Indigenous Representation within DFAT; what is the next frontier?

I serendipitously came across a recent blog post on the excellent Lowy Institute Blog The Interpreter highlighting the Department of Foreign Affairs and Trade (DFAT) experience with Indigenous recruitment. (Link here).

The post doesn’t mention it, but my (admittedly limited) experience in visiting Australian embassies and High Commissions overseas suggests that they do an excellent job in showcasing Indigenous art, a reflection of the reality that our Indigenous heritage and cultures are one of the unique differentiators which assist us to stand out on the international stage.

The post is worth reading, and reflects the significant progress made in DFAT, and across the APS in recruiting Indigenous staff over the past decade or so. It is largely good news, although there is clearly a long way to go.

The post led to me wondering what the next frontier might be for Australia’s diplomacy and international agenda in relation to Indigenous affairs.

The answer is not straightforward. Looking back, there are two sets of transnational forces which have played a part in the development of Australia’s indigenous policies and indeed in our broader public façade presented to the international community.

The first, which has been relatively unacknowledged and perhaps under-appreciated, has been the drive to surmount the international perceptions, particularly in Asia, that we are yet to substantively put the ‘white Australia’ policy behind us. I think there are strong arguments that post war visionaries such as Malcolm Fraser and Gough Whitlam, along with many of their supporters, recognised that Australia’s economic future was inextricably tied up with expanding our surmounting the blatantly racist elements which underpinned what Paul Kelly has termed the “Australian settlement’ at Federation.

The community support for establishing a role for the national government in Indigenous affairs at the 1967 referendum, and the support for land rights in the Northern Territory a decade later, were arguably products of this changed mindset amongst key interest groups in Australia, including the business community. Notwithstanding the push back which emerged in outlying states and regions, the new mindset held sway, saw the enactment of the Native Title Act, and a more inclusive approach to Indigenous affairs by Australian public and private institutions.

The broad recognition that Australia’s economic interests and future were tied up with the way we dealt with race is in my view the most influential factor in driving the broad thrust of indigenous policy over the last forty years.

A second transnational trend has been the focus by the Indigenous leadership on forging alliances with indigenous groups in Canada, the US and New Zealand in particular, as a means of attempting to pressure Australian Governments to adopt more progressive Indigenous polices. To this end, the Indigenous leadership has directed significant effort and policy resources to participating in various United Nations forums, in particular the UN Permanent Forum on Indigenous Peoples, various expert groups, and perhaps most successfully, the negotiations which led to the adoption of the UN Declaration on the Rights of Indigenous Peoples. See link here to the UN Indigenous peoples web page.

While this work is undoubtedly important, and Australian leaders such as Mick Dodson, Megan Davis and others have played important and influential roles in driving UN processes, and in persuading Governments, including Australia, to adopt key UN policies such as the Declaration on the Rights of Indigenous Peoples, it remains the case that the UN is effectively marginal to the day to day implementation of Indigenous policy in Australian jurisdictions. Moreover, there is nothing on the political horizon which suggests that the UN is going to move closer to the centre of either international or domestic policy from an Australian perspective.

In my view, it would be a mistake for Indigenous interests to continue to invest substantial policy efforts in the UN to the detriment of the hard grind of domestic policy advocacy.

Looking forward, globalisation will come to play a larger role in Australian economic and social life, and this will force all interest groups, including business and Indigenous interests to rethink their approach to Indigenous policy.

The continuing failure to eliminate deep seated disadvantage, particularly in remote Australia, will have potentially adverse consequences for Australia’s political and economic bargaining position, particularly vis a vis Asia. I don’t claim the solution is simple, or can be implemented quickly, but there is an indisputable case for much greater investment in basic infrastructure (including social housing) in remote and northern Australia, and this will have ancillary benefits in terms of national security.

For Indigenous interests, there is a need to carefully consider the implications of a globalising world (to which Australia is not immune) for their political, social and economic opportunities. The challenge will be to leverage the political gains of the last fifty years into economic, social and cultural gains over the next fifty years. This will require new approaches, mindsets and focus. I venture to suggest that governments will not be the entire solution, and there will be a need to leverage the expanding Indigenous estate, and develop Indigenous commercial institutions which both provide independent sources of revenue and which also allow Indigenous priorities to flourish. These are substantial challenges.

