Yunupingu v Commonwealth: potential policy implications

Prove true, imagination, O prove true.

Twelfth Night, Act 3, scene 4.

 

In my previous post, I described the recent Federal Court decision in Yunupingu (link here) as momentous. In this post, I attempt to draw out some of the potential policy implications that might flow. I don’t purport to engage in detailed legal analysis, and nor am I claiming to be comprehensive in surveying the potential policy implications of the decision.

 

One obvious caveat of course is that the Federal Court decision is subject to potential appeal, the outcome of which is unknown.

 

I propose to deal with two broad issues.

 

First, perhaps the major policy shift arising from the decision is to expand the period of potential invalidity and liability for compensation for Territory Government granted titles (such as mining leases, pastoral leases and freehold) over native title. In Mabo, the High Court found that native title was vulnerable to extinguishment by inconsistent grant by the Crown. However, the existence of the Racial Discrimination Act from 1975 meant that inconsistent grants without compensation could lead to invalidity. The Native Title Act 1993 includes provisions to validate all such grants made over native title between 1975 and the date of the validation provisions on the condition that just terms compensation would be paid (as is required for all other Australian property owners whose titles are compulsorily acquired). Of course, when the validation provisions were enacted, no-one knew where native title existed.

 

In Yunupingu, the Federal Court confirmed that the constitutional requirement for the Commonwealth to pay just terms continues to apply in the Territories (confirming the High Court decision in Wurridjal). However it also extended this principle to confirm that actions by a Territory Government (established under s.122 of the Constitution) that extinguish native title (or acquire property generally) must in turn provide for just terms compensation. Grants of title without provision for just terms by a Territory Government that are inconsistent with native title are thus invalid.

 

There appear to be three territories potentially affected by this decision: the Northern Territory, the Australian Capital Territory, and the Jervis Bay Territory. The Northern Territory was established in 1911, the ACT in 1911 and Jervis Bay in 1915. Consequently, if Yunupingu is confirmed by the High Court, any inconsistent grants without just terms compensation over native title from these dates to 1975 are potentially invalid. Each of the three jurisdictions appear to require something akin to just terms compensation for compulsory acquisitions (although I haven’t done an historical analysis of the relevant acquisition laws), but may well have made inconsistent grants over native title within the relevant dates without just terms compensation.

 

The likely policy implications of this decision if upheld by the High Court are that the Commonwealth will come under intense pressure to validate all potentially inconsistent grants in the three territories from the relevant dates to 1975 on the condition that where actual inconsistency is found to have occurred, just terms compensation will be paid. A second implication will be that the Commonwealth will come under pressure to fund or underwrite the costs of any actual compensation payments awarded against the Territories. When the Native title Act was first enacted, the Keating Government offered to pay 75 percent of any native title compensation imposts on the states and territories, an offer that was never taken up by the states and territories and which ultimately lapsed.

 

A third policy implication (linked to the outcome of the second implication) will be to encourage intensified impetus by the relevant territory governments to reach native title settlements within their jurisdictions so as to pre-empt litigation and the uncertainty that would necessarily follow. While there has never been any formal confirmation, my strong intuition has long been that the preparedness of the Western Australian Government to negotiate substantial native title settlements is driven by internal advice that the state is potentially liable for compensation arising from the grant of titles inconsistent with native title after 1975. Examples include the Yawuru in Broome (link here), with the Noongar people in the south west (link here), and more recently the Tjiwarl native title agreement in the Goldfields region (link here).

 

Clearly the requirement to negotiate any such land use agreements may well fall within the ambit of possible ‘treaty negotiations’ in each jurisdiction.

 

The second issue I wish to address briefly relates to the nature of native title itself. The Federal Court spent some time discussing the nature of native title; see paragraphs 444 to 459 in their judgment. This appears consistent with the standard understanding, and the discussion cites extensively from earlier cases, including Mansfield J in Griffiths, (but not the High Court in Griffiths). The discussion, which is ostensibly directed at a discussion of the concept of inherent defeasibility versus plain defeasibility (I don’t propose to discuss the difference) concludes with the following paragraph:

 

459. What is extinguished by a grant of rights intended to be inconsistent with native title in certain land is not the traditional laws and customs which give rise to the claimants’ native title. The normative systems of First Nations Peoples remain. Traditional laws and customs are not dependent for their existence on any recognition by the Crown. They have existed for generations prior to colonisation, they continue to exist, and they can be enforced as between First Nations Peoples. They can continue to have normative force amongst those who are bound by them. What (if anything) is extinguished is the title to certain land; the “title” is the nomenclature for what is recognised by Australian common law, and what may cease to be recognised by Australian law, with the corresponding effect or benefit that the burden on the Crown’s radical title is removed.

 

What the Federal Court is not saying here is that native title rights are equivalent to freehold. A Straussian reading suggests that the Federal Court is laying down a pathway to a future expansion of the underlying basis for the calculation of compensation (one that I agree is both warranted and just). Such an expansion would require a future High Court to adjust the High Court decision in Griffiths (link here) so as to move beyond the value of equivalent freehold titles as the metric for establishing economic loss and as an implicit cap on the value of cultural loss (which was based on as assessment of the standards of the Australian community). The view that because an owner of a freehold title has expansive freedom of action over the land does not mean that such ownership captures the full extent of Indigenous relationships to an equivalent area or title. Clearly, such an expansion of the basis for native title compensation will not occur in the near term, and perhaps not even the medium term. However, the unanimous Full Federal Court decision here appears to lay down a potential future path for the development of native title compensation law.

 

In this context, I can’t help referencing Diane Smith’s 2001 prescient and insightful research paper, Valuing native title: Aboriginal, statutory and policy discourses about compensation (link here), where she argues, inter alia:

native title compensation is, like native title itself, sui generis, or unique. Native title compensation will require an innovative jurisprudential approach that acknowledges it as a fundamentally new creature, recognisable at the intersection of Aboriginal and Western laws. A precondition for that innovation will be the creation of a recognition space that ameliorates the legal ethnocentrism of the common law, and addresses the intrinsic value to Aboriginal people of their lands and waters.

