Saturday, 1 October 2016

A Ramble through the Indigenous Policy Maze

Indigenous affairs is in an interesting phase at the moment. There is much going on, but largely in the shadows. No one issue appears to be dominating public debate, much that is important, or which has significant implications for Indigenous citizens, either goes unreported, or rises to the surface in the media for a moment, before submerging into the shadowy depths. Of course, this has always been the case to an extent, but I am struck by the disjunction between the substantial and negative impact of the issues at community and regional levels and the low levels of ongoing attention which they receive in public discourse and by Governments. It is as if the community is viewing these issues through coke bottle lenses, the issues failing to gain focus and definition, leading to a rather diffuse public debate on Indigenous policy issues.
So I thought I might in my own rambling way, and in no particular order, survey some of the recent events which have caught my attention in the hope that by pulling them together we might gain some of the definition and clarity which continues to evade us.

In Western Australia, the current Government appears to have been preoccupied by internal machinations, and is unlikely to drive any new initiatives in Indigenous policy (as opposed to announce them) between now and next year’s election (to be held on 17 March 2017). There were recent reports of morale and other problems within the State’s Department of Aboriginal Affairs, an agency which does not appear to have much policy influence at present. The Remote Services team continues to work away developing its options for the future of remote communities, consulting on the ground, but providing little regular update reporting on progress. There have been recent riots in Kalgoorlie following the death of an Indigenous juvenile. There were suggestion in the media that he was knocked off a stolen motorbike by individuals who were seeking to reclaim it. A man has been charged with unlawful killing of the teenager. The issues of suicide in the Kimberley and elsewhere continue to be reported in the media; most recently academic studies confirming the extraordinary rate of remote Indigenous suicides in WA and  nationally.

In South Australia, the issues in the APY Lands have gone quiet, but the systemic reforms required to address the deep-seated issues there have not been advanced, which means that we are sure to see further issues arise. A Royal Commission into the SA Child Protection system made some 260 recommendations, around thirty of which related specifically to Indigenous matters. The SA Government response was positive, but we will need to revisit their implementation over coming months to be assured that progress is indeed being made. More recently, an Aboriginal man on remand died in custody in an incident involving five prison guards. An inquest or coronial inquiry will no doubt have more to say on this matter in due course.

In the Northern Territory, the demise of the Giles Government and the elevation of Michael Gunner to Chief Minister and Labor to government open up the potential for a significant change in the dynamics around Indigenous policy, both in the NT and to a lesser extent nationally. The Royal Commission into juvenile detention and the child protection system has begun hearings, and will inevitably receive intense national scrutiny once it is completed next year. Expectations within the Indigenous community that major reforms will be identified, recommended and implemented will be sky high.

Given the strong involvement of the Commonwealth in the NT, relations between the Territory and Federal Governments will be worth watching, especially while Senator Scullion, a Territory Senator sitting in the Nationals Party room in Canberra, remains Minister for Indigenous Affairs. Chief Minister Gunner recently met with the Prime Minster and they agreed to work together on a range of issues.

Disappointingly, one of the first policy announcements from the Gunner Government was their decision to appeal the Griffiths case on native title compensation. While there is a superficial logic in arguing that the issue ought to be determined at a higher level than a single Federal Court judge, there is in fact no compelling reason why the incoming government ought not to just accept the Mansfield decision and get on with life. I suspect that the new Government wasn’t confident enough to stand up to the innate conservatism and robust views on native title of the Government’s in-house lawyers.

In Queensland, not much has come to my attention recently, though the issues a few months back relating to community safety in Aurukun, and the Queensland Government’s pressure in response on the Cape York Academy (a response which outraged Noel Pearson) are no doubt simmering on the back burner.
In NSW, there have been recent reports that the Baird Government is considering shifting the Aboriginal Affairs agency from the Education portfolio to the Premiers portfolio, which would mirror the arrangements currently in place in Canberra. I have set out my views on the pros and cons of this previously.
The ACT, Victoria and Tasmania have kept a pretty low profile in Indigenous affairs in recent months. The Andrews Government has actively canvassed discussion of a treaty with Indigenous Victorians, an issue which feeds into the national debate on recognition.

Nationally, it has been clear that the Indigenous policy canoe has been taking water, and facing rough seas. The Prime Minister’s decision to establish a Royal Commission into the NT youth detention issues, while rushed, was in my view the correct decision, and an example of good policy being good politics. While I am sure there are a host of detailed administrative issues the Commission will identify and address, I am less sanguine about the prospects that the Royal Commission will adequately identify the systemic issues which have underpinned youth detention and child protection issues in the NT (and by implication nationally). I hope I am proved wrong.

The sleeper issue for the Commonwealth in my view is the roll out of the remote Community Development Program.  Upon his appointment, Minister Scullion moved to overhaul Labor’s Remote Jobs and Communities Program, which itself was only a year old, and still in its teething stage. His tough approach to requiring remote welfare recipients to work 25 hours a week more onerous than other Australian) is arguably both unfair, discriminatory, and most importantly, is just not working. Breach rates are skyrocketing, as young Indigenous ‘jobseekers’ (the inverted commas are used advisedly) vote with their feet. The result in macro terms is a substantial reduction in the flow of welfare payments into remote communities, and the effective expulsion (to use Saskia Sassen’s evocative term) of Indigenous citizens from the nation’s safety net. It seems almost inevitable that Labor and the Greens will combine to force a Senate Inquiry into this program at some point in the next two years. The results, when they are in, will not be pretty. The major flaw in the Government’s policy mindset is that financial incentives can work to force individuals in remote communities to jump through the myriad hoops designed to make work more attractive than welfare. The reality is that the incentives don’t work for a substantial cohort across remote communities. It is time for a radical rethink of these combined income support and employment programs, with a much stronger focus on Government job creation rather than on welfare conditionality as the lever to push remote Indigenous citizens into non-existent jobs.  