For a vision of what might be possible and/or necessary, have a look at the Alaskan Indigenous consortium Nana Development Corporation (link here) which has an Australian subsidiary!

To return to where I began, for DFAT, I suggest that the next frontier in relation to Indigenous engagement, beyond recruitment and procurement, is to begin to develop the capacity and inclination to provide rigorous and sustained policy advice to governments which joins the dots, and makes the case for stronger domestic Indigenous policies which strengthen our international bargaining power and our national security.

APY Lands Road Upgrade

In the past I have been critical of the lack of infrastructure investment in remote communities. So I was pleased to see the recent press release (link here) from the Federal Infrastructure Minister, Darren Chester, and this link to a South Australian Government web site detailing the work being undertaken to upgrade the main access road into the APY communities.

The work will cost over $100m shared 80/20 between the Federal and SA Governments. However, it will take five years to be completed, which seems an inordinately long implementation phase. Nevertheless, at least the investment is being made.

I have copied below an extract outlining the project from the SA Government website as it succinctly summarises many of the benefits of improved infrastructure not just in the APY Lands, but for remote communities generally. It is worth noting that the commentary on the lead times between identification of the need, and the decision to allocate funding, over ten years in this case. Here is the extract:

The main access road into the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands from the Stuart Highway (Chandler) to Pukatja (Ernabella) is currently used by more than 60% of the total APY population. Providing access to health, education and training services, allows for the delivery of food and medical supplies and the export of livestock and feral camels.

Traffic volumes between the Stuart Highway and Pukatja range from 80 to 100 vehicles per day (based on traffic count conducted in 2013).

Infrastructure Australia invited a submission from the South Australian State Government for infrastructure projects in remote indigenous communities. The current road is highly corrugated and below the natural surface.  As a result, it frequently floods rendering it impassable at various times of the year, increasing costs of service delivery to the Australian Government and South Australian State Government, damages vehicles and goods going into and from the APY Lands, and contributes to the high rate of vehicle accidents in the region. Maintaining the road through grading currently costs $1.5 million per year.

The need for road upgrades has been formally identified through the Community Structure Plans for nine (9) major APY communities, and the APY Road Network Study undertaken in 2006 and 2008.

Effects of the poor road quality include:

·         Australian Government and South Australian State Government costs associated with service delivery are disproportionately high compared to other remote communities

·         Additional maintenance costs to all vehicles using the road, associated with damage caused to suspension, differentials, tyres and the vehicle’s body

·         Damage to transportable buildings being brought into the Lands as part of infrastructure upgrades of housing, school and health facilities

·         A high rate of road accidents, particularly roll-overs

·         Food is damaged and soiled during transport to community stores

·         40 km/h road limit for freight increasing transport costs and time

·         Corrugations injuring and reducing the value of livestock during transportation

·         Difficulty providing emergency health care, including through inability to access airstrips during road flooding and road corrugation causing intravenous drips to fall out of patients in ambulances

·         Environmental effects, including soil degradation and damage to vegetation

In addition to ameliorating these effects, an improved road surface will provide many social and economic benefits, including:

·         Improved access to services in nearby communities

·         Improved security of food supplies

·         Increased access to markets for exports, for example arts and crafts

·         Improved emergency management through improved accessibility in poor weather

·         Improved access to training and employment opportunities

·         Improved living standards as a result of enhanced service access

·         Additional community interaction and social exchange

The project addresses Infrastructure Australia’s objectives to increase the economic standard of living for Australians and to improve social outcomes, quality of life and reduced social disadvantage in cities and regions. It also addresses Infrastructure Australia’s identified themes for action in providing essential services for indigenous communities. The project also demonstrates alignment with the Nation Building 2 Cornerstones and National Road Safety Strategy 2011-2020 of the Australian Government.

My only critical comment on this summary is that it appears to have been written by an engineer, and arguably over-emphasises the advantages to government rather than identifying the issues from the perspective of community members.

The APY Lands have had an extremely problematic history over the past decade, including problems with exploitative book up operators, the fallout from an earlier royal commission on sexual abuse in the region, and the slow implementation of its recommendations, suggestions of serious drug abuse (perhaps associated with organised crime) and a very rocky history of financial maladministration and multiple failures of governance. The situation appears to have improved in recent years, but issues clearly remain (link here).

