Recent research focussed on West Kimberley geo-history, history and culture

 

We know what we are, but know not what we may be

Hamlet Act four, Scene five.

 

A major challenge for policymakers (and ex-policymaker analysts such as myself) is to (i) comprehend the reality of contemporary Indigenous cultural life and cultural priorities, and (ii) to then find ways to incorporate those values into the design and implementation of current policy frameworks and policy priorities. The reality that delivering on these challenges is important to First Nations citizens is reflected in the fact that they invariably argue to be involved in policy development, formulation and implementation through mechanisms such as arguing for co-design and or for the use by governments of community-controlled organisations to deliver services on the ground. The rationale for policymakers to take the inclusion of cultural perspectives in policy formulation seriously is that doing so is likely to make policy implementation more effective.

Nevertheless, despite the attempts made to date by mainstream policymakers to meet First Nations’ aspirations, with the most obvious example being the priority reforms identified in the National Agreement on Closing the Gap, progress has been slow and partial. Moreover, there is no accepted consensus amongst mainstream policymakers that these are more than optional elements in the design of policy. Amongst political conservatives, there exists serious ideological opposition to embedding acknowledgment of culture and cultural priorities within policy frameworks. This opposition is based on the political dividends that can be harvested from taking advantage of populist ignorance or even overt opposition to anything that differs from the nation’s Anglo-Saxon cultural precepts. The risk for First Nations interests then is that even apparent progress can be subject to ongoing pushback (link here) and unless successfully countered or resisted, to eventual roll-back.

Of course, one of the difficulties in protecting culture and in translating it into policy frameworks (and policy institutions) is to acknowledge that culture is dynamic, not static, and nor is it homogenous; observations that can be validly made about both mainstream and First Nations’ cultures. And to add to the complexity, there are increasing indications that both First Nations cultures and to a lesser extent mainstream cultures are manifesting characteristics that might be described as inter-cultural (link here). Thus, to the extent that we undertake any cultural analysis, it ought to take these possibilities into account. So, for example, Melinda Hinkson & Benjamin Smith in their 2005 Oceania article Introduction: Conceptual Moves Towards an Intercultural Analysis (link here) conclude with the following statement:

It is in such observation of the interaction between representations and the lived circumstances of Aboriginal people that the question of what is at stake in the development of an intercultural analysis comes most starkly to the fore. The notion that Aboriginal people might simply make a choice between two worlds, or simply move between them, selecting the best both have to offer, fails to comprehend the processes through which representations, cultural identities and lifeworlds are produced and reproduced. An intercultural analysis matters because it is arguably the only frame through which our conceptualisations of culture might be made to articulate with its lived expressions.

I am not suggesting that the notion of intercultural lifeworlds and analyses are in any way a solution to the challenges facing policymakers to incorporate Indigenous aspirations into their policy design and implementation activities. Nor are they a panacea for Indigenous interests whose aspirations for cultural acknowledgement remain unmet. Indeed, it arguably adds to the complexity of the challenges facing both sides of these issues.

Rather my point in making these comments was less ambitious but still important. I wanted to contextualise two significant research outputs I cam across this morning related to the West Kimberley which gave me cause for some optimism and which I felt deserve the (limited) wider dissemination that I can offer through this blog post.

The first was a doctoral thesis (link here) written by Arjati Schipf and titled Closing the Culture Gaps: Policies and Codesign in Remote Western Australia. A Long-Time Story of a Community-Based Kimberley Aboriginal Organisation. This thesis provides a theoretically based account of the role and inner workings of the Kimberley Aboriginal Law and Cultural Centre (KALACC), a remote community-based Aboriginal Community Controlled Organisation located in Fitzroy Crossing, Western Australia.

The second was an innovative digitally based educational resource project (link here) titled (somewhat misleadingly) Barlili: Devonian reef of the Kimberley – Geoheritage. The project has developed a dedicated website (link here) with the more informative title Living Water: River, Land and Sea Country of the West Kimberley. The Living Water website includes a selection of test and visual resources addressing the cultural importance of country and the Martuwarra /Fitzroy River catchment to the regions Aboriginal population.

I have spent the morning scanning through both these research outputs, and while neither is perfect, they are both major achievements in making the case for the ongoing relevance and importance of living cultures and their continuing links with the land, its macro and micro environments, and importantly in the case of the Living Water website, of the importance of history, both deep history and post colonisation history. Importantly, in different ways, both make the case persuasively that mainstream policymakers have much more to do in relation to incorporating culture into policy design, development and implementation.