 

Perhaps one of the most significant policy implications of the Yunupingu case will be the future development of a more innovative jurisprudential approach to the concept of native title compensation.

Note: some minor typographical errors have been corrected.

Yunupingu v Commonwealth: an important native title decision

 

A sceptre snatched with an unruly hand

Must be as boisterously maintained as gained

King John, Act 3, scene 3.

 

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75, Judgment of: Mortimer CJ, Moshinsky And Banks-Smith JJ. Date of judgment: 22 May 2023 (link here).

 

Today’s Federal Court Decision is momentous insofar as it decides that the native title holders of the Gove Peninsula will be entitled to compensation for any native title mineral rights they held prior to the grant of mineral leases, pastoral leases and a mission lease. This arises form the Court’s finding (against the arguments of the Commonwealth) that any native title mineral rights which existed (and which are yet to be determined) were not extinguished by the grants of pastoral leases and mineral leases over the relevant land on the Gove Peninsula, and that the requirement for the Commonwealth to pay just terms compensation for such extinguished native title rights continues in the Northern Territory.

 

The judgement, reflecting the arguments put by the parties, is highly technical and complex, particularly for non-lawyers such as myself. I don’t propose to attempt a detailed summary, nor a discussion of the legal implications of the judgment itself. I am sure that there will be a number of detailed summaries published over the coming weeks. I have included at the end of this post an appendix which sets out the Federal Court’s own high level summary of the case for those interested. 

It is as yet unclear whether this decision will be appealed to the High Court.

There was however one paragraph in the judgment that caught my attention, not for its legal import in relation to Gove, but because it plays into the particular policy responsibilities of the Commonwealth in relation to the Territories, and in particular the Northern Territory, both generally, but for present purposes for Indigenous policy.

 

Paragraph 471 states (emphasis added) :

471. Further, we do not accept the Commonwealth’s contention that when it exercised sovereign power in the Northern Territory it did so not as a national government in a federal system; rather it was “essentially performing the role of a State (as is illustrated by the fact that, in the case of the Northern Territory, the Commonwealth “stepped into the shoes” of the South Australian government)”. The NT Administration Act was an exercise of power under s 122 of the Constitution. It was subject to s 51(xxxi). There is a clear distinction between the kind of legislative power exercised over the Northern Territory as between the Commonwealth and South Australia.

 

It strikes me that the Commonwealth has over the last decade increasingly sought to position itself on Indigenous policy issues as of equivalent status as the states (and territories) in an effort to shift policy responsibility to the states and territories across the board. The issue that came before the Court is just one example of this. Another is the way in which the Commonwealth has been administering the National Agreement on Closing the Gap, and in particular, its passive approach to the quality of compliance by the states on issues such as the quality of implementation plans required under that National Agreement.

 

The fact that the Federal Court has called the Commonwealth out on the particular issues raised in this litigation is important, but should serve as an impetus for the Commonwealth to take stock and reconsider its wider positioning across the Indigenous policy domain. Afterall, the 1967 Referendum, passed with the support of over 90 percent of voters, gave the Commonwealth powers to legislate in relation to Aboriginal affairs for a reason.

 

Appendix

The Catchwords (or high level summary of the issues and decisions) to this judgment are set out by the Federal Court as follows (emphasis added):

NATIVE TITLE – claim for compensation under Native Title Act 1993 (Cth) (NTA) – where the applicant, on behalf of the Gumatj Clan or Estate Group, contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Northern Territory which, if valid, would have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights, and would have extinguished those non-exclusive native title rights at common law – where the applicant contends that the grants or acts purported to effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that they did not provide just terms within the meaning of that provision – where the applicant contends that, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) – where the applicant contends that each of the grants or acts falls within the definition of a “past act” in the NTA – where the applicant contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property – where the Commonwealth contended that the applicant’s claim should fail on a number of bases – where separate questions considered and determined by a Full Court in the exercise of the Court’s original jurisdiction.

 

NATIVE TITLE – extinguishment – pastoral leases granted between 1886 and 1903 – reservations of minerals – where the Commonwealth contended that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established) – held: any native title mineral rights not extinguished

 

NATIVE TITLE – extinguishment – Mission Lease granted in 1938 – where the Commonwealth contended that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted – where the Commonwealth contended that the legislative instrument provided for the grant of a common law lease and thus the lease conferred exclusive possession on the lessee – where the Commonwealth contended in the alternative that the Mission Lease was a statutory lease that granted rights that were inconsistent with the claimed non-exclusive native title rights – held: the Mission Lease did not extinguish or purport to extinguish the claimants’ claimed non-exclusive native title rights

 

CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the just terms requirement contained in s 51(xxxi) does not apply to laws enacted pursuant to s 122 of the Constitution – where the Commonwealth submitted that Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564 is the binding authority on this question – where the Commonwealth submitted that Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 did not overrule Teori Tau – held: Wurridjal did overrule Teori Tau and the just terms requirement contained in s 51(xxxi) does apply to laws enacted pursuant to s 122

 

CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the relevant grants and acts were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land – held: native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi) – held: a grant or act that extinguishes native title rights and interests is capable of amounting to an acquisition of property within the meaning of s 51(xxxi)

 

 

 

 

 

Recent developments in mainstream evaluation: implications for Indigenous interests

 

Are these things then necessities?

Then let us meet them like necessities.

