Vale Gerry Hand: legacy and contribution

 

Thou art not for the fashion of these times,

Where none will sweat but for promotion.

As You Like It, Act two, scene three.

 

On 15 November 2023, Gerry Hand, formerly a Minister in the Hawke Labor Government passed away (link here). Hand was Minister for Aboriginal Affairs from 1987 to 1990, and subsequently Minister for Immigration until 1993.

 

Hand’s political record is complex, and awaits a full scale biography to properly assess his legacy. In this post I focus on his contribution and legacy in the Indigenous policy domain.

 

Hand’s Wikipedia page (link here) is rather brief and incomplete, and in relation to his role as Indigenous Affairs minister, deals only with his relationship with Charles Perkins, Aboriginal rights activist and the then Secretary of the Department of Aboriginal Affairs appointed in 1984 by Clyde Holding, Hands’ predecessor as Minister.  Hawke and Holding were both influential right faction players, whereas Hand was a key factional player from the left of the ALP. All three were Victorians.

 

Following Hand’s death, Former Finance Minister Linsday Tanner, Hand’s Left faction comrade, and successor in his seat of Melbourne (now held by the Greens Leader Adam Bandt) published a short appreciation of Hand’s political contribution (link here). On his contribution to Indigenous issues, Tanner wrote:

 

Throughout his life Gerry remained passionately committed to the cause of Indigenous Australians, becoming an important influence on Bob Hawke, with whom he eventually became close after the bruises of their preselection battle had healed. He played a critical role in the establishment of the Aboriginal and Torres Strait Islander Commission and was central to the change of political mindset which later led to the 1993 Native Title legislation and the Bringing Them Home report on the Stolen Generations.

 

Even towards the end of his life it was impossible to have a conversation with Gerry without the discussion turning to indigenous issues and the old passions flaring up. As minister, he wore himself out travelling around Australia to Indigenous communities – once confiding that he had not slept in the same bed two nights in a row for 42 days – and in the process acquired the nickname “Old ‘No Promises’” from Indigenous community leaders, such was his commitment to avoiding the entrenched pattern of empty promises and no delivery that had blighted the area for many years.

 

Perhaps the best and most accessible introduction to the background to Hand’s time as Minister for Aboriginal Affairs is found in historian Peter Read’s biography, Charles Perkins: a Life (link here). Albeit written primarily from Perkin’s perspective, and definitely not from Hand’s, it gives an excellent overview of the times and the complex array of forces in play as Hand sought to drive policy reform within his portfolio.

 

In my view, Hand’s major and in some ways unrivalled policy reform initiative in the Indigenous policy space was his successful efforts to legislate the Aboriginal and Torres Strait Islander Commission (ATSIC).

 

Following the July 1987 double dissolution election, Prime Minister Hawke reshuffled his ministry, moving Clyde Holding from Aboriginal Affairs to Immigration, and appointing Hand as Minister for Aboriginal Affairs. Importantly, Hawke also announced the intention to establish a statutory commission in the Aboriginal affairs portfolio.

 

It seems likely that Holding, who was close to both Hawke and Perkins, had negotiated this concession from Hawke on behalf of Perkins who had previously been Chair of the Aboriginal Development Commission, an existing statutory body with a narrow economic remit. Perkins likely missed the comparative autonomy an independent agency provided, and aimed to expand the ADC to encompass the DAA program responsibilities.

 

Prior to being appointed Minister, Hand had established close relations with the NT Land Councils who were at that time led by leaders such as John Ah Kit (link here), Patrick Dodson, David Ross and were in constant conflict with the conservative CLP Government in the NT. Within the Indigenous political pantheon, the Land Councils were in implicit competition with Perkins for policy influence.

 

Hand’s approach, relying on key advisers such as Rob Riley (who worked for Hand) (link here)  and the NT Land Councils more than his Department for advice, was to establish a much more ambitiously designed new statutory commission from the ground up, and importantly to incorporate a regionally based structure of elected regional and zone councils which then elected the national commission. This structure was phased in over a period of years, and the design and legislation of the new commission was both time consuming and hugely contentious. The LNP Opposition stridently opposed Hand’s proposals. It was ultimately legislated with Green Support after a prolonged and hard fought parliamentary debate in 1990. Hand appointed Lowitja O’Donoghue as the first Chair of ATSIC.

