Infrastructure priorities and Indigenous interests

Never dream on infamy, but go.

Two Gentlemen of Verona, Act 2, scene 7.

The latest Infrastructure Australia publication, the Infrastructure Priority List 2020 has just been released (link here).

I reported on previous infrastructure related publications (here, and here), and both of these posts included links to a number of previous posts.

Infrastructure Australia is a wholly advisory body, with a remit to collate a list of nationally significant priorities in the infrastructure sector (link here).

This latest report has a number of priorities and initiative of particular relevance to Indigenous interests, remembering that Indigenous citizens are also users of mainstream infrastructure and thus benefit to greater or lesser degrees depending on their location and other factors such as income and wealth. For example, infrastructure which benefits major commercial interests may not benefit Indigenous citizens pro rata since they are less likely to be shareholders either directly or indirectly through superannuation. On the other hand, Indigenous citizens, at least in remote regions, are probably much more mobile than mainstream citizens, and thus will benefit more than pro rata from any upgrades to road infrastructure.

The three issues raised in the report of most direct relevance to Indigenous interests are the inclusion (since February 2019) of remote housing overcrowding on the Infrastructure Priority List as a high priority (refer page 74); the new inclusion of an Indigenous art and cultural facilities program as a ‘high priority initiative’ (page 102); and the new inclusion of mobile telecommunications coverage in regional and remote areas as a ‘high priority initiative’ (page 103).

All three of these initiatives were identified by Infrastructure Australia which is of course commendable. But it does point to a lack of organised support either within state and territory governments and/or within Indigenous peak bodies for key infrastructure investments. If there is one thing that has been reinforced by the recent debates over the allocations of sports programs nationally, it is that the political system is highly focussed on aligning the allocation of available public sector resources to key political constituencies and objectives. In this world, advocacy and lobbying are the fuel driving the political engine. To to be blunt, the inclusion of these issues on the Infrastructure Australia priority list is no guarantee whatsoever that they will be funded in either the near or medium term.

Finally, it is worth asking what is the point of this exercise. Like any public policy process, there are potential plusses and minuses.

On the plus side, it provides a degree of transparency of the overarching infrastructure needs of the nation that would otherwise not be there and not be updated regularly. And it expands the opportunity for pressing needs to be given airplay from within an official government advisory body.

On the minus side, there must always be the suspicion that this is a mechanism used by government to manage potential criticism from interests whose core infrastructure needs are not being met. The very existence of Infrastructure Australia, as well as its ‘priority’ lists creates the impression that Governments are considering currently unfunded proposals and will eventually fund them. In fact, there is no formal link between the ‘advice’ of Infrastructure Australia and governments’ funding decisions.

A second, and related risk, is that the very existence of a long list of unfunded initiatives provides a mechanism whereby governments can assuage particular interest groups by choosing to fund smaller and cheaper projects instead of larger and potentially more important projects. The inclusion of the ‘Indigenous arts and cultural facilities’ program ‘priority’ is a good example of this risk. While arts and crafts programs are important both to Indigenous interests and to mainstream tourism interests, they are nowhere near as much of a priority as the remote housing issue.

Finally, there appears to be no effort by the Infrastructure Australia Board to effectively prioritise the scores of initiatives included in its lists. This is perhaps a function of the legislative remit for Infrastructure Australia (governments do not want explicit public advice) and perhaps a function of a lack of imagination. Nevertheless, it is a significant flaw that the substantial effort and resources allocated to compiling these priorities are limited to essentially presenting the results ina neutral way as equally important, equally impactful, and equally beneficial. Yet the reality is that this is just not the case.

While it is the role of governments to make the final decisions on the allocation of public investments, the public interest would be tangibly advanced if Infrastructure Australia took the next step and publicly identified the necessary and essential infrastructure investments required in the national interest over the coming decade or two. Yes this would be contentious. Yes they might get it wrong. But it would engender a real debate about substantive issues across the community, and this would be a good thing.

It is time Infrastructure Australia stopped worrying about its reputation (infamy) and gave it a ‘go’.