2 Henry IV, Act 3, scene 1

 

In this week’s budget, the Government has allocated new resources to improve the quality of public sector evaluations, and ultimately the quality of mainstream public sector investments across the board. It is a very minor outlay described in a short note on page 213 of Budget Paper 2 (link here):

$10.0 million over 4 years from 2023–24 (and $2.1 million per year ongoing) to establish a central evaluation function within Treasury to provide leadership and improve evaluation capability across Government, including support to agencies and leading a small number of flagship evaluations each year

 

It is too early to know what approach the new evaluation function (which hereafter I will refer to as an ‘Office’) will adopt, and thus how it is likely to impact Indigenous programs and thus ultimately Indigenous citizens and communities.

 

To provide some context, it is worth considering two separate developments from the last five years. The first development relates directly to evaluation.

 

In April 2019, then Treasurer Frydenberg commissioned the Productivity Commission to develop an Indigenous evaluation strategy. In his Direction Letter, the Treasurer described the scope of the proposed work in the following terms:

The Commission should develop an evaluation strategy for policies and programs affecting Indigenous Australians, to be utilised by all Australian Government agencies. As part of the strategy, the Commission should:

• establish a principles based framework for the evaluation of policies and programs affecting Indigenous Australians 

• identify priorities for evaluation 

• set out its approach for reviewing agencies' conduct of evaluations against the strategy.

 

The Productivity Commission published its report Indigenous Evaluation Strategy (link here) on 30 October 2020. The strategy was quite brief, but attached was a 500 page Background Paper.

 

On page 2, the Background Paper provides a one page summary of key points, which I have drastically cut back even further:

Key points

• Evaluation can answer questions about policy effectiveness, but both the quality and usefulness of evaluations of policies and programs affecting Aboriginal and Torres Strait Islander people are lacking…

• There is also no whole-of-government approach to evaluation priority setting. And while policy makers agree that evidence is critical for good policies, in practice there is little reliance on evaluation evidence when designing or modifying policies. 

• The Indigenous Evaluation Strategy (the Strategy) sets out a new approach. It provides a whole-of-government framework for Australian Government agencies for evaluating policies and programs affecting Aboriginal and Torres Strait Islander people. 

• The Strategy puts Aboriginal and Torres Strait Islander people at its centre….

• The Strategy’s proposed governance arrangements [which are essential architecture for an effective Strategy] include an Office of Indigenous Policy Evaluation (OIPE) and an Indigenous Evaluation Council (with all Aboriginal and Torres Strait Islander members). The OIPE and the Council would work in partnership to: monitor and report on agencies’ progress implementing the Strategy; identify evaluation priorities and potential cross-agency/topic evaluations; and provide evaluation leadership and guidance.

• A central clearinghouse for evidence on the effectiveness of policies and programs affecting Aboriginal and Torres Strait Islander people would strengthen accountability for undertaking good evaluations and improve diffusion of knowledge. 

 

While the PC’s Indigenous Evaluation Strategy is not without its flaws, its overarching message that evaluation has the potential to improve policy outcomes is certainly one worth taking seriously, particularly in circumstances where virtually everyone with any detailed knowledge of the Indigenous policy domain concludes that policy outcomes over the past few decades leave much to be desired.

 

Unfortunately, over the almost three years since the proposed Strategy was published, neither the former Government who commissioned the Productivity Commission’s work, nor the current Government have taken up the opportunity to expand the use of, and focus on, evaluation within the Indigenous policy domain, and as a consequence no government has sought to implement the recommendations included in the proposed Strategy either in part of in full.

 

This simple fact ‘bells the cat’ on the real levels of commitment by governments of all complexions to ensuring policy development and outcomes at least in the Indigenous policy domain are in fact fit for purpose. See my previous post (link here) for further detail. The deep scepticism of the Executive Branch to independent evaluation of policy and programs is driven by at least two sets of pressures:

·       for politicians, they are deeply averse to any process of independent evaluation that has the potential to provide ammunition to their political opponents (and thus to constraint the political opportunities that are available);

·       for bureaucrats, they abhor any process that expands the deeply constrained levels of transparency that ensure that the scope for flexibility in shifting administrative priorities and resource allocations incrementally is not constrained.

 

These two drivers are mutually reinforcing, and their combined impact is antithetical to effective democratic accountability and high quality governance.

 

The second contextual development was the successful negotiation of the National Agreement on Closing the Gap (link here), and in particular, the commitment of all parties, including all Australian jurisdictions to four priority reforms. Of particular importance in my mind is Priority Reform three:

58. The Parties commit to systemic and structural transformation of mainstream government organisations to improve accountability and respond to the needs of Aboriginal and Torres Strait Islander people. Priority Reform Three was strongly supported by the 2019 engagement process [emphasis added].

 

This institutional commitment is paralleled by the longstanding and inexorable increase in the comparative importance of mainstream programs to the quality of life of Indigenous citizens. One positive feature of this week’s budget was the focus on APS reform, and part of that is an explicit recognition that the National Agreement requires mainstream agencies to do better in relation to Indigenous issues and outcomes. See 2023 Budget Paper 4 at pages 8-9 (link here).

 

Given this background and context, the decision of the current Government to establish a new whole of government evaluation Office within the Treasury portfolio is to be welcomed. The Assistant Treasurer Andrew Leigh has been a longstanding advocate for greater use of evidence in policy development, particularly Randomised Control Trials.  It can be seen as a heavily cut down version of the proposal championed by Nicolas Gruen (link here) for an office of Evaluator General to be established to focus on public sector effectiveness and thus complement the focus of the ANAO in ensuring accountability and efficiency of public sector outlays (link here).

 

The challenge will be to identify a series of strategically important and high profile evaluation opportunities that lead directly to positive reform agendas. The new evaluation Office is too small to have an immediate impact, and will require time to build momentum and capability. The risk is that it will be vulnerable to abolition should it fail to demonstrate its utility in driving improved public sector outcomes. Of course, the new Office has a potential synergy with the Productivity Commission which may well be the subject of further reform over the next 12 months (link here). There may thus a strategic opportunity to build further evaluation capability across the public sector along with any future refocussing of the Productivity Commission.