Two issues which Noel Pearson has been a leading proponent for (ably assisted by many others) are the Empowered Communities program and Constitutional Recognition. Both appear to have stalled. The Government can point to reams of process, consultations, and associated funding to Indigenous organisations in relation to both issues, but precious little outcomes. The implementation of the new cashless debit card in the East Kimberley is perhaps the most tangible sign of progress across the nation. The significance of the Empowered Communities program is that it is the only opportunity on the horizon for greater regional engagement between governments and Indigenous interests.

Constitutional recognition deserves a separate post. So I will be brief and make two points: first, it is consuming an enormous amount of policy oxygen with no guarantee of an outcome in the near future. The consequence of this is that the Indigenous leadership and indeed the capacity and interest of the wider community for tangible reform is being diverted from issues which are more tangible and of greater day to day significance. The second is that progress will not occur until governments decide on the scope of the proposed change. By consulting and not governing, governments are guaranteeing that nothing will emerge. Taken together, these points lead to an extremely pessimistic prognosis for constitutional change.

Indigenous interests are placed in an invidious position insofar as they know they will only get one shot at constitutional change, and don’t wish to waste it on a token effort; however any substantive change will face the considerable and arguably insurmountable obstacles of the referendum process given the polarised state of the debate on Indigenous affairs, and public affairs generally. The only way this impasse can be progressed in my view would be for a Prime Minister to work hand in glove with the Opposition to develop a proposal which finds middle ground, and then expend the effort to sell it to both Indigenous and conservative interests. The risks are considerable as extremists at both ends of the political spectrum will campaign to stop it. My sense is that such a multipartisan commitment is highly unlikely to emerge, and be sustained over the two or more years which would be required to see constitutional change occur.

Not coincidentally, we are seeing Indigenous interests shift much greater focus towards making the case for a treaty or treaties, which do not require referendums, but raise many if not more risks of political polarisation over the issue in the wider community, an outcome I consider is not desirable. It is worth recalling that John Howard went to the 2007 election promising to recognise Indigenous Australians in the Constitution within 100 days. Almost ten years on, are we any closer?

Other issues at the national level relate to the formal mechanism for advice to Government from Indigenous interests. There are two competing models in play at the moment. The Prime Minister’s Indigenous Advisory Council chaired by Warren Mundine is wholly appointed, and appears to have zero visible influence on policy directions. Mr Mundine writes regular op eds for the Australian and the Financial Review, but these are in his own name and generally argue the case for economic or commercial development as the solution to Indigenous policy woes. In the opposite corner sits the National Congress of Australia’s First Peoples, which has been teetering on the edge of the viability abyss after the Government cut its funding upon coming to Office. More recently, Congress has convened a broad group of Indigenous leaders and released the Redfern Statement, and the Government has responded somewhat more positively; Minister Scullion’s media release here; Congress release here. However, in my assessment, this is more likely a process of active management of a difficult stakeholder than a substantive change of heart by the Government. A change of Minister may lead to more positive developments in this policy space.

In the meantime, the media regularly reports the latest academic and medical research which in area after area demonstrates that Indigenous Australians are severely disadvantaged, and that gaps are not closing.
My own response to the random ramble set out above is twofold. First, there seems to be a lack of agreement on what a comprehensive Indigenous policy reform agenda would look like. Second, the policy complexity and interconnectedness involved (and which has only been hinted at above) suggests that only systemic change will make a difference over the medium to longer term. Systemic change is possible, but not easy or necessarily positive and effective. It can be driven by policymakers, or imposed upon them and the nation state by external events. The former is preferable to the latter.

A Proposal

In my view, it is time that the nation developed a high level institutional mechanism with overarching responsibility for monitoring and advising on systemic policy reform in relation to Indigenous affairs. Such an institution would be sui generis within our current system of government, and would need to have built into it the scope to evolve over time. The closest example of the type of institution I am suggesting is the Productivity Commission which has built up, over forty odd years, legitimacy and authority which provides the capacity to analyse difficult issues, and independently propose a pathway forward. As an aside, while the Productivity Commission has significant involvement in the Indigenous policy space, and has played a positive role in many issues, I do not believe that it has the necessary Indigenous specific expertise required to fulfil the role I am outlining below.

In the Indigenous policy domain, any such institution would need to have built in multipartisan support including in relation to appointments, be professional and apolitical, have a capacity and remit to focus on longer term strategy, have a guaranteed degree of transparency to constrain and minimise the interference of day to day politics, have access to expert advice from within and outside government, and have guaranteed access to Cabinet (perhaps through the use of what once were termed Cabinet Memorandums which were the views of agencies, not Ministers) and thus to have been delegated some real capacity to influence and drive policy change.


Following the last election, we now have at least five Indigenous members of Parliament. They will struggle to have more than a shallow and glancing impact on ameliorating Indigenous disadvantage. One way they might leave a lasting legacy would be to explore the ideas outlined ever so briefly here for a meta-institution to oversight systemic reform to Australia’s policies in relation to its first peoples.