The reason I raise this history is to emphasise the obvious consequence that the capacity of the APY’s leadership and governance institutions to effectively lobby government for better services is fundamentally compromised when more serious issues take hold. Yet our system of resource allocation is largely based on governments responding to squeaky wheels, and when no-one is advocating for investment, governments generally don’t provide.

Rightly or wrongly, the quality of Indigenous political leadership has consequences for the provision of infrastructure and other services, particularly in remote contexts.

Governments too should be conscious of this dynamic and take it into account in allocating resources. The Federal and State Governments are to be congratulated on investing in the access road.

The ABA financial arrangements and the PMC website

A great cause of the night is lack of the sun.

As You Like It, Scene Two

The Minister last week announced the latest round of Aboriginal Benefits Account grant approvals. His media release (link here) indicated $8m had been approved to some 27 organisations.

The ABA is just one part of the complex funding arrangements at the core of the Northern Territory Aboriginal Land Rights Act (ALRA). Without going into all the intricacies, under ALRA, the Commonwealth provides an equivalent amount to the ABA of all mining royalties levied on Aboriginal land by both the NT and Commonwealth governments. These funds are then allocated by the Minister to (i) fund the four Land Councils; (ii) to provide compensation to traditional owners directly affected by the resource development (30 percent of ABA revenues are set aside for this purpose), and (iii) to provide grants ‘for the benefit of Aboriginals living in the Norther Territory’; and (iv) various other administration costs, generally referred to as “section 64(4) grants”. Refer sections 64, 64A, 64B, and 65 of the ALRA for the details.

The PMC website (link here) provides details of the last three rounds of ABA Grants, the February 2015 round, the September 2015 round, and the August 2016 round just announced.

The February 2015 round results, announced on 16 June 2015, were published as a spreadsheet with the funding amount for each of the 43 organisations listed, with funding totalling $15.65m. There was also a column with a description of the likely employment outcomes for each project, although it was very patchy and heavily qualified.

The September 2015 round, announced on 29 April 2016, was for a total of “up to $6.1m” for 13 organisations. The spreadsheet released removed the proposed funding for each project, and now included a table of “new Indigenous jobs to be created” under each project, with a definite number against each project and a total listed as “up to 61 jobs”.

The August 2016 round, announced on 13 January 2017, was for a total of $8m (the PMC website refers to “over $8m”) and that it was “anticipated that there would be 175 new Indigenous jobs created” under the funded projects. Again, there was no indication of the funding approved for each project.

The announcement indicates that the Department will commence the preparation of a funding agreement with each applicant, and that once a funding agreement is finalised, the “”further details of each grant will be listed on the PMC website within 14 days as required by the Commonwealth Grant Rules and Guidelines” Rather unhelpfully, while the page provides a link to the Commonwealth guidelines (link here), it fails to provide a link to the location on the PMC website where the grant details are reported.

So contrary to the approach adopted in the February 2015 round, and in all previous ABA rounds at least over the past decade, the Minister and Department are no longer announcing the funding allocated to projects funded by the ABA. While there is a fig leaf of accountability in the eventual reporting of each grant, at a date which will differ for each project, and which might occur many months after the Minister’s announcement depending on the speed with a funding agreement is finalised, this appears to be a deliberate decision to decrease the level of transparency provided in relation to the ABA grants. Of course, apart from engendering further cynicism regarding the preparedness of Government to operate in an open manner, it raises the substantive issue: what is being hidden and why?

For comparison, it is worth comparing the Prime Minister’s recent comments when announcing the new Ministerial Guidelines for expenses:

The PM stated: 

"Australians are entitled to expect that politicians spend taxpayers' money carefully, ensuring at all times that their work expenditure represents an efficient, effective and ethical use of public resources," he said. "We should be, as politicians, backbenchers and ministers, we should be as careful and as accountable with taxpayers' money as we possibly can be." ….Describing transparency as key, Mr Turnbull said the new system would allow the public to view expenses in "as close to real time" as possible. "The system that manages entitlements will be modernised to allow monthly disclosure of parliamentarians' expenses in an accessible — that is to say, searchable — format," he said."[Currently] Most of the forms are filled in by the politicians by hand. It is all paper-based. The reports that you do find on the Department of Finance website are big PDF files. They are, you know, months out-of-date when they are posted." [Sourced from the Transparency and FOI Blog Open and Shut (Link Here)]

The Commonwealth Grant Rules and Guidelines (link here) which govern processes related to grant approvals in a Minister’s electorate (refer paragraph 4.12) require copies of relevant correspondence approving the grant to be provided to the Minister for Finance (presumably as a matter of transparency) although Ministers who are Senators are excepted from this requirement. In addition, it is worth noting that the Statement of Ministerial Standards (link here) require Ministers to act with integrity.

