Diluting structural reform: the Productivity Commission’s Information Repository on Closing the Gap

 

Angels and ministers of grace defend us!

Be thou a spirit of health or goblin damn'd,

Bring with thee airs from heaven or blasts from hell,

Be thy intents wicked or charitable,

Thou com'st in such a questionable shape…

Hamlet, Act 1, scene 4.

 

 

The Productivity Commission launched a new Closing the Gap Information Repository on 23 June 2021 (link here).

 

On the same day, Minister Wyatt issued a media release (link here) extolling the Commission’s new web site. He claimed (inter alia) it was:

…another step towards delivering on the Government’s commitment to share data and support more informed decision making by all parties to the National Agreement…

…As well as supporting the comprehensive review of progress every three years, this measure includes developing and maintaining a data dashboard (presenting the most up-to-date information available) and an annual data compilation report (a point-in-time snapshot).

“The launch of the Productivity Commission’s information repository provides the evidence base we need to properly monitor progress that all parties are making towards Closing the Gap,” Minister Wyatt said.

“This initiative brings all the data together into one place so that people can readily see the current situation and trajectories of indicators for each target, providing a level of transparency and access that we haven’t had before…

…Minister Wyatt also said the Productivity Commission will play a key role in keeping all parties to the National Agreement accountable.

 

This initiative, which is required by the National Agreement on Closing the Gap (see clauses 116 & 117) (link here), is clearly a welcome and positive development.

 

Nevertheless, it deserves to be subject to critical assessment, as do the Minister’s claims.

 

The Productivity Commission makes plain that the information repository is still under development, and the web site is listed as being a ‘beta’ version, which normally refers to the release of software that has been through internal ‘alpha’ testing, and is now released for wider public testing. The Minister’s media release glosses over this qualification. The information repository’s beta status does mean that any critique made is potentially moot. Of course, the reality is that the dashboard will be constantly evolving as new data and information becomes available.

 

There are two contextual criticisms worth making upfront. First, contrary to the Minister’s comment that the initiative provides a ‘level of transparency and access that we haven’t had before’, we should remind ourselves that the present Government abolished in 2014 a number of oversight and implementation coordination entities including the COAG Reform Council and the Closing the Gap Clearinghouse. Both these mechanisms had important roles in publishing relevant data regarding the performance of the Closing the Gap framework.

 

Second, contrary to the Minister’s assertion that the repository ‘provides the evidence base we need to properly monitor progress’ and that it ‘brings all the data together into one place’, it seems clear that the intention is to limit the data included to social indicators and to provide no comprehensive account of the investments allocated by governments towards meeting the targets. It will be impossible to keep all parties accountable, and to assess responsibility for shortfalls in meeting targets if we are not in a position to see what levels of investment is being allocated to each target by each of the governments involved, and in particular, are able to monitor variations over time in those investment levels.

 

The third issue worth considering is the way the repository ‘dashboard’ treats the four strategic reforms included in the National Agreement on Closing the Gap and signed up to by all jurisdictions. These are not targets which can be measured quantitatively, but are policy reforms that will need to be sustained over time and inevitably involve policy relevant qualitative judgements to assess their effectiveness. Yet the Productivity Commission has taken the bizarre decision to treat them as if they are mere targets, and thus has devised somewhat artificially quantitative indicators that purport to assess performance.

 

The most egregious example relates to Strategic Reform Three which deals with transforming mainstream government organisations, spelt out in paragraphs 58 to 68 of the National Agreement (link here). The Agreement identifies six elements of a successful transformation in clause 59. The dashboard selects a number of indicators that relate to just one of those six elements (racism), invents a target, namely a ‘Decrease in the proportion of Aboriginal and Torres Strait Islander people who have experiences of racism’ with the implicit suggestion that this is the evidence we need to monitor progress in the implementation of the strategic reform, and will keep government parties accountable (to refer once again to the criteria propounded by the Minister). That implicit suggestion is absolutely wrong on both counts.

 

What is most surprising about the Productivity Commission’s approach here is that in its Indigenous Evaluation Strategy (link here) released in October 2020, and not yet responded to by the Government, the Commission was at pains to emphasise the importance of evaluating the impact on First Nations citizens of mainstream policies and programs. Unless it revises its approach, the very real risk will be that government agencies across eight jurisdictions will limit their purportedly transformational activities to those that relate to the narrow indicators identified in the dashboard. If this occurs, essential structural reform will have been transmuted into mere desirable change.

 

If, as the Minister suggests, the Productivity Commission is to play a ley role in  keeping all parties to the National Agreement accountable, and is to maintain the trust of the Indigenous and wider community in these matters, it will need to ensure that it is meticulous in aligning its dashboard, and the information provided by the repository with the actual terms of the Agreement negotiated by First Nations interests with all Australian governments.

 

Finally, on 25 June 2021, the Minister and Prime Minister issued a joint media statement  (link here) recording their second roundtable with representatives of the Coalition of Peaks. The statement is largely process oriented and provides little information of substance. It does confirm that the Government intends to publish its closing the gap implementation plan in August along with announcements on ‘associated investments’. At that point, the degree of seriousness being brought to the task of closing the gap by the Australian Government will become clearer.

 

 

Proposed changes to the NT Land Rights legislation

 

Where we are

There’s daggers in men’s smiles

Macbeth, Act 2, scene 3.

 

Last Saturday (12 June 2021), Minister Wyatt issued a media release (link here) announcing significant proposed changes to the Aboriginal Land Rights Act in the NT. The Minister’s spiel is that it is generational reform to empower Aboriginal Territorians. I am sceptical.

