up to 1,000 scholarships (valued at up to $10,000 a year) for students from rural and regional areas, with a particular interest in caring for the aged, to undertake nursing studies at rural and regional universities. State and Territory Governments have also progressed similar initiatives in this area.

Recommendation 81: That the Australian Government and States provide funding for nursing relief programmes such as ‘circuit nurse’ programmes in rural and remote Australia.

This recommendation is the responsibility of the employers of nurses, including State and Territory Governments.

Recommendation 82: That all rural and remote area health services with the assistance of State governments offer additional incentives to nursing staff through employment packages including accommodation assistance, additional recreation and professional development leave, and appointment and transfer expenses to encourage nurse recruitment.

This recommendation is the responsibility of the employers of nurses, including State and Territory Governments.

Recommendation 83: That the Australian Government increase the number of scholarships for Aboriginal and Torres Strait Islander nursing students and health workers to increase their numbers and upgrade their qualifications.

The Australian Government established the Puggy Hunter Memorial Scholarship Scheme, with funding of $2.07 million over five academic years (2002-2006) to address the under-representation of Aboriginal and Torres Strait Islander people in health professions and to increase the number of Aboriginal and Torres Strait Islander Health Workers with qualifications. The Scheme provides undergraduate scholarships for Aboriginal and Torres Strait Islander students in medicine, nursing, allied health (except pharmacy) and Aboriginal and Torres Strait Health Worker courses. So far the Scheme has awarded 79 scholarships; 21 in nursing.

From 2003, the Government has provided funding to the Australian Rotary Health Research Fund for 25 scholarships at $5,000 each academic year. The Fund targets Aboriginal and Torres Strait Islander undergraduate health students including nursing.

Under the Australian Rural and Remote Nurse Scholarship Programme: Undergraduate Scheme, at least ten scholarships are awarded each year to Aboriginal and Torres Strait Islander nursing students to assist them in undertaking undergraduate studies in nursing. Since 2001, over 40 of these scholarships have been awarded.

Under the Aged Care Nursing Scholarships Scheme up to 10 undergraduate aged care nursing scholarships are set aside each scholarship round for Aboriginal and Torres Strait Islander Students.

See also the response to recommendation 18.

Recommendation 84: The strategies for the Aboriginal and Torres Strait Islander nursing workforce proposed in the Health Workforce National Strategic Framework be implemented as a matter of urgency.

The Australian Health Ministers’ Advisory Council endorsed the Aboriginal and Torres Strait Islander Health Workforce National Strategic Framework in May 2002. This is a ten year plan to improve the training, supply, recruitment and retention of appropriately skilled health professionals, health service managers and health policy officers in both mainstream and Indigenous specific health services.

The majority of the strategies in the Framework will be implemented by the Aboriginal Health Workforce Working Group which includes members from all States and Territories, nominees from the Congress of Aboriginal and Torres Strait Islander Nurses (CATSIN), the National Aboriginal Community Controlled Health Organisation and the Australian Indigenous Doctors’ Association, as well as Government representatives.

The Working Group has endorsed the Workforce Strategic Framework Action Plan to drive the implementation of the Framework strategies. Most of the nursing strategies in the Framework are being implemented.

CATSIN is funded by the Government to provide advice to governments and professional support to Indigenous nurses, as well as collaboration with the education and employment sectors.

In addition to the base funding, CATSIN is currently being funded to manage the Indigenous Nurses Mentoring programme and the future response to the Indigenous Nursing Education Working Group final report.

Recommendation 85: That the Australian Government while examining medical insurance issues also consider the issue of professional indemnity insurance for nurses, including midwives and allied health workers.

The Australian Government believes that once the measures it has announced in relation to professional indemnity and public liability insurance are fully operational (in conjunction with the various actions being taken by the States and Territories) and these have had time to take effect, there will be improvement in the affordability and availability of professional indemnity insurance in Australia. Reports by the Australian Competition and Consumer Commission and the Australian Prudential Regulation Authority confirm that we are now seeing reductions in the cost of premiums relating to public liability and professional indemnity insurance.

It is important to note that the majority of Australia’s midwives and nurses are directly employed by hospitals and are therefore covered under the professional indemnity arrangements of their employers.

In the meantime, a number of possible approaches to this issue have already been raised. The State and Territory Governments can chose to cover independent midwives as being employees or contractors in relation to their publicly funded services. Western Australia and South Australia have extended insurance coverage to independent midwives by effectively bringing them under the umbrella of Government employment. The Government encourages other State and Territory Governments to consider similar action as a simple and effective way of addressing this issue.

AUSTRALIAN GOVERNMENT RESPONSE TO:

Forgotten Australians: A report on Australians who experienced institutional or out-of-home care as children

The report of the Community Affairs References Committee, August 2004.

The Government welcomes this report by the Community Affairs References Committee as a sensitive, insightful and moving revelation of the experiences of many children in the Australian institutional care system. The Government acknowledges the Committee's commitment to giving care leavers the important opportunity of telling their own stories and recognises and applauds the courage of those individuals who freely shared their experiences, speaking or writing of the trauma that still permeates their lives.

The report states that: “duty of care was lacking in several fundamental areas in relation to children in institutional care—in respect of the adequate provision for the basic needs of children, that is, adequate food, clothing and nurture; and the horrendous levels of physical, sexual and emotional abuse that were allowed to occur while these children were in care. Equally disturbing is the fact that such abuse was able to continue unchecked over so many years.”

It must also be acknowledged that children from culturally and linguistically diverse backgrounds experienced the added dimension of the loss of cultural heritage.

The suffering experienced by so many children placed in institutional care is a matter of shame for this country. While past practices and attitudes were not always the same as those of today, there can be no excuse for the physical and emotional abuse and pain experienced by thousands of these children.

Their willingness to speak out gives us all the opportunity to appreciate the extent of the problems and also to move with them into a healing process.

It must be acknowledged that children formerly in institutional care are not an homogenous group, and their experiences varied considerably. Some found adults who supported and cared for them; many, unfortunately, found a lack of love and care and even extreme abuse. Their needs for support or assistance will vary considerably. To those whose experiences have scarred them indelibly, we as a nation need to respond with appropriate help. This report offers some recommendations that will guide our progress to that end.

Some recommendations are clearly directed to state and territory governments or to those organisations that ran institutions where children were placed, and it must be recognised that some steps have already been taken by those responsible to address the issues raised. The Australian Government urges state and territory governments and the churches and agencies involved to respond positively to the report’s recommendations. We look forward to working with these agencies cooperatively and to continue discussing these recommendations with state and territory governments where a united response is appropriate.

The report states that, while the Commonwealth was not directly involved in the administration of these institutions, “it has a moral obligation to acknowledge the harm done to many children and fellow Australians in institutional care settings. An acknowledgment in these terms will be an important part of the healing and reconciliation process for many care leavers”.

The Australian Government acknowledges that all levels of government have responsibility for the well being of Australian children. All children have a right to care and protection, and all children deserve love and support. The policies that allowed these outrages to be perpetrated on innocent children were not only misplaced; they were inexcusable in any era.

Specific responses to the report’s recommendations follow.

  RECOMMENDATIONS

Recommendation 1

That the Commonwealth Government issue a formal statement acknowledging, on behalf of the nation, the hurt and distress suffered by many children in institutional care, particularly the children who were victims of abuse and assault; and apologising for the harm caused to these children.

Response:

The Australian Government has great sympathy for those children who suffered hurt and distress in institutional care. While it would not be appropriate for the Australian Government to issue an apology for a matter for which it does not have responsibility, the Government expresses its sincere regret that these children were placed in situations where they did not receive the care they deserved. The Government appreciates that many of these unfortunate Australians and their families continue to experience the serious personal consequences of their experiences of abuse, assault and abandonment.

The Government urges state, territory and local governments, churches, institutions and community organisations to acknowledge their responsibilities and to take action, where appropriate, to alleviate the suffering of those who were in their care. In particular, the Government urges a collaborative approach to assistance, through improved information access as well as practical support for care leavers.

Recommendation 2

That all State Governments and Churches and agencies, that have not already done so, issue formal statements acknowledging their role in the administration of institutional care arrangements; and apologising for the physical, psychological and social harm caused to the children, and the hurt and distress suffered by the children at the hands of those who were in charge of them, particularly the children who were victims of abuse and assault.

Response:

This is a matter for state and territory governments, churches and agencies to consider.

Recommendation 3

That State Governments review the effectiveness of the South Australian law and consider amending their own statutes of limitation legislation to achieve the positive outcomes for conducting legal proceedings that have resulted from the amendments in the South Australian jurisdiction.

Response:

This is a matter for state and territory governments to consider.

Recommendation 4

That in recognising the difficulty that applicants have in taking civil action against unincorporated religious or charitable organisations, the Government examine whether it would be either an appropriate or a feasible incentive to incorporation, to make the availability of federal tax concessions to charitable, religious and not-for-profit organisations dependent on, or alternatively linked to, them being incorporated under the corporations act or under state incorporated associations statutes.

Response:

The Government does not support this recommendation. The Australian Government recognises that the requirement for charities to be incorporated, as a condition for receiving tax concessions, may be desirable in some cases; however, the Government considers that such a requirement would not be feasible on administration or equity grounds. In regards to charities, the Australian Government has already taken steps to safeguard against the potential abuse of the tax status of charities and has announced that it will provide for greater scrutiny of the taxation concessions available to charities. In addition, the Australian Taxation Office maintains a compliance program under which organisations’ charitable status can be reviewed.

Compulsory incorporation of charities as a precondition to granting tax concessions will add significant compliance and financial costs to the sector as a whole. For example, not-for-profit organisations may need to consider maintaining a constitution, appointing a board of directors, holding annual general meetings and hiring a lawyer and an accountant to meet the requirements of incorporation. These requirements can impose prohibitive costs on smaller charities (such as locally based community organisations), which currently do not undertake activities that may warrant incorporation.

Confining tax concessions to incorporated not-for-profit organisations may draw public criticism that the Government’s tax concessions favour larger not-for-profit organisations at the expense of the smaller ones. Furthermore, such a requirement may result in reduced levels of charitable activity across the community and community wellbeing more generally. In that regard, compulsory incorporation may also create a distortion in the sector by favouring those organisations that are sufficiently large or have the capacity to justify incorporation.

Placing further restrictions on the sector by using a tax policy instrument to achieve a non-tax policy outcome is likely to result in unintended consequences that would be difficult to address. Other non-tax options, such as requiring that certain governance arrangements be observed by charitable organisations of a certain size, may offer a more appropriately targeted means to achieve the desired outcome.

Recommendation 5

That the Commonwealth Government examine the desirability and feasibility of introducing whistleblower legislation for the not-for-profit religious and charitable sectors.

Response:

The Government supports this recommendation. In its examination of the desirability and viability of introducing whistleblower legislation to provide protection for those working in the not-for-profit religious and charitable sectors, the Australian Government will need to explore a number of issues, including the extent to which it is possible, practical and appropriate for the Australian Government to legislate in this area.

Recommendation 6

That the Commonwealth Government establish and manage a national reparations fund for victims of institutional abuse in institutions and out-of-home care settings and that:

• the scheme be funded by contributions from the Commonwealth and State Governments and the Churches and agencies proportionately;
• the Commonwealth have regard to the schemes already in operation in Canada, Ireland and Tasmania in the design and implementation of the above scheme;
• a board be established to administer the scheme, consider claims and award monetary compensation;
• the board, in determining claims, be satisfied that there was a 'reasonable likelihood' that the abuse occurred;
• the board should have regard to whether legal redress has been pursued;
• the processes established in assessing claims be non-adversarial and informal; and
• compensation be provided for individuals who have suffered physical, sexual or emotional abuse while residing in these institutions or out-of-home care settings.

Response:

The Government does not support this recommendation. The Government deeply regrets the pain and suffering experienced by children in institutional care but is of the view that all reparations for victims rests with those who managed or funded the institutions, namely state and territory governments, charitable organisations and churches. It is for them to consider whether compensation is appropriate and how it should be administered, taking into account the situation of people who have moved interstate.

Recommendation 7

That all internal Church and agency-related processes for handling abuse allegations ensure that:

• informal, reconciliation-type processes be available whereby complainants can meet with Church officials to discuss complaints and resolve grievances without recourses to more formal processes, the aim being to promote reconciliation and healing;
• where possible, there be independent input into the appointment of key personnel operating the schemes;
• a full range of support and other services be offered as part of compensation/reparation packages, including monetary compensation;
• terms of settlement do not impose confidentiality clauses on complainants;
• internal review procedures be improved, including the appointment of external appointees independent of the respective Church or agency to conduct reviews; and
• information on complaints procedures is widely disseminated, including on Churches' websites.

Response:

This is a matter for churches and agencies to consider. The Australian Government urges churches and agencies to respond positively and compassionately.

Recommendation 8

That the Commonwealth establish an external complaints review mechanism, such as a national commissioner for children and young people who would have the power to:

• investigate and mediate complaints received by complainants dissatisfied with Church processes with the relevant Church authority;
• review the operations of Church sponsored complaints mechanisms to enhance transparency and accountability;
• report annually to the Parliament on the operation of the Churches' complaints schemes, including data on the number and nature of complaints; and
• publicise the existence of Church-sponsored complaints mechanisms widely throughout the community.

Response:

The Australian Government does not support this recommendation. A Children’s Commission or similar office may be appropriate for state and territory governments to establish, given the primary responsibility the states and territories have for child welfare, and that decision rests with them. NSW, Queensland and Tasmania have Children’s Commissioners, and they are regarded as performing valuable functions. The ACT Government also plans to have a Children’s Commissioner. However, the Australian Government does not believe there would be any benefit in having a National Children’s Commissioner, as this would duplicate processes already in place. The Australian Government does not seek to influence state and territory governments regarding the establishment of state or territory children’s commissions. This is a decision for each state or territory government.

Recommendation 9

That the Churches and agencies publish comprehensive data on all abuse complaints received to date, and then subsequently on an annual basis, and that this information include:

• numbers of complainants and type of complaints received;
• numbers of Church/agency personnel involved in complaint allegations; and
• amounts of compensation paid to complainants.