Of course, the ABA is limited to the Northern Territory, and it potentially provides any Minister from the NT with substantial opportunity to use it for political purposes and / or to reward supporters and punish opponents. The present Minister is currently appealing a Federal Court decision (link here) which overturned a decision he made to revisit and cancel a previously announced ABA grant approved by a former Minister.

The ABA financial statements are published each year in the PMC Annual Report (link here). The PMC website does not provide any background on the management of the Account generally in its section relating to ABA Grants. Given its overtly compensatory rationale, there is a strong case for much greater policy ownership of the account, more information on its size, growth prospects, and any strategic risks.

The ABA Advisory Committee which is established under ALRA to advise the Minister in relation to the allocation of section 64(4) grants, that is those available to Aboriginals living in the Northern Territory, is dominated by the Land Councils. Membership is listed on the PMC web page dealing with the ABA. The Annual Report indicates (page 203) that the Minister approved in 2015-16 reforms to the membership of the ABA Advisory Committee to provide for independent members. These reforms do not appear to have been implemented, with the only member independent of the Land Councils being the Chair (link here).

It is apparent that the approach adopted by the Minister and PMC to reporting ABA grants is far below the standards which the Prime Minister has announced for Ministerial expenses, yet the sums involved are substantial, and the potential for conflict of interest is considerable. Indeed, it is apparent that there has been a deliberate shift away from openness and transparency over the past few years in relation to the ABA grant process.

There is a strong case for review of the current reporting arrangements to improve transparency.

As to the substantive quality of the decisions being taken by the Minister, it is very difficult to ascertain without access to the project documentation, and greater detail on the purpose of the grants.

It is apparent that the Minister is giving greater priority to jobs over other benefits given his decision to list the numbers of new jobs created by each project. However, there appears to be no detail regarding the methodology used to ascertain these job numbers, nor is it clear whether they are permanent or casual, one-off or ongoing. The ABA Grants scheme funds one-off projects, so by definition, any new jobs created will only be ongoing if the projects funded are successful and commercially viable. We have absolutely no information on the public record regarding the success of the funded projects against the Minister’s chosen metric. Anecdotally, the story is very mixed, with some successes offset by at least as many failures.

Given PMC Secretary Parkinson’s comments last year on the need for greater evaluation of funded projects (link here), it might be timely for the Department to evaluate the success of the projects funded by the ABA over say the last five years.

In conclusion, there appear to be significant shortfalls in the levels of transparency being applied to the ABA and the ABA Grants process by PMC which don’t square with the Prime Minister’s stated commitment to openness and transparency. Moreover, the substantive effectiveness of the grants approved by the Minister are virtually impossible to assess, and the accuracy of his rhetoric regarding the numbers of jobs created open to significant doubt.

It is time for a policy review of the ABA generally, and the ABA Grants process specifically. In doing so, we should seek to emerge from the night, and allow the sun to shine in to a much greater extent than is currently the case.

Queensland Productivity Commission Inquiry into Indigenous Service Delivery

Last September, the Queensland Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships, Curtis Pitt, announced a review of service delivery in Queensland’s remote and discrete communities. The Terms of Reference are on the Qld Productivity Commission website (link here). While there is as yet not a lot of clarity on the process, there will be formal consultations and a draft report published by 31 August prior to finalisation before the end of the year. It is possible to register an interest in being updated on the Commission’s website.

In late December, the Minister announced the appointment of Professor Bronwyn Fredericks, Pro-Vice Chancellor Indigenous Engagement at the University of Central Queensland as a Part Time Commissioner for the review (link to media release here).

The initiation of this inquiry is in many respects positive. It suggests that the Government is keen to get a better handle on what is happening in the target communities, and is probably a reaction at some level to the Queensland Government’s problematic history in managing the complex issues at Aurukun for which Curtis Pitt is the “champion” under the Governments approach of allocating roles of “government champion” to each minister and head of department in an effort to promote whole of government approaches to addressing Indigenous disadvantage.

