Compulsory voting and remote Indigenous electoral disengagement

… this new governor

Awakes me all of the enrolled penalties

Which have, like unscour'd armour, hung by the wall

So long that nineteen zodiacs have gone round

And none of them been worn; …

Measure for Measure, Act one, Scene two.

 

I previously wrote about remote electoral engagement in an August 2020 post on voting turnout in the NT election (link here). In that post, I suggested that there appeared to be strong and increasing levels of Indigenous disengagement with the electoral system and government more generally.

 

On 26 July 2023, Deputy Australian Electoral Commissioner, Jeff Pope, gave a very useful seminar at the ANU on the topic of Aboriginal and Torres Strait Islander people's participation in Australian elections and referendums. According to the pre-seminar blurb

Since 2017, there has been year-on-year growth in the estimated Indigenous enrolment rate. Despite these steady increases, in 2023 the estimated Indigenous enrolment rate remains lower than Australia’s national enrolment rate. Mr Pope will outline the broad history of Indigenous voting rights since Federation and consider some of the challenges that Indigenous people may face with fully participating in elections and referendums. Mr Pope will discuss how the AEC is using an evidence-based approach and working with Indigenous communities and service providers to deliver a range of initiatives to support Indigenous electoral participation. 

 

The seminar delivered on this plan, and provided a very useful overview of the AEC’s strong efforts to lift enrolment rates for Indigenous citizens in particular. He referred extensively to recently updated data on the AEC website. Key data points included that nationally, mainstream enrolment rates are now 97.5%; there are just over 18 million Australians eligible to vote and just over 450,000 of those citizens are not enrolled.  Nationally, Indigenous enrolment rates have been increasing, and are now 94.1%. The estimated Indigenous voting age population is 567,528, and of which an estimated 33,319 citizens are not enrolled. Mr Pope described the Indigenous enrolment rate as the ‘highest ever’ (link here). Mr Pope noted that enrolment rates in remote regions were much lower. The AEC data (link here) indicates that in the WA and the NT, Indigenous enrolment rates are 86.9% and 87% respectively, while in SA, the rate is 92.7%. All other jurisdictions exceed 95%.

 

Close assessment of this data indicates that there have been extraordinary shifts in enrolment. For example, over the past two years, the estimated number of Indigenous unenrolled nationally has fallen from 112,000 in June 2021 to 33,000 in June 2023. In the NT, the unenrolled level has dropped from 16,000 to just over 7,000 over the same period. These are quite extraordinary shifts, and suggest that the AEC has in recent years begun to put real effort into addressing these issues.

 

Notwithstanding these efforts, voter turnout has been dropping substantially over recent decades (link here).  In fact, according to AEC data, the turnout for the House of Representatives in 2022 was 89.8%, the lowest turnout rate in 101 years (link here).  This suggests that around ten percent of at least 17 million enrolled voters, or 1.7m enrolled voters and after taking into account unenrolled voters, over 2 million potentially eligible voters did not vote. Over the period 2001 to 2016, mainstream turnout dropped around 2% in each of the top ten electoral divisions by turnout (link here table 4, p. 25). Clearly there are national trends in play.

 

However, electoral divisions in remote Australia with high proportions of Indigenous potential voters are at the very bottom of the voting turnout hierarchy. The two electoral divisions with the lowest voter turnout in the country are Durack in WA and Lingiari in the NT. In 2001, turnout was 86.81 and 80.55 respectively. In 2016, turnout in Durack was 82.03% and in Lingiari it was 73.7% (link here table 4, p. 25). There are strong grounds for thinking that remote communities in Queensland and South Australia display similar characteristics, albeit the evidence is not immediately available given the larger non-Indigenous populations in the relevant remote electoral divisions.

 

It was clear from the ANU seminar presentation that the AEC is acutely aware of the current trends, and is devoting significant efforts, backed by senior level support and commitment, to addressing these challenges. The broad strategy at this point appears to be twofold: to maximise enrolment by removing blocks to enrolment; and to expanding electoral education.