Response:

This is a matter for state and territory governments, churches and agencies to consider. Privacy considerations would be paramount.

Recommendation 10

That information on the above matters be provided annually (including any reasons for non-compliance) to the national commissioner for publication in a consolidated form in the commissioner's annual report.

Response:

See response to Recommendations 8 and 9. However, national consolidation of data is possible through existing departmental mechanisms. The Australian Government will discuss consolidation processes with state and territory governments, churches and agencies if they choose to establish data collection mechanisms.

Recommendation 11

That the Commonwealth Government seek a means to require all charitable and church-run institutions and out-of-home care facilities to open their files and premises and provide full cooperation to authorities to investigate the nature and extent within these institutions of criminal physical assault, including assault leading to death, and criminal sexual assault, and to establish and report on concealment of past criminal practices or of persons known, suspected or alleged to have committed crimes against children in their care, by the relevant authorities, charities and/or Church organisations;

And if the requisite full cooperation is not received, and failing full access and investigation as required above being commenced within six months of this Report's tabling, that the Commonwealth Government then, following consultation with state and territory governments, consider establishing a Royal Commission into State, charitable, and church-run institutions and out-of-home care during the last century, provided that the Royal Commission:

• be of a short duration not exceeding 18 months, and be designed to bring closure to this issue, as far as that is possible;
• be narrowly conceived so as to focus within these institutions, on the nature and extent of criminal physical assault of children and young persons, including assault leading to death; criminal sexual assault of children and young persons;
• and any concealment of past criminal practices or of persons known, suspected or alleged to have committed crimes against children in their care, by the relevant State authorities, charities and/or Church organisations.

Response:

The Australian Government urges state governments, charitable organisations and churches that managed or funded institutions to cooperate fully with authorities to investigate the nature and extent of criminal offences and to work in good faith to address outstanding issues.

The Australian Government considers that a royal commission into state government, charitable and church-run institutions is not appropriate. This inquiry has shown that there are a number of practical steps that can be taken to redress the experiences of children in institutional care.

The offences dealt with under Recommendation 11 are offences under state/territory law. Any investigation of the nominated institutions is, therefore, a matter for state and territory governments.

Recommendation 12

That government and non-government agencies holding records relating to care leavers, implement and fund, as a matter of priority, programs to find, identify and preserve records including photographs and other memorabilia.

Response:

This is a matter for state and territory governments, churches and agencies to consider. The Australian Government strongly supports the proposal in principle.

Recommendation 13

That all government and non-government agencies immediately cease the practice of destroying records relating to those who have been in care.

Response:

This is a matter for state and territory governments, churches and agencies to consider. The Australian Government strongly supports the proposal in principle.

Recommendation 14

That all State Governments and non-government agencies, which have not already done so:

• provide dedicated services and officers to assist care leavers in locating and accessing records, both government and non-government; and
• compile directories to assist in the locating and accessing of records relating to care leavers and the institutions into which they had been placed.

Response:

This is a matter for state and territory governments, churches and agencies to consider.

Recommendation 15

That a dedicated information and search service be established in each State and Territory to:

• develop a complete register of all records held by government and non-government agencies;
• provide assistance to care leavers to locate and access records;
• provide advocacy and mediation services to care leavers accessing records; and
• ensure that all agencies holding records identify, preserve and make available all surviving records relating to care leavers and the institutions that housed them.

Response:

This is a matter for state and territory governments to consider.

Recommendation 16

That all government and non-government agencies agree on access guidelines for the records of all care leavers and that the guidelines incorporate the following:

• the right of every care leaver, upon proof of identity only, to view all information relating to himself or herself and to receive a full copy of the same;
• the right of every care leaver to undertake records searches, to be provided with records and the copying of records free of charge;
• the commitment to a maximum time period, agreed by the agencies, for the processing of applications for viewing records; and
• the commitment to the flexible and compassionate interpretation of privacy legislation to allow a care leaver to identify their family and background.

Response:

This is a matter for state and territory governments, churches and agencies to consider. The Australian Government supports the proposal in principle.

Recommendation 17

That all agencies, both government and non-government, which provide access to records for care leavers, ensure adequate support and counselling services are provided at the time of viewing records, and if required, subsequent to the viewing of records; and that funding for independent counselling services be provided for those care leavers who do not wish to access services provided by a former care agency.

Response:

The Australian Government notes that counselling services are already funded and widely available, including to care leavers, and would be appropriately used in these circumstances. The Australian Government has provided one-off funding to the Care Leavers of Australia Network (CLAN) of $100,000 for counselling support. In the longer term, this is the responsibility of state and territory governments, churches and agencies.

Recommendation 18

That the Commonwealth request the Council of Australian Governments to review all Federal and State and Territory Freedom of Information regimes to ensure that they do not hinder access by care leavers to information about their childhoods and families.

Response:

The Australian Attorney-General will raise this proposal with his state and territory counterparts.

Recommendation 19

That the Commonwealth fund a national conference of service providers and advocacy and support groups with the aim being to establish a professional national support and advocacy body for care leavers; and that this body be funded by the Commonwealth and State Governments and the Churches and agencies.

Response:

The Australian Government supports in principle the proposal for a conference of service providers, but not with a pre-determined outcome. Such a conference could identify ongoing needs of care leavers and make recommendations about the most effective ways of meeting those needs. The Australian Government is prepared to work with states and territories to convene a meeting of service providers and will discuss cost-sharing arrangements with states and territories. The Government cannot commit to funding of any outcomes in advance.

The Australian Government acknowledges the important role played by service providers and advocacy and support groups for care leavers. The Government notes that it already provides significant funding for counselling and support in the areas of child abuse and/or sexual assault.

The Australian Government considers that the establishment of any national support and advocacy body for care leavers would need to ensure that it does not duplicate services already available in some states. A state-based approach to providing support and advocacy is beneficial as it provides care leavers with the opportunity to talk to others with similar experiences and with counsellors who are aware of the specific experiences of children in those locations.

If there were seen to be a role for a national body, a fair and transparent selection process would be appropriate.

Recommendation 20

That the Commonwealth and State Governments and Churches and agencies provide on-going funding to CLAN and all advocacy and support groups to enable these groups to maintain and extend their services to victims of institutional abuse, and that the government and non-government sectors widely publicise the availability of services offered by these advocacy and support groups.

Response:

The Australian Government acknowledges the work CLAN has done in bringing together the stories of the individuals and families who suffered abuse and neglect in institutions. The Government commends CLAN for effectively reshaping the country’s history by drawing the nation’s attention to these tragic events. It is now important for governments, churches and agencies to take responsibility for delivering positive and concrete responses, and it remains to be seen what role CLAN and other support groups now have to play in encouraging them to do so.

The Australian Government has committed $100,000 to CLAN as a one-off grant for the provision of counselling services to care leavers. The definition of any ongoing role for CLAN, or another national support body, would be expected to emerge from the conference proposed in Recommendation 19. Appropriate structures and sources of funding would be determined following discussion of recommendations from that conference. There are other care leaver support bodies, specifically providing services in some states to people who were in care in each of those states.

While ongoing support for care leavers is primarily a role for state and territory governments, churches and agencies, the Australian Government will commit additional funding of $100,000 to assist care leavers through support groups, to be determined in conjunction with the planning and holding of the national conference.

Recommendation 21

That all State Governments, Churches and agencies provide a comprehensive range of support services and assistance to care leavers and their families.

Response:

This is a matter for state and territory governments, churches and agencies to consider. The Australian Government strongly supports a process that is based on an assessment of need and an identification of gaps in existing services. These matters could be further discussed at appropriate Ministerial Councils.

Recommendation 22

That all State Government funded services for care leavers be available to all care leavers in the respective State, irrespective of where the care leaver was institutionalised; and that funding provisions for this arrangement be arranged through the Community and Disability Services Ministerial Council.

Response:

This is a matter for state and territory governments. The Australian Government supports the recommendation in principle and urges state and territory governments to continue to ensure access to services is provided for care leavers who have moved interstate.

Recommendation 23

That all State Governments, Churches and agencies fund counselling services for care leavers and their families, and that those currently providing counselling services maintain and, where possible, expand their services including to regional areas. The counselling services should include:

• the extension of specialist counselling services that address the particular needs of care leavers;
• their provision to clients on a long-term or as required basis; and
• the provision of external counselling as an option.

Response:

This is a matter for state and territory governments, churches and agencies to consider. The Australian Government supports this recommendation in principle.

Recommendation 24

That specialist higher education courses be available for the training of health professionals in areas related to the particular psychological and psychiatric effects of institutional abuse.

Response:

Universities are self-accrediting institutions that decide the courses they will offer, within broad profiles agreed with the Australian Government. Under the new funding framework that commenced in 2005, there will be Funding Agreements with each University, specifying the number of places across the discipline mix to be supported by the Australian Government. In reaching these agreements, every year the Department of Education, Science and Training will meet with each University to discuss their strategic directions and plans for course offerings. This would be the stage at which the possibility of offering this training might be discussed, assuming that they are to be included in a health related degree. However, Universities decide how the funds they receive from the Government and the tuition fees they receive from their students will be used internally, as they are in the best position to allocate funds in a way that furthers their strategic direction in the provision of higher education.

The Australian Government will ensure that the Australian Vice-Chancellor’s Committee is aware of the recommendations of the Senate Community Affairs Committee in this regard.

Other higher education providers are autonomous institutions, which determine their own teaching arrangements and course curricula.

The Medical Specialist Training Steering Committee, commissioned by the Australian Health Ministers' Advisory Council, is currently looking at providing training for medical specialists, including psychiatrists, which is more applicable to the range of health care settings within which they will practice as professionals. This work is being done in conjunction with the Royal Australasian and New Zealand College of Psychiatrists who are responsible for the development of training programme content. It will ensure that training provided to the future psychiatry workforce is more applicable to the needs of the community, including those members of the community who present to a range of community based and acute settings for psychiatric treatment.

Recommendation 25

That the Commonwealth and State Governments in providing funding for health care and in the development of health prevention programs, especially mental health, depression, suicide prevention and drug and alcohol prevention programs, recognise and cater for the health needs and requirements of care leavers.

Response:

The Australian Government, through the Department of Health and Ageing, funds a range of health care, health promotion and support programs, which are accessible to all Australians. While not targeted at care leavers, these programs are accessible to this group. These include the National Suicide Prevention Strategy, National Mental Health Strategy and the Better Outcomes in Mental Health Care Initiative.

Recommendation 26

That the Department of Health and Ageing fund a pilot program under the Aged Care Innovative Pool to test innovative models of aged care services focussing on the specific needs of care leavers.

Response:

The Australian Government, through the Department of Health and Ageing, acknowledges the potential scope to develop a pilot proposal under the Aged Care Innovative Pool that would aim to test innovative models of aged care services for older people with specific needs, such as care leavers, whose care needs are not adequately met through existing aged care services. Consistent with Program Guidelines that specify the arrangements for developing innovative pool pilot proposals, stakeholder agencies can develop an outline of a proposed model and project parameters and make contact with the Department. More information about the Innovative Pool, including program guidelines, is available from the Department of Health and Ageing's website.

Recommendation 27

That the Home and Community Care program recognise the particular needs of care leavers; and that information about the program be widely disseminated to care leaver support and advocacy groups in all States.

Response:

This is a matter for state and territory governments. The Australian Government, through the Department of Health and Ageing, provides funding for the Home and Community Care (HACC) program, which is accessible to all Australians. The dissemination of information about state and regional specific programs funded under the HACC program is a state and territory government responsibility.

Recommendation 28

That the Supported Accommodation Assistance Program recognise the particular needs of care leavers; and that:

• data on the usage of the Program by care leavers be collected; and
• information about the Program be widely disseminated to care leaver support and advocacy groups in all States.

Response:

The Government supports this recommendation in principle. Data collection on the use of the Supported Accommodation Assistance Program (SAAP) by care leavers is currently being investigated by the SAAP program’s Information Sub Committee.

Information on SAAP services may be of interest to care leaver support and advocacy groups, and such information will be made available through the Department of Family and Community Services. However, SAAP is a crisis response program for people who are homeless or about to become homeless. Support groups should familiarise themselves with the range of programs available for this particular client group which aim to prevent them from falling into crisis.

Recommendation 29

That the Commonwealth and State Governments widely publicise the availability of adult literacy and numeracy services and associated adult education courses to care leavers and care leaver support groups.

Response:

The Australian Government supports this recommendation. While funding of Adult and Community Education (ACE) provision is a State and Territory Government responsibility, from 1 July 2005 the Australian Government (through the Department of Education, Science and Training) will provide $1.105 million to Adult Learning Australia (ALA) to undertake activities associated with adult learning. Part of this funding ($730,000) supports the promotion of adult learning, research and other activities. An additional $375,000 is provided to ALA to distribute to the States and Territories for activities associated with Adult Learners’ Week.

The Commonwealth Department of Education, Science and Training liaises with State Training Authorities and with peak bodies, such as the Australian Council for Adult Literacy (ACAL) and ALA, and will seek their support to further publicise the availability of adult literacy and numeracy courses and associated education courses to care leavers and care leaver support groups. The Department of Education, Science and Training also funds the Reading Writing Hotline which directs callers to their nearest literacy training provider and will ask ALA to further publicise it.

State and Territory Governments also provide general education courses, which largely consist of literacy and numeracy training. The two Australian Government programmes which focus on literacy and numeracy, the Language, Literacy and Numeracy Programme (LLNP) and the Workplace English Language and Literacy Programme (WELL), target quite specific groups—jobseekers and those in employment respectively—and are not programmes that care givers or care agencies can refer people to. These two programmes are, however, widely publicised through several different methods and are well known throughout the adult and vocational education fields.

Recommendation 30

That State Governments investigate options for alternative entry pathways to higher education courses for ex-residents of institutions and their children.

Response:

This is a matter for state and territory governments to consider.

Recommendation 31

That the Commonwealth, in conjunction with the States, develop procedures for the collection of data on people who have been in care on forms that are already used to elicit client information such as Medicare and Centrelink forms and admission forms to prisons, mental health care facilities and aged care facilities.