Both these research outputs are worth a look from anyone interested in the importance of culture and the challenges of meshing it with national policy frameworks. I especially recommend the short two- and three-minute videos included on the Living Waters website of elders and younger community leaders talking about aspects of history, country and culture. They overflow with insights that mere textual descriptions can never achieve.

What is left unresolved by both these research outputs is how policymakers might move forward in incorporating First Nations cultural aspirations into policy while mitigating the very real and arguably inevitable risks of pushback and rollback. Even were policymakers to successfully incorporate West Kimberley perspectives into local policies, that still leaves vexed issues around how to mesh national policy frameworks with local aspirations and priorities across eight jurisdictions and perhaps some 60 to 100 regional areas.  These issues should be an important research agenda for the future: they will require deep understandings of the cultures, and core priorities, of both First Nations communities and policymakers.

 

27 October 2024

 

An Institutional approach to analysing Indigenous policy (Part Two)

                                                 O, what men dare do! What men may do!

What men daily do, not knowing what they do!

Much Ado About Nothing, Act four, scene one

 

I ended part one of this post (link here) with the question: What then are the strategies available to Indigenous interests to increase the likelihood of gaining seats at the table when key decisions are being taken on institutional design and development?

There are it seems two levels of action and engagement that are required for Indigenous interest to obtain a guaranteed and long-term seat at the institutional development table. Both are essential, but on their own, (i.e. without the other) they will invariably fall short.

The first is to develop a conceptually coherent and viable long term policy agenda. At least three recent attempts have been made to do this: Ngunggai Warren Mundine has laid out one policy agenda in his recent CIS report titled Where to Now: the road ahead for Indigenous Policy (link here). This road map is summarised as follows:

Market economy and democracy, the rule of supply and demand as well as the rule of law are the blueprint for economic prosperity and have been proven successful in communities all over the world, regardless of their race, culture or religion. It can work for remote Indigenous communities too.

This paper proposes a roadmap to closing the gap through real economic solutions under four pillars: Economic Participation; Education; Safe communities; Accountability.

A second has been overseen by Professor Peter Yu at the ANU in the recent Murru Waaruu Outcomes Report (link here). The approach proposed is summarised in the report as follows (emphasis added):

The paradigm shift envisaged by the Seminar Series proposals is intended to change the current transactional relationship that First Nations peoples have with governments and industry to one of genuine partnership involving an equity stake in economic projects. …   developing and implementing economic self-determination policy is a long-term approach and is complementary to the National Agreement on Closing the Gap.

Ultimately, this Outcomes Report argues that an economic self-determination agenda is about providing First Nations communities and enterprises with opportunities to engage in the Australian economy and to share in wealth creation opportunities on their own terms. On this basis, as discussed throughout the Seminar Series, the approach should be framed by the human rights of Indigenous peoples as articulated in UNDRIP. A coordinated approach is required to reform policy and institutional arrangements to support First Nations economic development in relation to land and Sea Country, freshwater, intellectual property, and access to finance. [The report includes an Appendix with 24 specific institutional reforms, albeit vaguely specified].

A third is the implicit policy agenda in the 2020 refresh of the Closing the Gap Strategy, ostensibly codesigned between the Commonwealth, the states and territories and the nascent Coalition of Indigenous Peaks. I say ‘ostensibly’, because the codesign negotiation was undertaken by two parties, government interests and Indigenous interests, operating within a significant and consequential power and capability imbalance. The high-level summary of the Closing the Gap policy agenda might best be summarised by pointing to the Four Priority Reforms agreed by all parties to the National Agreement in the outcomes sought (clause 17) and in the specific commitments to these outcomes spelt out in chapter six of the Agreement (link here):

17. The outcomes of this Agreement are:

 a. Shared decision-making: Aboriginal and Torres Strait Islander people are empowered to share decision-making authority with governments to accelerate policy and place-based progress on Closing the Gap through formal partnership arrangements.

b. Building the community-controlled sector: There is a strong and sustainable Aboriginal and Torres Strait Islander community-controlled sector delivering high quality services to meet the needs of Aboriginal and Torres Strait Islander people across the country.

c. Improving mainstream institutions: Governments, their organisations and their institutions are accountable for Closing the Gap and are culturally safe and responsive to the needs of Aboriginal and Torres Strait Islander people, including through the services they fund.

 d. Aboriginal and Torres Strait Islander-led data: Aboriginal and Torres Strait Islander people have access to, and the capability to use, locally-relevant data and information to set and monitor the implementation of efforts to close the gap, their priorities and drive their own development.

e. The socio-economic outcomes (listed at Table A).