‘Look over there’: the demise of the Prime Minister’s Indigenous Advisory Council

Prithee, see there! Behold! Look! Lo! How say you?

Macbeth, Act 3, scene 4

On 15 January, I posted on the future or the Prime Minister’s Indigenous Advisory Council IAC) (link here).

In that post which I repays re-reading in full, I stated inter alia:

Clearly, four different models for accessing Indigenous advice and views are in play here, including three that have been utilised by the current Government. This appears to point to a deep-seated structural confusion within the Government on the appropriate way to engage best with Indigenous interests on the breadth of its policy agenda….

…In relation to the Prime Minister’s Indigenous Advisory Council, setting aside the more fundamental issues raised in my earlier post, it has been apparent to close observers for some time that all is not well….

…So what will the Government decide? There are essentially two options.

The first (and in my view less likely) would be to refresh the membership of the Advisory Council and seek to continue as if nothing has occurred…

….The second (and more likely) option is that the Government will allow the IAC to disappear. There is little substantive to show for the Council’s seven year existence, and there is no constituency advocating for its continuation. The Government may even be tempted to allow the Council to expire without any announcement…

Since I wrote that five weeks ago, there appears to have been no announcement from the Prime Minister nor Minister Wyatt of new appointments, and indeed, there appears to have been no statement whatsoever regarding the Government’s decision not to renew or refresh the membership of the IAC. A google search fails to identify any recent announcements. There was certainly no mention of the Indigenous Advisory Council by the Prime Minister in his most recent statement to Parliament on Closing the Gap (link here).

As of today (20 February 2020), the NIAA website still includes a page for the Prime Minister’s Indigenous Advisory Council, although the most recent updates appear to date from March 2019.

The absence of any statement or explanation regarding the IAC’s future suggests that even the Government has concluded that there is little to show for the six years of the IAC’s existence since it first met in December 2013 (link here). It also suggests that the Government takes the community at large and the Indigenous community in particular for granted. While the rhetoric emanating at present is of partnership and co-design, the Government still appears addicted to strategies of ‘look over there’ and ‘lets move on’.

The policy implications of the demise of the IAC will be a greater reliance by the Government on the convoluted, diffuse and in many respects opaque existing advisory arrangements. In particular, these include the COAG partnership with the Coalition of peaks (link here), the three appointed advisory groups ‘co-designing an Indigenous voice’ (link here) and the Indigenous Reference Group to the Ministerial Council on Northern Australia (link here).

The fact that two of these three groups are technically engaged with providing advice to Commonwealth / State ministerial councils, suggests that the Commonwealth’s emerging medium term strategy is to shift responsibility for Indigenous policy outcomes and in particular key Closing the Gap targets wherever feasible to state and territory jurisdictions.

The complex overlapping appointed committees charged with co-designing an Indigenous Voice were apparently instructed not to focus on constitutional recognition (link here). Here too, there are clear suggestions that the Government wishes to see multiple ‘voices’ established at regional and local levels rather than a single and potentially influential national voice.

As the Prime Minister stated in his recent Closing the Gap speech (link here):

In 2018, the Joint Select Committee into Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples delivered a bipartisan report. 

Our Government adopted the four bi-partisan recommendations in this report. 

In particular, JSCCR Recommendation 1. 

In order to design a voice that best meets the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends a process of co-design between Aboriginal and Torres Strait Islander peoples and government be initiated in communities across Australia to design a voice that can help deliver practical outcomes for that community. 

This is our Government’s policy.

It is clear from the Committee’s report that more work needs to be done on a voice proposal.

The Government has always supported giving Indigenous people more of a say at the local level.

We support the process of co-design of the voice because if we are going to change the lives of Aboriginal and Torres Strait Islander Peoples on the ground, we need their buy-in to the matters and policies that affect them [emphasis added].

The complex process of co-design that has been set in train will inevitably lead to a two year hiatus in any coherent advice being provided to the Parliament or the Government (depending on which option is finally decided). Moreover, any outcome that does not ensure an effective national voice for First Nations citizens will have tremendous difficulty in effectively influencing policy.