 

ATSIC survived until 2005, including almost nine years of the Howard Government. It provided a stepping stone for a generation of Indigenous political and policy leaders, a new cohort of Indigenous public servants, and guaranteed Indigenous interests a voice within the inner sanctums of the Executive Government as ATSIC replaced the former Department in its entirety. This was an uncomfortable role for many ATSIC commissioners as well as later Ministers, and the Commission itself faced continuing challenges to its internal cohesion. It mere existence was also discomfiting to the established interests who dominate the elite strata of power in Australian politics and society. ATSIC was dismantled when the ALP Opposition led by Mark Latham indicated the ALP no longer supported its continuance. Neil Westbury and I have, inter alia, outlined the history of ATSIC in some detail in our CAEPR Policy Insights Paper from 2019: Overcoming Indigenous exclusion: Very hard, plenty humbug (link here). In that paper, we seek to counter the accepted wisdom (at least in conservative quarters) that ATSIC was a policy failure and has nothing to teach us about effective policy in the Indigenous domain.

 

Gerry Hand was the driving force in the design and establishment of ATSIC. His most enduring legacy in my view is to demonstrate to the Australian people, and in particular the political class, that successful policy reform is feasible and possible in Indigenous affairs. The 42 nights / 42 beds referred to by Lindsay Tanner above related to the consultation process that Hand personally led and engaged in in relation to ATSIC, and was no exaggeration. His personal stamina and commitment was seemingly unbounded. In the aftermath of the Voice referendum defeat, with the nation heading into a period of policy uncertainty and confusion in Indigenous affairs, Hand’s legacy is worth remembering and promoting.

 

A second legacy, worth emphasising, is to highlight the creation of ATSIC as a concrete example of individual agency making a difference despite the structural and institutional challenges that substantive reforms inevitably confront. Pat Turner’s contribution to negotiating the path-breaking National Agreement on Closing the Gap is a similar example, and her stint as CEO of ATSIC in the mid-1990s would have been a primary contributor to giving her the experience that allowed her to deliver that outcome.

 

At a personal level, Hand was engaging, had a strong sense of humor, was committed to advancing the interests of ordinary people and workers, and had an amazing capacity for reading people accurately and insightfully after the briefest interaction. He was driven and focused, and engaged in (what I sometimes felt were) interminable discussions regarding policy objectives and political tactics, but which were designed to ensure that every facet of difficult decisions was considered. He was not a speaker of the Queen’s English, having started his career in the Victorian railway unions, and had an impressive facility in the argot of working class Australians. The relationships he formed and maintained, and the opportunities ATSIC afforded key Indigenous leaders have resonated over the decades since.

 

This short appreciation of Gerry Hand’s contribution to Indigenous affairs is not intended to be comprehensive, nor a hagiography. Undoubtedly I will have overlooked important contributions, and am perhaps not entirely independent. There is however no doubt that Gerry Hand was a significant figure Indigenous policy development at the end of the 20^th century. His contributions and legacy deserve more critical attention than they have received.

 

 Disclosure: In 1987/89, I worked as a consultant adviser to Minister Gerry Hand.

Silent dissemblance: discussion of the ANAO report on the ALC in Estimates

Smooth runs the water where the brook is deep

2 Henry VI, Act three, Scene one.

 

I thought it might be worthwhile to have a quick look at the most recent Estimates Hearings related to the Indigenous portfolio. Held on Friday 27 October (link here), the hearings were predictably anodyne. I am not seeking to provide a comprehensive overview but thought I would focus on just a few issues that struck me as significant (albeit under-appreciated). In particular, the transcript is interesting for two reasons: first, for the issues that were avoided during the questioning; and second, for what it tells us about the approach of the various committee members.