Queensland’s Department for Aboriginal and Torres Strait Islander Partnerships (DATSIP) appears to have a strong focus on the remote and discrete communities, no doubt because these places are where disadvantage is most concentrated and visible. They also have a demonstrable commitment to the provision of accessible and meaningful data and reports on their web site – the Commonwealth should take a leaf out of their book!

The DATSIP website provides clear and accessible data on a range of social indicators community by community (albeit only up to mid-2015). However, there are very large urban and regional indigenous populations in Queensland, and arguably there is a case for reviewing and taking stock of the quality of service delivery in those non-community contexts. Indeed, the recent Moving Ahead Strategy, which focusses on improving Indigenous economic participation appears to adopt just such an all-encompassing approach.

Interestingly, a Google Scholar search of Professor Frederick’s publications indicates that she has written extensively on the circumstances of urban Indigenous people, particularly women.

My reaction to the Terms of Reference were mixed and to some extent contradictory. The focus on communities is arguably too narrow. Apart from the reality that most Indigenous Queenslanders don’t reside in communities, there are issues related to services which are not provided which will not easily be addressed by the Review.

For example, I have raised the issue previously of the community of Jumbun near Tully which has fallen through the gaps: the Commonwealth has passed responsibility for municipal and essential services to the state government (along with a payment of $10.3m to assist the state to swallow the bitter pill) but the state government has taken no responsibility for maintenance of the essential services at Jumbun and nor will the relevant local government. It will be important for the Review to assess the non-provision of services as well as the effectiveness of the provision of services.

The numbers of issues which are explicitly required to be assessed are arguably very broad, and will very likely lead to a plethora of recommendations which will be difficult to implement in a coherent way, and which will arguably take the policy response into the weeds (if not the swamp).

To take just one example, the requirement in the terms of reference to evaluate programs for co-design aligns with the government’s focus on ‘partnerships’ and is clearly focussed on ensuring there is inclusion and constructive engagement. But there is a tension here, insofar as it is physically impossible to co-design all programs (not least because program design is inevitably iterative and ongoing). This can lead to governments engaging in ‘rhetorical’ behaviour designed to persuade stakeholders that they are important while behind the scenes the real work is done unilaterally. In my view, it is preferable for governments to not raise expectations beyond what is feasible, as it is unfulfilled expectations which are at the root of ongoing cynicism about governments’ motives.

This example merely goes to the point that the review will have to deal with a number of complex issues which have the potential to reverberate beyond their apparent locus of operation.

Arguably what is required from such a review as this is a strategic perspective, yet the Terms of Reference arguably work against this, although they don’t entirely rule out such an approach. Much will depend on the approach adopted by the Commission. Of course, state (and territory) jurisdictions have inherently limited locus of influence, and the Commonwealth through its Indigenous specific programs and its welfare programs are arguably the major players in many respects (particularly given the strong Commonwealth footprint in Cape York), making the development of a strategic approach that much harder for state and territory jurisdictions, and that much harder for a Commission Inquiry limited to assessing state service provision.

In summary, it is positive that the Queensland Government is taking steps to review and assess the quality of their programs in remote communities. But the Commission faces a number of challenges in producing a policy relevant report which will lead to implementable recommendations which will make a substantial, tangible and ongoing difference.

There would have been value in establishing a joint Commonwealth / State review, but this logical and obvious step is rarely seen as desirable by either state or Federal Governments. It just goes to demonstrate how political these exercises are at their core.

Alternate Views Through the Keyhole: Two Recent Reports from the Ombudsman

The Commonwealth Ombudsman recently released two reports relating to remote Indigenous service delivery. The first relates to access to the DSP; the second relates to the effectiveness of translation services from a cross government perspective.

Both reports are instructive from a number of perspectives: in highlighting the challenges facing remote community members in accessing services and welfare benefits to which they are entitled; and in highlighting the rather slow and cumbersome operations of our federal system of government when it comes to dealing with remote Indigenous citizens.

In relation to the translation services, the Ombudsman’s Report is a follow up on a previous report in 2011, and concludes in essence that the issues raised then are yet to be adequately addressed. These include access to quality translation services across all jurisdictions, and issues related to the quantity and quality of translators in all jurisdictions. IN 2011, proposals emerged for the development of a National Framework for Indigenous Translators. This framework has yet to be finalised, and one must wonder if it has even been progressed.