 

Notwithstanding the AEC efforts (which to be clear I am not criticising, and indeed support wholeheartedly), there are a couple of broader points worth making.

 

First, it seems likely that the extraordinary jump in the Indigenous population between 2016 and 2021 due in large measure to increased identification has probably flowed into the improvements nationally in Indigenous enrolment (link here). These changes in identification are overwhelmingly focussed on urban and regional Australia.

 

Second, it struck me that the notion that we have compulsory voting in Australia is under serious threat as potential voters disenchanted with the responsiveness of governments to their concerns voted with their feet (so to speak) and abstain from engagement with the electoral system. In such an environment, engaging potential Indigenous voters in remote regions is going to be doubly difficult. In addition, the fact that voting turnout in electoral divisions with high percentages of Indigenous potential voters in remote Australia is extraordinarily low suggests the possibility that there are additional drivers of low voting turnouts, or that at the very least, that the disengagement with the nation’s political system is qualitatively different in remote and non-remote Australia.  

 

These broader points suggest that there are deeper structural issues in play beyond the way in which our electoral systems are designed and administered.

 

Given this background, it seems to me that it is time that those Australians who support substantive democracy and/or compulsory voting should begin to think more seriously and more innovatively about how to make our political system more responsive to voter concerns. Moreover, there is likely to be a requirement to consider different approaches for supporting improved governance responsiveness in remote and non-remote regions. These are issues that extend way beyond the systems of voting we have and the valuable efforts of the AEC to increase enrolment and educate potential voters about voting systems and the like.

 

In the ANU seminar, I pressed the AEC Deputy Commissioner about the levels of enforcement in relation to both enrolment and voting through the lens of incentives. I asked whether the AEC has an in principle position on the use of incentives to encourage enrolment, and what their policy was in relation to non-voting in remote regions.

 

In relation to incentivising enrolment, I didn’t get a clear answer. At the back of my mind was the approach taken in relation to Research & Development in Australia, where the inability of firms to capture the entire benefits of innovation investment means that they limit investments, and as a result there are sub-optimal levels of innovation investment nationally. To address this market failure, the public sector provides tax incentives (worth billions of dollars each decade) to incentivise firms to undertake an optimal level of national R & D. If there are structural impediments to enrolment, and we value 100 percent electoral participation, perhaps governments should consider ways to incentivise electoral enrolment either nationally or in some more targeted manner? While it may seem that the significant improvements in enrolment make such a policy otiose, it is worth remembering that enrolment status is dynamic and vulnerable to degradation over time.

 

In relation to enforcement of compulsory voting in remote regions, the AEC indicated that Commonwealth fines are comparatively low, but that they use the option of prosecutions ‘judiciously’. I understand this response as I think the use of the legal system to enforce voting would be perceived negatively by many Indigenous citizens, and would likely be counter-productive and backfire. But education, while important, may not be an adequate strategy in the face of deep seated disengagement from a social system that is seen by many remote people as ineffective at best and racially exclusionary at worst. There is thus a need to think more broadly.

 

A large part of the problem is that parliaments (in Canberra and in states and territories) are in large measure controlled by the Executive arm of Government (whereas the normative theory is that the Executive is drawn from elected members and should implement the will of the parliament). Moreover, there are serious question marks over the extent to which the Executive arm of governments of all persuasions are themselves democratic (link here and link here). In this situation, and in the absence of reforms to strengthen parliamentary supremacy over the Executive (or even just greater Executive transparency), it is incumbent on policymakers and advocacy interests to explore innovative ways of ensuring that voters feel like their votes do count and influence outcomes. Off the top of my head, one option would be the greater use of deliberative democracy to work through contentious policy issues. Other options include greater transparency over political donations, and strengthening the operation of FOI laws. These sorts of ideas resonate closely with Indigenous calls for greater co-design of policies. There may well be other ideas that might make a positive contribution.