 

Unsurprisingly, the dominant presence during the hearings was the Oppositions spokesperson on Indigenous Australians, Senator Nampijinpa Price.  She appeared to have two main objectives. The first was to pursue the extent of the involvement of various agency and statutory corporation staff appearing before her in supporting the Yes case in the recent referendum. Her efforts on this front failed to strike the gold she perhaps was searching for, but the insistence of her efforts, and the recourse of those being interrogated to providing answers later ‘on notice’ left an impression that at least in some instances some unspecified red line had been inappropriately crossed. The second objective was to seek out information and further detail on a range of presumed accountability failures. Here I suspect her intent was to lay the groundwork for a future political attack on the government for the lack of accountability in the Indigenous sector. Interestingly, her focus was wide and shallow rather than deep and narrow, and overwhelmingly focussed on the Northern Territory, which happens to be her own constituency. In other words, she appears to be laying down the outline and precursors for a future political campaign directed towards reinforcing the longstanding predispositions of her non-Indigenous constituents.

 

There were two meta-issues that struck me as particularly significant insofar as they are almost certain to have substantial policy and financial implications into the future but were almost completely ignored or avoided by the committee in its questioning.

 

The first relates to the ANAO audit of the four NT land councils. The second issue raised only tangentially during the Hearing relates to the preparations for the divestment of the Ayers Rock Resort by the ILSC. This second matter is slightly complex and speculative, so I shall deal with it in a future post.

 

Turning to the ANAO, all four land councils were called to appear before the Estimates Committee. Questions from Senator Price covered their support for the referendum and issues raised by the ANAO audit recommendations, including governance shortcomings, and progress on section 19 lease approvals (an issue that plays into deeper conservative beliefs regarding the constraints on economic development arising from communal and inalienable title). Labor Senator Sheldon asked the land councils about their respective processes of membership selection (a matter also raised in the ANAO reports, but without identifying major concerns). Pages 39 to 45 of the transcript cover Senator Price’s pursuit of the NLC, the TLC and the CLC in relation to various technical recommendations of the ANAO in relation to their fraud control policies and conflict of interest policies not being up to scratch. What a close reading of the transcript reveals however is that Senator Price neglected to raise the issues of actual conflicts of interest and various other shortcomings identified by the ANAO in relation to the management of the Anindilyakwa Land Council.

 

Senator Price also went out of her way to raise the land council audits when the ANAO appeared before the Senate Finance and Public Administration Legislation committee on 24 October (link here). Again, she raised a series of technical issues relating to the NLC, and at the end of the session as time was running out, went out of her way to state that she had extra questions:

…I would like to have the opportunity to ask all the questions that are before me – they are obviously very important – with regard to all of the land councils within the Northern Territory.

 

She had that opportunity later in the week in the Cross-portfolio hearing, but didn’t raise any substantive issues relating to the ALC. It was almost as if, to use a rugby term, she was running interference for the ALC.

 

Avid readers of this blog may recall that in June and August of this year I published three separate posts reviewing the ANAO audits (link here and link here and link here). In my last post, I provided the following high-level assessment of the impact of the audits for the land councils:

The overall picture has been positive, although the ANAO findings in relation to the ALC in particular are in my view extraordinary and of serious concern. In relation to the ALC audit, we are yet to see any formal or public response by Minister Burney nor NIAA, though one hopes that action is underway behind the scenes.

 

My post dated 1 June 2023 (link here) had recounted quite significant and disturbing ANAO findings within the Anindilyakwa Land Council’s governance structure. Shortcomings which — in theory — could be utilised to facilitate actual fraud and mismanagement. To be clear, the ANAO did not identify any instances of fraud or financial mismanagement. Of much more significance was the ANAO analysis which identified a complex array of related corporations which while technically and legally independent of the ALC have substantial overlap in terms of senior management involvement. The result is that they are effectively either controlled or influenced by the senior management of the land council and are both the recipient of substantial benefits and investments emanating from the land council and yet outside the purview of the ANAO as they were private companies. See figure 4.1 of the ANAO report at page 68 (link here) although this diagram does not include the revenue streams related to the two private trusts referenced below. The financial flows involved are significant, especially when extended into the medium term.

