Monday, 21 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

 

 

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