Significantly, none of these three policy agendas has been subjected to a rigorous and independent analysis or critique focussed on the substantive feasibility and likely effectiveness of the proposed measures in delivering more inclusive and positive benefits to First Nations communities and citizens. The fact that there has not been so far such a constructive critique reflects (in my subjective view) a deep-seated and widespread societal shift away from rigorous analysis and its replacement by reliance on rhetoric and assertion as the primary means of justifying social and political action. Each of the proposed policy agendas is constituted by an amalgam of largely unspecified initiatives located within a mostly open-ended conceptual framework. The result is the articulation of agendas built around a series of largely implicit assumptions regarding the presumed efficacy and effectiveness of the actions proposed.

The Nyunggai Mundine/CIS proposals argue for policies that drive greater market-based approaches to land tenure and a stronger focus on education and employment. While these proposals implicitly rely on institutional change, they are largely about removing those institutional provisions which acknowledge or deal with Indigenous citizens’ rights and interests and replacing them with mainstream rights. They do not involve a significant increase in government financial outlays. The Murru Waaruu proposals advocated by Peter Yu are an amalgam of a focus on economic development rather than welfare or basic services facilitated through the provision of more inclusive institutional reforms based on the greater acknowledgment of human rights instruments such as UNDRIP. 

The implicit Closing the Gap policy agenda reflected in the National Agreements four Priority Reforms is process oriented, and essentially reflects the widespread First Nations’ aspiration for much greater involvement in both policy development and service delivery. It assumes (in my view incorrectly) that Governments are serious about policy reforms directed to shifting the dial on closing the gap. As the Productivity Commission pointed out in its July 2024 Annual Data Compilation Report (link here; page 2), the four priority reforms are underpinned by 17 socio-economic outcomes, and the 23 closing the gap targets are underpinned by 164 indicators. According to the PC report: ‘The targets are specific and measurable goals, while the supporting indicators provide context and information on the drivers of the outcomes.’ At its core then, the Closing the Gap policy agenda involves four priority reforms, 17 socio-economic outcomes, 23 targets and 164 indicators which 9 jurisdictions are each responsible for measuring and progressing. This matrix (which governments have designed and committed to progress) thus comprises 1872 cells. The complexity built into this policy agenda is both staggering and impossible to explain as anything but a deliberate attempt to make the underlying process both incomprehensible and impossible to criticize.

The Productivity Commission review of the Closing the Gap process published in February 2024 was in my view seriously flawed. It was too focussed on pushing Indigenous aspirations over substantive analysis, and in many respects lacking in independence given the Productivity Commission’s role in developing the data dashboard. To be clear, there is nothing inherently wrong with advocacy for Indigenous aspirations, but this is not the Productivity Commission’s role. It ended up preaching to the small church of First Nations communities and citizens (around five percent of the nation’s population) whereas what is desperately needed is coherent and conceptually persuasive analysis aimed at persuading the mainstream population and interests to support the reforms necessary to transform exclusionary institutions into inclusive institutions.

Notwithstanding the flawed analytic underpinnings of each of the three models outlined above, it seems to me that there is likely to be much of use and relevance in each of the three policy agendas. The task however is to identify the institutional reforms and associated policy initiatives that will have outsized positive impacts and alongside, to develop a persuasive and conceptually coherent narrative to persuade mainstream interests that it is in their interests to expand the inclusive scope of Australia’s political settlement. Moreover, the task of developing a long-term institutional reform policy agenda is inherently dynamic and the optimal policies for advancing Indigenous socio-economic and cultural wellbeing will inevitably develop and change over time.

My own approach to developing a high-level Indigenous institutional reform agenda and associated policy framework would be simpler and more strategic than any of the three policy models outlined above. It would include the following elements:

It would focus explicitly on advocating for institutional reforms which have medium to long term consequences. Examples include ten-year funding agreements for all priority sectors; financial adjustments to the tax system to compensate taxpayers who do not take advantage of tax expenditures (such as negative gearing).

It would advocate for explicit focus on ensuring all mainstream policies and programs that have an outsize impact on First Nations citizens should have needs-based access criteria. Examples include financial literacy programs,

It would advocate for a comprehensive remote policy framework which spans both mainstream and Indigenous specific policies and programs. Key components include the impacts of climate change on communities, addressing housing and essential services (water, sewerage, power, kerbed streets) deficits, improved digital access and food security, real reform to the Community Development Program to shift all participants to funded employment in community service roles including environment, health and disability service roles.

It would advocate for evidence-based approaches and maximum transparency in the provision of services to First Nations across mainstream and Indigenous specific policy sectors. Examples include rigorous macro-level evaluation of comparative take up and access by mainstream and First Nations citizens to key policy frameworks and programs, and rigorous evaluations of policies to counter the rise of populist ideological approaches.