Response:

The Australian Government will examine what the possibilities are of collecting information on existing forms. Not all situations will be appropriate. Collection of this type of information on Medicare forms is not supported. Access to such information through Medicare forms would infringe the Privacy Act 1988, as such collection is not a legislated purpose nor covered in the Information Privacy Principle 2 pathway as printed on the Medicare claim form. Further, section 130 of the Health Insurance Act 1973 would prevent any such disclosure. The inclusion of specific questions on Centrelink forms would only be appropriate if programs were specifically tailored for, or offered particular services to, care leavers. This recommendation will be revisited if specific programs or services are developed in the future that target care leavers as a distinct group.

This is a matter for state and territory governments to consider also.

Recommendation 32

That Commonwealth and State programs across a range of social policy areas, including health and aged care and social welfare services generally, explicitly recognise care leavers as a sub-group with specific requirements in the publications and other material disseminated about programs.

Response:

The Australian Government recognises the issues faced by care leavers but does not endorse the recommendation to explicitly recognise care leavers as a sub-group with specific requirements in publications and public information materials. Australian Government departments will consider and address, where appropriate, the special needs of care leavers with regard to information and programs that specifically address the needs and circumstances of that group.

Recommendation 33

That the Commonwealth and the States commit, through the Council of Australian Governments, to implementing a whole of government approach to the provision of programs and services for care leavers across policy areas such as health, housing and welfare and community services and other relevant policy areas.

Response:

The Australian Government believes that these issues are worthy of further discussion but does not support referral to COAG. The Australian Government will commit to a whole of government approach through relevant Ministers’ Conferences, including the Community Services Ministers and the Health Ministers Councils. Appropriate strategies will be developed for government consideration.

Recommendation 34

That the Commonwealth and State Governments, in conjunction with the Churches and agencies, provide funding for the erection of suitable memorials commemorating care leavers. Where possible, memorials could take the form of:

• memorial gardens constructed in conjunction with local councils;
• the placement of plaques at the site of former institutions; and/or
• the construction of heritage centres on the site of former institutions.

The Committee further recommends that the appropriate form and location of memorials should be determined after local consultation with care leavers and their support and advocacy groups.

Response:

The Government supports the concept of memorials to commemorate the experiences of children in institutional care as an appropriate way to acknowledge past injustices. The Government will contribute funding of up to a total of $100,000 towards any suitable proposals for memorials initiated by state or territory governments.

Recommendation 35

That the National Museum of Australia be urged to consider establishing an exhibition, preferably permanent, related to the history and experiences of children in institutional care, and that such an exhibition have the capacity to tour as a travelling exhibition.

Response:

While the Australian Government has responsibility for the National Museum of Australia, the management of Australian Government institutions is at arm's length from the government of the day. The Council and Management of these institutions form their own policies on acquisitions, exhibitions and all collections issues. The Museum has advised that while similar social issues, in particular those that affect the lives of children, have been represented in its temporary exhibitions program, it would be unable to commit to a permanent exhibition on this theme.

Recommendation 36

That the Commonwealth Government provide funding for the National Library of Australia to undertake an oral history project to collect the life-stories of former residents in institutional and out-of-home care.

Response:

While the Australian Government has responsibility for the National Library of Australia, the management of Australian Government institutions is at arm's length from the government of the day. The Council and Management of these institutions form their own policies on acquisitions, exhibitions and all collections issues. The National Library has advised that it would be unable to undertake a project of this scale at this time.

Recommendation 37

That the Commonwealth Government fund research either though the Australian Institute of Family Studies or other relevant research body or university into the following areas:

• historical research into institutional care, including the role of institutional care in Australia's social history; the history of institutions and the commissioning of personal histories of former residents;
• the social and economic impact and cost of institutional care; and
• inter-disciplinary research into the relationship between child welfare/child protection and areas such as welfare dependency, social problems such as drug and alcohol abuse and family relationship breakdowns.

Response:

The Australian Institute of Family Studies is an independent entity, and the Australian Government has no capacity to determine its research priorities. However, the Government will explore, through the Department of Family and Community Services, possibilities for engaging other research partners to examine issues relating to the social impacts of institutional care, the ongoing needs of care leavers, service delivery ramifications and specific issues around family relationship effects. Historical research, if undertaken, would not be a primary focus. Any research should be tailored to improving outcomes for this group of care leavers. The National Child Protection Clearinghouse is contracted to the Department of Family and Community Services and can be funded to carry out additional research as required. This avenue will be pursued.

Recommendation 38

That the Australian Institute of Family Studies National Child Protection Clearinghouse be funded by the Commonwealth Government to collect publications related to historical studies of institutional and other forms of out-of-home care and that this information be widely disseminated.

Response:

See response to Recommendation 37.

Recommendation 39

That the Commonwealth, in co-operation with State Governments, establish courses of study at selected tertiary institutions that focus on child protection and related issues, especially early childhood and family studies, psychology, conflict management, the impact of institutional care and social policy to address issues in these areas.

Response:

The Australian Government supports this recommendation in principle but notes that universities are self-accrediting institutions that decide the courses they will offer, within broad profiles agreed with the Australian Government. Under the new funding framework that commenced in 2005, there will be Funding Agreements with each University, specifying the number of places across the discipline mix to be supported by the Australian Government. In reaching these agreements, every year the Department of Education, Science and Training will meet with each University to discuss their strategic directions and plans for course offerings. This would be the stage at which the possibility of offering this training might be discussed. However, Universities decide how the funds they receive from the Government and the tuition fees they receive from their students will be used internally, as they are in the best position to allocate funds in a way that furthers their strategic direction in the provision of higher education.

Other higher education providers are autonomous institutions, which determine their own teaching arrangements and course curricula.

Agencies that employ child protection workers could seek to work with individual Universities (or other higher education providers) to develop courses that meet their needs. Funding is being provided through the Higher Education Support Act 2003 under Section 41-45 (Other Grants), for a Chair in Child Protection at the University of South Australia. The Chair was announced by the Minister for Education, Science and Training on 19 March 2004. Ten million dollars has been committed over ten years from 2004, to provide a special focus on research into child protection issues. The position of the Chair, currently held by Professor Dorothy Scott, is to lead and promote research into child protection and assist researchers working to combat child abuse across the disciplines of early childhood and family studies, psychology, education and literacy, conflict management, Indigenous communities and cultures, service delivery and social policy. The Australian Government has agreed with state and territory governments to write, as a group, to Professor Scott and seek her input and guidance on these issues.

The Australian Government will ensure that the Australian Vice-Chancellor’s Committee is aware of the recommendations of the Senate Community Affairs Committee in regard to this recommendation.

Additionally, in vocational education and training, the Community Services and Health Industry Skills Council will be developing a national competency framework for workforce planning for Family Counsellors, Family Dispute Resolution Practitioners and workers in Children’s Contact Services. This project, to be undertaken during 2005-2006, was funded by the Attorney General’s Department (Family Pathways Branch).

Vocational/job outcomes for workers will be achieved by developing competency standards and qualifications, and supporting their work under a national structure. The competency standards/qualifications are planned to be included in the Community Services Training Package.

Further, the Certificate IV in Mental Health Work (Nonclinical), in the current Community Services Training Package, was developed for health workers who provide a range of community services and community interventions to clients with mental health issues and/or implement health promotion and community interventions. Their work may take place in a range of contexts such as community based organisations, residential rehabilitation services and outreach services. This qualification refers to specific knowledge of a “clients with mental health issues” group and appropriate intervention processes applied in residential and community settings.

Also in the Community Services Training Package are three child protection qualifications: Certificate IV in Community Services (Protective Care), Diploma of Community Services (Protective Intervention) and the Diploma of Statutory Child Protection. These are delivered by TAFE and other Registered Training Organisations. The Community Services Training Package also provides national Certificate, Diploma and Advanced Diploma qualifications in the areas of children’s services, residential support services, and non-residential services. In 2006-07 the Department of Education, Science and Training plans to fund the Community Services and Health Industry Skills Council to review the Community Services Training Package. Extensive stakeholder consultations occur during development and review to ensure that the Training Package is relevant to industry’s needs and usable. Before the Training Package is endorsed for use, the developer must validate it with all relevant stakeholders and provide evidence of broad industry support.

Note that States and Territories are responsible for the quality of training and assessment, and for prioritising the allocation of funding for New Apprenticeships and other VET courses.

AUSTRALIAN GOVERNMENT RESPONSE TO

  Protecting Vulnerable Children: A National Challenge

Second report on the inquiry into children in institutional or out of home care

Senate Community Affairs References Committee

The report of the Community Affairs References Committee, March 2005.

The Australian Government welcomes the second report by the Community Affairs References Committee following its inquiry into children in institutional or out-of-home care. The Protecting Vulnerable Children report follows on from the Committee’s Forgotten Australians report and focuses on contemporary child protection issues, including foster care, and the government and legal framework in which child welfare and protection issues operate. The second report also considers children and young people with disabilities in care, and children and young people in juvenile justice and detention centres.

The report’s recommendations are directed at the Australian Government and the state and territory governments. Those recommendations directed specifically at the Australian Government have been considered, along with those recommendations that are directed at both levels of government. The Australian Government’s response to these recommendations is attached.

With its focus more on contemporary child protection and welfare issues, the Protecting Vulnerable Children report makes some recommendations that will assist governments in developing a child welfare and protection framework that is capable of providing a safe and caring environment for children and young people and protecting their rights, including the right to their cultural heritage.

The report acknowledges that child protection is the primary responsibility of the state and territory governments. However, the importance of all governments working closely together to bring about a safe, secure and caring environment for all children and young people cannot be over emphasised.

The safety and welfare of children is the responsibility of all Australians: governments; communities; families; and individuals. It is the responsibility of all to ensure that the system works effectively for children and their families.

RECOMMENDATIONS

Recommendation 1

That the Commonwealth Government consider the designation of a year as the National Year Against Child Abuse in Australia.

Response:

The Australian Government agrees with the Senate Community Affairs References Committee that child protection issues must be paramount in general public debate and the public consciousness.

The Australian Government supports and promotes a number of ongoing initiatives, which focus on the prevention of child abuse and neglect. These include funding National Child Protection Week through the National Association of Child Abuse and Neglect (NAPCAN), and supporting the biennial National Child Protection Awards administered by the Australian Council for Children and Parenting. The Australian Government also provides support for Children’s Week (which incorporates Universal Children’s Day) and Families Week. In light of these initiatives, the Government does not believe that the designation of a year as the National Year Against Child Abuse in Australia would provide any further tangible benefits.

To assist in raising the public consciousness and in developing a national approach to child protection in Australia, the Australian Government will convene a National Summit on Child Protection to be held in Melbourne in the first half of 2006. The National Summit will bring together child protection practitioners, researchers, and policy makers from all jurisdictions to identify a practical way forward in developing a national approach to child protection in Australia.

Recommendation 2

That State and Territory Governments consider reviewing the effectiveness of mandatory reporting in protecting and preventing child abuse, and in conducting such a review, they particularly focus on the successes of the various options used in care and protection systems, in comparison with mandatory reporting.

Response:

This is a matter for state and territory governments to consider.

Recommendation 3

That, as recommended in Forgotten Australians, the Commonwealth, State and Territory Governments establish courses of study at selected tertiary institutions that focus on child protection and related issues, especially early childhood and family studies, psychology, conflict management, the impact of institutional care and social policy, to address issues in these areas (recommendation 39 in Forgotten Australians).

Response:

The Australian Government supports this recommendation in principle but notes that universities are self-accrediting institutions that decide the courses they will offer, within broad profiles agreed with the Australian Government. Under the new funding framework that commenced in 2005, there will be Funding Agreements with each University, specifying the number of places across the discipline mix to be supported by the Australian Government. In reaching these agreements, every year the Department of Education, Science and Training will meet with each University to discuss their strategic directions and plans for course offerings. This would be the stage at which the possibility of offering this training might be discussed. However, Universities decide how the funds they receive from the Government and the tuition fees they receive from their students will be used internally, as they are in the best position to allocate funds in a way that furthers their strategic direction in the provision of higher education.

Other higher education providers are autonomous institutions, which determine their own teaching arrangements and course curricula.

Agencies that employ child protection workers could seek to work with individual Universities (or other higher education providers) to develop courses that meet their needs. Funding is being provided through the Higher Education Support Act 2003 under Section 41-45 (Other Grants), for a Chair in Child Protection at the University of South Australia. The Chair was announced by the Minister for Education, Science and Training on 19 March 2004. Ten million dollars has been committed over ten years from 2004, to provide a special focus on research into child protection issues. The position of the Chair, currently held by Professor Dorothy Scott, is to lead and promote research into child protection and assist researchers working to combat child abuse across the disciplines of early childhood and family studies, psychology, education and literacy, conflict management, Indigenous communities and cultures, service delivery and social policy. The Australian Government has agreed with state and territory governments to write, as a group, to Professor Scott and seek her input and guidance on these issues.

The Australian Government will ensure that the Australian Vice-Chancellor’s Committee is aware of the recommendations of the Senate Community Affairs Committee in regard to this recommendation.

Additionally, in vocational education and training, the Community Services and Health Industry Skills Council will be developing a national competency framework for workforce planning for Family Counsellors, Family Dispute Resolution Practitioners and workers in Children’s Contact Services. This project, to be undertaken during 2005-2006, was funded by the Attorney General’s Department (Family Pathways Branch).

Vocational/job outcomes for workers will be achieved by developing competency standards and qualifications, and supporting their work under a national structure. The competency standards/qualifications are planned to be included in the Community Services Training Package.

Further, the Certificate IV in Mental Health Work (Nonclinical), in the current Community Services Training Package, was developed for health workers who provide a range of community services and community interventions to clients with mental health issues and/or implement health promotion and community interventions. Their work may take place in a range of contexts such as community based organisations, residential rehabilitation services and outreach services. This qualification refers to specific knowledge of a “clients with mental health issues” group and appropriate intervention processes applied in residential and community settings.

