The impotent are pure: resonances between the USA’s and Australia’s approach to Indigenous policymaking

 

…you must not make the full show of this

till you may do it without controlment

Much Ado About Nothing, Act 1, scene 3.

 

The New Yorker recently published a profile of the current Secretary for the Interior, Deb Haaland (link here).Haaland is an enrolled member of the Laguna Pueblo (link here).

 

Haaland’s personal history is both interesting and inspiring, and the profile does a good job of fleshing this out. It is worth reading on this count alone.

 

However, I found the article even more insightful for its description of the policy history of the US Department of Interior, and the policy complexity and competing priorities involved in its administration. Issues such as the history of forced removals to boarding schools, punitive approaches (including imprisonment) to non-compliance with policy directives, litigation over the government’s mal-administration of billion-dollar trust funds set aside following treaties, and the ongoing trauma of such policies are explored and considered.

 

What struck me most while I was reading this were the parallels and resonance with both what has occurred, but more saliently, what may well occur in the future here in Australia in relation to Indigenous policy.

 

There are numerous themes in the profile which resonate to a lesser or greater extent. Without suggesting that there are not other more important conclusions relevant to Australian policy, I would pick out just two inter-related themes to highlight.

 

The profile makes crystal clear in numerous ways (both direct and indirect) that successful policy advocacy and influence is inherently political in both its formulation and execution. In my previous post discussing the recent Economic Inclusion Report I made mention of the Committee’s approach as being simultaneously ambitious and pragmatic. The theme of the necessity of strategic pragmatism also emanates from the Haaland profile. I am reminded of Gough Whitlam’s speech to the 1967 ALP Conference (link here) where he famously argued for internal reform of the ALP, and against reliance on the construction of ‘a philosophy of failure, which finds in defeat a form of justification and a proof of the purity of our principles.’ He went on to comment wryly and famously, ‘certainly the impotent are pure.’  

 

The second theme relevant to Australia that the Haaland profile highlights is the longstanding tactic of US Government, and the Department of Interior in particular, to co-opt Indigenous leaders and organisations. Co-option of Indigenous interests has a long history in Australia but is rarely analysed or discussed directly. So too is there a long history of Aboriginal people and organisations seeking to pro-actively engage with non-Indigenous actors to achieve their own aspirations and objectives. The anthropologist Bill Stanner, in his 1982 article on Aboriginal humour (link here), recounts the following story:

At a mission station which I know, a certain conflict was raging. The issue was between what the old Aborigines wanted to do, and what God wanted them to do. The matter was not at all clear to the Aborigines. They knew what they wanted. They were being told what God wanted. They thought there was something second-hand about the instructions. The questions turned on how their instructor knew what God wanted. Some said the clergyman just knew; others that he only said he knew; both these unreasonable theories failed to convince them. One man finally volunteered: ‘might-be him got telephone longa God’. I was appealed to. Did he or didn’t he? I said I did not know, but that I had always found the clergyman truthful. I also said that he had a lot of tea, sugar, flour and tobacco. This argument appealed to the Aborigines. One of them said: ‘That man, him good man, y’know. Him got plenty everything. Plenty tucker. Plenty wian [i.e. tobacco— the word also means human excrement]. Plenty mouth [i.e. words]. Might be him got plenty savvy-belong-himself [i.e. private knowledge or wisdom]’. I said that this might be so. I was then asked if I had a telephone. I said that I had; but it was only a small one. ‘You savvy belong God?’ I was asked. I said that I sometimes thought I heard a voice, a long way away. I was asked what the voice said. I replied that I could not quite make out the words. My inquisitor said: ‘that’s what blackfeller reckon’. I then said: ‘Well, what are you going to do?’ My friend said: ‘Today, tobacco. Sunday, God’. We both laughed.

 

The Haaland profile reminds us that so much policy can be understood as ongoing negotiation between mainstream institutions seeking to co-opt, and their interlocutors seeking to take advantage of what’s on offer while maintaining their own aspirations and perspectives. In game theoretic terms, the outcomes are never pre-determined. But for Indigenous interests engaged in such policy dynamics, without a well-constructed and effective strategic framework guiding their advocacy, the more powerful party in any given context is likely to win and the less powerful to lose.

 

30 April 2024

A shaft of sunlight: the Economic Inclusion Advisory Committee 2024 Report

                                                 Men judge by the complexion of the sky

The state and inclination of the day…

King Richard II, Act 3, Scene 2.

 

The 2024 Report of the Economic Inclusion Advisory Committee (link here) chaired by Jenny Macklin was released on 26 April 2024, some two weeks before the 2024 Budget is due to be delivered. In my view, this is an excellent report, extremely well argued, quite technical at times (reflecting a bias towards identifying the evidence for its recommendations), and as one might expect, encompassing an admirable mix of ambition and pragmatism.