My own admittedly pessimistic assessment is that the while ostensibly establishing a process to examine ‘constitutional recognition’, a separate ‘Indigenous Voice’, and various co-design processes for refreshing the Closing the Gap targets, the Government has thereby deftly distracted attention from more substantive matters. It has ensured that there is no substantive Indigenous advice provided, nor even significant public debate regarding the underlying effectiveness of the vast swathe of policy and program activities of the government.

Across virtually every facet of the Indigenous policy domain, the Government feels no obligation to explain what it is doing or not doing, and why it takes the decisions it does. The nation will be left to address the consequences at some point in the future, well beyond the next election.

Look over there! … Lets move on!

Richard Wagamese speaks to us too

For Joshua, an Ojibwe father teaches his son (link here) comprises a series of letters from a father to his estranged son by an acclaimed Canadian author, Richard Wagamese.  I came across an extract from For Joshua and found it both engaging and moving (link here).

I decided to post about Wagamese because I suspect that he is largely unknown in Australia, yet solely on the evidence of the extract from For Joshua, I am confident that his perspective and insights have multiple resonances with the experience of many Indigenous Australians.

His Wikipedia page (link here) and the obituary posted by his publishers (link here) both suggest that a key theme in his writing is about the experience and consequences of intergenerational trauma arising from dispossession and child removal. Notwithstanding my own experience working on Indigenous affairs policy, I was slow to appreciate the extraordinary prevalence and importance of intergenerational trauma in shaping the arc of Indigenous lives, and the concomitant implications for policy. 

I suspect that the vast majority of Australians, even those well disposed to Indigenous aspirations, similarly under-appreciate the importance and intensity of intergenerational trauma arising from dispossession and social and economic exclusion.

Sometimes, there is value in seeing the world not through our own experiences and perspectives, nor through out own national contexts, but through a new and different lens. I found it valuable to reflect on the extract from Wagamese’s letters to his son, outlining his experiences in Canada, while asking myself the question, does this dynamic happen here in Australia?  

At a personal level, I propose to seek out more of Wagamese’s published work, but thought I would share the existence of his oeuvre with others who might be interested via this post.

The new Administrative Arrangements Order: native title policy implications

We have strict statutes and most biting laws.
The needful bits and curbs to headstrong weeds,
Which for this nineteen years we have let slip;
Even like an o'ergrown lion in a cave,
That goes not out to prey.

             Measure for Measure, Act 1, scene 3

Following the recent restructure of Commonwealth ministerial arrangements, the Prime Minister has put in place a new Administrative Arrangements Order (AAO) to operate from 1 February 2020 (link here). This is the mechanism that allocates broad functions to ministerial portfolios, and also allocates responsibility for the administration of legislation.

In terms of Indigenous policy issues, there appear to be no changes. The primary responsibility for Indigenous policy rests with the Department of Prime Minister and Cabinet (PMC). The PMC portfolio includes a number of Commonwealth entities and companies (link here) including The National Indigenous Australians Agency (link here), the primary administrative unit responsible for Commonwealth policies and programs related to Indigenous Australians.

Other portfolios with responsibilities for specifically Indigenous related legislation include the Department of Agriculture, Heritage and Environment (Aboriginal and Torres Strait Islander Heritage Protection Act 1984); Attorney Generals Department (Native Title Act 1993), and the Department of Finance (Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018). Of course, many other portfolios have responsibilities that directly impact Indigenous Australian albeit in notionally generic ways. Two examples include the Attorney General’s Department responsibility for the Racial Discrimination Act 1975, and the Department of Social Service’s and Department of Education, Skills and Employment joint responsibility for income support/employment programs, particularly in remote and disadvantaged communities.

At the most generic level, every portfolio will to one degree or another have an impact on Indigenous citizens where relevant to their responsibilities. It is worth noting that this structure of Indigenous specific, and mainstream or generic involvement is paralleled at state and territory levels of government. To state the obvious, tracking the engagement paths between government and Indigenous citizens is conceptually complex. In these circumstances, ensuring that elected governments are fully accountable to Indigenous citizens and the community at large, and that Indigenous interests have effective means of influencing policy and program designs, is also complex and challenging.