 

The NIAA annual report reports payments to the ALC of $59m in 2022-23 for distribution to royalty associations representing traditional owners. Over say ten years, the amounts involved would be extraordinary, likely totalling around half a billion dollars. In addition, the ALC document Invested in our Future (link here) indicates that there are two further trusts established to receive negotiated royalties arising from mining agreements with GEMCO. That document suggests that these two trusts had a balance of $262m in 2020, and expect to receive a further $370m, in future royalties and interest payments over the decade to 2030. This takes total royalty and associated revenues flowing into Groote to around a billion dollars over the coming decade.

 

Given the quantum of funds flowing to Groote, the potential consequences of risks such as fraud, or mismanagement, or commercial loss for ALC constituents arising from poor due diligence of commercial development proposals are orders of magnitude higher than those related to the mere (mis)use of Commonwealth funds appropriated for the operations of land councils. Yet all these risks can be traced back to institutional arrangements established by, and theoretically overseen by, the Commonwealth. In a worst-case scenario, were significant royalties and other monies to be diverted away from the intended beneficiaries utilising complex private rather than public governance structures, the Commonwealth would be unlikely to escape legal and fiduciary responsibility, as well as significant political responsibility. Yet neither the Government nor the Opposition are focussed on addressing the issue of potential risks.

 

A major contributing factor to this short-sightedness is that there are a plethora of Commonwealth (and NT) regulatory oversight agencies each looking at a slice of the total picture: the NIAA, ORIC, ASIC, AFP, NT Police, the NACC, and the ANAO each have potential roles in oversighting elements of the financial structures in play on Groote. The ANAO adopts an extraordinarily narrow view of its responsibilities, notwithstanding it is purporting to undertake ‘performance’ audits. In his evidence to the Estimates Committee on 24 October at page 135 (link here), the Auditor General laid out in detail his overly narrow approach to his job, in effect leaving it to other agencies to investigate suspicions of fraud and indicating that his legislative remit does not extend to non-government entities. This is a matter I have argued, in my post dated 17 August 2023 (link here), that requires both more adventurousness by the ANAO and probably legislative reform.

 

What is missing is any oversight agency with a remit to undertake a wholistic risk assessment of these royalty flows. Moreover, the issues related to financial risk on Groote are replicated at probably ten other mine sites across the nation, mostly in WA.

 

Conclusion: an action agenda

It strikes me as more than strange that neither the Government nor the Opposition are prepared to initiate an open discussion about the financial risks and implications arising from the ANAO’s narrow and minimalist findings into the ALC. Clearly there are multiple angles with potential political implications: a Commonwealth entity facilitating direct Aboriginal investments into a joint mining venture with a privately owned company (AUS China International Mining Pty Ltd) with limited resource development experience; potential environmental issues related to strip mining of manganese and the associated infrastructure on Winchelsea Island and the northern coast of Groote Eylandt; an extraordinarily ambitious development agenda for Groote Eylandt apparently endorsed by the NT Government’s Local Decision-making Framework (link here) and supplemented by slick marketing and PR most evident in the 2022 document on the ALC website Invested in our Future  (link here) [note the caveat at the end of this document];  a commercial and administrative presence in Darwin and Cairns (link here); and not least the paradox of poverty and dysfunction amongst revenue plenty (link here [see data point two] and link here).

 

These risks are balanced against the important focus on building a sustainable fund to underpin the future viability of the Groote economy outlined in the document Invested in our Future on the ALC web site. The plan to establish a perpetual fund to provide an income stream to Anindilyakwa people post mining has real merit, although it is unclear how robust the estimates are and why the focus is limited purely to the negotiated royalty streams and not the statutory royalties. However if significant risks eventuate, they will threaten the viability of creating a sustainable future fund for Groote people. This is why the issues raised in this post are so important and demand policymakers; attention.