It would advocate for the creation of stand-alone agencies to deliver core services in contexts where there is market failure which inhibits private sector delivery. Examples include the overall delivery of the reformed CDP in remote Australia, and the remote operations of the NDIS.

Importantly my approach differs from the strategies outlined above in that it avoids listing particular sectors in recognition of the fact that notwithstanding the Government silos that exist, there are strong synergies and inter-relationships across all key sectors. The interconnections between housing, health, education, and employment are complex and operate in multiple directions. Identifying one sector as a priority that will on its own address deep disadvantage is a chimera.

Of course, not all institutional reforms require financial investments. It is important that governments acknowledge that the present is a product and function of our nation’s history, and there can be no effective policy frameworks developed by governments that do not acknowledge that history.

Perhaps the most important difference between the policy strategies listed above and my approach is that it shifts from assuming that government will respond to the mere existence of a need and acknowledges the (unjust) reality that Indigenous interests must robustly and effectively advocate for the reforms they seek (probably over sustained periods).

It follows that the second level of action and engagement is for Indigenous interests to develop an independent, broadly representative, policy capable and well led advocacy organisation (or complementary set of organisations). None of the three policy agendas in the public domain have to my mind fully managed this.

The Mundine policy agenda in effect rests on the advocacy capabilities of the Centre for Independent Studies, other conservative advocacy entities (such as the Business Council and the Minerals Council) and a small coterie of likeminded Indigenous intellectuals. It has strong political support from the Liberal and National Parties.

Professor Peter Yu has established a new entity, the First Nations Economic Empowerment Alliance to advance the Indigenous economic empowerment agenda laid out in the Murru Waaruu Outcomes Report (link here and link here). The membership of the Alliance and its governance arrangements are as yet unclear, and it does not appear to have a presence on the web. Its funding is opaque.

The key advocacy mechanism driving Indigenous aspirations within the Closing the Gap policy agenda is the Coalition of Indigenous Peaks led by Pat Turner. The Coalition of Peaks includes some 80 peak bodies representing Indigenous organisations across virtually all social sectors. The depth of experience and representativeness of these peaks varies, with the mainstay being the longstanding and well organised National Aboriginal Community Controlled Health Organisation (NACCHO) representing some 145 Indigenous health organisations across all states and territories. Yet the Coalition of Peaks appears to be funded almost entirely by governments and given its role under the National Agreement it has limited staff in its secretariat.

The challenges facing both the First Nations Economic Empowerment Alliance and the Coalition of Indigenous Peaks are multiple: how to build and sustain policy capability; how to build and sustain widespread Indigenous support for the agenda being pursued; how to engage with governments while remaining financially and politically independent, and how to outlive the charismatic and capable leaders who brought them into existence. These challenges will inevitably need to address the inevitable ebbs and flows of organisational life. They must be prepared to operate in an environment of ongoing internal conflicts as new leadership aspirants vie for influence and power as well as potential external threat as governments (and oppositions) seek to influence and co-opt, with both the carrot and the stick. These pressures will be applied not just to the organisation, but (from time to time) will be directed towards individual leaders. Moreover, effective advocacy must manage and deal with the inevitable transitions and dynamic inconsistencies that mainstream electoral politics throws up, and which makes navigating these mazes high risk. 

The most obvious strategy for Indigenous interests is to build on institutional infrastructure established by the National Agreement on Closing the Gap by investing as much human, intellectual and financial capital as they can muster into building the long-term independence and sustainability of the Coalition of Indigenous Peaks. This entity has several obvious advantages: it has an established base across multiple sectors; it is a party to the National Agreement which while deeply flawed provides significant legitimacy with mainstream Australia; its senior leadership have deep experienced within government and are astute.

There is no reason why the First Nations Economic Empowerment Alliance should not seek to strengthen its footprint in the Indigenous public policy domain, however its focus and remit, directed to economic development is in my view too narrow for it to stand alone. That said, there are clear advantages in having more than one national advocacy body for Indigenous interests, just as there are several peak interest group entities representing mainstream interests.

The challenge for both the Coalition of Peaks and the Economic Empowerment Alliance is to step up to the next level. For the Empowerment Alliance, it is still in a nascent phase and lacks a track record. However, its existing members (to the extent that this is known) appear to be highly experienced and capable. For the Coalition of Indigenous Peaks, there seems to me to be a real possibility that a change of government at the Commonwealth level would bring a major reshaping (again) or even the abolition of the Closing the Gap process. If that were to occur, it would be a tragedy for the Coalition of Peaks to go the way of the National Aboriginal Consultative Committee and National Aboriginal Conference of the 1970s/80s, of ATSIC in the early 2000s, and of the National Congress of First Peoples a mere decade ago.