Also in the Community Services Training Package are three child protection qualifications: Certificate IV in Community Services (Protective Care), Diploma of Community Services (Protective Intervention) and the Diploma of Statutory Child Protection. These are delivered by TAFE and other Registered Training Organisations. The Community Services Training Package also provides national Certificate, Diploma and Advanced Diploma qualifications in the areas of children’s services, residential support services, and non-residential services. In 2006-07 the Department of Education, Science and Training plans to fund the Community Services and Health Industry Skills Council to review the Community Services Training Package. Extensive stakeholder consultations occur during development and review to ensure that the Training Package is relevant to industry’s needs and usable. Before the Training Package is endorsed for use, the developer must validate it with all relevant stakeholders and provide evidence of broad industry support.

Note that States and Territories are responsible for the quality of training and assessment, and for prioritising the allocation of funding for New Apprenticeships and other VET courses.

Recommendation 4

That awareness of child protection issues, the effects in the longer term for a child or young person in care and related issues be included as components of teacher education courses conducted at the tertiary level.

Response:

Universities are self-accrediting institutions that decide the courses they will offer, within broad profiles agreed with the Australian Government. Under the new funding framework that commenced in 2005, there will be Funding Agreements with each University, specifying the number of places across the discipline mix to be supported by the Australian Government. In reaching these agreements, every year the Department of Education, Science and Training will meet with each University to discuss their strategic directions and plans for course offerings. This would be the stage at which the possibility of offering this training might be discussed. However, Universities decide how the funds they receive from the Government and the tuition fees they receive from their students will be used internally, as they are in the best position to allocate funds in a way that furthers their strategic direction in the provision of higher education.

The Australian Government will ensure that the Australian Vice-Chancellor’s Committee is aware of the recommendations of the Senate Community Affairs Committee in this regard.

Other higher education providers are autonomous institutions, which determine their own teaching arrangements and course curricula.

In June 2004 the Minister for Education, Science and Training established the interim National Institute for Quality Teaching and School Leadership (NIQTSL), to raise the status, quality and professionalism of teachers and school leaders in Australia. The NIQTSL is undertaking the scoping of a national accreditation system for teacher education courses, which may include requirements for course content. The Department of Education, Science and Training will make NITQSL aware of the recommendation that teacher education courses should raise awareness of child protection issues, and the long-term effects of care. The House of Representatives Standing Committee on Education and Vocational Training is holding an inquiry into teacher education. This issue has been referred to that inquiry.

The Australian Government is committed to continuing working with the States and Territories wherever possible to support all children to receive an education in a safe and supportive environment. The Australian Government led the development of the National Safe Schools Framework (NSSF), which was endorsed by all Ministers of Education in July 2003. The NSSF is framed around six key elements providing a consistent national approach to countering bullying, harassment, violence, abuse and neglect in schools. In particular, it notes the importance of appropriate pre-service and in-service training for all staff about child protection issues, including: recognising and responding to indicators of child abuse; understanding the effects of abuse and neglect on the development of children and young people; and complying with agreed policies and procedures related to child protection.

Recommendation 5

The Commonwealth review the level of the Transition to Independent Living Allowance (TILA) to ensure that it is adequate to meet the needs of young people leaving care.

Response:

The Australian Government has recently expanded the eligibility criteria for the Transition to Independent Living Allowance (TILA) to include some young people transitioning from informal care arrangements including Indigenous Kinship Care and juvenile detention centres. As a result of the expansion of the eligibility criteria, it will be necessary to collect data on the uptake of TILA under the new criteria prior to considering any changes to the amount of TILA to be paid. It is anticipated that sufficient data on the uptake of TILA under the new criteria may be available in 2006. The Australian Government will consider the adequacy of the amount of TILA to be paid once that data is available.

Recommendation 6

The Commonwealth, State and Territory Governments consider new models for the schooling and education of children in out-of-home care, particularly children who have been classified as high-risk children, for example, schooling by specialist teachers trained in both education and child psychology.

Response:

The administration of schools and teachers is a matter for State and Territory Government and non-Government education authorities, who bear legal responsibility for the duty of care of students. Accordingly, the Government considers this to be primarily a matter for States and Territories given their constitutional responsibilities for schooling for all children and for child welfare. However, the Australian Government is committed to continuing working with the States and Territories wherever possible to support all children to receive an education in a safe and supportive environment. The Australian Government led the development of the National Safe Schools Framework (NSSF), which was endorsed by all Ministers of Education in July 2003. The NSSF is framed around six key elements providing a consistent national approach to countering bullying, harassment, violence, abuse and neglect in schools. In particular, it notes the importance of relevant additional training to be provided for staff with specific roles in child protection, to provide support to students who are the subject of concerns about abuse or neglect.

In vocational education and training the Community Services Training Package provides qualifications with child psychology and child development competency units for people working in the child care in schools, community settings and out of home care. These qualifications include the Certificate III in Children’s Services, Certificate IV in Out of School Hours Care, Diploma of Out of School Hours Care, Diploma of Children’s Services, and the Advanced Diploma of Children’s Services.

Support for teacher professional learning and development in relation to the NSSF is available to all jurisdictions under the Australian Government Quality Teacher Programme (AGQTP). The AGQTP could further provide particular professional learning for teachers of students with target learning needs such as children in out-of-home care, should the State and Territory education authorities identify a need.

The Australian Government also makes a very significant contribution to support the most educationally disadvantaged students through the Schools Grants element of the Literacy, Numeracy and Special Learning Needs (LNSLN) Programme. Over the 2005-08 quadrennium, the LNSLN Programme will provide an estimated $2.1 billion to support the most educationally disadvantaged students. The School Grants element will contribute over $1.87 billion nationally over the quadrennium and targets students with disabilities, students from a language background other than English and socio-economic disadvantage. State and Territory Government and non-Government education authorities are responsible for the administration of the Schools Grants element of the LNSLN Programme in their systems and schools. They have the flexibility to determine which students and schools have the greatest need and to allocate funds accordingly, while ensuring principles of equity, effectiveness and efficiency.

The Australian Government has provided $5.3 million for the Partnership Outreach Education Model Pilot (POEM) to date and has agreed to provide a further $2.6 million to extend the Pilot until December 2006. POEM provides an education and personal development programme targeting young people (aged 13 to 19) who are disconnected from mainstream schooling. POEM offers flexible accredited education and training options delivered in supported community settings and places emphasis on the acquisition of appropriate life skills. POEM is underpinned by partnerships and positive relationships between young people and their families, community service agencies, schools, government at all levels and business.

An evaluation of the Pilot released in 2004 found that POEM projects are strengthening the resilience and building the capacity of very troubled young people who, for a range of reasons, have disconnected from important social institutions such as family, schools and communities. Following the evaluation, the pilot projects will receive additional funding up till December 2006.

For the period 2002-2004, 4,110 young people were engaged in education, training and/or life skills programmes through the POEM Pilot.

Recommendation 7

That the strengthening of case management under the National Plan be progressed as a matter of priority, in particular to attempt to limit the turnover of caseworkers for children in out-of-home care.

Response:

As acknowledged in the Committee’s Report, the National Plan for Foster Children, Young People and their Carers (the National Plan) already includes key areas for action such as the strengthening of case management through the sharing of best practice and the implementation of national standards for the transition planning for young people and children in foster care (see also Recommendation 8 below).

The development and implementation of the National Plan is a matter for all jurisdictions. Implementation is occurring over a two-year period, and a Community Services Ministers’ Advisory Council working group led by the Australian Capital Territory is developing national standards in the areas of recruitment, training, assessment, transition planning and core information available at placement. The Australian Government will continue to work actively with state and territory governments on the implementation of the National Plan.

Recommendation 8

That the introduction of national standards for transition planning, particularly when leaving care, under the National Plan be implemented as a matter of priority.

Response:

See the response to Recommendation 7 above. The Australian Government will continue to work actively with state and territory governments on the implementation of the National Plan.

Recommendation 9

That the National Plan for Foster Care, Young People and their Carers be extended to include the following:

• Training—

investigate the implementation of national carer specific accredited training qualifications, for example, through Vocational Education Training;

• Uniform Data Collection—

collection of data on the carer cohort;

• Support—

examine ways of improving carer support including national standards for reimbursement of costs to cover the real costs of caring and payment of allowances;

examine ways of improving foster carer retention; and

develop models of response to allegations of abuse against foster carers and workers based on international best practice including articulation of carer’s rights.

Response:

The development and implementation of the National Plan is a matter for all jurisdictions and is led by the Australian Capital Territory. The key areas for action and proposed outputs were agreed by all Community and Disability Ministers in 2004. The Australian Government will continue to work actively with state and territory governments on the implementation of the National Plan. Proposed outputs already include agreement on core competencies and nationally agreed training standards. The Australian Government has allocated $50,000 for a scoping study, which will be undertaken by the Australian Institute of Health and Welfare, to evaluate the possible development of unit record based national data collection about foster carers.

Recommendation 10

That the State and Territory Governments consider the information in this report and use as a base on which to assist in providing more flexibility in accommodating and caring for children with disabilities, particularly where families can have their children at home. Such considerations would include an examination of a mix of living arrangements such as institutional care combined with options for children to return to families at particular times; week-day residential schools; and other options including various combinations of living at home with families, residential and respite care and foster care, along with a mix of carers and support. Where required, options could include the use of high-level residential care facilities and highly-trained professional staff and with an emphasis on ensuring that where necessary, the quality of care and actions of the staff are monitored.

Response:

This is a matter for state and territory governments to consider.

Recommendation 11

That State and Territory Governments enlist the expertise of policymakers in disability and other areas of social policy when formulating laws for children and young people with disabilities, so that legislative provisions take account of the special needs of children and young people with disabilities and are broad ranging in their application, including in relation to residential facilities and services for children with a disability as well as to the actions of advocates and advocacy services.

Response:

This is a matter for state and territory governments to consider.

Recommendation 12

That the Commonwealth, State and Territory Governments examine ways to break down the barriers to legal assistance for children and young people with disabilities and their families; make the law more easily understood for such groups; and harness the expertise of practitioners in social policy and other disciplines to formulate laws to better serve all people with disabilities.

Response:

This recommendation is similar to one made by the Productivity Commission following its review of the Disability Discrimination Act 1992. Recommendation 9.1 from the Commission’s report was that:

The Attorney-General, in consultation with state and territory governments, should commission an inquiry into access to justice for people with disabilities, with a focus on practical strategies for protecting their rights in the criminal and civil justice systems.

The Government accepted this Productivity Commission recommendation in principle and referred to the Federal Civil Justice System strategy paper released in March 2004. The strategy paper includes strategies for improving access to the civil justice system for people with disability.

Many of the issues relating to access to justice for people with disability in the civil and criminal justice systems are matters that fall within the jurisdiction of the states and territories. Therefore the Attorney-General agreed to write to his state and territory counterparts to draw their attention to the Productivity Commission report and its recommendations.

Commonwealth legal aid

The Australian Government funds state and territory legal aid commissions to provide legal assistance to disadvantaged Australians in matters which arise under Commonwealth law. The services provided include information, community legal education and publication, legal advice and minor assistance, duty lawyer, primary dispute resolution and legal representation. Applicants for a grant of legal representation must satisfy the eligibility criteria, which include meeting the relevant Commonwealth legal aid guideline and means and merits tests. The Commonwealth priorities for legal aid, which are outlined in clause 6 of the legal aid agreements between the Australian Government and state and territory governments and legal aid commissions, include a special circumstance provision. This enables legal aid commissions to treat, as a Commonwealth priority, matters where the applicant has an intellectual, psychiatric or physical disability or is a child.

Under the Commonwealth family law, legal aid guidelines commissions must give the highest priority to matters where a child’s safety is at risk. In addition, the family law legal aid guidelines provide for commissions to make grants of legal assistance for the separate representation of children in court proceedings.

The Government notes that assistance for young people is also a priority for legal aid commissions, with some having specialist youth legal services. The Under 18s Hotline is a legal advice line which has been set up by Legal Aid NSW. Qualified, experienced criminal lawyers with expertise in juvenile justice are available to provide advice to all young people who have committed, or are suspected of committing, a criminal offence. This service operates Monday to Friday, 9 am to midnight, and provides 24-hour coverage on weekends and public holidays.

Legal aid commissions in Victoria, Queensland and Western Australia provide specialist services for children and youth who have to appear before the courts or are involved in legal cases. In Queensland, applicants who are 17 years or younger are not subject to a means test to qualify for legal aid. In a number of other jurisdictions, the means test is not applied to the income and assets of parents of applicants under 18 years of age unless the applicant is still financially dependent on his/her parents.

Commonwealth community legal services program

The Australian Government funds a number of services through the Community Legal Services Program which are targeted at meeting the legal needs of young Australians. In 2004-05 the Australian Government provided funding of $0.527million to six youth law centres, including the National Children’s and Youth Law Centre.

Indigenous legal aid

With respect to young Indigenous Australians, the Government funds a number of Indigenous-specific providers of legal aid services. Given that the Indigenous population has a much younger age structure than the non-Indigenous population, a significant part of their work involves providing legal assistance to Indigenous youth. The locations of Indigenous-specific providers (across a range of rural and remote as well as urban settings) helps ensure that their services reach Indigenous communities. Providers are required to give priority to Indigenous individuals—including children and youth—whose physical safety or cultural or personal well-being is at risk, or who would be significantly disadvantaged if assistance was not provided.

Recommendation 13

That the Australian and/or State Law Reform Commissions conduct research among legal practitioners to ascertain their knowledge and expertise in areas of disability and the law. The outcome of such research would highlight the need to introduce measures to educate lawyers so that they are better able to advise clients about laws affecting the lives of people with a disability, particularly in explaining the impact of certain legislative provisions and common law decisions for children and young people with disabilities. Such investigation might also include examining ways to encourage legal practitioners to offer pro bono services to children and young people with disabilities, who cannot afford legal fees.

Response:

The Australian Law Reform Commission’s role is to make recommendations for legislative change. Its functions are set by statute and involve reviewing laws for the purpose of systematic development and reform. It can consider proposals for making, consolidating or repealing laws, and for making the law uniform across Australian jurisdictions.