 

He announced three sets of proposed changes. First, it is proposed to amend the financial provisions underpinning the NT legislation, in particular the Aboriginal Benefits Account (ABA), by establishing an Aboriginal controlled NT economic development entity. Second, he announced changes to the provisions related to mining and exploration on Aboriginal land, including changes potentially affecting the requirements for consultation with traditional owners. Third, he proposes changes to the existing township leasing provisions to allow communities to enter into a head lease with a local Aboriginal corporation.

 

The Minister indicated that legislation to implement the changes would be introduced later this year. Further details are provided in three fact sheets available on the NIAA website (link here). While helpful in elaborating on what is proposed, these fact sheets leave numerous questions unanswered.

 

In November 2020, I published a post examining the emerging rapprochement between the Minister and the NT Land Councils (link here) and asking the question: what is driving this rapprochement?  That post remains relevant to the issues that are now emerging. In particular, it is clear that the Ministers budgetary generosity then (and perhaps ongoing) was designed to lubricate the negotiations on the recently announced proposed changes.

 

The Minister’s announcement makes much of the codesign of the proposed changes with the Land Councils and the ABA Advisory Council (which is predominantly comprised of Land Council Executive committee members). Yet the ABA was explicitly designed to benefit all Indigenous Territorians and they do not appear to have been included or represented in the codesign processes for the proposed changes. Nor has there been any wider public consultation, no issues paper published, and no explicit public discussion paving the way for the announced changes.

 

The Minister’s decision to make his announcement on the Saturday of a long weekend (after three years of codesign negotiations with the four NT Land Councils) seems designed to avoid excessive media coverage. This raises the question: what is the Minister seeking to hide here? Is the Government merely averse to transparent debate on policy issues? Or is there a deeper policy agenda that they fear might become apparent if the proposals are subject to too much sunlight?

 

It is clearly too early to undertake a detailed analysis of the proposals in the absence of draft legislation. Yet even on the information so far provided, some major questions arise and deserve to be tagged for further consideration.

 

In relation to the proposal for an ABA funded Aboriginal controlled NT economic development entity, funded with a $500m endowment and an annual $60m injection, a range of issues arise. If the new entity is effectively controlled by the Land Councils (via control of appointments to the Board), will this lead over time to changes in the Land Councils attitude to regulatory protection of traditional owner interests (for example in cases where the entity joint ventures with an external partner to access and utilise Aboriginal land)? There may well be a case, as the Minister argues, ‘to activate the potential of Indigenous land in the NT’, but it should not occur at the cost of weaker land council regulatory oversight.

 

Second, what does the minister propose for the $700m balance of the ABA’s $1.2bn. And how does he square his confident assertion that the growth in the ABA capital base is ‘forecast to continue’ with the imminent closure of the major source of ABA funds, the Groote Eylandt manganese mine at some point (link here) within the next decade? It would be helpful if the Minister were to release his detailed financial forecasts for the ABA’s revenue over the next three decades. This may be ‘generational reform’, but in matters such as these, serious thought needs to be given to the impact on future generations.

 

In relation to the streamlining of the exploration and mining proposals, the Minister’s Fact Sheet indicates that Land Councils are to be given ‘greater flexibility to determine how traditional owners are consulted, with the agreement of the applicant in each case’. This apparently anodyne statement is in my view fraught and appears designed to strengthen the hand of the land councils vis a vis traditional owners on the ground. This is a retrograde suggestions and requires detailed consideration as to its desirability and if implemented the protections against misuse that would need to be implemented.

 

The proposals in relation to township leasing which allow traditional owners to head lease the land to an Aboriginal corporation rather than the EDTL are in my view problematic. While they appear to provide greater community control over the township tenure, the use of local corporations rather than a government entity to hold the head lease means that potential lenders will be much less willing to lend to sub-lessors because in the event of a loan default, the mortgaged land will only revert to the lender while the local corporation remains solvent. Solving this potential problem ws the reason that the EDTL was established in the first place. The Minister should provide a detailed explanation of how he intends to address this issue as potential lenders will vote with their feet and not lend in circumstances where they cannot be guaranteed access to the mortgaged land.

 

Over the past two years, it has become increasingly apparent that there are major policy gaps in the capacity of the NAIF to deliver benefits to Indigenous citizens of northern Australia, and that the Government’s Indigenous Reference Group on Northern Australia has proposed (unpublished) recommendations that have not been implemented (link here). Yet the Minister’s announcement makes no mention of these policy processes, and instead is proposing a set of changes that strengthens Aboriginal involvement in allocating existing funds (albeit funds that have been allowed to accumulate through non-decisions by the Minster and his predecessor) only in the NT. The risk here is that this sleight of hand will be used as the fig leaf to hide the Government’s policy exposure in relation to the lack of Indigenous inclusion in its northern development policy and divert attention from the absence of any more substantive reform.

 

Finally, I almost choked when I read in the Minister’s Fact Sheet that the proposed economic development entity would:

‘have strong governance structures and transparent reporting to ensure accountability to Aboriginal people in the NT and the Australian Government. In addition to PGPA Act reporting requirements, the ABA entity will have to…provide additional reporting in the first 3 years of establishment’.

And in the Minister’s media release that:

‘by establishing it as a Commonwealth entity, there will be rigorous public reporting to ensure Aboriginal people know where their money is going and how it is being used to support their communities, culture and businesses’.

 

While I strongly support these proposals (and would even go further by legislating the forms of transparency required), it is all a bit rich coming from a government that has pursued a substantial reduction and degradation in the quality of reporting in relation to ABA grants over the past five years, and a Minister who has allowed a major Commonwealth entity within the his own portfolio to lapse into governance dysfunctionality for most of the past year (link here).

 

No doubt there are a range of problematic issues involved in these proposals that I have not focussed on.