 

Of course, I am not holding my breath on these reforms. We already live in a nation where around 11 percent of eligible voters do not participate in federal elections (and probably state and territory elections) If voter turnout continues to fall across the board, then we should not be surprised to wake up one morning and realise that we no longer live in a society where the governments we elect have the authority that comes from being selected by the widest possible cross section of the community. Such a society is more prone to political dissension and conflict whether through anarchic chaos or direct action.

 

In particular, the longstanding challenges across remote Australia will be that much harder to solve if governments learn that they do not need to response to citizens needs because citizens’ votes are either diminished or non-existent; and if Indigenous citizens ‘learn’ that voting is not relevant and not compulsory and that governments do not listen even if they enrol, vote and participate in the political system. Indeed, there are strong grounds for the view that Indigenous citizens in remote Australia have already learnt this, and are voting with their feet. The nation’s growing challenge is to create the preconditions for Indigenous citizens in remote Australia to unlearn those conclusions.

 

28 July 2023

 

Alcohol and community safety in the NT

There is a history in all men's lives,

Figuring the nature of the times deceased,

The which observed, a man may prophesy,

With a near aim, of the main chance of things

As yet not come to life…

2 Henry IV, Act 3 scene 1

 

 

In February 2023, the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, Chaired by Labor Senator Patrick Dodson, issued the report on its Inquiry into community safety support services and job opportunities in the Northern Territory (link here).  The terms of reference provided by the Senate in establishing the Inquiry focussed on three broad issues: the remote alcohol policy regime in the NT leading up to and after the sunsetting of the Stronger Futures legislation in June 2022 and its impact on alcohol regulation; remote employment issues; and justice reinvestment policy issues. This post limits itself to the first of these three topics.

 

Senator Dodson’s Foreword to the Committee Report is both a robust critique of past governments and their policies and a succinct high level summary of the Report’s argument. It is worth reading in full. Here is an extract:

… over the past 15 years, [Aboriginal communities in the NT’s] right to self-determination has been deliberately denied by governments of all stripes. The Northern Territory National Emergency Response and the Stronger Futures in the Northern Territory Acts were both legislative means of structurally disempowering remote Aboriginal communities in the NT. Through these policy regimes, governments have destabilised, disempowered, and disoriented Aboriginal communities. Governments have taken away community power and instead made them dependent on government for survival and have done so with little to no accountability. These actions occurred under the guise of a failure for Aboriginal communities to run their own affairs and to make decisions about what is best for their community.… In order to truly enable community-led solutions, governments need to transfer power and resources to communities. This requires investment based on outcomes, rather than outputs; ensuring data is available at the local level; and listening and acting on what communities say will work best.

 

This argument represents a rhetorical narrative that resonates powerfully with many Indigenous people because it reflects their lived experience of Australia’s history, yet for reasons I set out below it simultaneously serves to gloss over and to some extent erase the complex and in many respects insurmountably difficult issues at the cutting edge of policy development and implementation.

 

A case in point is the Committee’s assessment of the Rudd Labor Government’s Stronger Futures Northern Territory (SFNT) legislation, effectively equating it with the Howard Government’s NTNER legislation. This conflation is facilitated by the fact that Labor while in Opposition voted to support the NTNER to avoid making allegations of Indigenous child abuse in remote communities an election issue, and when in Government continued to support some key elements of the NTNER, most notably compulsory income management of welfare benefits. However policy, and more importantly it tangible impact, is about more than the political ‘vibe’. With policy, the devils (or the angels) are in the detail.

 

The Committee Report usefully summarises both the NTNER legislation (paras. 1.12 to 1.22) and the Stronger Futures (SFNT) legislation (paras. 1.23 to 1.39). In contrast to the NTNER, SFNT removed most of the punitive elements of the previous package, did not involve the Australian Defence Force, allocated significant funding (listed in para. 1.27) totalling $3.4 billion over ten years, and reinstated the application of the Racial Discrimination Act which had been set aside by the NTNER legislation. The Committee preferred to give little weight to these differences, and in it’s comment after assessing these initiatives, it expressed its concurrence with Senator Dodson’s conclusion in the Foreword:

The Committee considers that the NTNER and Stronger Futures legislative packages systemically disempowered communities—in their delivery, implementation and transition—causing immense trauma that now requires concerted effort by all levels of government to enable and invest in the re-empowerment of these communities.