To be successful into the medium-term future, both the Coalition of Peaks and the Economic Empowerment Alliance will need to devise strategies to become financially independent of government and establish the transparent, coherent and robust governance structures that address the inevitable criticisms, from both within and beyond the Indigenous domain, that will question their legitimacy. Given the importance of recruiting the very best talent available, there is a case for broadening membership of each entity to allow individuals to participate in their governance. There is also a strong argument in favour of establishing two or three semi-autonomous divisions or entities under the Coalition of Peaks focussed on sub-sets of the institutional reform policy space: one option would be to establish a remote Institutions division/entity along with a social and an economic division/entity. Another would be to establish some geographical units to oversight developments in particular jurisdictions. These entities could have their own Boards, staff and resources. The rationale for such units is the need to build and sustain policy expertise and capability: it is just too ambitious to think that one set of staff can cover developments across the whole of government in nine jurisdictions.

Australia’s extant political settlement is determined by a dominant coalition of commercial, social and political interests. Those interests share an uneasy equilibrium which is built upon an array or assemblage of institutions that operate to distribute societal benefits to those included in the equilibrium. Indigenous Australians are over-represented amongst those citizens who are comprehensively excluded by the operation of multiple institutions, particularly in remote Australia. To reform those power structures, Indigenous interests’ only realistic option is to strengthen their capacity to advocate on policy and to progressively shift the shape of the institutional framework thought strategic alliances with other interest groups.

To achieve such an outcome, Indigenous interests need to develop a robust institutional reform agenda that aligns with the political and policy demands of the present and the near future. They must develop the independent organisational heft to engage robustly with existing interests across the breadth of Australian society, seeking out allies and contesting the agendas of opposing interests. Governments respond to the sustained advocacy of organised interests, especially when that advocacy is backed up by the threat of political consequences.

Conclusion

As I argued at length in Part one of this post, the Indigenous policy domain has been characterised by Institutional stasis over the last thirty years. To the extent that there has been institutional change, it has been to degrade and walk back previous institutional reform. There is no shortage of Indigenous political activism, but my point is that it will only ever be effective if it is informed by a conceptually sound Institutional reform agenda with a medium to long term horizon. This must be complemented by the organisational capability and heft to prosecute detailed policy arguments against those who either oppose or merely ignore the legitimate aspirations of Indigenous interests to be part of an inclusive society. If institutions matter, then addressing structural and system exclusion and disadvantage requires institutional reform. That is the mountain that First Nations leaders will have to climb to achieve their legitimate aspirations

 

23 October 2024

 

An Institutional approach to analysing Indigenous policy (Part One)

I like not fair terms, and a villain’s mind

Merchant of Venice, Act one, Scene three

 

Last week the Nobel prize in economics was awarded to three economists, Daron Acemoglu, Simon Johnson and James A. Robinson “for studies of how institutions are formed and affect prosperity” (link here). There have been several prominent economists write short overviews of the prize winners’ work (link here and link here). The economic historian Adam Tooze wrote a thought provoking critique (link here) which questions the prize winners’ interpretation of the modern history of China’s rise, but implicitly endorsed the underlying importance of institutions. The overview I found most useful was by Alice Evans (link here).

Evans succinctly summarises the considerable academic output of AJR (as the prize winners are often referred to) in a very accessible way. She emphasises the importance of institutions (defined as ‘the rules of the game’) in shaping policy outcomes, the role of inclusive institutions in driving sustained social and economic equity, and the more recent research of AJR in exploring the complementary roles of expectations and prestige in shaping the ideological frameworks within which institutions operate and which thus shape societal outcomes. I recommend interested readers have a look at her Substack post as she explains these issues in very accessible terms.

The bottom line is that ARG have made an enormous contribution to explaining the importance of institutions in shaping and determining policy outcomes, and point to the underlying roles of elites, dominant coalitions of interest groups, and ideology in the creation and protection of institutions that allocate benefits to those dominant interests, in maintaining institutional stability over time, and by implication in weakening institutions which either no longer serve their interests or which allocate societal resources in ways they dislike. A core element in ARG’s analyses is to argue that inclusive institutions (ie institutions that allocate societal resources more broadly) lead to stronger economic and social development; whereas non-inclusive institutions lead to weaker outcomes and ultimately to state failure.

How then might we describe the institutional frameworks which shape the Indigenous policy domain in Australia? The summary below is more a thumbnail sketch than an attempt at absolute accuracy and comprehensiveness.