 

The report makes 22 broad recommendations across the span of the social security policy domain, and identifies five policy priorities for 2024:

1. Substantially increase JobSeeker and related working age payments and improve the indexation arrangements for those payments.
2. Increase the rate of Commonwealth Rent Assistance.
3. Create a new employment services system to underpin the goal of full employment and ensure a more positive focus on supporting Australians seeking work.
4. Implement a national early childhood development system that is available to every child, beginning with abolishing the Activity Test for the Child Care Subsidy to guarantee all children access to a minimum three days of high quality early childhood education and care (ECEC).
5. Renewing the culture and practice of the social security system to support economic inclusion and wellbeing.

 

In this post I propose to point to the areas of the report, and the specific recommendations, that have salience for First Nations policy outcomes.

 

Of course, while the reports overarching focus is on mainstream policy, it must be remembered that First Nations citizens will be impacted by mainstream policies as much as indigenous specific policies, and perhaps more so.

 

There are I think three elements of the Committee’s report with particular significance for Indigenous interests.

 

The first element relates to the Committee’s discussion of the Remote Area Allowance and recommendation 4. They base their analysis on work undertaken by Francis Markham from the ANU, and which I published a post about in February (link here). In that post, I extended the argument to argue for an overhaul of the Community Development Program, an issue that the Inclusion Committee has not addressed directly but see the second element below. The Committee recommendation states:

Recommendation 4. The Australian Bureau of Statistics (ABS) or an appropriate researcher or research centre in partnership with remote communities should be funded to undertake analysis of the additional costs of living in remote areas, but the case for an immediate increase in the Remote Area Allowance (RAA) seems particularly strong.

 

This recommendation, if adopted and implemented, would lay out in detail the case for much more targeted cost of living support for remote communities, including in relation to food security, energy costs, transport costs, and rent costs. At a strategic level, it begins the process of developing an evidence base for a more comprehensive policy approach to remote Australia, an issue I have been advocating for over 25 years.

 

The second element relates to employment services reform and is perhaps the most significant of the Economic Inclusion Committee’s recommendations for First Nations interests. The recommendation states:

Recommendation 6. The Government commit to a full-scale redesign of Australia’s employment services system by adopting the recommendations in the report from the Select Committee on Workforce Australia Employment Services. As a priority the Government should: a. Finalise an implementation plan and enact necessary legislative changes in 2024. b. Commit to a full redesign of the mutual obligations and compliance settings in the Workforce Australia system that focus on building capability and confidence to support people into work, consistent with the directions outlined in the Select Committee’s report. c. Build and refine a new practice model that genuinely meets the needs of people furthest from the labour market, including through: [details omitted; refer to page 10 of the report].

 

I published a post on the Select Committee’s report last December (link here) where I spelt out the specific elements that were of relevance to First Nations interests. I recommend readers look at that post. While the Economic Inclusion Committee has not framed its discussion and recommendation on these issues as mainstream, there are enormous, embedded implications for remote Indigenous interests, particularly in the Inclusion Committee’s comment about the needs of people furthest from the labour market. The elephant in the room here is the issue of direct employment creation by the Commonwealth. The Prime Minister in his comments upon the release of the most recent Commonwealth Closing the Gap Implementation Plan described the Community Development Program (CDP) as a failure, announced (link here) the creation of the Remote Jobs and Economic Development Program, and funding for the employment of 3000 CDP participants by organisations working in remote regions. Yet the result was to leave around 27,000 CDP participants in a ‘failed program’.

 

The third element relates to First Nations Housing, and in particular building a better evidence base for assessing both need and ongoing management of housing stock. Again, this is a hugely significant policy issue for Indigenous interests, with implications for disability policy, educational outcomes, the social determinants of health, child welfare outcomes, the prevalence of domestic violence, and not least, economic inclusion. Again, while not limited to remote Australia, it has long been clear that housing need for Indigenous interests is most acute in remote regions, not least because there is a limited private market in housing provision. The Committee’s recommendation (edited) is as follows:

Recommendation 10. The Government urgently commit substantial investment to address need in public housing and homelessness for Aboriginal and Torres Strait Islander peoples, including maintenance and upgrades, community infrastructure and the Aboriginal and Torres Strait Islander housing sector.

To improve the economic efficiency of investments, the Government should fund a National Aboriginal and Torres Strait Islander Housing Data Register to improve data availability, quality and sharing… To better target existing investment, including from the Housing Australia Future Fund and Social Housing Accelerator Fund, the Government should: a. Negotiate improved performance reporting and data sharing within intergovernmental agreements and arrangements. b. Undertake rapid needs assessments of homelessness and overcrowding, maintenance, repair and community infrastructure requirements in remote hotspot areas. c. Commission a redesigned Community Housing Infrastructure Needs (CHINS)- like survey, which considers limitations of earlier iterations and subsequent advancements in data collection…

 

The import of this recommendation is that it explicitly focusses on establishing a much better and transparent evidence base for this most crucial area of policy. It will mean that Indigenous advocates such as the Coalition of Peaks and the National Aboriginal and Torres Strait Islander Housing Association will have the means to make a much more persuasive argument for needs based assistance into the future.