The Senate Committee’s recommendation is focused on education and changing attitudes, which are outside the Australian Law Reform Commission’s functions. It would be more appropriate for these tasks to be undertaken by bodies such as the Law Society in each state and territory.

Recommendation 14

That, where applicable, all jurisdictions amend their Disability Services Acts to ensure that terms relating to people with a disability, specifically include children and young persons, as well as adults. This may require additions to legislation to include principles and applications for children and young people with a disability.

Response:

One guiding principle in commenting on Recommendations 14 and 15 is that of human rights, and the understanding that Australians of all ages can reasonably expect their human rights to be fully observed and that they will be treated equally and without discrimination. This expectation is supported in law, both at home and internationally. A second guiding principle is that the presence of a disability should in no way reduce the application of human rights—either in terms of the individual’s expectation, or in terms of a third party’s responsibilities towards the individual.

The Australian Government supports Recommendation 14 in seeking to ensure that relevant jurisdictional legislation is amended so that it relates to all people with disability—not only to adults, but to children and young persons as well.

Recommendation 15

That the Commonwealth Government encourage the NSW Government to take note of the evidence presented to this inquiry and proclaim ss.155 and 156 of the Children and Young Person’s (Care and Protection) Act 1998, so that all children with disabilities in care, including those who have been voluntarily placed, have broad-ranging legislative protection and monitoring of their care.

Response:

For the reasons (principles) stated in support of Recommendation 14, the Australian Government supports Recommendation 15 in that it seeks to extend to all children with disability in care the legislative protection and monitoring of their care.

Recommendation 16

That the Commonwealth Government take note of the merits of restorative justice programs in helping to keep young people out of the juvenile justice system (and later gravitation to the adult prison system), and increase its involvement, support and funding for such programs, to ensure that the coverage of such programs across Australia is wider than is presently the case. It is recommended that the Commonwealth Government introduce restorative justice programs that would assist in reducing the high numbers of indigenous youth in juvenile justice centres.

Response:

Criminal justice and corrections is primarily a state and territory responsibility. In accordance with the principles agreed to by all governments at the Council of Australian Governments (COAG) in June 2004, the Australian Government is committed to working with the states and territories and with Indigenous people to address the over-representation of Indigenous youth in the juvenile justice system.

The Australian Government Attorney-General’s Department (AGD) supports a range of Indigenous justice initiatives, several of which target the needs of Indigenous youth. The Government recognises the importance of supporting restorative justice initiatives. The Prevention, Diversion and Rehabilitation Program (PDRE), administered by the Indigenous Law and Justice Branch, currently funds around 130 community level projects that are intended to help reduce Indigenous people’s adverse contact with the justice system. In addition to night patrols and prisoner support services, the program funds a range of projects for at-risk children and youth as well as restorative justice initiatives.

The Government recognises that improved outcomes for Indigenous youth in areas such as health, education and employment are likely to lead to improved justice outcomes as well. AGD is therefore working with other departments and agencies under the Government’s new arrangements for the administration of Indigenous affairs to promote developments across all these areas.

Recommendation 17

The Commonwealth establish a national commissioner for children and young people to drive a national reform agenda for child protection. In doing so, that national commission should:

• bring together all stakeholders, including States and Territories, child protection professionals and researchers and peak organisations, to establish an agenda for change including the identification of key areas of concern;
• encourage the development of innovative models within the child protection system; and
• encourage State and Territory Governments to work toward harmonising child protection legislation, including agreement on common definitions.

Response:

As advised in response to Recommendation 8 in the Forgotten Australians report, the Australian Government does not support the establishment of a National Children’s Commissioner. A Children’s Commission or similar office may be appropriate for state and territory governments to establish, given the primary responsibility the states and territories have for child welfare, and that decision rests with them. NSW, Queensland and Tasmania have Children’s Commissioners, and they are regarded as performing valuable functions. The ACT Government also plans to have a Children’s Commissioner. However, the Australian Government does not believe there would be any benefit in having a National Children’s Commissioner, as this would duplicate processes already in place. The Australian Government does not seek to influence state and territory governments regarding the establishment of state or territory children’s commissions. This is a decision for each state or territory government.

The Australian Government considers that the best outcomes for children will be achieved if the Australian Government and the states and territories all work together. On 28 July 2004, the Community and Disability Services Ministers’ Conference (CDSMC) endorsed a new dialogue between the states and territories and the Australian Government to examine a national approach to protecting vulnerable children. Under the auspices of the CDSMC, a Community Services Ministers’ Advisory Council (CSMAC) working group is currently exploring a National Approach for Child Protection. The national approach will facilitate the development of common frameworks, definitions and terminologies for child protection and prevention and early intervention.

In addition, as noted in the response to Recommendation 1 of this report, the Australian Government will convene a National Child Protection Summit. The National Summit will bring together child protection practitioners, researchers, and policy makers from all jurisdictions to identify a practical way forward in developing a national approach to child protection in Australia.

Recommendation 18

That the Commonwealth engage the Productivity Commission to undertake an evaluation of out-of-home care to better determine the real costs to the community of out-of-home care.

Response:

As the state and territory governments have primary responsibility for providing out-of-home care services, the Australian Government will consult with them on this proposal. The issue of an evaluation and review body would need to be considered as part of this consultation.

GOVERNMENT RESPONSE TO THE SENATE EMPLOYMENT, WORKPLACE RELATIONS AND EDUCATION REFERENCES COMMITTEE REPORT ON THE INQUIRY INTO THE OFFICE OF THE CHIEF SCIENTIST

INTRODUCTION

The Government welcomes the acknowledgement in the Senate Employment, Workplace Relations and Education References Committee Report that the inquiry “has not questioned Dr Batterham’s standing in Australia and overseas as a highly respected research scientist. Dr Batterham’s professional record is beyond reproach” (p xvi) and further, the finding that “The committee does not believe there is any evidence to demonstrate either a direct or indirect pecuniary conflict of interest, or a real conflict of interest arising from the Chief Scientist’s role in PMSEIC” (p 16).

RECOMMENDATIONS

Recommendation 1:

The committee recommends that the conflict of interest guidelines included in the Australian Public Service Code of Conduct should be reviewed to ensure that the broader conflict of interest concepts examined in this report can be addressed more transparently and rigorously.

The Government does not support this recommendation.

The Australian Public Service Code of Conduct, in subsection 13 of the Public Service Act 1999 (the PS Act), does not include guidelines. Rather, it sets out the obligation that APS employees have to disclose and take reasonable steps to avoid conflicts of interest. The relevant provision states that:

an APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment (subsection 13(7) of the PS Act).

APS Values and Code of Conduct in Practice: Guide to official conduct for APS employees and Agency Heads (http://www.apsc.gov.au/values/ conductguidelines.htm) was published in August 2004 and contains guidance on managing conflict of interest (specifically, Chapter 9). The guide lists a range of issues that agency procedures on managing conflicts of interest could cover, and makes clear that it is the Agency Head’s responsibility to determine what action should be taken where there is a conflict. It notes that, while avoiding a conflict is best, it is not always practical.

The guide is not prescriptive. As stated in the introduction, it is intended to be a guide not a rulebook. There will always be a need for judgement on what is reasonable in seeking to avoid conflicts of interest and deciding on the best approach is often not straightforward. Agency Heads are responsible for determining what action should be taken where there is a conflict of interest and need to tailor solutions to the specific circumstances.

Recommendation 2:

The committee recommends that in view of the responsibility and potential workload attached to the Office of the Chief Scientist, and in the light of the potential for conflict of interest associated in particular with a part-time Chief Scientist, the position of the Chief Scientist should be full time.

The Government does not support this recommendation.

The solution to the problem of any potential conflict of interest is effective management. There are a number of provisions in the Chief Scientist’s contract with the Australian Government to manage the potential for conflict of interest. The Chief Scientist is also required to comply with the rules of the various bodies of which he is a member.

The Government determines whether the appointment of the Chief Scientist should be full-time or part-time in light of the requirements of the position at the time of the appointment and the best arrangements for the chosen appointee from time to time.

Recommendation 3:

The committee recommends that guidelines, codes of conduct and procedures on dealing with potential and actual conflicts of interest, applying to holders of public office in the Australian Government, should be similar and consistent across all government agencies and bodies.

The Government supports the underlying objective of this recommendation.

There should be effective arrangements for dealing with conflict of interest for all holders of public office that are appropriate to each body or office. Consistent with the response to Recommendation 1, the Government considers that procedures should be tailored to the circumstances of each agency or body.

In relation to statutory authorities, the Government has endorsed the relevant recommendations of the report on the Review of the Corporate Governance of Statutory Authorities and Office Holders (the Uhrig Review), including that the Government “should clarify expectations of statutory authorities by Ministers issuing Statements of Expectations to statutory authorities; by statutory authorities responding with Statements of Intent for approval by Ministers; and by Ministers making public Statements of Expectations and Intent”. The Government has endorsed the recommendation that Statements of Expectations and Intent should “include those values central to the success of the authority, including those relating to its relationships with outsiders”. The Values and Code of Conduct for the APS should be seen as a useful starting point for the development of such statements.

Recommendation 4:

The committee recommends that the position of Chief Scientist should be appointed under public service conditions. In doing so, it also recognises the public education role of this position, and the possibility, given that science and scientific research is contestable, that the occupant of the position may express controversial views. The terms of the appointment should be such that the Office of the Chief Scientist will be subject to public accountability equivalent to that applying to other senior public servants.

The Government does not support the basis for this recommendation.

The contract between the former Chief Scientist and the Minister required the Chief Scientist to act in accordance with the APS Values and Code of Conduct contained in sections 10 and 13 of the PS Act. The former Chief Scientist, Dr Robin Batterham, gave evidence to, and answered questions at, the Committee’s public hearings. The Chief Scientist has been fully accountable to the Minister for Science for his actions. Appointment of the Chief Scientist under the PS Act may be appropriate in some circumstances and the Government may consider it as an option in the future.

SUPPLEMENTARY RECOMMENDATION—Senator Natasha Stott Despoja

That the position of the Chief Scientist is a statutory appointment and criteria for the appointment and the role of Chief Scientist are further developed in consultation with the science community.

The Government does not support this recommendation.

The Chief Scientist is appointed on the basis of knowledge, skills and experience. There has been no question about the relevance of the knowledge, skills and experience of any Chief Scientist appointed to date.

The Government sees no advantage in the appointment of the Chief Scientist on a statutory basis.

Review of administration and expenditure for ASIO, ASIS and DSD (Number 3)

Government Response

Recommendation 1

That the Government give consideration to alternative mechanisms to address the Committee’s concerns regarding separate financial statements by DSD which underpinned the Committee’s recommendations in the first review of administration and expenditure.

Government response:

This proposal has been considered but the conclusion is that it is not practical for DSD to provide a separate full set of audited financial statements. DSD is an administratively integrated component of the Defence portfolio. Australia’s defence capability is based upon the interdependencies of many component capabilities, including the intelligence capabilities of DSD. The Defence budget is managed to maintain the flexibility to direct, and redirect, resources to meet Government directions and maximise operational effectiveness.

DSD is not a separate Commonwealth entity. Unlike ASIO and ASIS which are statutory bodies, it is a part of the Department of Defence and, as a result, is unable to provide a complete set of separate financial statements to the Australian National Audit Office for audit, in accordance with the Finance Minister’s Orders made under the Financial Management and Accountability Act 1997. To meet the requirements of the Committee to review the administration and expenditure, however, DSD provided the Committee with a copy of its annual financial information for 2002-2003, and intends to do so for 2003-2004 and subsequent years. The financial information submitted to the Committee by DSD is an accurate depiction of the resources managed within DSD on behalf of Defence.

Recommendation 2

That the Government give further consideration to providing the Committee with the classified annual reports of ASIO, ASIS and DSD.

Government response:

The Government has reviewed the question of access by the Committee to the classified annual reports of the intelligence and security agencies. These reports contain very sensitive details on the agencies’ operational activities. Access to these classified reports would be inconsistent with the functions of the Committee as set out in s.29 of the Intelligence Services Act 2001. The Government recognises the Committee’s need for documentary material to assist in reviews of agencies’ administration and expenditure, and has agreed that extracts from annual reports covering administration and expenditure will, in future, be provided to the Committee. In the case of ASIO, such information is already provided in that organisation’s unclassified annual report tabled in parliament. It needs to be noted that classified briefings and information have been, and will continue to be, provided to the Committee on a case-by-case basis in relation to specific issues.

Recommendation 3a

The Committee recommends that appropriate legislation be enacted that would require the Auditor-General to provide the Committee with the annual audits of ASIO, ASIS and DSD and further, that that there be a requirement for the Auditor-General to provide any additional information that may be relevant to the Committee’s review of administration and expenditure.

Government Response

The Auditor-General undertakes financial statement audits of ASIO and ASIS under Section 11 of the Auditor-General Act 1997 (‘the Act’). DSD is not a prescribed agency and the financial operation of DSD is incorporated as part of the financial reporting of the Department of Defence. In undertaking the financial statement audit of the Department of Defence, the ANAO broadly considers DSD’s financial matters.

The Government notes that, in relation to the Committee’s review of administration and expenditure, the Auditor-General is already available, when required, to respond to parliamentary committee questions in relation to audit work ANAO has undertaken. In this context, the Committee is free to request, from the Auditor-General, details for the agencies’ annual audits as well as any additional information that may be relevant to its review of administration and expenditure, consistent with the provisions of Section 37 of the Act.

The Act specifies the type of information that the Auditor-General can provide in a public report or at a parliamentary committee meeting. Section 37 of the Act provides for the Auditor-General not to include particular information in a public report if:

• he is of the opinion that disclosure of the information would be contrary to the public interest; or
• the Attorney-General has issued a certificate to the Auditor-General stating that, in the opinion of the Attorney-General, disclosure would be contrary to the public interest for any one of a number of specified reasons.