 

There is potential to strengthen Aboriginal control and empowerment over the ABA, and for reform adjustments to the legislation more broadly. But there are a range of trade-offs that require wider discussion; a series of major risks, many of which are not visible or obvious; and a number of retrograde proposals that could fundamentally weaken the existing policy architecture of NT land rights.

 

I hope the Parliament convenes an appropriate Committee to examine the legislation when it is introduced to ensure that these proposals receive the detailed consideration they so clearly require.

Regulating Alcohol in the Northern Territory: in whose interest?

 

This might be the pate of a politician….one that would circumvent God

Hamlet Act 5, Scene 1

 

Introduction

The recently released Independent Panel Review (IPR) into the proposed Dan Murphy (DM) development in Darwin is, in public policy terms, a fascinating document (link here). It was commissioned by the Board of Woolworths, one of Australia’s largest and most ubiquitous corporations. The panel appointed was led by Danny Gilbert, one of Australia’s most well connected and socially aware corporate citizens. It is comprehensive, analytically dense, rigorously argued, and deals with a multitude of issues. On its face, it is about the role and responsibilities of Woolworths in particular, and business more generally, in relation to contentious public health and social policy issues arising from corporate operations that have negative impacts of one kind or another on the community.

 

So, the IPR canvasses issues such as corporate social responsibility in a modern economy, corporate Australia’s relationship with Indigenous Australia, governance standards within a large corporation, particularly in relation to subsidiaries, an economic, demographic and social snapshot of the Northern Territory, alcohol consumption in Australia and particularly in the NT, regulation of alcohol sales in the NT, the adequacy of community consultation processes by a large corporation. While all of these issues are discussed in relation to a particular proposal, namely the proposed Dan Murphy’s retail development in Darwin, much of the discussion is relevant to, and has implications for, broader relationships between corporate Australia and the wider community.

 

However, the IPR is also about the broader relations between what I will term mainstream Australia and Australia’s Indigenous citizens. In particular, it is about one of the most fraught issues underlying sustained and ongoing Indigenous disadvantage, namely, excessive alcohol consumption, and its wider ramifications.

 

The challenge for the nation is to find a sustainable balance between the rights of citizens to consume alcohol and managing the severe, but non-universal consequences of excessive consumption. For a range of complex but in many ways obvious reasons, a proportion of Indigenous citizens appear to be particularly vulnerable to these adverse consequences. I don’t propose to explore the issues of responsibility for these outcomes in this post, but would merely note that like many social processes, it seems likely there are multiple causes underlying these adverse outcomes.  

 

In this context, corporations clearly have social responsibilities to minimise harm arising from their operations. The IPR can be read as one of the most robust and rigorous arguments in support of this proposition to emanate from within the business community. However, so too do governments have responsibilities both to regulate potentially harmful activities within the community in the public interest, and to minimise harm from their own policy decisions and actions.

 

The IPR is framed as a report to the Board of Woolworths, and its focus is squarely on what Woolworths should do to align its commercial policies in Darwin and surrounding regions with its wider corporate social responsibilities. The IPR makes nine key findings, all directed to Woolworths and by extension to its (currently) majority owned subsidiary Endeavour which in turn owns the Dan Murphy brand and network of retail outlets (link here).

 

The concluding sentences of the Executive summary are a succinct summary of the IPR’s overarching conclusion:

… the Panel recognises that the negative impacts that arise from the over consumption of alcohol in the Northern Territory, laid out in detail in this report, are off the scale, not just by Australian, but by international standards. The resulting impacts in terms of human suffering and social and economic costs cut right across the Northern Territory community and are not confined to Aboriginal and Torres Strait Islander Territorians. They cannot be ignored. (p.13).

 

I recommend readers take a look at the IPR. The Executive summary, summaries at the beginning of each chapter, and the use of well-designed graphs and figures go a considerable way to making an otherwise complex document accessible.

 

In this post, I seek to go beyond merely summarising the IPR’s arguments and findings (important as they are) and to focus on what the IPR reveals (perhaps unintentionally) about the role of government in fulfilling its role in protecting the public interest in relation to the consumption of alcohol. Given the space limitations of blog post and the detail included in the IPR itself, I would characterise this post as merely an outline of an argument. In effect, I am laying out an alternative way of reading the IPR, and pointing to just some of the facts and events they identify and analyse that support such a reading.

 

In December 2020, Woolworths (to its credit) established an independent review to examine the recently approved proposal to establish a DM retail outlet in Darwin (link here). This decision followed an outbreak of community concern — indeed outrage — about the regulator’s decision to approve and the way it had been approved by the NT regulatory authorities (link here). One of the back stories to the genesis of the IPR is the mounting of an extraordinarily effective campaign against the proposal by Indigenous organisations and their allies based in Darwin and beyond led in large measure by an extraordinary Indigenous leader, Olga Havnen. This post does not attempt to chart the history of those efforts, but there is no doubt that without the campaign, the Woolworths Board would not have commissioned the IPR. 

 

Reading between the lines, it seems likely that the decision to commission the IPR also suggests a level of concern within the Board of Woolworths regarding the actions and decisions of its wholly owned subsidiary Endeavour. Complicating the back story, Woolworths had announced in July 2019 that it proposed to pursue of demerger of the recently established Endeavour Group while retaining a minority shareholding and single Board position within the newly listed entity. That demerger has yet to be finalised.

 

On 29 April 2021, following receipt of the IPR, Woolworths announced that it would not be building a DM retail outlet in the location previously proposed (link here and link here). On 9 June 2021, along with the release of the IPR, Woolworths and Endeavour issued separate responses to the IPR (link here and here), and Woolworths issued a detailed document reflecting on the IPR and responding albeit briefly to what it considered the key findings (link here). While I don’t propose to analyse those responses in detail in this post, it is clear that the Endeavour response is more limited and much more defensive than the Woolworth’s response. This is perhaps explained by the forthcoming demerger, which will leave Woolworths with a minority shareholding in Endeavour of 14 percent, and Endeavour with the task of undertaking the heavy lifting in terms of balancing its commercial alcohol retail operations in Darwin and the wider public interest in harm minimisation.