 

The Economic Inclusion Committee report appends an excellent detailed consultancy report addressing First Nations Housing issues. That report is too detailed for me to summarise here, but I commend it to readers as an excellent summary of the state of play in relation to First Nations housing policy in Australia today.

 

Conclusion

The Economic Inclusion Committee has made an excellent contribution towards sharpening the policy agenda for First Nations interests. Clearly there are a swathe of other issues of relevance to Indigenous interests that deserve attention by the Commonwealth Government. But there are limits to what governments, and their advisers, are prepared to take on and prioritise. From my perspective, I consider that the Inclusion Committee has done an excellent job in highlighting key areas that deserve prioritisation and continuing attention. Of course, the real issue will turn on what the Commonwealth Governments response will be, and whether they allocate the intellectual and financial resources to deliver on whatever commitments they do make.

 

In any case, the publication of this report provides a shaft of bright sunlight that bodes well for the days ahead.

 

26 April 2024

The cult of forgetfulness: the Commonwealth submission in Yunupingu

  

That I could forget what I have been!

Or not remember what I must be now!

Richard II, Act three, Scene three.

In May 2023, the Federal Court handed down a decision (Commonwealth of Australia v Yunupingu on behalf of the Gumatj Clan or Estate Group) that mapped out a trailblazing path forward in relation to potential native title compensation issues in the NT and the Territories more generally. I published two posts on the case (link here and link here) which I recommend readers revisit for the background to the subject of this post.

 

As I wrote in the first of those posts:

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 from 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 Commonwealth appealed to the High Court and has now lodged a submission (link here) outlining its arguments as to why the Federal Court’s decision should be overturned in this matter. These arguments are highly technical and complex, and I don’t propose to offer a legal critique. Instead, I will merely summarise them (as best I can bearing in mind I am not a lawyer, let alone a constitutional expert), and then draw out some of the non-legal policy implications.

 

The core of the Commonwealth’s concern is that the Federal Court ruling, if it stands, extends back (in the case of the NT) the period for which compensation for extinguishment of native title by the grant of inconsistent interests would be payable from 1975 (when the RDA was passed) to 1911 when the NT was transferred to the Commonwealth from South Australia (see para 2 of the submission). As the Commonwealth notes (in para 3):

 If the Full Court is correct, then for almost seven decades a vast but indeterminate number of grants of interests in land in the Territory would have been invalid.  Further, upon the validation of those grants by the Native Title Act 1993 (Cth) (NTA), the Commonwealth would have become liable to pay compensation of a vast but presently unquantifiable amount (including interest, potentially going back to 1911).

 

In essence, the Commonwealth has three lines of argument aimed at avoiding this outcome.

 

First, they argue that the scope of s 51(xxxi) (which requires the Commonwealth to pay just terms for the acquisition of property) does not extend to laws solely supported by s 122 (which allows the Commonwealth to make laws for the government of a territory) because the text and context of s 51(xxxi) shows it applies only to laws made by the Commonwealth when acting as the Commonwealth, not the Commonwealth acting as a territory. See paras 12 to 19 for a summary of this argument.

 

Second, the Commonwealth argues, relying on Justice Gummow’s judgement in the Newcrest Case (supported by Justices Toohey, Gaudron and Kirby):

that native title was inherently defeasible to the Crown granting new rights that were inconsistent with native title.  When that occurred, there was no acquisition of property within the meaning of s 51(xxxi) because the extinguishment of native title upon that occurrence was something inherent in, and integral to, the property itself.

 

The import of this argument is that compensation does not attach to native title property rights per se but is only required due to the application of the Racial Discrimination Act enacted in 1975. See paras. 57 to 59 for a summary.

 

The third line of argument relates to the reservation to the Crown of all mineral rights in the Northern Territory Crown Land Act 1890 (SA) which was incorporated into a pastoral lease over the claimed land issued in 1903. The Commonwealth argues (para.132), citing Justice Gageler (who is now the Chief Justice) in a 2016 case, that the reservation of minerals in the Crown Land Act:

“had the consequence of creating rights of ownership in respect of the land in question, in the Crown” so that the Attorney General “would still have had the possession necessary to found an action for intrusion”.

 

See paras. 130 to 132 for a summary.

 

Commentary

I am not in a position to make an assessment of the legal merits of the Commonwealth arguments. It strikes me however that the Commonwealth is seeking to hold back the tide of much recent jurisprudence, and a broader concern in the community that the rationale for the appropriation of Indigenous lands without compensation does not entirely stack up. Having said that, the High Court will likely adopt a cautious and careful approach to these issues.

