ACCAN Informed Consent Project (21 August 2009)

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5.5. Indigenous consumers

In the Project Survey, caseworker organisations and regulators reported a low to moderate proportion of consent complaints regarding indigenous consumers (most organisations do collect data on indigenous consumers so this figure should be fairly accurate).

However, indigenous consumers have been the targets of some of the most notorious instances of exploitative sales in the communications sector, and despite the low to moderate proportion of complaints it is likely that instances of exploitation are high. Indigenous consumer may be under-represented in official complaints data as a result of barriers they face in accessing complaints services.

Some of the main consent issues with indigenous consumers are:

• Indigenous communities are often the specific target of scams and high-pressure sales – a sales team will even fly in to remote communities to promote a particular product;
• Indigenous communities often have their own language barriers and proficiency in English should not be assumed;
• Consent in indigenous communities is a slightly different concept to western communities and may require broader consent of the family (and even the community in some circumstances); and
• Indigenous community peer pressure is a known vulnerability, exploited by some sales teams.

There are emerging concepts of free and informed consent in indigenous communities around the world, to help free them from exploitation. Although these may not be relevant to the communications sector, this trend is indicative of the special measures being developed to protect indigenous communities from exploitation.

The concept of ‘free, prior and informed consent’ in relation to indigenous peoples generally refers to their ability for self-determination, particularly in relation to their lands, resources, culture and beliefs. It is unlikely that the principles discussed will cross over with concepts of consent in relation to contract making, or relate to relevant complaints made due to a lack of information at the time of giving consent. However, the term ‘free, prior and informed consent’ is used quite often, for instances where research into an indigenous community will take place.[24]

In one recent research paper, which contrasts Western notions of informed consent with those of Indigenous Australians, the authors note that significantly Western civilisation places importance on the notions of individual autonomy, while Indigenous cultures generally look to honouring the family and community.[25]

An example of this in practice is that for traditional Indigenous people 'informed consent' for medical procedures must come from the 'right' person within the network of kinship and community relationships, not necessarily solely the patient. The authors also note the requirement to ensure Aboriginal patients are fully informed in their own language about potential harms or benefits of the procedures offered.[26] Again, these health consent issues may not be entirely relevant to the communications sector.

In other sectors where indigenous communities have been exploited (notably financial services) the regulator has taken direct action rather than relying on improving consent. This has included complete prohibitions on some products being sold in Indigenous communities or restrictions on some specific company’s activities.

For example, the Australian Securities and Investments Commission (ASIC) has taken numerous actions to protect indigenous communities from insurance and credit sales teams. In one case they imposed licence conditions on one insurance broker capping their sales to 6 per day in any one Aboriginal community.

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[24] Desert Knowledge CRC, What is Free Prior Informed consent?, briefing paper 7, 2007, <http://www.desertknowledgecrc.com.au/socialscience/downloads/DKCRC-SS-BP7-Free-Prior-Informed-Consent.pdf>.

[25] P McGrath & E Philips, ‘Western Notions of Informed Consent and Indigenous Cultures: Australian Findings at the Interface’, Bioethical Inquiry, vol. 5, 2007, pp. 21–31, <http://www.springerlink.com/content/p6108ng20rm21452/fulltext.pdf>.

[26] Creative Spirits, Hospitals, doctors, health & Aboriginal people, date unknown, <http://www.creativespirits.info/aboriginalculture/health/aboriginal-hospitals-doctors-health.html>.

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