 

The NT Government’s role and responsibility

 

Chapter 5 of the IPR describes the level and consequences of alcohol consumption in the NT. The summary of the chapter states, inter alia,

The Northern Territory has the highest rate of alcohol consumption in Australia, and a much higher share of the population drinks at risky levels compared to the Australian average…The financial costs to Darwin and the Northern Territory Government from these harms are also acute. Given the demonstrable health and economic costs, it is clear that the level of alcohol-related harm requires urgent and meaningful attention. (p.49)

 

Contextualising the horrendous statistics on disadvantage amongst Indigenous citizens, the IPR states:

There is a view of some in the community that Aboriginal and Torres Strait Islander disadvantage is intractable and that First Nations peoples must bear full responsibility for their status without any compromise to the requirements and wishes of the non-Indigenous population. The Panel rejects that perspective (pp.52-3).

 

The chapter goes on top lay out with surgical precision the devastating statistics on alcohol abuse across the NT:

The Northern Territory has nearly six times the level of alcohol-related emergency department presentations compared to the next closest state or territory (p.53)….

…Dr. Mahiban Thomas, reported that an estimated 350 cases of broken jaws and noses were admitted to the hospital each year, with 88 per cent of those cases caused by alcohol-related assaults. Darwin was suggested to have the highest rate of broken jaws in the world, second only to Greenland (p.54)…

…The Northern Territory has nearly three times the level of alcohol-induced deaths compared to the next highest State or Territory, at a rate of 8.9 per 100,000 population in Darwin, and 28.5 deaths per 100,000 in the rest of the Territory. This figure was more than five times the Australian population-weighted average...

 

On the costs of alcohol consumption, the report quotes research suggesting the financial cost of alcohol consumption to the NT community is $1.4 billion, some 5 percent of the $24.3 billion NT Gross State Product, or 17 percent of the $7.3 billion spent by the government on services to the public.

 

Clearly, the both the economic and social costs of alcohol are such as to warrant proactive harm minimisation policies by the NT Government. What clearly sits behind the IPR’s conclusions are the enormous personal costs and harm of alcohol abuse imposed on individuals, families and children. The IPR mentions these at pp.55 and 126, but it is nevertheless likely that most readers will pass over these points without a second glance. Yet the reality is that alcohol is inexorably destroying the lives of drinkers, families, and children, one day at a time. Most insidiously, alcohol has all the characteristics of an addictive drug, and its misuse has lifelong adverse health and psychological  implications both for users and their close families.

 

Chapters Seven and Eight of the IPR deal the progression of the Woolworths / Endeavour proposal through the extant regulatory processes, and are the key chapters for understanding the actions of the Northern Territory Government in this saga.

 

In April 2017, the NT Labor Government established a review by a former Chief Justice of the NT Supreme Court, Trevor Riley, to review all aspects of the Liquor Act 1978 and surrounding policies. The Riley review was published in October 2019, and made 220 recommendations proposing a whole of government integrated alcohol harm reduction framework. The NTG accepted 187 recommendations and pledged in principle support for a further 32 recommendations. The single recommendation rejected was to ban takeaway sales on Sundays (p.59). As a result of the Riley review the Liquor Act was amended in a series of amendment Acts through 2017 to early 2019, which are clearly summarised on pp. 71-2 of the IRP.

 

Separately, Woolworths, through its subsidiary Endeavour, in mid-2018 sought regulatory approval to establish its Dan Murphy development. See the overview of the legal processes on p.73, and the detailed consideration over the following pages. In September 2019, the Liquor Commission refused Woolworth’s application, based on its detailed assessment of the community impact which would flow from the proposal and its consideration of the public interest. The IPR summarises the Commissions reasons at pp. 76-78. In an extraordinary response, the NT Government released a public statement calling the decision of its own independent regulator  ‘a kick in the guts for responsible drinkers who want more choice in the Darwin market’, and pointed out that it was open to Woolworths to appeal the decision (p.81).

 

The Liquor Commission decision was followed by an application by Woolworths to the NT Civil and Administrative Appeals Tribunal (NTCAT). The appeal was dismissed. Woolworths then appealed to the Supreme Court of the NT in January 2020. In March, a legislative amendment resolved the issue in dispute in such a way as to allow the Liquor Commission to now approve the proposal, thus negating the action in the Supreme Court. A further application appealing the Liquor Commission’s decision not to approve the proposal was filed with NTCAT by Woolworths in April 2020. This was subsequently deferred and then abandoned after further legislative amendments which enabled a new ‘expedited’ decision making process to be undertaken by the Director of Liquor Licencing (‘the Director’). See pp.79-81 for a detailed description of these processes.

 

In Chapter Eight, the IPR assesses the impact of the 2020 legislative changes that, inter alia, removed the decision making responsibility from the Liquor Commission, and provided for the Director to make an expedited decision of four historical applications, including the DM proposal. Extraordinarily, the legislation allowed the Director to make a decision without prior notice to the applicant or any other person, without holding a hearing, and provided that any decision would not be reviewable by the NTCAT. The IPR concluded that these amendments were not good public policy. See the detailed analysis and discussion on pp 83-86.

 

The IPR went on to report that there had been ‘significant engagement between Endeavour and the Northern Territory Government’ in relation to the 2020 legislative amendments to the Liquor Act 2019 (p.86). Endeavour’s proposals were closely aligned with the eventual amendments, but with the significant difference that Endeavour proposed that the matter be advanced by a Ministerial decision rather than the approach ultimately adopted of the Director making the decision. The IPR were critical of Endeavour for its approach, in particular, its suggestion that ‘explicitly excluded any requirements to satisfy the public interest and community impact test’ in the post Riley legislative framework (p.87).