As a minor aside, PMC’s choice of nomenclature in the AAO is also worth noting. Notwithstanding the fanfare around the shift in the name of the primary Commonwealth agency to National Indigenous Australians Agency, and the new title of Minister for Indigenous Australians, the AAO continues to use previous forms of language. So for example, in the section listing ‘matters dealt with’ by PMC, ‘Commonwealth Aboriginal and Torres Strait Islander policy, programmes and service delivery’ is listed as a matter dealt with.

So are there value judgments or policy implications embedded within the AAO?

Of course, the answer is yes, notwithstanding there is no media and virtually no academic focus on these issues. Decisions regarding which portfolios deal with policy issues are significant, and they signal or identify underlying priorities of the Government.

Perhaps the most obvious example of this relates to the allocation of responsibility for the Native Title Act 1993 (and most associated policy) to the Attorney Generals portfolio rather than to PMC/NIAA. This decision signals that the management of native title litigation is more important to the Commonwealth than the development of innovative policy options in the emerging native title space.

In the period immediately following the passage of the Native Title Act, policy responsibility rested with PMC in the then Office of Indigenous Affairs. Within a few years as claims began to move through the system, and the pathways laid down by the legislation began to followed by native title claimants, litigation and test cases followed aimed at resolving the inevitable uncertainties. In response, policy responsibility for native title was re-allocated to Attorney Generals early in the life of the Howard Government. This revised allocation of responsibilities has persisted ever since, surviving changes of government in 2007 and 2013.

One potential reason for the shift would have been to ensure maximum alignment between the Commonwealth’s native title litigation strategy and the Commonwealth’s broader litigation strategy. Another more disquieting explanation may be that the Commonwealth was seeking to minimise and narrow the ambit of native title wherever possible.  While I have not undertaken a detailed analysis, I am confident in asserting that over the past 26 years of the Native Title Act’s existence, the Commonwealth has routinely opposed native title claims and claimants in litigation (as have the states and the NT).

The placing of responsibility for native title policy with Attorney Generals has facilitated the largely autonomous formulation of Commonwealth native title litigation strategy by lawyers rather than policy experts. While mechanism exist within the Commonwealth (and presumably state and territory governments) for cross-agency input and coordination into litigation matters, there are always technical legal reasons available for adopting narrow litigation stances. Moreover, without PMC/NIAA having policy responsibility, they are unlikely to have a core of expertise on call to develop counter-arguments when overtly negative litigation strategies are proposed by the Attorney Generals Department.

The more perverse ramification of the current allocation of native title responsibilities is that the focus of the relevant staff in Attorney Generals is inevitably on litigation strategy. They have limited exposure to broader developments and issues in the Indigenous policy domain. In turn, this means that they are less likely to be the source of innovative policy initiatives designed to leverage native title rights in ways that meet both the national interest and the broader aspirations of First Nations citizens.

In effect, the current AAO embeds an implicit and largely unrecognised bias against the interests and aspirations of First Nations’ interests. While I am not asserting that public servants in PMC/NIAA are automatic conduits for Indigenous aspirations, it is highly likely that they will be more open to well constructed policy advocacy than public servants in the Attorney General’s Department with a strict remit to protect the Commonwealth’s narrow legal interests at all costs. There is thus a very real opportunity cost for Indigenous citizens, and for the nation as a whole, in the current allocation of the native title responsibility in the AAO.

To sum up, the present and longstanding allocation of responsibility for native title policy to the Attorney General’s portfolio in the AAO is not a mere technical and neutral decision. It has real consequences in an area of law that is still developing and will thus have long-term consequences. Indigenous interests and particularly the peak body for native title matters, the National Native Title Council, should not overlook the potential benefits of sustained advocacy for a reversion of the responsibility for native title policy in the AAO to PMC and the NIAA.