Sub-section 37 (2) specifies that it would not be in the public interest to disclose information that ‘… would prejudice the security, defence or international relations of the Commonwealth’. The issue of providing information to parliamentary committees is similarly limited by sub-section 37 (3) of the Auditor-General Act. This provision states that if the Auditor-General is not able to include particular information in a public report because it would be contrary to public interest, then it cannot be required, and is not permitted to, disclose the information to, among other bodies, a joint committee of both Houses of Parliament.

In view of the above, the Government considers that legislative amendments along the lines proposed by the Committee are unnecessary because under the arrangements currently in place, the Committee is at liberty to request annual audits and any additional relevant information.

Recommendations 3b and 3c

The Committee recommends that, in consultation with ASIO, ASIS and DSD and with the Committee, the Auditor-General should develop a rolling program of performance audits. Such a program of performance audits should provide comprehensive coverage of agency administration.

In view of the special requirements relating to scrutiny of ASIO, ASIS and DSD by this Committee, the Committee further recommends that consideration be given to amendment of Section 10 of the Auditor-General’s Act to reflect the importance of the ANAO in assisting this Committee to discharge its responsibility to review the expenditure and administration of ASIO, ASIS and DSD through an on-going program of performance audits.

Government response:

These two recommendations are inter-related. With regard to recommendation 3b, the Auditor-General selects audits for inclusion in the performance audit work program having regard to the audit principles of the Parliament, as required by Section 10 of the Act, and the key risks and challenges facing the Commonwealth public sector, within the context of the resources available to the ANAO. The audit work program is also developed on the basis of materiality and sensitivity, which allows ANAO resources to be allocated to priority topics. The Government considers that a rolling program, on a standing basis, of audits of ASIS, ASIO and DSD is likely to undesirably constrain the flexibility of ANAO’s audit program.

In developing its performance audit work program for the subsequent financial year (recommendation 3a), the ANAO is required by legislation to consult with the Joint Committee of Public Accounts and Audit (JCPAA) which, in turn, consults with the other parliamentary committees for their views which the JCPAA takes into account in finalizing its guidance for this element of ANAO’s work program. The current process, consequentially, already provides a standing mechanism for all parliamentary committees to convey their priorities to the Auditor-General through the JCPAA. The Government believes that an amendment to the Audit Act as proposed is, accordingly, unnecessary and could disrupt the established and well-functioning mechanism for ANAO engagement with the Parliament, primarily through the JCPAA.

The issue of not disclosing information that would be contrary to the public interest, as discussed above in relation to recommendation 3a, also applies in relation to recommendation 3b and 3c.

Recommendation 3d

The Committee further recommends that appropriate legislative provision should be made to require the Auditor-General to provide the Committee with copies of classified performance audits in relation to ASIO, ASIS and DSD.

Government response:

Under the arrangements currently in place, which enable the Auditor-General, when required, to respond to parliamentary questions in relation to audit work the ANAO has undertaken, the Committee is at liberty to request copies of classified performance audits consistent with the provisions of Section 37 of the Auditor-General Act 1997. Accordingly, the Government does not consider that any legislative amendments, along the lines proposed, are required.

Recommendation 4

The Committee recommends that consideration be given, as appropriate, to greater liaison between the IGIS and the Commonwealth Ombudsman (and State Ombudsman), including the development of a memorandum of understanding or protocol governing possible joint reviews of combined ASIO/police operations.

Government response:

The Government is favourably disposed to settling an MOU between IGIS and the Ombudsman which would deal with the issue of abutting responsibilities. Such an MOU would be negotiated in the context of a planned amendment to section 16 of the IGIS Act, to enable the Inspector-General to consult formally with the Ombudsman.

Recommendation 5

The Committee recommends that the Government provide the Committee with a copy of the report on the outcomes of the ASIO polygraph trial as soon as it is completed.

Government response:

The Government expects to receive from ASIO, during 2005, a classified report on the outcomes of the polygraph trial. Favourable consideration will be given to the option of ASIO providing the Committee with a briefing on the outcome of the trial.

Recommendation 6

It is the view of the Committee that the Chair of the Committee or members nominated by the Chair should be invited by ASIO, ASIS and DSD to attend orientation sessions with new recruits thereby gaining a greater understanding of the orientation process and to provide opportunities for new recruits to be advised of the Committee’s role and responsibilities.

Government response:

The Government agrees that new recruits to the intelligence and security agencies be briefed on the Committee’s role and responsibilities through the participation of the Committee Chair or other members in AIC training sessions.

Recommendation 7

The Committee recommends that ASIS produce an unclassified version of its Code of Conduct and that this be tabled in Parliament by the Minister for Foreign Affairs, be sent out to all ASIS applicants, and be made publicly available on request.

Government response:

The Government does not agree that the ASIS Code of Conduct should be tabled in Parliament. The Code of Conduct is currently being reviewed with a view to an unclassified version being placed on the ASIS website for public access.

Recommendation 8

The Committee would like to encourage all intelligence agencies to undertake regular staff surveys and, if they are not already doing so, to make use of suggestion boxes that allow for anonymous feedback by staff. The Committee recommends that at each review of administration and expenditure, the results of staff surveys are made available to the Committee for examination.

Government response:

It is already standing policy in the intelligence and security agencies to conduct regular staff surveys. The Government agrees that the Committee be briefed on outcomes, relevant to its mandate, from these surveys during each review of administration and expenditure. Because of the operational sensitivity of some information, ti would not be appropriate to provide the survey results in full.

Recommendation 9

That a review be undertaken on the extent of public reporting across all the intelligence agencies overseen by the Committee.

Government response:

The need for a Committee-resourced review into public reporting and accountability is a matter for the Committee to determine. The Government would be prepared to have agencies contribute any details relevant to the Committee’s inquiry, subject to operationally-sensitive information not being disclosed.

REPORT OF THE PARLIAMENTARY JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND: EFFECTIVENESS OF THE NATIONAL NATIVE TITLE TRIBUNAL IN FULFILMENT OF THE COMMITTEE’S DUTIES PURSUANT TO SUBPARAGRAPH 206(d)(i) OF THE NATIVE TITLE ACT 1993

Government Response

The Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (the Committee) is required under subparagraph 206(d)(i) of the Native Title Act 1993 to inquire into and report to both Houses of the Parliament on the effectiveness of the National Native Title Tribunal (the Tribunal).

The Committee’s Report on its inquiry into the effectiveness of the National Native Title Tribunal was adopted unanimously by the Committee and was tabled in both Houses of Parliament on 4 December 2003.

The Australian Government welcomes the Report.

The Committee’s recommendations

The Committee’s Report makes nine recommendations, the majority of which relate to the manner in which the Tribunal and the Native Title Registrar carry out statutory functions under the Native Title Act. Accordingly, this response to the Report incorporates advice provided to the Government by the Tribunal and the Registrar in relation to those recommendations.

Recommendation 1

The Committee recommends that the Registrar or his delegate, in the written reasons for decisions taken in the registration tests include for unsuccessful applications, a brief plain English explanation as to the decision making process for the application.

The Government accepts this recommendation. The Native Title Registrar has advised that a plain English explanation as to the decision-making process is now being provided in the written reasons for applications that are unsuccessful under the registration test. This information is being provided in addition to all information currently provided to unsuccessful applicants. A similar explanation of the decision-making process is now being provided to applicants who are successful in having their native title claim registered as a result of the registration test.

Recommendation 2

The Committee recommends that the Registrar, in consultation with the Native Title Representative Bodies, should give consideration to notifying the native title parties of outcomes from the Tribunal.

The Native Title Registrar has considered this recommendation but notes that section 203BG of the Native Title Act places specific statutory obligations on Native Title Representative Bodies with respect to notification. These obligations would continue to exist as a matter of law, even if the Native Title Registrar were to assist. The Government is not presently minded to accept this recommendation.

Recommendation 3

The Committee recommends, that at the completion of the terms of the current members of the Tribunal, the Government gives consideration to the appointment of an increased number of indigenous members in accordance with the provisions of the Act.

 The Government notes this recommendation. The Government recognises the benefit of having indigenous people involved in the work of the National Native Title Tribunal and welcomes applications for Tribunal membership from indigenous people. However, the essential criterion for appointment to the Tribunal has been and should continue to be one of merit, having regard to the criteria for appointment in the Native Title Act.

In August 2004 Mr Robert Faulkner, an Anaiwon man from northern New South Wales, was appointed as a part-time member of the Tribunal. His term will not expire until August 2009. Dr Gaye Sculthorpe, also an Indigenous member, was appointed to the Tribunal in February 2000. Originally a part-time member, Dr Sculthorpe was appointed as a full-time member on 2 February 2004. Dr Sculthorpe’s term will not expire until February 2008.

Recommendation 4

The Committee recommends that ATSIS, to assist Native Title Representative Bodies to implement a performance based assessment scheme, consult with them to develop templates as models for their 2005-2006 (and out years) budget proposals and the management of work priorities.

The Government accepts this recommendation. On 1 July 2004 the ATSIS Native Title and Land Rights program was incorporated into the then newly created Office of Indigenous Policy Coordination (OIPC) within the Department of Immigration and Multicultural and Indigenous Affairs. OIPC advises that it has consulted with Native Title Representative Bodies and developed the relevant template.

Recommendation 5

The Committee recommends that the National Native Title Tribunal continue to explore partnerships to develop programs aimed at capacity building within organisations involved in the native title process.

The Government notes this recommendation and the importance of the Tribunal achieving its core statutory functions. Capacity building is not a role solely for the Tribunal. For example, OIPC runs a capacity building program for Native Title Representative Bodies. Capacity building programs involving the National Native Title Tribunal must be complementary to the work of OIPC and other organisations to ensure the greatest benefit for the native title system. The Tribunal has advised that, consistent with its statutory functions, it will continue to look for partnership opportunities to develop capacity-building programs within organisations involved in the native title process. Those capacity-building programs will be linked closely to assisting parties and their representatives to take an effective part in processes involving the Tribunal.

Recommendation 6

The Committee recommends that a further inquiry be conducted into the work demands and funding needs of Native Title Representative Bodies.

The Government notes that the Committee has initiated an inquiry into the capacity of Native Title Representative bodies to discharge their responsibilities under the Native Title Act. The Government looks forward to the Committee’s report from the inquiry.

Recommendation 7

The Committee recommends that within the next 12 months and on both a national and state/territory basis, the National Native Title Tribunal should develop a broad framework for setting priorities that includes consultation with each of the “stakeholders”.

The Government notes this recommendation. The Government supports the Committee’s wish to see the development for broad frameworks for setting priorities in dealing with native title matters and notes that the Federal Court has the primary role in the management of applications and the setting of priorities with respect to cases. The Tribunal has advised that it participates in forums in every State and Territory where it discusses priority setting with the Federal Court and principal parties to the proceedings. The Tribunal will continue to take part in, or initiate, these discussions.

Recommendation 8

The Committee recommends that the National Native Title Tribunal should, within the time limits set by the Native Title Act 1993, seek to reduce the time lines associated with the registration of Indigenous Land Use Agreements.

The Government accepts this recommendation. The Tribunal advises that it is seeking to improve its performance standards for registration of Indigenous Land Use Agreements (ILUAs). The Tribunal is considering a proposal to revise its current performance indicator from 70 to 90 per cent of ILUA applications registered within six months of lodgement (including the three month notification period) where no objection or bar to registration is lodged.

Recommendation 9

The Committee recommends that the National Native Title Tribunal amend the guidelines on acceptance of expedited procedure objection applications to include a provision that a registered native title party wishing to lodge an objection may discuss, within the time limits set by the Native Title Act 1993, issues related to compliance with the appropriate tribunal member.

The Government accepts this recommendation. The Tribunal advises that it is already common practice for registered native title parties to discuss objections and requirements for acceptance with the Tribunal. For example, when an objection is lodged before the closing date and is not in a suitable form to be accepted, then the Tribunal contacts the objector to point out the defects and to provide an opportunity for rectification. The Tribunal has accepted the Committee’s recommendation and amended its guidelines to reflect the current practice that discussions may be held with a Tribunal member.

NINETEENTH REPORT OF THE PARLIAMENTARY JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND: SECOND INTERIM REPORT FOR THE SECTION 206(d) INQUIRY: INDIGENOUS LAND USE AGREEMENTS

Government Response

The Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (the Committee) is required under paragraph 206(d) of the Native Title Act 1993 (the NTA) to inquire into and report to both Houses of the Parliament on a range of issues related to the workings of the native title system, including the operation of the NTA on land management.

The Committee indicated in its fifteenth report that it would inquire into the operation and effectiveness of the Indigenous Land Use Agreement (ILUA) provisions of the NTA (as amended by the Native Title Amendment Act 1998 (the 1998 amendments)), in carrying out its duty to report on the effect of the operation of the NTA on land management. The Committee’s Nineteenth Report, Indigenous Land Use Agreements (the Report), was adopted unanimously by the Committee and tabled in both Houses of the Parliament on 26 September 2001.

The Australian Government welcomes the Report, and notes with appreciation the valuable contribution made by the Committee in its analysis of the ILUA provisions in the NTA. The Report provides a wide-ranging consideration of the rationale, structure and function of those provisions and the experiences of parties to date in negotiating such agreements.

The Committee’s conclusions

The principle that agreements provide the most effective way of achieving lasting outcomes is of central importance to the NTA. This consensus-based approach was manifest in the processes for the recognition and future protection of native title established by the NTA as originally enacted and carried on in the amendments made to the NTA in 1998, most of which came into effect on 30 September 1998.

Prior to the 1998 amendments there was general consensus among government, Indigenous groups and other land users on the need to improve the agreement provisions in section 21 of the original Act to provide more flexibility and certainty in agreement-making. The ILUA provisions were included in the 1998 amendments to address these objectives.