 

What I find intriguing however is how the arguments developed by the Commonwealth in litigation such as this is so strongly at odds with the public perception that our nation strives for inclusivity, for fairness, and for openness, and so strongly at odds with the policy narratives endorsed by both the current and previous Governments (think co-design, voice process, Makarrata, truth telling and treaty). Instead, these arguments addressing an important and potentially far-reaching judicial decision by the Federal Court are driven almost entirely by the narrowly legalistic lens through which the Attorney Generals portfolio operates, and the financial lens applied by the Department of Finance.

 

For example, at various places in the submission, the Commonwealth argues (by implication if not directly) that the Commonwealth requires flexibility to govern a territory such that it is not required to pay just terms; and that the Federal Court decision would leave to differential treatment between Indigenous native title holders in a territory and in a state, while ignoring the differential treatment being supported between native title holders and other property holders. Moreover, the submission argues explicitly for the narrowest reading of the nature of native title (ie that it does not amount to property for the purposes of the Constitution).

 

Perhaps the most obvious issue raised in the submission, but not directly addressed by Commonwealth Ministers is the issue of compensation for native title rights extinguished in the Territories between 1901 and 1975. We now have a Federal Court decision raising the issue directly, and all the Commonwealth can do is raise the financial consequences, contextualise it as a financial threat (liability to ‘pay compensation of a vast but presently unquantifiable amount (including interest, potentially going back to 1911’) without any public acknowledgement or recognition, let alone public discussion, that the obverse of this ‘coin’ was the loss without compensation of Aboriginal land and other property rights.

 

Of course, these are legitimate public policy positions for the Commonwealth to argue, and indeed one might argue that they are central to the implicit ‘grand bargain’ that underlies the High Court decision in Mabo No.2. But the fact is that instead of ensuring a public discussion, the Commonwealth has framed them entirely as technical legal issues, without any justification by relevant Ministers for why the Government is adopting the position it has. Neither the Attorney General nor the Minister for Aboriginal Australians has issued a media release announcing the Commonwealth submission. The Prime Minister recently stated that treaties were a matter for the states and territories (link here) seemingly oblivious to the fact that his Government is arguing against the recognition and compensation for Indigenous rights extinguished by Commonwealth executive action.

 

While the merits of the Federal Court decision are as yet undecided and will turn on complex and technical legal reasoning abstracted from everyday experience, the issues raised are real and are as yet unaddressed. The determination of our nation’s political leaders and elites to avoid policy substance and importantly, to neglect their democratic responsibilities to lead public discussion of these issues is to my mind both disrespectful to the wider community they purport to represent, and dangerous insofar as it creates an environment that encourages extremist views to flourish without context. This negligence reminds me of Bill Stanner’s comments in his Boyer lectures in 1968, over fifty years ago:

"What may well have begun as a simple forgetting of other possible views turned into a habit and over time into something like a cult of forgetfulness practised on a national scale. It's a structural matter, a view from a window which has been carefully placed to exclude a whole quadrant of the landscape."

 

The Commonwealth submission in Yunupingu, and its presentation, reflects more than it intends: it is simultaneously a sophisticated legal argument, a study in bureaucratic caution and conservatism, a reflection of political timorousness and timidity, not to mention short-sightedness, and irrefutable proof that the nation’s cult of forgetfulness continues to permeate our public policymaking and our political institutions.

 

16 April 2024

Thoughts on the Northern Territory Police Review 2024

 

…we will divest us both of rule,

Interest of territory, cares of state…

King Lear Act one, Scene one.

 

The publication of the NT Police Review (link here) provides a useful opportunity to consider the policy underpinnings of the role of policing in the NT. The review was undertaken by Vince Kelly, a former NT police officer and former head of the NT Police Association and was supported by a secretariat comprised of staff from the Chief Ministers Department and the NT Treasury. It set out 18 recommendations. I don’t propose to list them or summarise them.

 

The NT Government this week published the review, announcing that it accepts 15 of the 18 recommendations (link here). The Government has also announced a major boost to capital investment for police related infrastructure of $125 million over the coming five years. In the media release (link here) the Chief Minister asserts that the 2024 NT Budget provides $570 million over five years to implement the recommendations of the review.

 

My own take is that overall, the review is a major step in the right direction, and if implemented effectively will improve the quality of policing in the NT considerably. However, this is coming off a low base, with serious pre-existing underlying governance and management issues ensuring that the implementation task will be challenging. As Mr Kelly notes in his foreword, the review follows ‘a decade-long period of organisational and, in many instances, personal trauma for the institution of NTPF and individual members’.

 

The Executive summary provides useful context to the challenges the review is seeking to address:

The current demands for service on NTPF are unequivocally at the highest levels in the history of the agency. Those demands are being serviced in an increasingly adverse operating environment characterised by escalating levels of criminal offending across a number of crime types, corresponding community concern and alarm around issues of community safety and business confidence. … Historically, the NT has consistently recorded higher rates of crime across the majority of crime types and this pattern has continued with an overall crime rate more than double the national average. In the period 2018-2023 assault rates in the NT rose by 44.5% and crime against property rose by 16.8%.