 

There are also serious management questions that are worth asking. For example, the ALC CEO who received $419k in total remuneration in 2021-22 is also listed as the Transition Manager of Groote Holdings Aboriginal Corporation (GHAC) in the 2022 document on the ALC website Invested in our Future. That document lays out the extraordinarily ambitious development agenda being pursued by the ALC and its associated entities. The ALC 2021-22 Annual Report (link here) (page 125) lists the CEO as both a Director of GHAC and also a Director of Winchelsea Mining. The ANAO in figure 4.1 (page 68) (link here) go out of their way to make clear that not only is the ALC CEO a Director of GHAC and Winchelsea, but his spouse is the Chief Operating Officer of GHAC and an Executive Assistant within Winchelsea. Moreover, ENMARK the company providing the Chair of the ALC Audit Committee is also responsible for governance and accounts in GHAC (see page 34 of Invested in our Future). As the ANAO said in para 4.46:

4.46 AAAC holds 60 per cent of the shares in Winchelsea Mining, and GHAC will own the Little Paradise logistics base assets being developed to support the Winchelsea Mining venture (see paragraph 1.29). Figure 4.1 shows the directorships and senior positions of, and main financial flows between, the ALC, AAAC, GHAC and Winchelsea Mining. The figure shows that the ALC Chair and CEO have interests in GHAC and Winchelsea Mining, either as Chair, CEO or director.

 

Setting aside the question of whether the ALC CEO ( a full time position) is being paid additional remuneration by GHAC and/or Winchelsea, there remains the question whether the Land Council (a complex organisation with a range of governance challenges as identified by the ANAO) is getting adequate attention from its CEO given these competing responsibilities.

 

As an aside, the effectiveness of the Estimates Committee (and the currency of this post) has not been helped by the fact that, contrary to the Department of Finance guidelines, the 2022-23 Annual Reports for the four NT land councils are yet to be tabled (as of 14 November) notwithstanding that the expected date for tabling is in advance of the October estimates hearings. This is a matter that falls within the responsibility of the portfolio minister, and which deserves an explanation. Neither the Government members, the NIAA, the land councils, nor the Opposition or Greens commented on the absence of these reports in the Estimates transcript.

 

The avoidance of any questions to the ALC by the Opposition, and the apparent inaction of the Government following the ANAO report, serve to add weight to the view that all is not what it might seem in relation to the commercial development agenda of the ALC on Groote, and the relationship between the ALC and government in both the NT and Canberra. Moreover, this silence only heightens the questions relating to the quality of the overall management and allocation of the ALC’s extraordinary royalty revenues, and the concomitant risks.

 

Whether or not there is maladministration or worse is not the point. The real issue is that the current policy frameworks in relation to royalty management, commercial development and social services delivery are contributing to a much more fluid and complex policy environment. In turn this is throwing up new challenges and opportunities, including ensuring that the essential oversight of corporate activities are fit for purpose. Addressing the economic, social and commercial challenges at Groote, and grasping the opportunities in ways that are able to be sustained and grow, will require strong management and governance. The success or failure of these efforts will have real world implications for the people resident on Groote. The existence of substantial royalty flows, and the financial implications and significant commercial risks of the current ALC strategy, merely reinforce this point.

 

A close reading of the ANAO report suggests that they had serious concerns but lacked the forthrightness to make their concerns clear. Their recommendations were anodyne. Their remit, and thus their recommendations are limited insofar as they are directed only to the ALC and do not address the issues being pursued by the ALC’s associated entities. Notwithstanding the excellent work of their audit team, the ANAO senior management appear to have baulked at the last hurdle.

 

I am sure that within NIAA, there is an appreciation of the risks of a substantial and monumental policy failure in relation to royalty management on Groote. They too have a responsibility to provide the Minister with forthright advice. Following the robodebt debacle, the possibility (however remote) of a Royal Commission at some point in the coming decade should be front of mind for public servants advising the Minister on these issues.