In response, PMC established an Inter Departmental Committee (IDC) during the course of the second investigation to consider the development of a Commonwealth policy or protocol on translation services. This seems to be moving slowly as the Ombudsman suggests that not all relevant agencies were invited to join the IDC.

In relation to the National Framework proposal, PMC advise that the initiative was linked to the National Partnership on Remote Service Delivery which expired in June 2014, but that the Department wrote to four jurisdictions in September 2016 seeking to reopen discussions on the proposal. By implication, nothing has occurred in the interregnum.

As an aside, it would be a useful Senate Estimates question to ask for a list of initiatives such as this which have fallen by the wayside following the expiry of National Partnerships which have not been renewed. The former Groote Eylandt Regional Partnership Agreement which appeared to have made real progress and to have significant local community commitment (including financial commitment) seems to have just dropped from view without announcement nor explanation. I am sure there will be other similar cases.

Returning to the issue of translation services, the rather anodyne PMC response is strong on process, but makes absolutely no commitments to substantive outcomes. This is emblematic of what is wrong in Indigenous affairs at present: continuing fudging, focus on process, failure to take responsibility for tangible outcomes, and a non-existent ‘whole of government’ focus from PMC.

In relation to access to the Disability Support Pension Report, the story is more positive.

The Report notes:

5.1 Indigenous Australians living in remote areas face significant barriers in accessing DSP, including: · difficulties in accessing appropriate health care · problems obtaining medical evidence from treating doctors and specialists to support their claims · being disadvantaged by not having face-to-face JCAs and DMAs · a differing concept of ‘disability’ · difficulties discussing conditions and their functional impact with health professionals in a meaningful way, due to language and cultural barriers.

5.2 The recommendations made in this report are intended to address some of the most significant challenges we consider remote Indigenous Australians face in: · collecting evidence · preparing applications · accessing, and participating in, JCAs and DMAs · anticipating the need for and accessing a program of support where required.

The Case Studies in the Report are worth reading. They demonstrate just how frustrating it can be to prosecute an argument for access to benefits to which one is entitled from a remote community.

DHS in response and to their credit appear to have taken the report seriously and agreed to implement virtually all the recommendations. Nevertheless, it is clear that remote residents, where disability is more common than in mainstream Australia, face substantial challenges in accessing these Government services.

One of the approaches often advocated is an upgraded regional field service attached to the central Indigenous affairs agency (in this case PMC). PMC do have a regional network, however it appears to be quite thin on the ground, and apparently has very limited decision making powers and influence in Canberra. In an ideal world, it would pick up local intelligence related to instances of individuals not accessing services to which they are entitled, and make the appropriate informal connections to ensure the system works as formally intended.

As I write this, I am conscious that those in PMC reading it will be thinking I have lost my marbles. Certainly, resource constraints, and the fluid priorities of governments and ministers make this appear from a bureaucratic perspective an unreasonable and other worldly proposal. The fact however is that it has been done before, and could, with appropriate prioritisation, be done again. It would help if there was political support from the Government. But it could be implemented unilaterally from within the bureaucracy were key players to put their shoulders to the wheel.

Alternatively, it might be thought that proposing an upgraded regional presence is idealism gone awry. In this perspective, Governments don’t care to ensure entitlements are delivered, instead their concern is merely to minimise expenditures.

The idealist side of my nature congratulates the Commonwealth Ombudsman for his own motion investigations into these intricate and arcane corners of the Indigenous policy maze, and will wait to see what progress is made over the next 12 months on each of these issues.

The cynical side of my nature tells me that little happens without pressure and publicity, and that consequently there is an urgent need for greater and automatic transparency across the breadth of government policy and programs directed to addressing Indigenous disadvantage. Ad hoc own motion investigations by the Ombudsman, audits by the ANAO, or inquiries by parliamentary committees, provide only a keyhole view of the complex panorama of indigenous policy implementation and service delivery.

Idealism, or cynicism; you choose.

A New Year: Looking back and forward

We know what we are, but we know not what we may be.

Hamlet IV,v,43  

Twenty Five Years On

The National Archives have released the Cabinet Papers for 1992 and 1993 which deal with, among other things, the Keating Government’s response to the High Court decision in Mabo v Queensland(No.2).

The Mabo related Cabinet Papers are interesting for a number of reasons, not least that they deal with issues of ongoing significance for the Indigenous policy domain.