The first point to note is that mainstream institutions are the predominant influence over Indigenous policy outcomes: the Constitution, the Parliament, the dominance of the Executive Government over the Parliament, the Commonwealth’s extraordinary reach across mainstream policy sectors such as education, health, employment, social security, the disability support policy, taxation, the economy, and so on. The Commonwealth retains very strong institutional influence over Territories both direct and latent (notwithstanding legislation providing for self-government), and its mainstream legislation outlawing racial discrimination has had an outsized influence over Indigenous policy. Mainstream state and territory institutions focussed on essential services and mainstream land laws, housing regulation, social housing provision and criminal justice are also extremely influential in shaping Indigenous life opportunities across urban, regional and remote contexts. While these are generally considered inclusive institutions, the reality is that in many cases, particular institutions, or the synergies between institutions lead to exclusionary outcomes for particular segments of society. Indigenous interests are strongly represented amongst those disadvantaged segments as the Productivity Commission Closing the Gap dashboard demonstrates very clearly.

The second point is that Indigenous specific institutions are in a state of prolonged stasis: there has been virtually no new Indigenous specific institutional initiatives for almost three decades. A high-level list of Indigenous specific institutional initiatives over the past half century would include the following policy measures and reforms.

The Whitlam and Fraser Government enacted land rights legislation in the NT in 1976. States such as NSW, SA, Queensland and Victoria enacted much more limited land rights regimes during the seventies and eighties. The Fraser Government enacted the Aboriginal Councils and Associations Act in 1976 (updated in 2006 as the CATSI Act) and the Aboriginal Development Commission in 1980. The Hawke Government enacted ATSIC in 1989 (incorporating the ADC) and established alongside a more commercial entity now known as Indigenous Business Australia. The Native Title Act was enacted in 1993 by the Keating Government after the High Court forced the Commonwealth’s hand when it handed down its decision in Mabo No.2. In 1995, the Keating Government legislated the Indigenous Land Corporation and an associated Land Fund acknowledging the reality that native title did not benefit all Indigenous people. In 2007, the Howard Government (with ALP support) initiated the Northern Territory National Emergency Response, involving the deployment of unarmed ADF personnel and a suite of largely time limited legislative measures to ensure Commonwealth freedom of action in undertaking various mainstream and Indigenous specific measures. This legislation included provisions over-riding the operation of the Racial Discrimination Act.

Most recently, in 2023, the Albanese Government took a referendum on constitutional reform built around the proposal for a Voice to Parliament to the Australian people, and following the loss of bipartisanship, it was comprehensively defeated. Had the referendum been successful, it would have made a significant contribution to the recognition of First Nations people at an institutional level. However, the contribution of the Voice to driving better policy outcomes was never guaranteed, as it depended on subsequent legislation to scope out the detailed design and mechanics of is operations. There is no guarantee that this subsequent legislation would have been effective (much like expectation that the National Anti-Corruption Commission appears to have been substantially weakened by the compromises made during the design and passage of its establishing legislation (link here).

Perhaps the highest profile non-legislated Indigenous specific institution is the Closing the Gap framework established by COAG in 2008 along with the National Indigenous Reform Agreement which provided around $16bn in associated funding over ten years (link here: pages 7/8)  and fundamentally revised and updated in 2020. These latter revisions saw the reframing of the Closing the Gap framework in a National Agreement signed by all Australian Governments and the newly established Coalition of Peaks. The new National Agreement was fundamentally flawed insofar as there was no overarching long-term funding package built into it, and it was deliberately designed by governments to ensure that political accountability was both deferred and widely shared, thus undercutting the likely impetus for substantive ongoing reform. As a result of the large number of ‘targets’, the devolution of responsibility to states and territories, the complexity of the measurement approaches adopted, and the absence of any direct alignment between targets and financial investments means that its accountability frameworks in relation to government performance are effectively non-existent.  The ‘codesign’ of the Agreement was in my view effectively a sham and has not worked for Indigenous interests. The establishment of the Coalition of Peaks was necessary to make this sleight of hand work, but the Coalition has not been funded adequately to engage with governments across the huge breadth covered by the Agreement and Closing the Gap framework. The refresh of Closing the Gap by the Morrison Government was institutional change, but not institutional reform; it was a means of shifting the goalposts with the result that Indigenous interests have, in my view, been thwarted at virtually every turn. My submissions to the Productivity Commission Review of Closing the Gap made this argument at some length but were effectively ignored (link here and link here).