 

To be clear, I do not dispute that finding in relation to the NTNER, and agree that remote NT Indigenous communities have faced and continue to face immense trauma and systemic disempowerment. However, policy solutions (as opposed to political solutions) require rigorous analysis. We should not confuse political advocacy and rhetoric with policy analysis. In particular, I would argue that the sources of these ongoing challenges are not rooted solely in past actions by governments, but are built into the very fibre of the contemporary actions of governments.

 

The dilemma faced by the Joint Standing Committee was that having concluded that the SFNT legislation ‘systematically disempowered’ communities, it leaves very little room for accepting that the SFNT approach to alcohol regulation was and remains, at least in the short/medium term, the best approach to addressing the significant and arguably widening impacts of alcohol abuse within remote communities.

 

In chapter two, the Committee makes what appears to me to be a cursory assessment of the processes leading up to the sunsetting of the alcohol provisions, and the introduction of the NT Government’s ‘opt-out’ mechanism. This allowed affected communities to seek to opt-out of arrangements that had lifted the previous SFNT restrictions. The Committee’s conclusion in effect was that there was a failure of consultation and bureaucratic preparation for the transition from SFNT to largely unrestricted access. My own reading of the process is that both the former LNP Government and the NT Labor Government achieved exactly the outcome that they intended, and the incoming Labor Government in Canberra were not prepared to challenge the NT Labor Government over this issue. In doing so, they grossly under-estimated the consequential political impacts in Central Australia that exploded into national prominence in early 2023, and more egregiously, ignored the impact of the NTG policy on the lives of thousands of Aboriginal women and children.

 

In para 1.6, the Committee notes that the chaos in Central Australia led to policy changes that post-dated much of the evidence they received. These changes are assessed in chapter three of the Committee Report.

 

The first sections of chapter three provide a useful summary of the operations of alcohol controls in remote NT communities over the past two decades. From paras 3.32 to 3.69, the Committee examines issues of alcohol related harm following upon the sunsetting of the SFNT legislation, and the joint Government response in early 2023 to the chaos on the streets of Alice Springs. At para. 3.29, the Committee noted that only one Alcohol Management Plan (AMP) was approved under the SFNT over its ten year life and that a number of communities prepared AMPs but had them rejected. The Committee could have done much more to unpack this issue and provides no detailed data or information. My own understanding is that in the early years of the SFNT legislation, a number of AMPs were prepared, but were sent back for revision as they were effectively attempts to remove all restrictions on access to alcohol and gave inadequate attention to the risks to families and children. After the change of Government, there appeared to be an unannounced policy moratorium  on  considering AMPs. In effect, this involved a return to the NTNER regime of absolute restrictions, albeit effected via administrative fiat. Had such a policy been announced, it would likely have been struck down by the courts.

 

In relation to the operation of the SFNT alcohol regime, the Committee’s comment on the evidence it heard strikes me as particularly tendentious and unpersuasive. It argues that the SFNT legislation ‘focused only on reducing supply and did not sufficiently support people at risk of alcohol abuse or of experiencing or causing harm.’ (para. 3.62). This ignores the significant funding under the SFNT across all sectors, much directed to community controlled organisations, as well as the mechanism in the legislation for AMPs which could have included specific requests for such harm reduction support.

 

In para 3.63, the Committee notes:

The NT Government’s decision to adopt an opt-in approach for maintaining alcohol restrictions was ineffective at minimising harm from the relaxing of alcohol restrictions. While the government intended to address the racist legacy of the Intervention, it is the Committee’s view that this decision was made without meaningfully consulting widely across affected communities.