 

And the Opposition shadow on Indigenous Australians also has a responsibility to focus on these issues. It seems to me highly unlikely that she is unaware of at least some of the issues on Groote. Whatever her motivation for avoiding asking the hard questions in the recent estimates committee, she would be wise to get on the front foot and play a constructive role in shaping effective policy outcomes going forward. In our democratic system of government, the role of the Opposition is not merely to criticise the Government (important as that is), but to play a part in ensuring that policy outcomes are effective and in the public interest.

 

Given the magnitude of the economic and political risks, and the adverse social consequences if those risks come to pass for the Groote populace, it would be smart if the Minister for Indigenous Australians were to initiate an independent and wide ranging inquiry into the current developments at Groote. If all is well, there is no downside to pursuing such a course, and it will expand trust in the judgment and probity of the policymakers involved, and send a clear signal to future leaders and managers that their policy choices need t be robust and well directed. If all is not well, then the sooner we identify the issues and address them the better. Doing nothing and acting as if there is nothing worth examining in relation to Groote would be both irresponsible and short-sighted.

 

A second action worth initiating would be for NIAA to develop (ideally in conjunction with Treasury and Finance) advice on policy options to ensure better and more coordinated regulatory oversight of the increasingly complex Indigenous commercial development policy domain. The absence of regulatory coordination exacerbates the likelihood of a major commercial and financial disasters particularly where royalties and native title payments are substantial. Indigenous citizens are more vulnerable to the impacts fo such occurrences than other Australians.

 

15 November 2023

 

The High Court opens the door on the inexcusable dereliction of remote housing policy

Make the doors upon a woman's wit, and it will out at the casement; shut that, and 'twill out at the key-hole; stop that, 'twill fly with the smoke out at the chimney.

As You Like It, Act Four, scene one.

 

The recently decided High Court case of Young v Chief Executive Officer (Housing) [2023] HCA 31 (link here) turned on some relatively technical issues related to the interpretation of the compensation issues in NT statute law. There have been several media reports (link here and link here) making the point that this case has implications for tenants more broadly, representing an expansion of the onus on landlords. I don’t propose to attempt to summarise, nor discuss, those compensation issues. Instead I wish to point out some of the factual background to this litigation, and the policy implications. While this litigation related to the circumstances faced by one tenant, there are over 5000 houses managed by the CEO Housing in the NT, all of whom are subject to the same maintenance regime and levels of attention (or inattention as the case may be) as those that led to this litigation.

 

This extract from the Judgement of Gordon J and Edelman J is a good place to begin:

41 The premises leased to Ms Young were alleged to be defective in numerous respects . One respect was that for several years from the time that her tenancy commenced, the Chief Executive Officer (Housing) had failed to provide Ms Young with a back door. The absence of a back door was a significant impairment of security in circumstances where, as Ms Young described, roaming wild horses may have bent a fence around the property, and where a snake may have entered the house through a gap that was left between the door and the doorframe following the eventual installation of a back door by the Chief Executive Officer (Housing) . Ms Young was "an elderly woman who was left vulnerable to proven animal intruders and potentially human intruders" .

42 On 22 January 2016, a solicitor acting for Ms Young wrote to the Chief Executive Officer (Housing) saying that there had been no back door on the premises and that, although a mesh-steel door had been installed by Ms Young, a new door was required. More than six weeks later, in late March 2016, the Chief Executive Officer (Housing) installed a new back door .

43 In the Tribunal, Ms Young sought orders for repairs to be made to the premises, as well as a payment of compensation under s 122(1) of the Residential Tenancies Act. The Chief Executive Officer (Housing) was ordered to: refund rent of $4,735.80 for 540 days during which the premises were uninhabitable due to the lack of an air-conditioner; pay $4,000 in damages for distress arising from the associated physical inconvenience from the lack of an air-conditioner; and pay $200 in damages for the breach of its duty to repair Ms Young's stove for a period of 170 days . None of these matters was an issue on appeal to this Court. The relevant issue concerned the Tribunal's decision in relation to the failure by the Chief Executive Officer (Housing) to install a back door.