 

While the ultimate shape of the new evaluation Office is still unclear, the obvious question for our purposes is what will this mean for evaluation in the Indigenous policy domain? It is too early to make definitive assessments on this issue, but it is clear that there will be a number of challenges over and above those facing mainstream agencies and policy sectors.

 

The first relates to the issue of involving Indigenous interests in evaluation activities that impact them. This becomes difficult when the subject of the evaluation is a mainstream program, especially if the data available is constrained. A second challenge is the extent to which Commonwealth policies and programs are implemented and delivered by the states, a trend reinforced by the policy architecture embedded within the National Agreement on Closing the Gap. 

No doubt there will be other issues that may arise: will the new evaluation Office differentiate between policy and programs; will the new Office have the capacity to evaluate the effectiveness of tax expenditures; what will be the relationship with the ANAO and other relevant agencies, and what will the coordination and working arrangements look like. All of these issues, and how they are decided, will impact Indigenous interests, for better or worse, but they will in very large measure be intangible impacts difficult to ascertain without the sort of close consideration that high quality evaluations might bring.

 

As someone who has taken an interest in the evaluation of Indigenous policy over thirty years, it seems useful if I lay out succinctly the key principles and policies that I would hope the new evaluation Office adopts in relation to evaluation in general and in particular in relation to the Indigenous policy domain. These are not intended to be comprehensive, but I do consider that they are among the necessary principles required to ensure mainstream evaluations make a positive contribution to the quality of policy outcomes, and importantly, to identifying potential reform agendas.

 

First, I would hope that the new evaluation Office adopts a rigorous and focussed approach to oversighting the quality of the entire approach to evaluation of each major agency. There is a potential overlap here with the role of the Department of Finance. The Office should develop a checklist of core competencies and create an overarching and publicly available data base of agency performance against a small number of core competencies. Of course, it will not be in a position to assess each agency every year, but as it does make assessments, they should be added to the data base and be published on the evaluation Office’s web site.

 

Second, I would hope that the new evaluation Office gives particular priority to assessing the independence of evaluations undertaken by agencies, rating them on a consistent scale.

 

Third, I would hope that the evaluation Office develops a mechanism which allows it to assess the extent of an agencies policy and program footprint that has been subject to evaluation over the past ten or fifteen years. See the discussion at pages 208-9 of the Indigenous Evaluation Strategy Background Paper.

 

Fourth, I would hope that the evaluation Office makes an assessment of each agency’s commitment to ensuring that ‘evaluation relevant’ data is being collected and ideally progressively made public. In the Indigenous space for example, it is now eight years since the last National Aboriginal and Torres Strait Islander Social Survey was undertaken by the ABS (link here). The funding of the NATSIS is contributed by relevant policy agencies, and a document released by the ABS in 2017 indicated that the aim was to undertake the survey every six years. Unfortunately, this has not occurred and there appears to be no current plans to undertake another version (link here).

 

Fifth, I would hope that the evaluation Office assesses and reports on the comparative performance of agency transparency in relation to publishing evaluation results in a timely fashion.

 

The Government has identified that the new evaluation Office will undertake a small number of flagship evaluations each year.  There will be a risk that the new Office gets lost in the detail of particular exercises, and ends up keeping busy on evaluations and issues that are tangential to the overall effectiveness of the Commonwealth’s evaluation efforts. In my view, it is this latter objective that should be the primary focus for the new Office. This is the real necessity. If the Office performs that task well, it will create substantial incentives for agencies, including the NIAA and its associated entities, to undertake policy and program evaluations in a much more effective manner than has been the case over the past few decades.

 

Addendum

For those interested, I have previously published posts on this blog related to evaluation issues (link here, link here, link here, and link here).

A more comprehensive conceptual treatment of the link between evaluation and policy can be found in my policy insights paper, Evaluation and review as drivers of reform in the Indigenous policy domain, available on the CAEPR, ANU website (link here).

 

NIAA management of evaluation

Words are no deeds

Hamlet Act 1 scene 3

 

The Department of Finance publishes the Commonwealth Evaluation Policy on its website (link here). It is succinct and not particularly prescriptive nor onerous. It lays out key principles, and seeks to promote an evaluative culture. As part of such a culture, it notes that:

 Leadership that is positive about learning from performance monitoring and evaluation activities is a necessary condition for delivering effective outcomes and providing quality advice to Government, the Parliament and the public.

 

It goes on to lay out key elements in such leadership, including a series of governance actions which support an evaluative culture within agencies.  The Finance website also includes a toolkit which provides a detailed set of tools to assist agencies manage the evaluation process.

 

I took the opportunity over the weekend to examine the NIAA website (link here) so as to seek to understand its current approach to evaluation.

 

The NIAA website includes a section on areas of focus for the agency, and one of them is listed as Evidence and Evaluation. I set out below an extract from the relevant section of the NIAA website (link here):

Evaluations and Evidence

Evidence

The work of the National Indigenous Australians Agency is underpinned by effective data and evidence. The NIAA provides advice and information to the Minister for Indigenous Australians, the Australian Government, State and Territory governments, organisations, providers and communities to inform policy development, programs and monitoring of the effectiveness of programs for Aboriginal and Torres Strait Islander peoples….

Evaluation

Evaluation helps us to gain an understanding of what works and what doesn't, for whom and why. This kind of knowledge can help us to learn and improve what we do, supporting decision-making with the best available evidence.

Evaluation is integral to continual improvement. It is not a one-off, or 'tick the box' exercise. Evaluation supports evidence-informed policy development, public accountability, learning and performance reporting. Evaluation needs to be planned across the lifecycle of a program, from the very start.

The NIAA promotes and supports a culture that focusses on evaluation and performance improvement. We do this by:

·         Providing information, support and advice that embeds the functions of evidence and evaluation into policy and program design cycles.