The first sentence of the Committee’s comment is undoubtedly correct. However, as a reasonably close observer of these events, I do not accept that the motivation of the NTG was to ‘address the racist legacy of the intervention’. It was certainly the rhetorical rationale adopted by the NTG, but this rationale was and is fundamentally flawed as it fails to acknowledge the provision in the Racial Discrimination Act (RDA) for special measures, a core element of the legislative mechanism established by the RDA (link here), and one which the NTG’s legal advisers undoubtedly would have brought to Ministers’ attention if they had been asked.

 

Even if we accept that the stated rationale was in fact genuine, what does that say about the NT Government’s concern regarding the potential impact of alcohol on Aboriginal families, and the quality of life now and into the future for countless women and children? I refer readers to the earlier posts on this blog related to alcohol for more detailed critique of the NTG model (link here for a list).

 

In para 3.66, the Committee finally reaches the nub of the policy issue (an issue that has received virtually no attention in the media):

It is clear to the Committee that the NT Government has sufficient legislative means to manage alcohol-related harm within its jurisdiction where there is the will to do so. This has been demonstrated by its recent legislative amendments to the Liquor Act 2019 (NT). It is the view of the Committee that this is the appropriate role of the NT Government (informed by the views of community), rather than the Commonwealth.

This is the key conclusion, because it is the Committee’s rationale for ongoing Commonwealth inaction. While $300m in funding appears substantial, it is not ongoing, and will disappear like a shower of rain into the desert dust. It is not action to address the issues, but funding to manage the media fallout. The Commonwealth’s inaction ignores what appears to be a deliberately misleading narrative seeking to justify the NTG opt in model by alleging the SFNT alcohol regulation model was racist and discriminatory. It represents inaction in the face of a policy approach designed around making the abolition of alcohol restrictions the default; a model which would also have made the reimposition of restrictions challenging to both implement and to sustain. And finally it represents inaction in the face of clear evidence regarding the impact of shifting to an opt-in model. While the NTG have now shifted to an opt-out model as applied under SFNT, there is no guarantee that it will be managed effectively to ensure alcohol induced harm is minimised.

 

The Commonwealth’s current position amounts to placing enormous trust in an NT Government that has shown it was prepared to place the lives of Aboriginal women and children in particular at risk for what appears to be base political advantage.

 

To take just one data point, alcohol related domestic violence assault offences spiked in Alice Springs, Katherine, and outside major centres in the 12 months to March 2023 (link here). The only location where there was a decline in these offences was in Darwin. Across the NT, there were almost 1000 extra reported assault offences over the year coinciding with the nine months of reduced restrictions. With the majority of NT electorates in the Darwin region, it is not difficult to develop a hypothesis for why the NT Government may have been intent on removing alcohol restrictions in the bush. In the light of the issues outlined above, the unqualified confidence of the Committee (set out in para. 3.66) in the capacity and political willingness of the NTG to manage alcohol related harm astounds me.

 

Paras. 3.67 and 3.68 lay out two formal recommendations to the NTG related to the facilitation of community alcohol plans. These are discussed further below.

 

In paras. 3.69 to3.94, the Committee addresses the issue of community safety. In para. 3.69, the Committee acknowledges the existence of anti-social behaviour following the sunset of the SFNT, and notes:

When witnesses discussed these behaviours, they were almost always directly linked to the poor social and economic factors people were facing.

 

I may be over-reading this, but in my experience, these behaviours are almost always directly linked to the abuse of alcohol or drugs, and only indirectly liked to social disadvantage. Yes, structural factors are important — but if the Committee really believed this, why not recommend actions and funding to address these structural factors. It is as if the Committee does not wish to acknowledge the role of alcohol in harming Aboriginal Territorians. At para. 3.82, the Committee returns to blaming past policies, and extraordinarily to my mind states:

The application of special measures under the Racial Discrimination Act 1975 (Cth) has had little benefit in creating equality for these children.