The third point to note is that notwithstanding the 1967 referendum, the Commonwealth has for the last decade been actively shifting Indigenous policy responsibilities to the states and territories, in the process reducing the Commonwealth’s Indigenous policy footprint in regional and remote areas, and thus limiting its capacity to know and understand what is actually happening amongst the most disadvantaged segments of the Indigenous population. I won’t seek to spell out every instance, but the following examples are illustrative of the wider trend. IN 2018, the former LNP Government discontinued the National Partnership Agreement on Remote Indigenous Housing and its associated $5.5bn in funding (except in the NT) when the ten-year term expired arguing it was a state responsibility. More recently, following the Voice referendum defeat, the Albanese Government has left the treaty and truth telling processes its formerly promised to the states and territories (link here).

The combined effect of these three points is to build a very strong case for the proposition that there has been virtually no significant institutional policy reform directed to the Indigenous policy domain over the past thirty years. I use the word ‘reform’ to mean ‘positive change’, not just change. This is the institutional stasis referred to above. But this institutional stasis has been reinforced and amplified by a series of major institutional setbacks for Indigenous interests which have undoubtedly had a cumulative impact.

So over those same thirty years we have seen (even as increasing amounts of land have been recognised as native title) largely retrograde amendments to the Native Title Act including the so-called Wik amendments; the pre-emptive abolition of ATSIC in 2005; the retrograde imposition of punitive policies under the Northern Territory Intervention (which continue to resonate in First Nations’ narratives even after the actual policies imposed have run their course); the failure of the Closing the Gap framework to drive tangible improvements in Indigenous socio-economic status (for reasons I explored in two related Discussion Papers in 2021: link here and link here). Indeed, key socio-economic indicators have been worsening over time (I wont rehearse the data available in the Productivity Commission Closing the Gap Information Repository (link here).  To pick out two that I find incomprehensible, extraordinary national incarceration rates and the extremely concerning education outcomes in remote regions and the concomitant levels of social dysfunction particularly amongst school age youth point to a conjunction of multiple social, economic and cultural crises which adjectives such as ‘deep-seated disadvantage’ and ‘deep poverty’ do not do justice.

Perhaps the most significant institutional reform failures have been successive governments’ unpreparedness to take up opportunities that have one way or another been proposed. The Australian Law reform Commission delivered a major report on potential reforms to the Native Title legislative and policy framework in 2015 (link here); it sank without trace and without a Government response. In June this year, the Attorney General commissioned a new review of the Native Title Act Future Acts regime (the core of the legislation) (link here) to report by December 2025. My prediction is that it too will sink without trace. To take one native title example that particularly annoys me, through all these reviews, governments have known that the Prescribed Bodies Corporate that are required to be established under the Act to hold native title have no comprehensive operational funding framework and are beholden to siphoning fees off third parties (such as miners and developers) seeking access to native title lands to fund their operations. Yet governments prefer to undertake reviews rather than take decisions to adequately fund bodies established by legislation of the Parliament. Another lost opportunity is the failure of governments to respond to the Indigenous Evaluation Strategy review undertaken by the Productivity Commission in 2019/20 (link here). And of course, the failure of the referendum related to the proposed Indigenous Voice to Parliament is another lost opportunity to reform the institutional framework that shapes the Indigenous policy domain.

While it is possible to argue about the detail of each of the retrograde changes and lost institutional reform opportunities of the past thirty years, the absence of major reforms with the substantive financial and intellectual capital resources to make a difference (summarised by the cop out phrase ‘Indigenous affairs policy is intractable’) and the sheer accumulation of retrograde changes over the past thirty years provides irrefutable evidence that there are deep and powerful systemic or structural forces at work (link here).

The existing coalitions of interests that benefit from the institutional status quo (often referred to as ‘elites’) are not prepared to give up their shared benefits and allow new interests access to the ongoing implicit negotiation of institutional adjustments with their concomitant adjustment of shared benefits. Those with the power and influence to force their way to the negotiating table are included, and those without the power and influence are ignored and effectively excluded. The latter group includes the vast majority of Indigenous interests, particularly in regional and remote Australia. It is this dynamic that Alice Evans described when she wrote in the Substack linked above:

Contending coalitions are constantly vying for ideological and institutional dominance. In the past, they primarily sought conquest. But now it’s a battle for persuasion - in which prestige reigns supreme.

The problem for Indigenous interests is that they are not losing just one or two fights. They are losing comprehensively, and continuously. In the battle for institutional influence, Indigenous interests are either excluded by governments (who are the mediator between contending interest based coalitions) either by ignoring Indigenous aspirations, or by using delay, complex processes and ultimately window dressing to ensure that the status quo ante between the powerful interests is not upset. 