Commensurately, in per capita terms, the NT is the most highly policed population in Australia, with 730 operational police staff per 100,000 people, compared to a national average of 281. When examined in geographical terms, NTPF provides policing services across a geographical area of approximately 1.42 million square kilometres, servicing a population of 252,473 people, of whom some 30% identify as Indigenous with approximately three quarters of that population living in remote and very remote areas.

 

These contextual observations, which have been evident for at least the past 25 years, suggest to me that while fixing the management, resourcing and governance of the NT police is important (indeed crucial), it will not of itself address the underlying structural drivers of this social dysfunction (and I am not referring just to the Indigenous population of the NT when I use this term). Unfortunately, our political system (in both the NT and nationally) appears incapable of focussing on, let alone proactively addressing, these deeper structural impediments. In essence, the NT (and arguably remote Australia generally) remains overwhelmingly neocolonial in its institutional structures, with substantial public and private investment available for commercial ‘development’ that extracts resources but leaves little in the way of ongoing infrastructure (physical, social or cultural) once those investments run their course.

 

Notwithstanding this strategic perspective, it is nevertheless important in my view that NT Police capabilities are progressively strengthened and modernised. To this end I add a small number of comments (in no particular order) regarding the review recommendations and the NT Government proposed response.

 

First, the recommendations that were not accepted by the NT Government provide demonstrable proof (if any is needed) that the NT Government is the prisoner of an ideology that prioritises commercial interests over the public interest. In her media release regarding the review, the Chief Minister states:

 The Territory Government does not accept the recommendation to reduce Police Auxiliary –  PALI – coverage on bottle shops in the Territory [recommendation 11] and does not accept the recommendation to discontinue using private security services in relation to reducing anti-social behaviour [recommendation 12].

 

There is no explanation or rationale provided for these decisions, and in my view, in each case the review made a credible policy argument in support of the recommendation. Yet in each case, they would have adversely affected commercial interests, in particular the alcohol industry and the commercial security industry. This blog has previously pointed to the overweight influence of alcohol interests  (link here and link here). The failure of the NT Government to prioritise the public interest in the development of alcohol policy is both a massive health and social catastrophe and is sowing the seeds of future social and economic dysfunction across the whole community.

 

Second, while the review recommendations relating to the Aboriginal Community Police Officer Program [recommendation 16, page 87] appear to be moving in the right direction, it seems well beyond time that the NT Government and the NT Police should bite the bullet and do away with what are (within the NT police organisational hierarchy) second class employees. There is no reason why Aboriginal Territorians should not expect to be recruited and trained to fill ordinary police roles.  Overall, the NT police employ only 10 percent Indigenous staff in a jurisdiction where the population is 30 percent Aboriginal, and where a substantial proportion of police efforts and activities are directed towards Aboriginal citizens. Such a decision will require political leadership. The continuation of the status quo (albeit with a strategy for incremental improvements taking decades) merely serves to confirm the point I made above that the NT remains a neocolonial outpost. I do not discount the implementation challenges in making the shift I am advocating, but the status quo in not merely untenable, it is corrosive of public trust, and thus makes the challenges of ensuring public safety for all more difficult.

 

Third, the section on remote police infrastructure (page 26) raises a more general issue not raised by the review (notwithstanding the involvement of the NT Treasury on the review secretariat). I refer of course to the principle of horizontal fiscal equalisation. The NT has been funded since at least the 1980s for the cost of providing remote policing services via its allocations of GST revenues as determined by the Grants Commission. There is no link between the calculation of the funding due to the NT and the geographic allocation of available funding. The fact that high levels of underinvestment in police services have persisted over decades despite the NT being notionally funded to provide those services serves to demonstrate (once again) that the structural determinants of public expenditure and investment are exclusionary rather than inclusionary (or even discriminatory).

 

Fourth, the case study on Gunbalunya included in the review as an appendix is worth a look as it makes tangible the impact of underinvestment in policing in remote communities. While the review makes no comment, the clear implication (confirmed by my own anecdotal knowledge) is that the levels of police resourcing in communities are chronically low.

 

Fifth, there are several fascinating data tables in the appendix to the review. To pick just one, section #28 lists real recurrent expenditure per person in the population for police services by jurisdiction over time. Over the past decade, the NT has consistently spent three times the average of all other Australian jurisdictions on policing per citizen. This is not just about remoteness but reflects the severe underinvestment in the full panoply of social and physical infrastructure necessary for building and sustaining viable communities.