·         Ensuring that monitoring and evaluation priorities we support are well designed and delivered in collaboration with Indigenous Australians.

The Evaluation Framework guides the conduct and development of a stronger approach to evaluation of programs and activities under the Indigenous Advancement Strategy. The goals of the Framework are to:

·         Generate high quality evidence that is used to inform decision making.

·         Strengthen Indigenous leadership in evaluation.

·         Build capability by fostering a collaborative culture of evaluative thinking and continuous learning.

·         Emphasise collaboration and ethical ways of doing high quality evaluation at the forefront of evaluation practice in order to inform decision making.

·         Promote dialogue and deliberation to further develop the maturity of evaluation over time.

Indigenous Advancement Strategy Evaluation Work Plan 

Publication of the Evaluation Work Plan supports the commitment to transparency made in the Evaluation Framework. It provides details on evaluation activities and enabling activities that are planned, underway or completed by the NIAA.

Evaluation activities on the Work Plan are reviewed by members of the Indigenous Evaluation Committee and approved by the NIAA Executive Board.

 

The IAS evaluation work plan (link here) is dated 5 January and appears to have been substantially reconceptualised in recent times. The NIAA website describes what has occurred in the following terms:

The NIAA has moved to a dynamic version of the IAS Evaluation Work Plan to make it accessible to a broader audience, and to improve the timeliness of the information presented. Previous versions of the IAS Evaluation Work Plan (2017–18 through 2020–21) are still available.

In this dynamic version of the work plan, users can find information on past and current evaluations, and enabling activities, according to IAS Program areas in the tables below. New evaluations and enabling activities are added to the work plan as they come on line and updates to the status of evaluations are made as they progress through the different stages to completion.

 

In effect, the NIAA appear to have shifted away from an annual evaluation plan to one which is continuously updated. In effect, they have conflated two separate potential data sets. The first is the plan that has been adopted for each financial year. The second is the status report on progress against the plan, and recording of any additions and/or deletions. What is unclear or made more opaque with the new approach is the extent to which evaluations are progressing against the workplan (delays are not obvious unless you delve below the front page), how long completed and discontinued evaluations will stay listed (I would argue they should remain available for at least 5 years).

 

A closer examination of the listed evaluations in the ‘dynamic work plan’ reveals a number of issues that do not sit well with the Department of Finance advice regarding the development of an evaluation culture. For example, embedded in the descriptions of various evaluations are multiple inconsistencies and what might be described as deliberate circumlocutions. A number of evaluations have been completed, sometimes two years ago, and yet are listed as ‘publication pending’. Is this actually the case, or has a decision been taken to not publish them and quietly remove them from the work plan at some time in the future. Other evaluations have been discontinued, but without any real explanation as to why this has occurred, and whether funds were expended and evaluation activities undertaken before the discontinuation was decided upon.

 

My advice to the NIAA would be to develop a template for the evaluation workplan that lays out a consistent and comprehensive set of core information, ideally including dates evaluations were commissioned, were begun, were completed, and were published, the evaluator, a succinct description of the aim of the evaluation, and once completed, a succinct description of the results. Additionally, there seems no good reason why the cost of the evaluation is not provided, particularly as the value of any external consultancy payments would be available on the Commonwealth tender site.

 

A more important issue to my mind is that it is apparent that there are multiple evaluations of relatively insignificant programs, of virtually zero strategic significance. The standout example to my mind is the Dog Operations Unit evaluation listed as being underway. It was approved in August 2020, contract start in February 2022, and is (apparently) yet to be finalised. The evaluation description is:

NIAA funds the Northern Territory Police, Fire and Emergency Services (NTPFES) to provide a Dog Operations Unit within the community of Groote Eylandt with the aim to improve community safety and crime prevention through enhanced police capability. This evaluation will assess the design, implementation and outcomes of the Dog Operations Unit.

 

A September 2022 ABC media report suggests that the NT Police only have four dogs in their unit, and that they are based in Darwin (link here). A February 2023 media report relating to an arrest on Groote suggests that the Dog Operations Unit was deployed to Groote along with the Drone Unit and the Territory Response Unit (presumably from Darwin). Perhaps the NIAA funding has ceased. This evaluation strikes me as chopping wood for practice, and one must also ask, why is it that the NT Government is not prepared to fund the operations of a dog unit in a remote community if that is what is required. There are a host of further questions raised by this evaluation, but the bigger issue is why does the NIAA evaluation work plan include miniscule projects of zero strategic import and not larger programs such as remote housing.

 

When I checked the housing program, there is an item for remote housing:

Northern Territory Remote Housing National Partnership Agreement

Program: Program 1.5 - Remote Australia Strategies; Activity type: Evaluation strategy; Last updated: 5th October 2021; Not continuing.

The reporting framework under the National Partnership Agreement has only recently been endorsed, with further amendments expected. The four Northern Territory Land Councils have now prioritised a joint review of leasing and housing models in the Northern Territory over the evaluation strategy. The joint review will inform opportunities to improve remote housing delivery in the Northern Territory.

 

There are two evaluations listed for leasing and housing models in the Northern Territory:

Northern Australia White Paper: Land Tenure Reform Pilots

Program: Program 1.1 - Jobs, Land and Economy; Activity type: Evaluation; Contract start: May 2019; Provider: Yaran Business Services; Last updated: 4th February 2022. Publication pending:

The land tenure reform pilots measure supported a range of projects across Northern Australia to test innovation in land-based activities on the Indigenous estate that support economic development and boost investment in the north. The purpose of the evaluation is to understand the extent the measure has contributed to the goals of the Northern Australia White Paper which sets out the Government’s 20-year plan for investment and collaborative support to drive growth in Australia’s north.