 

Without seeking to exonerate Endeavour, it is clear that the NT Government bears a much greater responsibility for what transpired. It is governments that are expected to act in the public interest, yet all that the NT Government could muster was a craven attempt to facilitate the interests of a major corporation. Moreover, they deliberately established a system where a public servant (the Director) made the decision rather than a Minister as suggested by Endeavour, and rather than the independent Liquor Commission as required by the pre-existing legislative framework. It goes without saying that a public servant is not independent of the executive arm of government. Further, the legislation established a framework that explicitly denied the community natural justice, while making a cynical assumption that the technical complexity involved and (apparent) non-involvement of a minister would diminish any public criticism.

 

Finally the IPR undertook a critical assessment of the Director’s decision to approve the Woolworth’s DM proposal. The assessment identified various legal shortcomings, problematic reasoning, and an approach which adopted a starting point favourable to Woolworths, which set aside expert opinion in favour of the Director’s own previous experience and informal advice from the police, and which set aside the views of local communities most impacted by the proposal (pp. 88-91).

 

Conclusion

 

So to summarise, the NT Government responded to the decision of the independent Liquor Commission that had identified extensive harm and community impact as likely to flow from the establishment of a DM retail outlet by turning 180 degrees from  its explicit 2019 commitments to implement the Riley review recommendations, by criticising its own independent statutory body, by overturning its own legislation to implement the Riley recommendations, and legislating a new process that required a public servant to make a new expedited decision within a legal framework that set aside natural justice, precluded public hearings, prevented appeals, and allowed problematic reasoning to trump expert opinion and community views. In short, the NT Government pro-actively facilitated the pursuit of private interest to the exclusion of substantial evidence that it was not in the public interest.

 

One of the more insidious impacts of this type of behaviour by governments is the way in which trusted institutions within the public domain are politicised and pressured, with deeper and widespread implications for levels of trust in our democracy and core institutions. To take just one example highlighted by the events described by the IPR, the NT police appear to have been influenced (either explicitly or implicitly) to self-censor their perspectives on the social impacts of increased availability of cheaper alcohol in relation to the DM proposal. According to the IPR, in July 2020, the NT police gave evidence in another application for a substituted liquor licence. The IPR reported (p.57):

In Superintendent Antony Deutrom’s evidence to a Liquorland application for a substitution of premises in Palmerston in July 2020, Northern Territory Police stated that the impacts of alcohol on the Northern Territory continue to be “appalling and pervasive…culminating in extra strain”. At the time, demand for police services across the Northern Territory was on the rise, up 39.5 per cent compared to the previous period. Further, 15.4 per cent of those incidents were alcohol-related. Superintendent Deutrom also said, “an increase in alcohol availability could further impact on these figures in a negative manner” [footnotes deleted].

 

See also Superintendent Deutrom’s comments on p.55.  In contrast, the NT Police comments to the Liquor Commission hearing into the DM proposal were much less robust:

In relation to the Darwin Dan Murphy’s development, Commander of Police in the Northern Territory, Travis Wurst, gave evidence to the Liquor Commission in 2019. Commander Wurst referred to the risks attached to the proposed Bagot Road site from a public and road safety viewpoint, the problems of public drinking, and more generally about the role of the Police Auxiliary Liquor Inspectors and the impact of alcohol restricted areas in the Greater Darwin area and surrounding remote  communities. Commander Wurst also noted that the Northern Territory Police were neutral on the application by Woolworths Group and that the application was neither objected to formally, nor endorsed in any way (p.57) [emphasis added].

 

Of course, the unanswered question raised by this clear NT Government strategy to support the DM proposal is ‘why?”’ Why did the NT Government reverse course? Why did it ignore the very significant health, social and economic costs likely to flow from the DM proposal? Why did the Indigenous members of the Government remain silent and accede to this policy? Endeavour has stated that it was in discussion with the NT Government regarding the changed location of the proposed DM outlet (link here). We know that Endeavour proposed legislative change that was substantively taken up by the NT Government. What other conversations were undertaken between Endeavour and the NT Government? The short answer is that we don’t know and the IPR doesn’t tell us.

 

In an appendix, the IPR provides an extensive list of the stakeholders consulted. It is clear that it sought to engage widely within and beyond the NT. It lists engagement with a small number of NT agencies, but there is no mention of any Ministers in the NT Government being consulted. It seems highly unlikely that the Independent Panel did not seek to engage with ministers (it mentions that it consulted with the MLA for the seat surrounding the proposed development, Labor backbencher Mark Monaghan, as well as representatives of the Opposition). The IPR mentions that a number of stakeholders consulted did not wish to be named in the report. Either way, the unpreparedness of Ministers in the NT Government to engage on the record with such a high profile assessment of the proposal speaks volumes for the disdain the Government has shown both to the norms of public debate about issues of significant importance for the NT, and to the NT community itself.

 

While the extraordinary campaign led by Indigenous interests and leaders such as Olga Havnen have won this battle, it is far from clear that they will win the war.

 

The importance of this case study of an important public policy process is that it has largely been driven by business. The Woolworth’s Board clearly decided that they may not be getting the full story from Endeavour (see p.111), and thus commissioned the IPR. The IPR clearly found that Endeavour had been engaging closely with the NT Government.