 

Conclusion

This review and its implementation is a welcome step to improving the capacity and capability of the NT Police to ensure community safety across the NT. Unfortunately, it will not be sufficient to ensure that community safety outcomes improve and don’t worsen. These basic expectations for a modern democratic society have been progressively placed at risk over the past two decades in the NT. The solution requires more fundamental reforms, which in turn will not happen without the instigation and proactive involvement of the Commonwealth. Unfortunately, the Commonwealth appears disinclined to do anything more than offer band-   aids. Both levels of government appear to have divested themselves of the responsibilities of ‘ruling’ in the public interest.

 

My pessimistic conclusion is that the social cohesion of the NT will likely worsen over the coming decade. While the absence of social and physical infrastructure (housing, education outcomes, health outcomes) will be chief contributors, the trigger for flare ups will likely be the absence of an effective regulatory regime for alcohol consumption in the NT. The role of the police will become more visible and more important as they are given the task of dealing with the consequences of long-standing policy ineptitude by the NT political class.

 

11 April 2024

ANAO 2024/25 draft work program

 

And how his audit stands who knows save heaven?

Hamlet Act three, Scene three.

 

The ANAO has released its draft work program for next financial year’s performance audits (link here). Dan Holmes from the Mandarin provides a succinct whole of government overview (link here).

 

This post focusses on the Indigenous policy related performance audits, which fall under the Prime Minister and Cabinet (PMC) portfolio. OF course, many of the proposed mainstream performance audits will have a bearing on services delivered to Indigenous citizens. These include (to a greater or lesser extent) proposed performance audits of DSS’s programs Assisting the Long term Unemployed; a follow-on performance audit of the Management of funding of projects by the Northern Australia Infrastructure Facility (NAIF) in the Infrastructure, Transport, Regional Development, Communications and the Arts portfolio; and perhaps even Board Governance at the National Disability Insurance Agency.

 

For ease of access, I have included slightly edited summary extracts of proposed Indigenous specific performance audits from the PMC portfolio below:

Delivery of community-led justice reinvestment initiatives

This audit would assess the design and governance underpinning the National Indigenous Australians Agency and the Attorney-General’s Department’s joint establishment of an independent National Justice Reinvestment Unit and examine the effectiveness of the early delivery of up to 30 community-led justice reinvestment initiatives.

Around $100m was announced for investments in community-led justice reinvestment initiatives and First Nations-led legal assistance services in the October 2022 budget…

Indigenous Land and Sea Corporation’s management of non-financial assets

This audit would assess the effectiveness of the Indigenous Land and Sea Corporation’s (ILSC’s) management of non-financial assets.

The ILSC is a corporate Commonwealth entity established under the Aboriginal and Torres Strait Islander Act 2005 (the Act). One function of the ILSC is to acquire land to grant to Indigenous corporations. Under section 191D of the Act, the ILSC must make a grant for an interest in land acquired for that purpose within a reasonable time after its acquisition. At 30 June 2023, the ILSC and subsidiary corporations held the Ayers Rock Resort valued at $435 million, other properties valued at $66 million, and livestock on properties valued at $6 million. While the ILSC holds properties, it is responsible for maintenance, statutory costs and the operation of related businesses. The audit would examine the ILSC’s asset management strategy and practices, including those related to the divestment of properties…

Management of the regional network - Follow on

The audit would assess the effectiveness of the National Indigenous Australians Agency’s (NIAA’s) management of the regional network, including whether the regional network is achieving its objectives…

…Auditor-General Report No. 7 of 2018-19 Management of the Regional Network found that management of the regional network was mixed, with the full potential of the network to facilitate the design and delivery of local solutions to local problems not being maximized.

Office of the Registrar of Indigenous Corporations’ management of non-compliance

This audit would assess the effectiveness of the Office of the Registrar of Indigenous Corporations’ (ORIC’s) management of non-compliance with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act)…

…In 2021, the NIAA released a final report of a review into the CATSI Act that recommended enhancements to the regulatory powers available to the Registrar under the Act. An amendment bill to the CATSI Act passed the House of Representatives in 2021 but lapsed at the end of the 46th Parliament. This audit would examine the use of the Registrar’s powers and functions to manage non-compliance with the CATSI Act.

The effectiveness of coordination of Closing the Gap target implementation

The audit would examine the effectiveness of the National Indigenous Australians Agency (NIAA’s) coordination activities.

The 2020 National Agreement on Closing the Gap (National Agreement) is a strategy that aims to improve the life outcomes of Aboriginal and Torres Strait Islander people. The National Agreement marks a shift in the approach to the Closing the Gap Strategy, with Aboriginal and Torres Strait Islander people determining what is important to them. The Closing the Gap Implementation Plan includes actions, the responsible minister and the delivery timeframe. The NIAA is responsible for leading and coordinating the development and implementation of Australia’s Closing the Gap targets in partnership with Indigenous Australians.

The Northern Territory Aboriginal Investment Corporation (NTAIC)’s administration of grants

This audit would assess the effectiveness of the governance of the NT Aboriginal Investment Corporation (NTAIC) and its governance and decision-making processes for allocating grants funding.