Northern Australia White Paper: Township Leasing and Land Administration

Program: Program 1.1 - Jobs, Land and Economy; Activity type: Evaluation; Contract start: May 2019; Provider: Yaran Business Services; Last updated: 4th February 2022. Publication pending:

The Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) was amended in 2006 to provide for section 19A ‘township leases’, which cover entire community areas on Aboriginal land to support economic development. Township leases can be held either by the Executive Director of Township Leasing (EDTL) on behalf of the Commonwealth or, more recently, by a local Aboriginal corporation representing traditional owners (community entity model).

The evaluation considers the communities that have taken up township leases in the Northern Territory (NT) from introduction to 2017 and how they have performed against initial expectations and policy objectives. As well as examining the direct benefits of township leasing to individual communities, the evaluation examines the extent to which township leasing provides social, cultural, economic benefits to Aboriginal peoples and communities in the NT.

 

These two evaluations appear to relate to the two evaluations apparently proposed by the NT Land Councils and focus on perfectly legitimate policy and program issues. It is unclear why they are yet to be made public. However, the fact that these are legitimate subjects for evaluation is hardly a justification for not evaluating what I understand is a four year $550m investment in remote housing in the NT by the Commonwealth (link here).

 

According to a February 2022 ANAO performance audit of remote housing in the NT (link here), by virtue of the existence of some 3500 forty year housing leases from traditional owners to the Commonwealth (which are subleased to the NTG), the Commonwealth retains an underlying interest in the majority of public housing in remote communities in the NT, which represent 59 percent of the remote housing portfolio in the NT (see para 1.23). That ANAO audit (which was not as broad as an evaluation) identified numerous shortcomings in the NIAA management of remote housing investment in the NT. The first 32 paragraphs provide a useful summary of the ANAO conclusions which are expressed in a dialect unique to the ANAO which I refer to as ‘muted bureaucratese’. I have cherry picked and reformatted a few sentences from that summary section to provide some concentrated flavour:

NIAA’s administration of funding for remote housing in the NT has been partly effective. The development of the National Partnership was partly effective. However, the National Partnership Implementation Plan has significant weaknesses, and advice to the minister did not include analysis of some of the National Partnership’s key parameters. NIAA has been partly effective in assessing the delivery of the program of works under the National Partnership. NIAA has not fully developed or implemented a risk-based approach to determining what assurance is necessary to verify the Northern Territory (NT) Government’s achievement against National Partnership targets. NIAA has been partly effective in ensuring that the National Partnership’s outcomes will be achieved. NIAA’s assessment of the delivery of capital works has been partly effective. NIAA’s assessment of the delivery of PTM services has been partly effective. NIAA does not gain assurance over the performance results reported to it by the NT Government, and has not always used the correct reporting period to assess the NT Government’s results and to recommend payments. NIAA has been partly effective in ensuring transparency about how money has been spent. However, NIAA does not have assurance that the NT Government will meet its $550 million co-contribution commitment over the life of the National Partnership. NIAA has not managed risks to the delivery of the National Partnership effectively…

 

Partly effective indeed. See my previous post on this performance audit for my own assessment (hint: it is tougher than the ANAO assessment: link here). Given these performance audit findings on what is a billion dollar joint Commonwealth / NTG investment program, and one which will necessarily continue into the future despite the time limits on the National Partnership, the case for discontinuing the proposed remote housing national partnership evaluation appears wafer thin. And this is just one of the issues embedded within the work plan.

 

Returning to the bigger picture, it is clear that the evaluations listed in the NIAA evaluation work plan raise myriad issues. One wonders whether there would be merit in undertaking a short sharp action oriented review of the management of the evaluation program by NIAA. I think it could be undertaken over ten days by a competent policy analyst.

 

The major problem with the NIAA evaluation workplan is that it provides no indication of the overall extent of the evaluations undertaken over the past three years and planned for the next three years. The result is that it is virtually impossible to assess the extent of NIAA’s evaluation efforts against the agency’s overall policy and program footprint.

 

A related issue is that there is no evidence of narrative provided to demonstrate how previous evaluations have contributed to revised or new program initiatives.

 

It is my assessment that the NIAA appears to be merely going through the motions: an evaluation framework document full of the expected rhetoric, a rather opaque Indigenous Evaluation Committee to provide independent strategic and technical advice, yet where it really counts, a ‘dynamic work plan’ replete with inconsistencies and an absence of strategic direction.

 

What is clear is that the reported budget announcement later this week of a centralised unit in Treasury to promote improved evaluation across the Commonwealth will have its work cut out in at least one area of public policy. In the meantime, it is worth remembering that the consequences of ineffective programs and policy is borne in large measure by disadvantaged citizens.

Dodge dip and dive: eight ‘data points’ on remote policy

All the world’s a stage,

And all the men and women merely players

As You Like It, Act two, scene seven

 

A consistent theme on this Blog has been the social, economic and environmental crisis facing remote Australia, and in particular, remote Indigenous communities (link here, link here, link here, link here and link here).

 

It is perhaps time for me to chance my arm and lay out a high level outline of a potential policy strategy along with the accompanying rationale to address this crisis, albeit one that will take time to devise and implement, and longer to gain traction. Nevertheless, the alternative is to keep muddling on, at serious and ongoing cost to the life opportunities of the 150, 000 remote Indigenous residents across Australia.

 

Before doing so, hopefully sometime in the next month, I thought I would present a random and non-prioritised assembly of key remote ‘data points’ or markers that I have been collecting over the month or so. In laying out the data points, I will add some brief contextual commentary. My point in approaching this issue in what is a deliberately adventitious way, without suggesting an order of priority, importance or significance, is to provide a sense of the breadth and interdependence of the policy challenges facing remote Australia and its residents as well as the temporal cycles that permeate this domain.

 

I am hoping readers think about the underlying implications of each data point, but also consider what it means if the data point is replicated more widely. While it is clear that not every remote location and community faces the same circumstances, it is also clear that individual data points are replicated more widely, albeit to an unknown extent, creating notional data sets. Moreover, the interactions of the totality of different notional data sets operate are not independent or constrained, but reinforce each other in ways that resist the constrained and limited policy horizons of governments and policymakers confined by self-imposed bureaucratic silos. The implication of this insight is that policy responses must also be designed and implemented as assemblages of reinforcing initiatives.