 

The facts demonstrate that ‘when push comes to shove’, the NT Government is unwilling and/or incapable of pursuing and protecting the public interest. Perhaps the solution is for the corporate sector as a whole to take a wider view of the issues relating to alcohol consumption across the NT, and to develop an active strategy that seeks to protect the public interest as well the private corporate interests they are entitled to advocate for and pursue. After all, if — as the evidence suggests is the case — governments are in the pocket of business, then perhaps it is time for the business sector to step up and pursue the public interest as well as their private interests. It is actually in business’s interest that the nation is inclusive, has a vibrant economy, and a healthy citizenry. The IPR is potentially the first step towards a much more inclusive and visionary stance by corporate Australia.

 

My recommendation to Woolworths would be that its credibility with Indigenous Australia, and the community more generally, would be enhanced were it to actively and transparently use its market heft and influence, as well as its directorship on the Endeavour Board, to ensure that both Endeavour and the NT Government put the public interest above commercial interests in the development of future alcohol policy in the NT.

 

My recommendation to the NT Government is that they should take the opportunity of the publication of this report to undertake a fundamental reconsideration of their policy approach to alcohol regulation. To do otherwise will be to deepen their complicity in an entirely preventable scourge that is taking a terrible toll on many Territorians, including a substantial proportion of Indigneous Territorians. If they cant fix this, their credibility on every other area of public policy will remain in tatters.

 

Finally, I am conscious that I have not mentioned a role for the Australian Government in these issues. Yet it was only fourteen years ago that the Australian Government legislated alcohol prohibition across remote NT communities citing statistics that have barely changed from those we see today. While I am not advocating a return to those punitive policies, there is a role for the Australian Government through the range of policy levers at its disposal to encourage public policy and corporate policy outcomes in the wider public interest. Silence and sitting on the fence is not an adequate response to the ongoing health crisis linked to alcohol abuse across the NT and beyond.

 

 

 

 

 

Deflection and inaction: the Australian Government’s formal response to the Productivity Commission Review on Expenditure on Children in the Northern Territory.

  

Suit the action to the word, the word to the action…

Hamlet Act 3, scene 2.

 

Last week, the Australian Government released its formal response (link here) to the Productivity Commission (PC) report on Expenditure on Children in the Northern Territory. The Australian Government commissioned the PC to conduct this research following on from the recommendations of the Royal Commission into the Protection and Detention of Children in the Northern Territory 2017 (Royal Commission). The PC commenced its study on 1 April 2019 and publicly released its final report on 8 April 2020.

 

I wrote a post analysing the import of the PC report in April 2020 (link here). It is worth re-reading that post in conjunction with the Government’s formal response. The analysis below complements that more detailed response, which in turn relied heavily on the PC report.

 

The recent Australian Government response notes at paragraph 3:

Consistent with the Royal Commission’s findings, the PC’s final report outlines that the Australian and Northern Territory Governments make funding decisions in relative isolation, leading to fragmentation, inefficiencies in service delivery, and significant overlap in expenditure effort.

 

In my April 2020 post, I characterised the PC report in the following terms:

The PC study report is a stunning document. It focusses on one strand of government service delivery (children’s services) in one jurisdiction (the NT), and lays out in forensic and stark detail the extraordinary complexity of the funding and service delivery arrangements, the extent of the overlapping funding, the ongoing existence of gaps in funding, the absence of coordination both between jurisdictions and within jurisdictions (see pages 112- 116), the underutilisation of agencies’ regional networks who of course have most direct contact with citizens, and the lack of internal coherence in funding decisions by both levels of government...

… What is crystal clear — even from a cursory reading of the report — is that the system for funding and delivering children’s services in the NT is not fit for purpose. What is particularly arresting is the PC’s documentation in various places (eg page 306) of the long history of previous reports and inquiries whose analyses and recommendations have not been taken on board by governments.

 

I went on to argue that the implications of the PC report’s forensic examination of just one sliver of the policy domain impacting families (predominantly Indigenous families) in the NT was that similar issues would apply much more broadly.

 

To what extent then does the Australian government response suggest that there has been or is a serious attempt to address the shortcomings identified by the PC?

 

The short answer is that the Governments response is deflection rather than action. It reflects the deep-seated inability of governments to come to terms with the deep structural issues confronting disadvantaged Australians in remote regions. Instead of a new strategy, backed by political will and determination, what has been served up is ‘more of the same’ clothed in layers of bureaucratic sophistry and verbiage.

 

In the words of the Government’s response (paragraph 7):

The Australian Government supports in-principle the PC’s final report, including the areas of reform outlined. However, while holding significant merit, the PC’s suggested reforms also introduce additional operational and strategic complexity. As a result, detailed consideration of each recommendation, including risks, timing, policy alignment, capacity building and resourcing requirements by each agency will be essential for steady, realistic and informed planning and implementation.

 

Sir Humphrey Appleby could not have said it better!

 

The response proceeds to consider in detail each of the PCs four suggested areas of reform, namely: coordinated funding underpinned by regional plans; longer term funding for service providers; better data at the regional and community level, and stronger supporting institutions. While the response points to a range of processes, some more developed and serious than others, there is no overarching commitment to see these reforms comprehensively implemented.

 

I don’t propose to undertake a forensic critique of each element of the response; however I will comment on two issues of current relevance mentioned: the new framework for closing the gap, and the role of evaluation.

 

At paragraph 31, in relation to the PC identification of better data as an area for reform, the Government response states:

The Australian Government recognises that accountability and access to the data being interpreted is another critical consideration to drive transparency. An example of the Australian Government’s commitment to this can be seen through the National Agreement on Closing the Gap. One of the four key priority reforms the National Agreement is centred around is ‘building better data and sharing access to the right data to support Indigenous communities to make informed decisions with us.’