 

In The Saturday Paper, Rick Morton does an excellent job of contextualising and illustrating the bureaucratic nightmare for Ms Young that ultimately led to the High Court decision (link here). Here is an extract where Morton recounts evidence from 2019 at an earlier stage of the litigation:

Ms Young, who testified through a translator, showed that a shower and drain had been leaking for 2117 days, and that she had no back door for 2090 days and a toilet that flushed poorly and failed to clear waste for 534 days. In a community where animals roamed freely, including wild horses, the perimeter fence was bent all the way to the ground for 2328 days. Ms Young, who was in her late 70s when she brought the case, had no air-conditioner for 2121 days. Mr Conway had a home infested with insects for 1035 days and, on account of leaking water, slept in the kitchen for 1989 nights.

 

In his article Morton mentions another significant judicial win for Indigenous tenants in the NT (and potentially elsewhere):

Just weeks ago, Kelly [the solicitor for the applicants in the Yong case] had another win against the same government landlord operating the same sublet lease from the Commonwealth. The Northern Territory Supreme Court overturned a tribunal decision that found the residents of Laramba, west of Alice Springs, were not owed safe drinking water by their housing provider. Drinking water in the town contains uranium levels three times higher than the maximum for safe consumption.

 

The decision in this case has not yet been published on the NT Supreme Court web page. It does seem that there has been some action on Laramba’s water supply with the opening of a new water treatment plant in April this year (link here). Nevertheless, provision of safe water, power and sewerage remains a challenge across much of the NT (and probably also in other jurisdictions). This is particularly the case given the accelerating impacts of climate change on remote communities (link here and link here). Despite its inclusion as target #9B under the National Agreement on Closing the Gap, we don’t have good information on the status of infrastructure delivery in remote Australia (link here). In 2006 the national Community Housing and Infrastructure Needs Survey was discontinued, removing the only national and objective assessment of infrastructure shortfalls in remote communities [h/t Jon Altman]. Hopefully, with the addition of target #9B, the current federal Labor Government will do something about re-establishing the CHINS.

 

Without wishing to take issue with Morton’s overarching thesis, I do wish to outline an alternative and in my view more accurate analysis of the political and bureaucratic history that has contributed to the current deep seated crisis in remote housing provision, and the concomitant demographic implications which in turn are contributing to (but are not necessarily the major cause for) the substantial challenges in the NT’s major cities and towns related to homelessness, public drunkenness, and the appropriateness of police and private security firms responses (link here). While these issues are perhaps most visible to the national gaze in the NT, similar issues exist in other jurisdictions with remote communities. My interpretation is important because it plays into the policy solutions that are required.

 

I disagree with Morton in relation to his rolling up of remote housing issues (and the related 2008 NT local Government reforms) into the Howard Government Intervention. The two processes largely overlapped but were and remain conceptually separate. It is undoubtedly the case that in the minds of many Aboriginal residents of the NT, the two are conjoined. The motivation for the intervention was primarily to create an electoral distraction, which conveniently involved a subliminal dog whistle to the far right built around inflaming debate around allegations of child abuse and blaming Aboriginal people and communities for the dysfunction and disadvantage they suffered. It was deliberately punitive and sought to wedge the then Labor Opposition in the leadup to an election. Labor pragmatically went along with the associated legislation, including provisions that removed the application of the Racial Discrimination Act. As an aside, it is worth noting that there is no constitutional restraint on a future government acting similarly. The case for substantive constitutional reform is far from resolved, notwithstanding that it will be a generation before momentum to do so and the political will to do so might be tested.

 

Following the 2007 election, Labor was hamstrung by its lack of numbers in the Senate and so could not repeal the most egregious elements of the Intervention legislation. Instead, it sought to ameliorate the impact of its previous pragmatism by investing very considerable amounts of funding in its Stronger Futures policy (link here). Labor also pursued a range of national partnerships focussed on disadvantage in remote regions nationally, the major one being the National Partnership on Remote Indigenous Housing (NPARIH) which allocated $5.5 billion over ten years.