 

The implication of this statement is to undermine the rationale for a significant swathe of Commonwealth policy measures from Indigenous language support to the Native Title Act. Even if it is argued that it is contextually constrained, it opens the door to future downgrading of special measures, and strikes me as an own goal. The Committee’s comment on community safety (paras. 3.92 to 3.94) ignores the role of alcohol, fails to mention the deep disadvantage arising from the social determinants of poor health, including the shortfalls in basic housing (a matter picked up by Senator Thorpe in her addendum to the report), and instead focusses solely on intergenerational trauma and the need for early intervention. Both these issues should be priorities, but on their own they will provide no short term relief to the ongoing harm caused to both Indigenous people and the wider non-Indigenous community in the NT.

 

The Commonwealth Government response to the Committee report (link here) was released last week. In the introduction, the response notes that the Commonwealth (not the NTG!) has announced investments totalling almost $300m in community safety in the NT since the beginning of this year. The response deals with all nine Committee recommendations, the first three of which relate to alcohol policy and the sunsetting of the SFNT legislation.

 

As is de rigeur for such responses, the response lists each recommendation, and provides a summary response, and then provides a short narrative in relation to each. There are a couple of revealing statements included. For example, in relation to recommendation one, the response asserts that NIAA worked with the NT Government over a period of 18 months leading up the sunset, thus adding weight to my assertion above that the outcome achieved was not a mistake.

 

A second revelation, in the discussion on recommendation two, is that the Commonwealth is providing $14m over two years to assist in the development of community alcohol plans and other support services and a public health campaign, notwithstanding the summary response that the recommendation to the NTG for resources to facilitate this was ‘a recommendation for the NT Government’, and notwithstanding the Committee’s conclusion that the NTG has the legislative means and the political will to manage alcohol related harm in its jurisdiction.

 

The response notes that ‘Independent consultants will be funded to assist in the development of community alcohol plans’. The use of consultants appears to me to be exactly the wrong approach, as it ensures that the work of developing alcohol management plans is undertaken by individuals without any pre-existing or ongoing relationship with the communities affected, and ensures that once it is completed, there is no corporate knowledge retained either by the community nor NIAA. If the Commonwealth is serious about addressing the challenges of remote Australia, a major priority in my view must be to begin to rebuild a cadre of staff either within NIAA, or perhaps within and employed by communities, with the skills and remit to facilitate engagement with governments.

 

The larger problem with this Government response however is that the import of this Committee Report is not to be found in the recommendations, but elsewhere in the swirling narrative which (sometimes explicitly):  

·       avoids the difficult policy issues around alcohol availability and regulation;  

·       downplays the role of the Commonwealth Government vis a vis the NTG in the face of an extraordinary and ongoing policy failure in the NT;

·       ignores the possibility that special interests associated with the alcohol industry play an outsized role in determining regulatory policy in relation to alcohol in the NT; and

·       unsuccessfully seeks to deal with the paradox that the SFNT legislation is simultaneously argued to be retrograde to Indigenous interests yet the evidence following its sunset indicates it was essential to maintaining social stability and reducing social and community harm.

 

In particular, where is the Commonwealth Government’s appreciation of the overwhelmingly negative impacts of alcohol (and other drug) abuse on Aboriginal communities, and particular Aboriginal women and children. Ignoring supply issues — and the even more insidious influence of the alcohol industry on governments — by seeking to shift blame to an alleged historical lack of focus on alcohol demand issues and alcohol harm reduction measures just does not cut it. 

 

Perhaps it is time to give some attention to, and reinforce the relevance of, the 1967 referendum. The referendum that reversed the provision that stated that the Commonwealth could legislate in relation to the people of any race except the Aboriginal race. The referendum that underpins the existence of the Minister for Indigenous Australians and her portfolio, and that facilitates the existence of the Native Title Act and much other Indigenous legislation. The referendum that signalled that the Australian people overwhelmingly expected the Commonwealth Government to do what was necessary to address Indigenous disadvantage.

 

 

Disclosure: I was employed on the staff of the Minister for Families, Housing, Community Services and Indigenous affairs from 2008 to 2011 when the Stronger Futures legislation was being developed.

 

11 July 2023