 

This is all good and well, although it reflects the implicit strategy of the Government to deflect calls for greater transparency into processes of greater data provision and sharing at local levels, two quite separate issues. More fundamentally however, the National Partnership provides for a series of processes designed to deliver shared decision making with Indigenous interests on service delivery, and for structural reforms to mainstream government agencies to enhance engagement with Indigenous interests. Yet there is no indication here that DSS has engaged with Indigenous interests in devising the Government’s response to the PC report as a whole. This bodes ill for the quality of the implementation of the national agreement.

 

At paragraph 33, the Government’s response states:

The NIAA’s IAS Evaluation Framework is also a notable example of how the Australian Government is taking a continuous improvement approach to evaluation, and is designed to ensure evaluations are high quality, ethical, inclusive and focused on improving outcomes for Indigenous Australians.

 

Yet the crucial issue is not the quality of myriad evaluations of small scale programs of limited strategic significance, but the use of evaluation to assess the overarching effectiveness of Government programs impacting (in the present case) disadvantaged children in the Northern Territory, most of whom are Indigenous.

 

Another example of (almost) seamless deflection…

 

In this context, it is worth noting that the response makes no mention of the PC report dated October 2020 on an Indigenous Evaluation Strategy, which incidentally recommended an independent evaluation capability across the Australian Government for policies and programs that impact Indigenous citizens. The Government has not formally responded to this report, and makes no mention of this fact in its response.

 

Finally, the most serious problem with the Government response to the PC report is not what is included, but what is omitted.

 

There is just no serious, comprehensive and thought through plan for substantive policy reforms, notwithstanding the fundamental shortcomings identified in the PC report.

 

In my April 2020 post, I outlined two potential approaches to substantive policy reform which would need to extend beyond children’s services to a range of related service delivery and policy domains:

The first approach would be  for Indigenous interests to implement a targeted strategy that picks out five or six of the key reforms identified by the PC (of course there may be others), and to make them core principles and advocate continuously for their implementation and ongoing retention at both national and jurisdictional levels….

…The second (and much more ambitious) approach would involve a fundamental reconceptualisation of the service delivery funding system to take decisions on grants and contracting out of the hands of politicians and place them in the hands of substantively independent service delivery purchasers (SDPs).

Governments would appropriate block amounts of funding over multiple years to say 20 regional SDPs across the nation for key social services, and provide broad (and public) guidance in terms of overall priorities. In turn, the SDPs would make funding decisions on service delivery within their regions, and report on progress to both the public at large and governments.

 

Neither substantive policy reform approach is seriously contemplated in the Government response issued last week. Nor is there anything else that might address the fundamental shortcomings in the architecture of service delivery identified by the PC report.

 

The Government’s response to the PC report is both a lost opportunity, and unfortunately and most seriously, given the lack of commitment to substantive reform, it seems likely that it is a portent of what we are likely to see when the first implementation plans under the National Agreement on Closing the Gap are released in July this year. Bureaucratic deflection and incessant process clothing underlying inaction are habits which are extraordinarily difficult for governments to break.  

Maintaining our gaze: the ongoing Indigenous child protection crisis

 

Men's eyes were made to look, and let them gaze…

Romeo and Juliet, Act 3, scene 1

 

This week the AIHW released the report Child Protection Australia 2019-20 (link here).  Attached are a series of selective quotes from the report reporting extraordinary rates of over-representation of Indigenous children within the system. I have omitted the relevant graphs which accompany these quotes.

 

The number of children in out-of-home care rose by 7% between 30 June 2017 and 30 June 2020 (from 43,100 to 46,000). During this time the rate of children in out-of-home was relatively steady at 8 per 1,000 children.

Indigenous children continue to be over-represented among children receiving child protection services, including for substantiated child abuse and neglect, children on care and protection orders and children in out-of-home care.

…14,300 Indigenous children were the subject of a substantiation in 2019–20. The most common type of substantiated abuse for Indigenous children was emotional abuse (47%) followed by neglect (32%)…

1 in 18 Indigenous children (around 18,900) were in out-of-home care at 30 June 2020, almost two-thirds (63%) of whom were living with relatives, kin or other Indigenous caregivers. [page vi].

 

Of the children in long-term out-of-home care, 2 in 5 (42%) were Indigenous [page vi].

 

In 2019–20, 55,300 Aboriginal and Torres Strait Islander children received child protection services, a rate of 166 per 1,000 Indigenous children. This was almost 8 times the rate for non-Indigenous children (21 per 1,000 non-Indigenous children) [page 14].

 

The number of Indigenous children receiving child protection services rose between 2016–17 and 2019–20, from 49,200 to 55,300. This was reflected in the rate, which rose from 151 to 166 per 1,000 Indigenous children in the same period. For non-Indigenous children the rates declined slightly from 22 to 21 per 1,000 children, with minor fluctuations during the period [page 16].

 

Children from geographically remote areas had the highest rates of substantiations—children from Very remote areas (24 per 1,000 children) were more than 3 times as likely as those from Major cities (7 per 1,000) to be the subject of a substantiation... Of the children who were the subject of a substantiation from Remote and Very Remote areas, 88% were Indigenous. In Major cities 20% of children subject to substantiations were Indigenous [page 26].

 

In 2019–20, 14,300 Indigenous children were the subject of a substantiation. This is a rate of 43 per 1,000— almost 7 times the rate of non-Indigenous children (6 per 1,000)... This is consistent with findings for previous years... The reasons for the over-representation of Indigenous children in child protection substantiations are complex. Underlying causes include:

• the legacy of past policies of forced removal; • intergenerational effects of previous separations from family and culture; • a higher likelihood of living in the lowest socioeconomic areas; • perceptions arising from cultural differences in child-rearing practices.

Indigenous children are also over-represented in other areas related to child safety, including:

• hospital admissions for injuries and assault; • experiences of homelessness; • involvement in the youth justice system [page 27].