I don’t propose to summarise or analyse the papers in detail, but will merely point to some of the issues raised therein. Each of the sets of papers is worth reading.

The first set of papers relates to the initial options for response following the High Court decision (Submission – Mabo decision – policy options – Decision 1250). The second set relates to the worked up policy proposals (Submission - The Mabo Decision - principles for a response – Decision 1740). The third set relates to the implications for title certainty arising from the initiation of the Wik litigation (Memorandum - The Wik claim - options for Commonwealth action – Decisions 2210 (Amended) and 2216). The fourth set relates to the proposals for a social justice package, and in particular a Land Fund to compensate those Indigenous people whose native title had either been extinguished in the past, or whose native title would have been available except that the proposed legislation would validate purported extinguishment (Memorandum - Mabo - social justice and economic development package – Decision – 2290). The fifth set relates to the negotiations with the states over the draft legislation (Memorandum - Mabo - responses to the outline of legislation – update – Decision 2289 and 2291; Memorandum – Mabo – response to the outline of legislation – further update – No Decision).

Themes which emerge from these papers include

• ·       The complexity of the negotiations involving eight states and territories, the business sector (particularly the mining sector and the pastoral sector), the Indigenous community, and partisan political management.
• ·        The centrality of the Racial Discrimination Act to both the decision itself, and the development of policy options;
• ·        The policy imperative for government of title certainty;
• ·        The complexity of the compromise or ‘settlement’ reached across all interest groups including eventually the Indigenous negotiators; and
• ·        The centrality of the proposed land fund to achieving a modicum of social justice, and the lack of progress on other issues (such as constitutional recognition) identified as potentially the second part of the proposed social justice package.

The Cabinet papers don’t provide the full picture. There was a huge amount of day to day policy development, much of it infused with uncertainty given the unprecedented nature of the High Court’s decision, the sui generis nature of native title, the lack of clarity in relation to the extent that Indigenous interests would be able to demonstrate the ongoing attachment to country required to prove the existence of native title, and the related information gaps as to the extent and nature of prior extinguishment by governments. Nevertheless, the Cabinet papers represent key markers in the second stage of development of Australia’s native title law (the first being the litigation stage leading to the High Court decision).

Key issues embedded in these Cabinet papers include the negotiations with the states and territories; the validation of existing titles including the extent to which the Racial Discrimination Act should be set aside to facilitate validation, the development of options for a policy quid pro quo for Indigenous interests adversely affected by the validation issue; and the complex issues relating to he potential for the Commonwealth to underwrite any future compensation payments which the states and territories might be required to pay.

The decision to validate all titles granted since the enactment of the Racial Discrimination Act which were potentially affected by native title led to the further dispossession of Indigenous Australians, and necessitated the legislative provision of ‘just terms’ compensation to ensure the constitutional validity of the provisions, thus adding further potential uncertainty. Issues related to compensation for extinguishment of native title are only now beginning to emerge into the legal and public policy domain. See my previous blog post (‘Handy dandy: native title and compensation for extinguishment’) here.

Particularly interesting issues with continuing relevance relate to the establishment of the Land Fund which was not legislated till 1995, so the Cabinet Papers released are not the full story. But they do expose for the first time the significant internal struggle and challenges which confronted the proposal.

On one side, the Department of Finance saw no reason to expend anything significant in making amends to Indigenous citizens whose native title had been extinguished by governments since colonisation. On the other side, the then ATSIC Commissioners wished to control the Land Fund, and opposed the established of the mechanism which eventually became the Indigenous Land Corporation. PMC argued forcefully that the Land Fund was not an instrument for promoting economic and commercial development, but was broader and needed to reflect a capacity to support cultural and social needs, particularly if it was to be seen as compensation. PMC also envisaged that its Board would be selected by the then ATSIC (that is, it would largely be Indigenous controlled, not government controlled); this aspiration fell by the way side with the expiration of ATSIC.

These issues have been reprised in the current Minister’s attempt when he initially came to office to amalgamate the ILC with IBA, and the ongoing (and unpublicised) actions to effect a non-legislated amalgamation of the two bodies’ back offices inevitably as a precursor to formal amalgamation. The very real (and under-appreciated) risk for Indigenous interests is that the mechanism established to provide a perpetual source of compensatory revenue independent of government budget constraints will be subverted and redirected to taking the pressure of the budget under the guise of being refocussed on economic and commercial development.