The Report recognises the inadequacy of the provisions in the original Act and the support for the new ILUA provisions. After examining evidence of the first three years of experience with the new regime, the Committee concludes with a strong endorsement of the ILUA system:

The ILUA system was developed after broad consultation and enjoyed widespread support at the time of its introduction in September 1998. ILUAs were seen to offer a practical, quicker and more cost-effective means of resolving competing land uses in the native title context at a local level. About three years of experience have demonstrated that ILUAs have the capacity to live up to their promise, with a number of agreements now registered, and many more in the process.1

The Government welcomes this conclusion. It also notes the Committee’s specific findings, notably that ILUAs2:

• offer greater certainty to all parties
• are cost-effective
• engage stakeholders in a positive dialogue, laying a positive groundwork for future relationships between all relevant groups3
• offer the potential to address numerous practical issues that litigation cannot resolve, such as the provision of jobs, improved infrastructure or better services, and
• allow local communities to develop their own solutions, thereby acting to strengthen local communities in the process.

These conclusions are complemented by other positive findings within the main body of the Report. For instance, the Committee considers concerns about the provisions in the NTA for the registration of ILUAs. On examination of the evidence, it finds that:

The Committee is of the view that the registration provisions for ILUAs contained within the NTA provide a fair and workable balance between the needs of parties to complete commercial transactions, and the need to ensure Indigenous interests have been adequately secured; this is the case, given that, upon registration, an ILUA binds all native title holders in relation to the area the subject of the agreement.4

Similarly, on the mechanism for deregistration in the NTA, the Report concludes:

Given that successive native title parties are bound by the terms of an ILUA about which they potentially had no say, the Committee is of the view that the process of deregistration in the NTA provides a fair balance between the interests of non-native title parties and native title parties.5

The Government endorses these findings.

Since the Committee finalised the Report, the ILUA regime has continued to mature. As at 10 October 2005 there were 215 registered ILUAs with a further 21 having been lodged or in the notification and registration process. This compares with the 26 registered agreements and 13 in the notification or lodgement stages reported by the Committee as at 20 July 20016. Such figures reflect the growing support which the ILUA process enjoys from those involved in native title negotiations, offering an effective way of achieving lasting outcomes through agreement.

The Committee’s recommendations

The Report depicts an emerging and maturing system that is ‘able to deliver consensual, certain and flexible outcomes for parties’7. Consequently, the Committee’s recommendations reflect problems of a technical rather than substantive nature. It is notable that, apart from resourcing concerns, the recommendations touch less upon actual problems experienced with the operation of the ILUA regime than hypothetical problems that could arise in the future.

It should also be noted that several of the areas of concern highlighted in the Report, such as the Guidelines for the Provision of Financial Assistance by the Attorney-General in Native Title Cases and the effectiveness of Prescribed Bodies Corporate are being further explored in the Government’s recently announced package of reforms to the native title system.

The response deals with the Report’s eight recommendations under three headings: ILUAs as contracts; funding issues; and the National Native Title Tribunal (NNTT).

1.   ILUAs as Contracts

The Committee examined the interaction of contract law principles and the statutory regime for ILUAs under the NTA, identifying areas in which it considered there to be need for statutory clarification. The focus of this examination was on the registration and deregistration provisions contained in Division 3 of Part 2 and Part 8A of the NTA.

The Government is mindful of the need to monitor the operation of the relatively new ILUA provisions and the way they interact with the general law. The Committee’s Report and recommendations will assist in providing direction for this process.

The policy objectives underlying the ILUA amendments

The ILUA provisions must be viewed in the context of the shortcomings that they were designed to address. As noted in the Attorney-General’s Department’s submission to the Committee, section 21 of the original Act could not guarantee the validity of acts authorised by an agreement. Furthermore, as section 21 agreements were subject to the ordinary principles of privity in contract law, it was not possible to guarantee that all native title holders would be bound by an agreement.

The ILUA provisions of the 1998 amendments that addressed these shortcomings were informed by the four policy objectives of providing certainty, flexibility, fairness and transparency. The provisions relating to negotiation, notification, registration and deregistration were designed specifically to provide an appropriate balance between these objectives.

Principles reflected in the negotiation, notification and registration of ILUAs

Certainty is achieved by prescribing specific legal outcomes from the act of registration of an ILUA. Notably, the NTA provides that a future act done under an ILUA while it is registered is valid, and that a registered agreement is binding on all native title holders, whether or not they are parties to the agreement8. The parties to the ILUA are therefore able to carry out activities to which they agreed in the knowledge that the validity of the act is guaranteed by the registration of the agreement.

Added certainty is provided by ensuring that the validity of a future act carried out under a registered ILUA will not be affected by later deregistration, whatever the ground or reason. For instance, any licence or permit granted pursuant to a registered ILUA will not be invalidated if the ILUA is subsequently removed from the register through the operation of section 199C. Nor will the validity of the future act be affected by the contract being rescinded or terminated at general law. This interpretation of the operation of the provisions reflects Parliament’s intentions9, and is accepted by the Committee as the ‘most likely’ outcome10.

The certainty that registration provides is balanced by provisions ensuring fairness to all parties. In particular, fairness to native title holders is an important underlying objective in the NTA, given the beneficial nature of the legislation. As upon registration an ILUA binds all native title holders in the relevant area, the ILUA provisions are designed to ensure that every opportunity is made available to native title holders to participate in its negotiation.

The negotiation and registration procedures were specifically designed to reduce potential inequalities in negotiating power between parties. For instance, the NTA provides that the Native Title Representative Body (NTRB) for an area may be a party to the ILUA or, if not, must at least be notified of the native title parties’ intention to enter into the agreement, thus affording an opportunity for the NTRB to offer advice and support11. All parties to an agreement must indicate expressly that they agree to the registration of the agreement and thus to the consequences that will flow from registration12. Public notification of the application is required to register an agreement. Those who hold or may hold native title in the relevant area have rights to object or to take other steps to oppose the registration of the agreement13. These procedures secure transparency of the agreement and provide protection against any exploitation or perception of exploitation14.

Principles reflected in the deregistration provisions

The deregistration process is similarly designed to provide an appropriate balance between certainty and fairness. For example, an ILUA may be deregistered if a determination of native title in the relevant area identifies as native title holders persons who have not authorised the agreement15. This provides an added incentive to negotiating parties to ensure that all native title holders and claimants authorise the agreement.

Further protection is provided by the provision for deregistration of an agreement where a party has been induced to it through fraud, duress or undue influence16. It is notable that these provisions apply whether or not such conduct was engaged in by a party to the agreement. Certainty is provided by ensuring that any future act performed under a registered ILUA will be valid. The NTA also provides that the ‘non-extinguishment principle’ applies to such acts, unless native title is expressly surrendered in the agreement17.

The registration, notification and deregistration provisions therefore protect against potential abuses, ensuring equality and fairness while providing certainty and security for actions done under a registered agreement. Further protection is provided by preserving parties’ ability to avail themselves of appropriate remedies under common law and equity including damages, injunctions and specific performance18.

These policy considerations are relevant to the Government’s response to the Committee’s specific recommendations set out below.

Recommendation 1

That, firstly, section 24EA be amended to clarify the circumstances and matters of fact regarding defects that do not of themselves affect the contract status of an ILUA; that secondly, the section be amended to clearly outline the grounds for and means by which a party can seek termination of the registration of an ILUA.

The Government understands the first part of the recommendation to refer to the Committee’s concerns about the extent to which registration cures common law defects, and the retention of contractual remedies19. In relation to the second part of the recommendation, the Government notes that registration is not ‘terminated’ under the NTA, and removal from the Register is dealt with in section 199C rather than section 24EA. The second part of the recommendation is therefore addressed in the discussion of the operation of section 199C below.

Section 24EA: a deemed contract and the operation of the general law

Section 24EA provides that a registered ILUA has effect as if it were a contract among the parties to the agreement, regardless of whether it would have operated independently as a contract under the general law. It provides certainty in relation to the validity of acts undertaken pursuant to a registered agreement, as discussed above. Fairness in the formation of the agreement is provided by the negotiation, notification and registration procedures, and complemented by the removal provisions in section 199C as well as the retention of applicable general law remedies by subsection 24EA(1).

The balance achieved by sections 24EA and 199C

The Government considers that any amendment qualifying the operation of section 24EA by reference to general law concepts of estoppel, misrepresentation, mistake or unconscionability could undermine the careful balance between certainty and fairness achieved by the 1998 amendments.

Firstly, the Government considers that the existing legislation has sufficient safeguards to protect against the registration of an agreement that has been concluded unfairly. For instance, an agreement that is the subject of dispute between the parties at time of registration will not meet the requirement of consensus for registration. Furthermore, the NTA requires that all parties agree to an ILUA being lodged for registration20. The certification and authorisation procedures further protect against such an eventuality. Consequently, the Government is not satisfied that an amendment to provide the Registrar with the authority to determine whether an agreement is affected by a general law defect before registration is necessary.

Secondly, the ILUA system is also carefully designed so that at registration there will be specific and certain legal outcomes on which all parties can rely. The requisite certainty is primarily provided by the operation of sections 24EA (discussed above) and 24EBA (which provides for the validity of future acts agreed to by parties on a registered ILUA). Without this legal certainty, the ILUA regime would be less effective and less utilised. If the legal concepts of estoppel etc were introduced into the provision they would potentially undermine the statutory effect of registration and the certainty that it provides, creating confusion rather than clarity or fairness, and threatening the viability of the ILUA regime.

Finally, it is unclear how an amendment to section 24EA that restricted the contractual operation of an ILUA affected by particular defects at general law would operate in relation to the ILUA removal provisions in section 199C.

In light of the hypothetical nature of the concerns of the Committee, and the risk which amendments pose to the careful balance struck in the 1998 amendments, the Government does not consider it necessary or appropriate to amend section 24EA at this time. However, the Government will continue to monitor the operation of these provisions.

Recommendation 2

That section 199C be amended to broaden the grounds which the Federal Court may consider in ordering the Registrar to remove an ILUA from the Register.

The Committee notes that where an agreement no longer has effect as a contract at common law, it may nonetheless remain on the Register until deregistered under the NTA. It suggests that a party may therefore find itself in the situation where it has the option available to rescind or terminate a contract, yet is unable to have the ILUA deregistered because of the limited circumstances in which the Federal Court can order the Registrar to deregister an ILUA under section 199C. The Committee consequently recommends that the Federal Court be given the power to order the removal of an ILUA from the Register where a contract has lost contractual effect through operation of the common law, for whatever reason21.

The availability of certain remedies at common law

As noted above, in providing that the agreement will have effect as a contract among the parties, in addition to any effect that it may have apart from registration, the ILUA provisions do not displace remedies that may be available for contracting parties under the general law. Consequently, parties may be able to continue to avail themselves of certain general law remedies while an ILUA is registered, notably for damages and specific performance. Importantly, in appropriate cases an injunction will also be available to enforce rights obtained under a contract and those conferred by a statute such as subsection 24EA(1)22.

Furthermore, upon deregistration (or if an agreement fails registration) an agreement may continue to have contractual effect under the general law. This is reflected in the words of section 199C: on removal from the Register ‘the agreement will cease to have effect under this Act’ (emphasis added). These words leave open the possibility that a contract may continue to exist at common law and be the source of enforceable rights and obligations. The agreement will not, however, continue to bind all native title holders in the area who had not authorised the agreement or successive native title parties. Nor will the agreement ensure the validity of future acts not yet performed that would have relied on registration for validity.

Expanding the grounds

Subsection 199C(3) restricts to fraud, duress and undue influence the grounds upon which the Court can order the removal of an ILUA from the register. Again, providing limited grounds reflects the need to create certainty on registration.

However, the NTA also allows considerable flexibility to parties in negotiating terms of an agreement. It is therefore open to parties to broaden the scope for deregistering an ILUA within the terms of the agreement itself, relying on the provisions of paragraph 199C(1)(c). For instance, parties could agree that where an agreement is terminated or rescinded, it will be taken to have ‘expired’ for the purposes of subparagraph 199C(1)(c)(i), thereby mandating its removal by the Registrar.

The Government considers that section 199C provides the requisite balance between certainty and fairness envisaged when the ILUA provisions were introduced, while allowing parties the flexibility to look after their own interests. The experience of parties so far reflects general satisfaction with the operation of these provisions and in the absence of evidence that problems have arisen, it would seem premature to make any changes. However, the Government will continue to monitor the operation of these provisions.

2.   Funding issues

Several of the Report’s recommendations relate to the funding of the native title system. Specifically, Recommendation 3 concerns assistance for non-native title parties, Recommendation 4 concerns financial resources for native title representative bodies, and Recommendation 8 concerns funding for prescribed bodies corporate. The Government considers it appropriate to address these three recommendations together.

Funding and the interdependence of constituent parts of the native title system

A comprehensive evaluation of native title workloads undertaken in the second half of 2000 found that the component parts of the native title system are mutually interdependent, so that a matter which impacts on the work of any one element has implications for the effective operation of the whole system. The inter-relationship between the various elements of the system means that the funding and priorities for each element of the system must be correlated to other elements. The need for an integrated approach to resourcing militates against any approach that looks exclusively at one element of the native title system.

The Government keeps the funding of the native title system as a whole under regular review. As a result of the 2000 review, the Government committed an additional $86 million to native title over four years in the 2001-02 Budget. A further review of native title system funding in 2004 resulted in the commitment of an additional $72.9 million to the system over four years in the 2005-06 Budget.

The inter-relationship of the various elements in the system has also led to the development of a number of ongoing formal consultative mechanisms to consider issues of common interest including resourcing. This consultation is primarily conducted by the Native Title Coordination Committee and the Native Title Consultative Forum.

The Native Title Coordination Committee is the mechanism by which Australian Government agencies with native title responsibilities keep each other informed about native title developments and improvements to services to participants in the native title system. The Native Title Consultative Forum (previously the Native Title (Legal Aid) Consultative Committee), was established in 1998 with a focus on legal aid issues but developed into a broader forum that looks at native title issues generally with representatives of industry peak bodies, local government and Australian Government agencies. In line with its broader focus, representation at the Forum has been expanded to include the Human Rights and Equal Opportunity Commission, State and Territory governments, and a number of Native Title Representative Bodies in order to better facilitate communication between key stakeholders in the system.

Recommendation 3

That the Attorney-General’s Department review the Guidelines for the Provision of Financial Assistance by the Attorney-General in Native Title Cases to ensure non-native title parties are receiving adequate assistance to facilitate their participation in the negotiation of ILUAs.