 

At 30 June 2020, about 18,900 Indigenous children were in out-of-home care—a rate of 56 per 1,000 Indigenous children, which was 11 times the rate for non-Indigenous children ... This difference between Indigenous and non-Indigenous children was evident across all age groups...

Rates for Indigenous children in out-of-home care varied by age groups. Indigenous children aged 10–14 had the highest rate of out-of-home care (63 per 1,000 Indigenous children), while those aged under 1 had the lowest rate (28 per 1,000) [page 54].

 

For Indigenous children in out-of-home care, rates rose between 2017 and 2020, from 51 per 1,000 children to 56 per 1,000 Indigenous children [page 58].

 

There is a risk of over-simplification selectively quoting from a report such as this. I recommend readers take some time to have a look at the report itself. Nevertheless, it is astounding to comprehend that 42 percent of the 46,000 children in out of home care across the nation are Indigenous. In 2019, Neil Westbury and I assessed the state of out of home care in NSW in our Policy Insights paper Overcoming Indigenous Exclusion (link here), and we noted then that there were 31,000 children in out of home care and 11,900 or 38 percent were Indigenous. While the AIHW notes that data adjustments mean that prior comparisons are not appropriate (see page vi), it is clear that the national situation is much worse than national policymakers realised just two years ago. Moreover, these data points are not point in time issues, but are indicators of ongoing reductions in children’s life opportunities, with ongoing human costs to the families concerned and social and financial costs to the broader community.

Moreover, what is not addressed in a report focussed on measuring children’s engagement with the child protection system are the multiple upstream issues for parents and families that have led to children being placed into care. Issues such as drug and alcohol abuse, domestic violence, incarceration, and so on. These too have huge personal, family and wider social impacts which are both ongoing and negatively synergistic.

On the positive side of the ledger, the new National Agreement on Closing the Gap (link here) provides for new child protection target (link here) aimed at reducing the rate of over-representation by 45 percent over the decade to 2031.

Yet as the report notes, the rate of Indigenous over-representation has increased in the last four years. Further, this is not a new problem; in our Policy Insights paper referred to above, we considered the experience of NSW, and in particular, the reviews conducted by the NSW Ombudsman in 2011, 2014, and the excellent review by David Tune. Megan Davis conducted a subsequent review focussed on Indigenous child protection issues in 2019 (link here). What is common to all of these NSW reports is that the previous responses by the NSW Governments have been inadequate and that the calls for structural reforms have been dismissed (either implicitly or explicitly). The NSW experience has been largely replicated in the other jurisdictions.

While child protection is a state and territory responsibility, the broad uniformity of the challenges particularly for Indigenous children and families across the nation, and the inability of state and territory governments so far to successfully address those challenges, suggests that there are deeper structural issues at play. These are issues that span both Commonwealth and state / territory responsibilities, and demand a combined approach led by the Commonwealth.

To date, however, there is very little evidence that the Commonwealth recognises that it has a responsibility to lead in this policy space, nor that without its leadership, the prospects of success are limited. There has been no response from the Minister for Indigenous Australians to the release of the AIHW report.

We await the publication in July of the first implementation plans arising from the new National Agreement, and the associated Commonwealth investment. My prediction however is that in relation to this particular target, the Commonwealth will stay with its longstanding script, and seek to place the entirety of the responsibility on the states and territories. For their part the states and territories will either put their heads in the sand and ignore the issue, or implicitly deny that a problem exists. They have form on this… On 16 September 2020, the nation’s Community Services Ministers met and were briefed by Minister Wyatt on the new Closing the Gap targets for children in out of home care. The communique of the meeting (link here) has a self-congratulatory tone overall, and mentions that child protection reforms were paused across the nation in March 2020 because of the pandemic, and had not then been resumed. Extraordinarily, the Communique stated (inter alia):

Minister Wyatt acknowledged the importance of governments working together to keep children safe and healthy by identifying and replicating best practice, in partnership with Aboriginal Community Controlled Organisations. Ministers noted that a number of states and territories had developed very strong practice in this area which was seeing clear gains in reducing the intake of Aboriginal and Torres Strait Islander children into out of home care and increases in family restoration (emphasis added).

Given the data outlined in the AIHW report, the impression left by the statement in bold is clearly just wrong, and it is extraordinary that neither Ministers Ruston nor Wyatt, who were both present at the meeting, sought to correct the record.

When rhetoric trumps reality, policy development becomes an exercise in doing the minimum required to avoid sustained criticism. When the life opportunities of children are involved, this is plainly not good enough.

What is required is a comprehensive and well-resourced plan to address the structural underpinnings of child safety in the broadest sense. This would require the development of a structural reform agenda plus targeted program initiatives; robust but simple coordination arrangements across jurisdictions; long term financial commitments; engagement with the relevant community controlled agencies; and the creation of a sophisticated and policy specific research and evaluation capability aimed at identifying the key leverage points to turn current trends around and monitoring progress in live time. See my previous March 2020 post on an earlier AIHW report (link here) for other similar policy reform suggestions.

Such an agenda appears ambitious, because it is ambitious. It also happens to accord with the principles laid out in the new National Partnership.  Anything less is unlikely to have the necessary policy heft and firepower to make a difference. It is time the nation got serious about addressing Indigenous disadvantage. This will require Commonwealth leadership and commitment.

A core proof of the existence of structural exclusion is the inability of those who are not excluded to recognise and actually ‘see’ an issue. As a nation, we are conscious that there is an issue with Indigenous child protection; we know it is there somewhere, we allow statisticians to write reports, and prepare graphs, yet we are incapable of keeping it in focus, of identifying with the real and tangible impacts on children and their families. In short, we are incapable of maintaining our gaze. To maintain our gaze is too difficult because it would reveal a truth about Australian society, and ourselves, that we cannot bear to acknowledge.