NTAIC was established as a corporate Commonwealth entity in November 2022. NTAIC’s purpose is to work with Aboriginal Territorians to achieve economic, social and cultural impact through innovative approaches to investments, beneficial payments and other financial assistance. It has initial grant funding of $180 million and an investment corpus of $500 million. Its Aboriginal-controlled board makes decisions to invest Aboriginals Benefit Account (ABA) funding, which was previously administered through the National Indigenous Australians Agency. The ABA receives monies from the Commonwealth based on the value of royalties generated from mining on Aboriginal land in the Northern Territory…

 

Commentary

The ANAO is an important, and in my view under-rated element in the array of checks and balances that comprise the architecture for government initiatives and actions. It is the financial auditor for all major government agencies, certifying that agencies financial accounts are compliant with the applicable accounting standards and fairly present the financial position of the entity at the audit date. Its performance audits are separate to its financial audits and in effect focus on the performance of agencies in delivering specific initiatives and programs. The span of performance audits is not comprehensive, and thus the selection of audit subjects is inherently a strategic choice.

 

In 1985, I published an article (link here) arguing that the shift to embracing what were then termed ‘efficiency audits’  — the equivalent of the ANAO’s performance audits —  should be extended to embrace effectiveness audits. ‘Efficiency’ refers to the ability to accomplish something competently with the minimum level of resources and effort. ‘Effectiveness’ refers to the degree to which desired or positive outcomes are achieved. In my view the argument I made then still has merit.

 

In its wisdom, the ANAO has preferred the safe harbour of focussing on efficiency (effectiveness risks straying into the realm of politics) leaving issues of effectiveness to ad hoc evaluations. For their part, successive governments have avoided reforms that would ensure evaluations are undertaken independently, are always published, and are pitched at a level that ensures they are strategically relevant. Proposals for an evaluator general (link here and link here) have been studiously ignored. The point of this brief foray into history is to highlight that notwithstanding their considerable usefulness and benefits in opening a window onto the activities of government, ANAO performance audits are invariably limited and focussed more on process than outcomes. Perhaps it is time that that the ANAO commissioned an independent evaluation of its own operations!

 

Turning to the proposed audits listed above, I propose to make a series of brief comments aimed at highlighting specific issues of potential significance or salience. Due to limitations on length, I don’t propose to comment on the proposed performance audit of the NIAA regional network, nor the proposed audit of the Office of the Registrar of Aboriginal Corporations. I note however that both organisational units are crucial elements in the architecture of Indigenous policy and deserve constructive scrutiny.

 

Delivery of community-led justice reinvestment initiatives: While this program is jointly shared between NIAA and the Attorney Generals Department, there is no information on the NIAA website. The AG’s website lists a basic description of the program (link here) and includes a program design document drafted by Jumbunna Institute ‘to inform the design of the grants process and grant opportunity guidelines’ (link here). The design document is well constructed but is itself strongly focussed on process (particularly community control) rather than providing a targeted conceptual framework for reducing incarceration and interactions with the justice system.  While this is deliberate, the very flexibility of the program is likely to lead to questions regarding its efficacy and purpose, especially in the context of outbreaks of public violence such as recently occurred in Alise Springs.

 

At a more strategic level, the Commonwealth is essentially investing in a slogan as there appears to be no mechanism for operationalising the ‘reinvestment’ element of the program. To do this would necessarily involve robust engagement with the states and territories to shift resources away from activist policing, aggressive prosecutorial strategies and carceral options, something the Commonwealth is loathe to undertake. Of course, notwithstanding an extra $10m being allocated to Central Australia under this program in the 2023 budget, the reality is that governments’ actions (such as those announced after recent riots in Alice including a curfew and a decision to appoint 200 more police) are not in fact aligned with the justice reinvestment ethos, and they appear unwilling to advocate for such a strategy to the wider population. The bottom line is that even if the investments involved were effective, the investment of $100m nationally is unlikely to be adequate to turn around the worsening incarceration status of First Nations (link here). The fundamental question then for the ANAO is not whether individual grants are making a positive impact, but whether governments are merely engaged in an exercise of signalling concern (and buying political support) rather than aiming to address the substantive issues involved.

 

Indigenous Land and Sea Corporation’s management of non-financial assets: this proposed performance audit is timely and will no doubt raise several important issues. The elephant in the room is the ILSC’s ownership of the Ayers Rock Resort and the implications for its balance sheet of the current efforts (link here) to divest the resort to a new owner. I published a post on this issue some years ago (link here) and note that the issue has been raised in each of the last two estimates hearings. There was a sustained discussion at the February 2024 Hearings (pages 57 to 60) of the significant contingent liability carried by the ILSC in relation to ARR, and the actions being taken by the ILSC to divest the land to an Indigenous corporation and the operation of the resort to a commercial operator. I was particularly struck by Senator Liddle’s statement in the most recent Estimates hearing that ‘we all know that there was far too much paid for that investment at that particular time’ given that this proposition was vehemently rejected by Minister Scullion when the subsequent Dawn Casey led Board sought to unpack what had transpired and have the decision reviewed (link here).