The Committee’s third recommendation relates to the funding of non-native title parties and specifically recommends a review of the Attorney-General’s Department’s Guidelines for the Provision of Financial Assistance by the Attorney-General in Native Title Cases (the Guidelines). Evidence before the Committee suggested that funding available through the Department had enabled local councils to participate in the negotiation of ILUAs, but failed to meet all of the associated costs.

The Guidelines

Financial assistance for some of the costs arising in relation to ILUAs is available to non-native title parties through the financial assistance scheme administered by the Attorney-General’s Department23. To assist with the provision of financial assistance, the Attorney-General approved Guidelines in November 1998 in accordance with subsection 183(4) of the NTA. The Guidelines regulate the way in which assistance is granted.

Under the Guidelines, assistance is available for legal costs and fees for relevant experts such as anthropologists and native title consultants, as well as for travel and other reasonable expenses associated with the ILUA negotiations24.

The concerns of the Committee regarding funding under the Guidelines appear to stem primarily from technical and financial resourcing problems experienced by two local councils that made submissions to the Committee25. These particular issues have now been resolved by clarifying the level of assistance available under the Guidelines.

Additionally, on 7 September 2005 the Attorney-General announced a package of reforms to the native title system, including reform of the native title non-claimants (respondents) financial assistance program to encourage agreement making rather than litigation.

Additional monies in recent budgets

The 2001-02 Budget made available additional monies to respondents and potential respondents to native title claims and to non-claimant parties to ILUAs under the section 183 financial assistance arrangements.

Recommendation 4

That more financial resources should be made available to native title representative bodies for the negotiation of ILUAs.

The Committee received submissions that inadequate funding of Native Title Representative Bodies (NTRBs) is hindering the process towards resolving native title issues. The resolution of this issue was considered by the Committee to be a prerequisite to ensuring the ILUA provisions fulfil their potential26. The Report therefore recommends an increase of funding to NTRBs for the negotiation of ILUAs.

Increased funding and capacity building

The Government recognises the central role played by the NTRBs in the native title system, and the consequent importance of ensuring that they are properly equipped to manage funds provided to them and to fulfil their functions under the NTA. It also notes the evidence gathered by the Committee indicating that resourcing strains on NTRBs has affected their capacity to participate in ILUA negotiations. On 7 September 2005 the Attorney-General announced that the Government is reviewing arrangements for assistance to native title claimants through NTRBs, with the a view to improving the performance of NTRBs.

The Report identifies three key factors that have contributed to resourcing pressures on NTRBs: the processes of re-recognition of NTRBs; the re-registration of native title determination applications; and the litigation of initial test cases in the Federal and High Courts27. The Government notes that there are other significant factors that may contribute to the capacity of NTRBs to participate in ILUA negotiations such as a shortage of professionally qualified people with the necessary expertise to assist NTRBs with their caseload.

Adequate resourcing of NTRBs was considered to warrant particular attention after the 1998 amendments to the NTA expanded their statutory functions. These considerations informed the Government’s decision in the 2001-02 Budget to direct $17.4 million of the additional $86 million committed to the native title system over four years for the development of the NTRB capacity building program and the strategic priority claims resolution program. A further $15.7 million was committed over four years to these programs as part of the additional $72.9 million dedicated committed to the system over four years in the 2005-06 Budget. The additional funds are being used to assist NTRBs to increase the overall efficiency ofNTRBs with a view to improving the performance of their functions under the NTA. The additional funds are also intended to be used to target the resourcing to final determination by the courts of nationally significant native title applications that were unlikely to be resolved through mediation and negotiation, and which would be of significant value in establishing precedents. The Government notes that the Committee is currently inquiring into the capacity of NTRBs to discharge their responsibilities under the NTA.

As with all resourcing issues in the native title system, the Government recognises that monitoring of the funding of NTRBs is important, particularly during this change of focus within the system. Following the 1998 amendments, the Government continues to monitor the adequacy of NTRB funding and is considering the findings and recommendations of a number of reviews into the efficiency and effectiveness of NTRBs. Feedback from the ‘capacity building’ program will also provide valuable information regarding resourcing of NTRBs generally.

As a result of the recommendations of the October 2002 Review of the Native Title Representative Body System (Miller Review), which was commissioned by the Aboriginal and Torres Strait Islander Commission at the request of the then Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs, better performance data will be provided by NTRBs, which in turn will allow the Government to make more informed decisions about the allocation of funding between individual NTRBs. Over the next two to three years the performance data provided by NTRBs, in accordance with Miller’s recommendations, should provide the Government with a more comprehensive basis from which to analyse the mix (and priority) of factors affecting NTRB performance, including the role that funding plays in that mix. The performance data and other information will be able to be used by the Government in evaluating future needs for NTRBs.

NTRBs are required to provide output/outcomes based operational plans in support of their 2004-05 funding submissions.

NTRBs are now represented in the Native Title Consultative Forum, providing them with an opportunity to liaise directly with the agencies that make up the Native Title Coordination Committee.

Recommendation 8

That prescribed bodies corporate receive adequate funding to perform their statutory functions and that they receive appropriate training to meet their statutory duties. This training to include directors’ duties, accounting procedures and land management.

The Report notes the burden on Prescribed Bodies Corporate (PBCs) arising from their involvement in negotiating and implementing ILUAs and recommends adequate funding and training to meet their statutory obligations.

The NTA reflects the principle that, once there is a determination of native title, all dealings with the common law native title holders in relation to their native title interests will be conducted through an incorporated body. As more determinations of native title are made under the NTA, PBCs are likely to become increasingly important in negotiating ILUAs on behalf of native title holders and responding to the obligations placed on native title holders under agreements.

In this context, the Government recognises the importance of monitoring the situation of PBCs in order to facilitate the effective operation of the native title system as a whole. The Government has an ongoing interest in ensuring the effectiveness of PBCs and recognises that the PBC process is still at an early stage in its development. Accordingly, on 7 September 2005 the Attorney-General announced that the Government will be undertaking an examination of current structures and processes of Prescribed Bodies Corporate (PBCs), including targeted consultation with relevant stakeholders.

However, the Government considers that it is not solely responsible for funding PBCs. The States and Territories have primary responsibility for the day-to-day management of land, and it is usually the States and Territories, and proponents of activity, that benefit from land development. It is therefore appropriate that the States and Territories, and proponents of activity, contribute to the costs of that development, including contributing to the costs of PBCs with whom they negotiate about those developments.

3.   The National Native Title Tribunal

Recommendations 5, 6 and 7 concern the role, function and powers of the National Native Title Tribunal (NNTT).

Recommendation 5

That the Native Title (Notices) Determination 1998 be amended to require the Tribunal, where possible, to notify the Indigenous community about the proposed registration of an ILUA by way of advertisement on local Indigenous radio or television programs. This would be in addition to the current requirement that the Tribunal advertise in relevant newspapers.

Clause 6 of the Native Title (Notices) Determination 1998 (the Notices Determination), which governs the notification of registration of an ILUA, requires that a notice be published in one or more newspapers that circulate generally throughout the area to which the notice relates, and in a relevant special-interest publication. The Report notes concerns that such an approach to notification is based upon the twofold assumption that all Indigenous communities have access to newspapers, and that they read English.

The Committee concludes that it would be desirable for the NNTT to use electronic media as well as newspapers when notifying the public about an application for the registration of an ILUA. In particular, the Report recommends that the NNTT be required to notify Indigenous communities about the proposed registration of an ILUA through advertisements on local Indigenous radio or television programs, where possible28.

Government consideration of the operation of the Notices Determination

The Government is considering whether the Notices Determination should be amended in light of the Committee’s recommendation and discussion of the notification procedures in decisions by the Federal Court and the NNTT29.

In considering any amendments, the Government will take into account the need to ensure that those potentially affected by an act are in fact notified, and the additional cost that may be involved in giving notice on local Indigenous radio and television.

Recommendation 6

That the NTA be amended to grant to the Tribunal powers to assist with dispute resolution (following registration of an ILUA) in circumstances where relevant parties to the ILUA request it.

The Report notes that the NTA makes no provision for the NNTT to assist the parties to reach agreement when a dispute arises following registration of an ILUA. It recommends that the NTA be amended to grant to the NNTT powers to assist with dispute resolution post-registration in circumstances where relevant parties to the ILUA request it.

The express functions of the NNTT under its enabling legislation do not include the function of assisting parties in the resolution of disputes arising under ILUAs. As the Attorney-General’s Department noted in its submissions, parties would be wise to consider the inclusion of mediation and/or arbitration clauses in the agreement, and should make provision in the agreement for how the costs of mediation and arbitration processes will be met.

However, the Government is considering the Committee’s suggestion in the context of the recently announced independent review of the claims resolution processes, which will consider how the NNTT and the Federal Court can work more effectively in managing and resolving native title claims. Such a role would complement the NNTT’s existing mediatory powers, and would be appropriate in light of the expertise and experience that the NNTT possesses in relation to the areas where it does have mediation powers under the NTA.

Recommendation 7

That the NTA be amended to include a provision that shows how an amendment can be made to a registered ILUA.

The Committee notes that the NTA does not state how an ILUA can be amended and that this creates a lack of clarity for parties wanting to review and amend a registered ILUA. The Report recommends that the NTA be amended to provide guidance about the way that an amendment to an ILUA would be handled, including the circumstances in which parties would be required to go back to the Registrar. The Committee suggests that there should be an obligation on parties to inform the Registrar when changes are made to the ILUA (unless particularly minor and typographical) and that major changes may require another notification and objection process, similar to that required for initial registration30.

The Government recognises that the NTA is silent on the subject of how registered ILUAs can be varied. Whilst the Government considers that the registration and deregistration provisions in the NTA provide certainty, flexibility and autonomy to parties who wish to vary agreements, it will consider the matter further in the context of the technical amendments to the NTA recently announced by the Attorney-General.

The registration of varied agreements

As noted above in relation to recommendations 1 and 2, an ILUA is also an agreement at general law. Consistent with common law rules, the arrangements established by an ILUA may be varied by an agreement between the parties embodied in a new agreement.

In deciding whether to register any agreement, including where the sole objective of the agreement is to vary a previous ILUA, parties would consider the purpose and statutory effect of registration. Where parties intend to rely upon the benefits in relation to certainty provided by a registered ILUA, then the agreement would need to be registered.

The main purpose, and the statutory effect, of registering an ILUA is to bind native title holders who are not parties to the agreement, and to ensure the validity of future acts consented to under the agreement31. Consequently, any agreement that seeks to ensure the validity of an act that ‘affects’ native title or which seeks to bind native title holders who are not parties to the agreement, must be registered as an ILUA in order to attract these protections. Where parties to an agreement do not need the agreement to bind non-parties, or where the agreement does not involve additional consent to the doing of a future act, registration is arguably not necessary.

The Government considers that the NTA currently allows parties the flexibility to amend parts of the ILUA without imposing further procedural requirements. The question of whether to register a new agreement or not is therefore a matter for the parties to decide. Parties can, of course, draft clauses in their agreements that allow for reviews and variations. Such clauses merely provide a process for the creation of a new agreement. The Government will however keep the issue under review.

   1       Report, paragraph 8.8.

   2       These findings are derived from the Report, paragraphs 8.17-8.22.

   3       Report, paragraphs 8.10-8.16.

   4       Report, paragraph 7.70.

   5       Report, paragraph 7.39.

   6       Report, paragraph 4.1, National Figures as at 20 July 2001, citing submission from the NNTT.

   7       Report, paragraph 8.46.

   8       See subsections 24EB(1) and (2).

   9       The Explanatory Memorandum explains at pp 242-243 that “future acts which have already taken place under the agreement will remain valid.”

   10     Report, paragraphs 3.36-3.45.

   11     See subsections 24BD(3) and (4), 24CD(2) and (3), (4) and (7), and 24DE(2).

   12     See subsections 24BG(1), 24CG(1) and 24DH(1) and also the Native Title (Indigenous Land Use Agreement) Regulations 1999,regulations 6, 7 and 8.

   13     See section 24BH, subsection 24BI(2), sections 24CH, 24CI, 24CL, 24DI and 24DJ; and the Native Title (Notices) Determination 1998.

   14     Also relevant to ensuring fairness are the NTRB certification functions in paragraph 24CG(3)(a); see also paragraph and subsections 203BE(1)(b), (5) and (6); and the authorisation provisions such as paragraph 24CG(3)(b).

   15     See subparagraph 199C(1)(b).

   16     See subsections 199C(2) and (3).

   17     See subsection 24EB(3). The non-extinguishment principle is defined in section 238.

   18     This is discussed in more detail below.

   19     See Report, paragraphs 3.32 and 3.47.

   20     See subsections 24BG(1), 24CG(1) and 24DH(1) and also the Native Title (Indigenous Land Use Agreement) Regulations 1999.

   21     See Report paragraph 3.48, and the discussion from paragraphs 3.35-3.45.

   22     See Fejo v Northern Territory (1998) 195 CLR 96, 123 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, 139-140 per Kirby J.

   23     See subsection 183(2).

   24     Under paragraph 2.2 of the Guidelines, assistance is available to a person to negotiate an ILUA, or in relation to any inquiry, mediation or proceeding in relation to the agreement or to resolve a dispute about rights of access for traditional activities.

   25     See Report, paragraphs 6.31-6.32. This contrasts to the Australian Local Government Association submission, which makes no mention of the lack of financial assistance for local government, instead focusing on the ‘high level of ignorance and misunderstanding in the community about native title matters generally’ (see Submission No. 4).

   26     Report, paragraph 6.81.

   27     Report, paragraphs 6.16-6.20.

   28     It should be noted that clause 7 of the Native Title (Notices) Determination 1998 authorises radio and television broadcasting.

   29     Holt v Manzie [2001] FCA 627 (Olney J, 5 June 2001); Roy Dixon and Ors and the Northern Territory and Ors (Application No. DO00/1-DO00/7, National Native Title Tribunal, The Hon EM Franklyn QC, Perth, 23 April 2001).

   30     Report, paragraph 7.42.

   31     Paragraph 24EA(1)(b) and subsection 24EB(2).