A further issue which is not really evident from the Cabinet papers (albeit that it infused them all) was the huge political campaign mounted against the Government essentially based around stoking fears about threats to ordinary Australians backyards. While in retrospect it can appear that the emergence of the Native Title Act was inevitable, the reality is that the Government led by Prime Minister Keating demonstrated extraordinary political leadership and courage to stay the course. Alternative approaches would have been extremely messy from both legal and political perspectives, and would have undoubtedly led to Australia being a very different sort of nation today, less liberal, less fair, and more discriminatory.

With the perspective of twenty five years, while native title has been found to exist over substantial areas of the continent, very real questions continue to exist in relation to the justice for Indigenous interests of the ‘grand bargain’ struck at the time. The fact that the second part of the mooted social justice package never emerged only reinforces that assessment. Mainstream Australia has pocketed the gains inherent in the settlement, and moved on. The impacts of dispossession for Indigenous interests however are ongoing.

On balance, native title has been a positive for Indigenous interests, and for the nation, but it does not follow that it was a just outcome. This is the underlying rationale for the continued vibrancy of calls for recognition and treaties emanating from Indigenous citizens.

The Year Ahead

Looking forward, what are the prospects for 2017 in the Indigenous policy domain?

I am conscious of Danish physicist Niels Bohr’s oft cited warning: ‘Prediction is very difficult, especially about the future’. Moreover, I have a record of past predictive failures which won’t surprise careful readers of this blog. Nevertheless, there seem to be some general statements worth canvassing. My approach here is to attempt to put myself in Prime Minister Turnbull’s shoes, so I am not necessarily personally advocating the merits of the following suggestions (even though I think they would be improvements on the status quo).

First, I would move to establish Indigenous affairs as a standalone agency, probably still within the Prime Minister’s portfolio. This would also allow a restructuring of the Prime Ministers Indigenous Advisory Council (which doesn’t appear to have made a substantial contribution to the policy process).

Second, I would take the opportunity at the next reshuffle to promote Ken Wyatt to Cabinet as Minister for Indigenous Affairs. Wyatt has a background in Indigenous health, and would be a useful counter to the three Labor Indigenous MPs.

Third I would initiate a significant internal process to develop the broad outlines of a response to the NT Royal Commission on Youth Detention. There are two broad options available to the Government: one is to drive substantive policy reforms which address incarceration over-representation; the second is to throw money at the issue. I suspect the second will be easier than the first, though not necessarily more effective.

Fourth, I would develop a strategy for bringing some level of resolution to the apparently never ending Constitutional Recognition process. The options are (i) to bring the process to an end; (ii) to kick the can down the road for another year or two or three; or (iii) to propose a minimalist constitutional amendment which while not meeting the aspirations of Indigenous interests, is at least a step forward. If combined with a policy package which established Commonwealth policy position which was supportive of state based efforts to negotiate local treaties, this might fly. I think some version of the third option will emerge.

Fifth, I would task the Minister for Indigenous affairs with sorting out the expanding disaster in the Community Development Program which is breaching increasing numbers of remote residents. Reality denial as a policy strategy works only for limited periods.

Sixth, I would bring greater transparency to the Indigenous Advancement Strategy. One of the rationales for ATSIC’s establishment was to move away from Ministers as the super project officer, doling out grants to favourites, cutting out those who are out of favour. Unfortunately, we appear to have turned full circle.  I understand that there is an ANAO audit underway. It will be amazing if it doesn’t recommend a major overhaul of the IAS. It would be better to be on the front foot.

Seventh, if I was feeling particularly innovative and agile, I would move to establish something a series of regional forums which provide inclusive opportunities for the breadth of Indigenous voices to be heard, and to play a part in regional policy priority setting. This might be built on an expanded and reinvigorated version of the Empowered Communities framework which appears to be largely moribund at present.

Eighth, I would re-establish a formal mechanism to engage with state and territory governments. There appears to be little effort at present to coordinate in a coherent way federal priorities with state and territory policy efforts.

Whether my prognostications are on the money or not, the policy issues and political challenges embedded in the eight suggestions above are significant enough to ensure that 2017 will be an interesting year in the Indigenous policy domain.

Disclosure: I worked for the Department of Prime Minister and Cabinet during the Keating Government era, and worked for the Indigenous Land Corporation from2013 to 2015.