 

The effectiveness of coordination of Closing the Gap target implementation: this proposed performance audit addresses issues that are crucial to the future effectiveness of the closing the gap process. This element of NIAA’s management of the process is in dire need of reform. There are two elements to coordination of the implementation task. The first is across the Commonwealth: my informal understanding is that the NIAA does not see itself as taking the primary role in leading the implementation of the Priority Reforms under the National Agreement, but rather sees itself as a policy influencer. Of course, NIAA requires ministerial support to engage forthrightly, but it is painfully clear that the NIAA is effectively mute on many if not most of the issues that will make a difference to the ultimate success or failure of closing the gap.

 

The second essential element of successful coordination is for the Commonwealth to step up and provide a much greater degree of policy and even administrative leadership vis a vis the states and territories. The previous Government hid behind the convenient fig leaf that the Commonwealth was merely an equal partner in the intergovernmental National Agreement on Closing the Gap, but there was no necessity for the Labor Government to meekly and supinely follow suit. The Minister for Indigenous Australians must bear ultimate responsibility for this positioning, but NIAA and its leadership could have done much more to persuade the Minister to adopt a more robust and proactive stance.

I published a post on this and related issues in early March (link here) which I strongly recommend to readers.

 

The Northern Territory Aboriginal Investment Corporation (NTAIC)’s administration of grants: while this would be a marginally useful exercise given that NTAIC has been operating for less than two years, it strikes me that this proposed performance audit misses a much more strategically important issue, namely the efficacy (and ideally effectiveness) of the overall allocation of royalty equivalents to the Aboriginals Benefit Account (ABA), of which NTAIC grants are just one comparatively minor part. I was a critic of the NTAIC proposal as being a sleight of hand: it professed to shift control to Aboriginal interests in the NT, but in fact ensured that the Minister retained unilateral control over a significant element of royalty equivalents (managed by NIAA) without any Aboriginal oversight and with much less transparency that previously obtained (link here). Of course, the NTAIC is now a reality; I am not suggesting it be unwound. I am merely pointing to the fact that there is much more to the ABA than the slice that the NTAIC controls.

 

The most recent NIAA Annual Report (link here) incorporates the financial statements for the ABA which disclose that in 2023 it held financial assets totalling $1.47 billion, offset by liabilities (including provisions for establishment funds to transfer to NTAIC) of $625 million leaving net assets of $845 million. Annual appropriations to the ABA totalled $378 million. These funds are then allocated in a range of ways, including to fund the operations of the four land councils in the NT ($109 million in 2023), to fund the distribution of payments to corporations representing traditional owners affected by mining ($113 million), to fund the NTAIC (at the discretion of the Minister) and to make grants (usually approved by the Minister) for community purposes to residents of the NT ($62 million).  

 

In my view there is a much stronger case for assessing the performance of the whole ABA system including the grants that are not made by the NTAIC from a performance (and I would argue effectiveness) perspective than for assessing the comparatively small grants program currently operated by NTAIC. My recent posts in relation to Groote (link here and link here) are infused with a swirling whirlwind  of ABA funds. It is well past time that an independent oversight body undertook a close look at the operations of the ABA with the aim of ensuring the funding it distributes is meeting the statutory remit laid down in the Aboriginal Land Rights (Northern Territory) Act 1976.

 

Concluding Comment

The ANAO is to be commended for seeking comment on its proposed work program though I suspect that it may not attract much attention. In thinking about why and how these proposed performance audits were chosen, it struck me that there is no indication of the decision criteria, nor the process involved in setting the program. Further, given the interaction between efficiency (performance) and effectiveness, an ideal decision process would also consider the proposed evaluation program in each portfolio. These decisions are important because they fill a crucial gap in transparency and accountability in the current approach to public sector accountability.

 

Finally, one would have to assume that the ANAO (and perhaps also the Parliament) is beginning to consider how the developments in Artificial Intelligence (AI) might best be applied to assisting the development of more comprehensive and useful performance audit work program. As agencies increasingly adopt AI algorithms to drive their operations, it will be necessary for the ANAO to keep pace. A request to Chat GPT provided ten existing AI driven capabilities that could assist in improving the efficiency effectiveness of the ANAO’s performance audit system including Predictive Analytics for Risk Assessment; Automated Data Extraction and Analysis; Natural Language Processing (NLP) for Document Analysis; and Dynamic Audit Planning and Resource Allocation. It seems like the time is approaching when the ANAO will need to look very hard at how and why it does what it does. More importantly, Governments too will also need to begin consideration of how they might use these new capabilities to improve levels of transparency and accountability across the entire span of public policy.

 

4 April 2024