 

In relation to housing, Morton argues that it was the shift of responsibility for managing community housing that is at the root of the problem. He writes, quoting Ms Young’s niece:

“In this community we used to have our own – we called it the Progress Housing Association – that used to be owned and controlled within the community, by community people working together. “And now as soon as the [Northern Territory] Intervention came out, that was the one that wiped everything out.”

Following the NT Intervention, led by former prime minister John Howard and extended by his successor Kevin Rudd, the right to manage community housing was taken from residents, with an emergency lease handed to the NT government. Later, the Commonwealth convinced residents to sign over the housing stock on a 40-year lease to the federal government in exchange for maintenance and funding for repairs. They offered no alternative. As soon as the lease was signed, the Commonwealth sublet the entire arrangement to the NT government, which has had responsibility ever since.

 

In 2017, I published a post (link here) where I discussed these issues, and argued that the changes in responsibility were required because previously governments had not been prepared to provide adequate funding. Leasehold tenure was required to ensure that Governments had a legal responsibility to meet the needs of tenants. Previously, that responsibility was held by land trusts on Aboriginal land (this is still the case) and Indigenous community housing organisations (ICHOs) within communities, but tenants (and Indigenous controlled legal services) were never prepared to initiate litigation against Indigenous landlords. In that post, which was critiquing a supposedly independent review of NPARIH, I wrote (inter alia):

 

Fourth, property and tenancy management (PTM) is given a lot of attention in the report, again with virtually no data presented to back up the points made. The suggestion in section 5.1.1 that PTM was ‘sidelined’ in the early delivery of the program is mere assertion and in my view is just wrong. It ignores the fact that before the program existed, there was virtually no funding and no focus on PTM by ICHOs. The shift of responsibility to state housing authorities under the program, and the requirement for 40 year leases to underpin all investment, meant that the states were for the first time responsible for tenancy management as part of their landlord responsibilities. This was a key objective of the program, and so to argue that it was ‘sidelined’ is tendentious. The NPARIH Review of Progress (2008-2013) released in 2013 (link here) reached a different conclusion, noting that:

There has been considerable progress with property and tenancy management implementation overall, but key elements such as reformed rent setting and tenant support services have not kept pace with capital works delivery in all jurisdictions. (p.11).

Moreover, there is absolutely no mention of the current [ie LNP] Government’s decision in 2015 to cut $95m from the forward estimates for PTM (refer to para 2.15 and footnotes 28 and 29 in the recent ANAO report on the Community Development Program for the rationale for this cut; …. nor any analysis of the performance of the new Community Development Program in delivering housing repair and/or tenancy management services which was the rationale given by the Minister in Estimates in 2015 when he was queried on the cuts.

 

Rather than blaming the Intervention, or the shift to community leasing as the source of the current neglect, I would point directly at the issue of funding. Chronic under-investment by governments in remote housing has been the fundamental cause of the ongoing disadvantage confronting remote communities and has undoubtedly played a major role in contributing to chronic overcrowding, poor health, poor educational outcomes, drug abuse, domestic violence and other symptoms of fundamental dysfunction. I published an article on this issue in Inside Story some years ago (link here). I am not suggesting that housing is the magic bullet, merely that it is an essential element in addressing the deep-seated disadvantage that disproportionately targets residents of remote communities.

 

One further policy implication that deserves serious consideration by the Commonwealth and the NT Land Councils are the consequences of these decisions for dwellings and other facilities on Aboriginal land leased by traditional owners to Aboriginal and non-Aboriginal tenants.

 

The upside of these recent cases in the NT Supreme Court and the High Court is that it will force governments at both Commonwealth and state levels to reconsider the adequacy of their investment in remote housing, to revisit the split between capital and recurrent expenditures in their social hosing programs, and to think again about the benefits of providing much greater support to innovative community housing models of housing provision and management. The persistence of the late Ms Young, her community, and it must be said, her lawyers, has paid off and has delivered what may well turn out to be the most consequential policy change for remote communities in the last decade.

 

 

Disclosure: I was from 2002 to 2006 the CEO Housing in the NT. From 2008 to 2012, I was an adviser to the commonwealth minister responsible for remote housing programs.

 

7 November 2023