The challenge then for Indigenous interests is how to pull themselves up by their bootstraps and somehow gain a guaranteed and unquestioned seat at the table at least when key issues of concern are being discussed (or are sought to be ignored). The Indigenous Voice to Parliament as conceptualised by Noel Pearson and Megan Davis was an attempt to be granted, by constitutional right, a seat at the table in relation to the consideration of laws affecting Indigenous interests. That opportunity has been refused at best for the next decade or two, and at worst perhaps forever. But it is not the only opportunity on offer, and nor was it the only pathway forward.

What then are the strategies available to Indigenous interests to increase the likelihood of gaining seats at the table when key decisions are being taken on institutional design and development that impacts their interests and their lives? That is the topic I turn to in Part Two of this post.

21 October 2024

 

 

Church and State versus the perils of outsourcing

                                     Though no man be assur’d what grace to find

You stand in coldest expectation.

King Henry IV, Part II, Act five, Scene two

 

With Estimates due in November, I thought it might be useful to see how far we have come in Upper House scrutiny over the past century and a half. The following text is taken in its entirety from the Western Australian Parliamentary Hansard (link here).

WA Legislative Council Thursday, 4th July, 1878.

DUTY ON FURNITURE AND BAGGAGE OF HIS LORDSHIP BISHOP PARRY.

Sir T. COCKBURN-CAMPBELL — having elicited from the Colonial Secretary the fact that, on the occasion of the arrival in the Colony of Bishop Parry, his furniture and baggage were admitted, as had been done in the case of his predecessor, without payment of duty, and that His Lordship had since been called upon to pay duty on the same,-moved a resolution to the effect that in view of the exceptional circumstances under which the Bishop had been called upon twelve months after his arrival in the Colony-to pay the duty, the Council should respectfully suggest to the Government that the payment should not be enforced….

… No doubt the Bishop was prepared to pay the duty on his arrival in the Colony, but he was then led to believe that he had no duty to pay, but, twelve months afterwards, a sudden and totally unexpected call was made upon him for payment of the duty. This appeared to the hon. baronet to be such an irregular proceeding on the part of the Government officers concerned in the matter, that he thought the House would be quite justified in entering a protest against such irregularities….

…. Mr. CROWTHER, though not intending to oppose the resolution, intimated that in the event of its being affirmed, he would bring forward a similar motion with respect to some articles belonging to the Bishop of New Norcia, who in like manner had been called upon to pay duty some time after the goods-certain vestments for his own use-had been landed. A minister of the Congregational body who not long ago arrived in the Colony all had also been called upon to pay duty on his baggage, and the same had occurred still more recently in the case of a Wesleyan minister. Personally, he did not care two straws whether the clergy were really entitled to the privilege of having their furniture and baggage admitted duty free; but if the concession was made with regard -to the clergy of one denomination it ought to be extended to the ministers of every other religious denomination. If such a privilege really did attach to the clerical office, all he could say was he was sorry he was not a dignitary of the church himself….

…. Mr. MARMION regretted very much that the attention of the House had been called to the matter at all, and thought they were entering upon very dangerous ground. In saying so, he had no intention whatever to oppose the resolution, but he did think it was a pity the subject had come before the House in any way, inasmuch as it would have a tendency to impress upon the minds of many persons 'outside that there exists in this country what had not existed for many years back-a State Church, and that there were privileges granted to the clergy of that church which were not granted to the clergy of other denominations….

….. The resolution was then put to the House and carried on the voices.

On the House resuming, Sir. T. COCKBURN-CAMPBELL said that in explanation, and in justice to Bishop Parry, he would like to say that the Bishop had never said a word to him about this matter, nor was His Lordship aware that he had intended to propose such a resolution.

….

Friday 12 July 1878

ESTIMATES: FURTHER CONSIDERED IN COMMITTEE….

…. Aborigines, Item £1,210 read:

MR. MONGER called attention to the practice adopted in distributing blankets to aborigines. These blankets were sent from Perth to York to the Resident Magistrates, who-no doubt with the best intention issued them to the settlers for distribution to the natives; but as a rule the blankets were given to their own native shepherds, who traded with the bush natives, obtaining opossum skins in barter for the blankets given away by the Government. He would suggest that the blankets should be issued by the Resident Magistrate at York to the police-constables stationed to the Eastward (and not to the settlers) for distribution among the natives.

THE COLONIAL SECRETARY (Hon. R. T. Goldsworthy) said if that were very glad at all times to learn the views of hon. members on such matters, and to give them every consideration, as he would with regard to the present suggestion.

MR. CAREY thought it would be a very good plan to leave the distribution of the blankets in the hands of the police, rather than in the hands of the settlers. He would also suggest that they be distributed in the early part of the year; at present, the natives did not receive them until the winter was half over.

The vote for "Aborigines" was then put and passed.