 

Remote data points

Data point one: A recent ABC news article reports that in Halls Creek in the Kimberley region of WA, school attendance at the District High School has dropped from 38 per cent in 2021 to 26 per cent last year, compared to 80 per cent across Western Australia's public schools (link here). An earlier August 2022 ABC news article (link here) reported that the Western Australian Coroner had found that poor school attendance was a common factor in the deaths [by suicide] of young people in the town between 2012 and 2016.

 

Data point two: In 2022, ANU researchers finalised an extensive 140 page report on Groote Eylandt for the Anindilyakwa Land Council titled Social Indicators and Data Governance to Support Local Decision Making in the Groote Archipelago (link here). It is worth reading in full for the contextual background. Three sets of issues from the report caught my attention for their policy implications:

The first issue relates to overcrowding: The report notes (pages 87-88) that in 2006, 39% of the community-controlled housing stock was uninhabitable ...The number of Indigenous occupied dwellings in the Archipelago as defined by the census has increased by more than 50% over the past 15 years ….The percentage of census-identified dwellings that are overcrowded declined from 49% in 2016 to 37% in 2021 (pages 87-88). My comment: What the report does not do is to explicitly draw out the policy implications of this data. Notwithstanding the improvements over the past 15 years, overcrowding is clearly a significant issue with a third of houses overcrowded. Yet clearly the substantial investment included in the now discontinued National Partnership on Remote Indigenous Housing had a positive impact. What is unclear is whether the current NT Housing program at a considerably lower level of overall investment will have the momentum to overcome the ongoing rate of housing asset deterioration (in a worsening climate) and continue to eat into the overcrowding backlog. As an aside, the ANU report does not address the quantum and allocation of mining royalties by the ALC on Groote: in many respects, Groote is unique amongst remote communities in northern Australia, and it is the major driver of royalty equivalent payments that fund the operation of all four NT Land Councils plus the ABTA. Royalty allocation decisions are an important issue on Groote as mining will not last for ever. The allocation of royalties must be directed to capital investment (including private housing investment) rather than recurrent expenditure if it is to have a lasting impact. That is an issue for separate consideration and study.

The second issue relates to health: the Report notes (page 106) that for residents of Groote Eylandt, hospitalisation rates are higher now than 20 years ago for all leading causes, except in the case of genito-urinary diseases which includes renal failure …. Other notable increases in the rate of hospitalisation have occurred for external causes and alcohol-related diseases. The latter have been much higher over the decade 2011–2020 compared to 2001– 2010 … Intentional self-harm hospitalisations have also been much higher over the past 10 years, with the rate for females double that for males. My comment: the important, but unanswered question here is what has caused these retrograde developments. It may be a reduction in the quality of health services, but my intuition is that the problem lies more in the area of the social determinants of health.

The third issue relates to education: on school attendance, the report notes that the overall attendance rate at Groote Archipelago schools (% of those enrolled attending only some of the time) has been consistently low at 40–50% since 2011. The overall attendance level (those attending >90% of the time) has been consistently very low at <10% since 2011. In effect, this means that a large share of the current generation of school aged children have missed an effective education. My comment: this is an extraordinary indictment on the NT Government and its education policies.

 

Data point three: A recent academic article on the organisational depth, robustness and footprint of political parties in remote Australia, authored by Griffith University political scientists Duncan McDonnell and Bartholomew Stanford, titled The Party on Remote Ground: Disengaging and Disappearing? (link here and link here). This research documents the weakening and extremely thin footprint of organised political parties in remote electorates such as the Barkly in the NT and the Kimberley in WA, and points to the adverse implications for democratic participation and engagement, including amongst Indigenous citizens. My comment: what the authors don’t say, but perhaps should have, is to emphasise the crucial role of political parties in shaping public policy, and the concomitant consequence that political party remote disengagement risks exacerbating the ongoing remote policy vacuum. See the discussion in my submission to the Joint Select Committee on the Voice Referendum (#65 at link here). I previously posted on the low voting turnouts in remote Australia (link here).

 

Data point four: in a recent Submission (link here) to the Standing Committee on Community Affairs Legislation Committee Inquiry into the provisions of the Social Security (Administration) Amendments (Income Management Reform) Bill 2023, ANU researchers Matthew Gray and Rob Bray  used ABS and AIHW data to track Indigenous imprisonment rates in the NT over the past twenty years against non-Indigenous rates in the NT and nationally (see Figure 1) and Indigenous school attendance rates in the NT over the decade from 2009 to 2020 (Figure 4).

In relation to incarceration, they observe that compared to non-Indigenous adults, Indigenous imprisonment rates have dramatically widened since 2000, exceeding 2700 per 100, 0000 in 2020, up from just under 1000 per 100, 000 in 2000. Non-Indigenous incarceration rates have remained stable throughout these decades at about 200 per 100, 000.

In relation to school attendance, they report declining school attendance across the NT over the past decade, reaching mid sixty percent levels for remote schools and mid forty percent levels for very remote schools. To which I would add two comments: this data is consistent with the Groote statistics cited above, suggesting Groote is not an outlier; and second, the statistics in Figure 4 do not cite the most educationally significant data, namely, the proportion of students who attend 90 percent plus of the time. These data are consistent however with the extraordinary conclusion that a substantial proportion of remote Indigenous students over the past decade are missing out on an education, and there is no policy initiative on the horizon to suggest this will change over the coming decade.

 

Data point five: the Gray/Bray submission referred to above, along with a number of other submissions, comprehensively demonstrates that the continuation by the current Commonwealth Government of universal compulsory income management across remote communities in the NT lacks a robust evidence base. The submission points out that policy breaches Labor’s pre-election promises, and points to departmental efforts to ignore or not publish relevant data. My own comment on this situation is as follows: the underlying rationale for continuing this selective policy can only be a blunt and indirect attempt to limit expenditure on alcohol by remote residents in circumstances where the NT Government is incapable and unwilling to impose robust regulation of the alcohol sales across the NT. This policy is increasingly at risk of tipping into being racially discriminatory, as its status as a ‘special measure’ under the Racial Discrimination Act requires it to have a beneficial impact. Yet if the evidence does not support this, the ‘special measures’ rationale falls apart.

 

Data point six: a recent research publication by ANU researchers (led by my CAEPR colleague Bradley Riley) and representatives of two Central Australian Aboriginal organisations documented the impact of COVID on energy security amongst remote NT residents. Titled Disconnected during disruption: Energy insecurity of Indigenous Australian prepay customers during the COVID-19 pandemic (link here), the research reported that:

The risks associated with the regular de-energization of prepay households have long been overlooked by government reporting and this contributed to a lack of visibility of energy insecurity and available protections for this group during the pandemic response. In contrast to the rest of Australia, energy insecurity in the form of disconnections remained unrelentingly high or worsened for prepay households during this time. COVID-19 magnifies pre-existing health and socio-economic inequities. 

I have previously posted about this issue, and the potential destructive interplay of high levels of pre-pay disconnections and rising temperatures (link here). The recent publication pays particular attention to the lack of comprehensive data. The paper concludes:

While the national moratorium on disconnection provided to post pay customers during COVID-19 meant that experiences of energy insecurity decreased for most Australians, remote living Aboriginal and Torres Strait Islander prepay customers did not receive commensurate protections …. While there are few published metrics relating to avoiding or reducing the frequency and duration of involuntary self-disconnection events experienced by prepay customers, what data there is shows that frequent de-energization of Indigenous prepay households continued and, in many cases, worsened during the COVID-19 pandemic.

 

Data point seven: In early February, the ABC had reported that ‘Data reveals 50 per cent spike in alcohol-related emergency presentations after lifting of bans in Alice Springs’ (link here). These bans related to the consumption of alcohol on town camps around Alice Springs, and numerous other remote communities.

 

On 20 April 2023, NT Chief Minister Natasha Fyles issued a media release which stated in part:

The Northern Territory Government will extend takeaway alcohol restrictions in Alice Springs. Over the past three months we have seen these alcohol restrictions work, and support our community and frontline workers. 

Alcohol-related emergency department presentations at Alice Springs Hospital have almost halved, and domestic violence has dropped by a third in the month since the takeaway alcohol restrictions were reintroduced into the Northern Territory town. 

 

While the Chief Minister appears to be shifting the narrative away from the earlier across the board alcohol bans which she initially opposed, and reluctantly agreed to re-introduce after pressure from the Commonwealth, the points to note for present purposes are first the extraordinary human toll of alcohol abuse, and second, the direct link between alcohol consumption levels and hospital presentations. The latest available published data on the NT Government website (link here) is for the fourth quarter of 2022, and indicates 1299 alcohol related hospital emergency presentations. There were a total of 4145 alcohol related emergency presentations at the Alice Springs hospital for the 2022 year. To put this in context, a 2018 Deloittes Report (link here) noted that there had been a total of 46, 785 alcohol related emergency presentations across Australia in 2016-17 (table 2.1). Clearly, alcohol abuse levels in the NT and in Alice Springs have been at extraordinary levels for a considerable time. 

 

Data point eight: on 28 April 2023 Guardian reported (link here) on the ABS release of updated socioeconomic indexes based on 2021 census data which take into account census data on income, education, occupation, housing, employment and family structure, among other factors, to rank each of Australia 547 local government areas (LGAs).  The data is used to create a score with an average of about 1,000. Lower scores indicate areas of relative disadvantage. Unsurprisingly, by my rough reckoning, the 33 most disadvantaged LGAs in Australia all have a substantial majority of Indigenous residents. Of course, even more advantaged LGAs can include pockets of extreme Indigenous disadvantage, but these index scores are moderated by the population mix within the LGA. According to the ABS, “disadvantaged areas tend to be in regional and remote communities, while advantaged areas tend to be in major cities”.

 

Conclusion

I am conscious that these random data points, and particularly the associated notional data sets, largely represent shortfalls in the performance of governments, and are biased towards issues that have received media coverage which in turn is likely to be a proxy for policy attention from governments. Issues that are in my view significant, but are not listed here, include wider health issues (including for example the long lasting effects of FASD); employment / unemployment, and in particular the interaction with the Community Development Program which delivers income support to some 35, 000 remote citizens; environmental management including the operation of Indigenous Protected Areas and ranger groups; the impact and operation of land rights and native title legislation; and issues related to commercial and economic development. Each of these policy domains along with others I have not mentioned undoubtedly interacts with and contributes to the quality of life for remote citizens, along with the policy issues I have addressed. Nor have I focussed on institutional structures such as the operations and effectiveness of Indigenous organisations, or the impact of federal governance.

 

What is clear however is that given the synergistic interactions of multiple policy domains, the current model of policy design and implementation has not worked. This raises the potentially unsettling prospect that, at a fundamental systemic level, governments and policymakers are not incentivised to take the policy decisions that are required to make a substantive difference to the policy challenges that exist. Instead they are incentivised to manage difficult issues, oil squeaky wheels, and engage in a performative ritual designed merely to persuade an electorally significant non-Indigenous constituency (and a less electorally significant, but more animated, Indigenous constituency) that they are doing what is required to address the policy challenges that surface periodically in the public consciousness.

 

A recent review of a book on Boris Johnson (link here) described his motto for governing as ‘dodge, duck, dip, dive and dodge’. As it turns out, this is an extraordinarily apt description of the systemic approach of Australian governments to remote policy challenges.