Renewing the National Partnership on Remote Housing: seasons such as these

Poor naked wretches, whereso'er you are,
That bide the pelting of this pitiless storm,
How shall your houseless heads and unfed sides,
Your loop'd and window'd raggedness, defend you
From seasons such as these?

King Lear Act 3, Scene 4

A number of recent developments make it timely to provide further commentary on the hugely important policy issues around remote Indigenous housing which will be determined by the Government over the coming few months. Previous blog posts (link here and link here) are relevant and provide crucial contextual background to the issues confronting the Government in the remote housing policy space.

In mid-2016, the Government revised and rebadged the National Partnership on Remote Indigenous Housing as a new National Partnership on Remote Housing (sometimes referred to as the new Remote Housing Strategy). (There is a link to the NPA and associated schedules here). According to the PMC website (link here):

The Government is working to refocus housing delivery in remote Indigenous housing. The new National Partnership on Remote Housing (NPRH) ensures local indigenous people have the opportunity to contribute to their housing through employment, Indigenous business engagement and better links with the Community Development Programme (CDP). The NPRH will also continue to address overcrowding by funding $774.131 million to the construction of new houses and refurbishments in larger, sustainable remote Indigenous communities.

While the Government has indicated that there will be $774m spent over these two years, this funding is essentially the funds which were originally allocated in the original NPARIH established in 2008. See the PMC website for the new targets for the period 2016-18. The webpage outlines national targets for three categories of expenditure: new builds, refurbishments and employment and education housing (EEH), and provides a breakdown by jurisdiction against each category. The national targets are 785 new builds, 207 refurbishments and 58 EEH units respectively.

The revised National Partnership Agreement provided for a review of the NPRH and its predecessor NPARIH to be undertaken. The Minister announced the review into remote housing in November 2016 (link here). During the most recent Senate Estimates hearings, and in answer to a Question on Notice (QoN) (number 186), the Minister indicated that the review had been provided to the Government in May 2017, but that a decision on release had not been taken and was a matter for the Government. The Minister also indicated in answer to QoN 104 that ‘future arrangements for the expiring National Partnership Agreement will be considered in the Mid-Year Economic and Fiscal Outlook in the year preceding expiry of funding’ That is, in the late 2017/early 2018 MYEFO.

The Indigenous Advisory Council met on 10-11 May 2017, and in their communique dated 19 May (link here) made a number of comments on Indigenous housing and the recent (as yet unreleased) review of remote housing.  On housing, they noted:

Council acknowledged the findings of the Remote Housing Review and expressed concern that despite significant reductions in overcrowding investment is required to meet unmet need and maintenance of housing stock. Council emphasised adequate housing is critical to ensure positive outcomes are maintained in health, education, employment and community safety. While acknowledging the challenges highlighted through the Review Council indicated there are opportunities to develop innovative housing solutions. It was recommended Government explore options for local governance and community management of housing, international best practice and ongoing investment and flexible shared funding arrangements between the Commonwealth and states and territories to allow solutions at a local level.

The most recent developments were comments made by the Minister in an ABC Q&A program at Garma (link here), where in response to a question about overcrowding and the impact on peoples’ lives, he foreshadowed a number of likely policy directions:

We’re deadly serious about this. We’ve invested $5.4 billion over the last decade, and I think everybody would agree we could have done a lot better. We have reduced overcrowding from 52% to 37% – it’s still in the margins, and that took a fair while to do. So, the next rollout, which we are now negotiating with the states and territories about the National Partnership on Remote Indigenous Housing, we’ll be negotiating on the basis of what the communities have asked us to negotiate on.

So, Indigenous employment is non-negotiable. Indigenous procurement is non-negotiable. And we’ll be asking the states to match those funds. Because we need a pulse. Sometimes we can just trickle along and we’ll be just catching up, just getting ahead, but we actually need a significant injection of funds. So, that’ll be the basis of our negotiation with the states. But those houses cannot be built by whitefellas getting off planes with nail bags. Those times have to go.

Local Indigenous people maintaining their own houses, local Indigenous people building their own houses and actually managing the tenancy of their own houses is the only way this is gonna work, and I assure you, those are the changes I intend to make.

So, in terms of the policy architecture for remote Indigenous housing, where does all that leave us?

First to the positives:

The commitment of $5.4bn for remote social housing over the ten years to 2018 has delivered a step change in the quantum and quality of housing in remote communities. In round figures, NPARIH/NPRH will have delivered around 4000 new houses and at least 10,000 refurbished houses over the decade, off a low and worsening base. That is a good thing.

The National Partnership also drove policy reform on a range of fronts: Indigenous employment, clearer tenure arrangements to lock in landlord responsibilities, and a stronger focus on managing the existing and new asset base through sustained Property and Tenancy Management (PTM).

The level of overcrowding will have reduced considerably over the ten years, using the Minister’s figures, from 52 to 37 percent, a reduction of 15 percent.

The Minister appears committed to continuing some level of funding by the Commonwealth for remote housing, and is keen to strengthen further Indigenous employment, Indigenous procurement, and local involvement.

Notwithstanding these achievements, substantial policy challenges remain, and it is far from clear that the Government is prepared to address them. Listed below are six issues of most serious concern.

First, notwithstanding the progress on overcrowding, a situation where 37 percent of Indigenous citizens resident in remote Australia live in overcrowded condition is on any objective assessment a national crisis. It feeds disadvantage, and demands an open and transparent public debate. It would be useful if the general public were advised what the cost of reducing these levels of overcrowding to levels comparable to the Australian norm would be. This would help to build support for the necessary funding.

Second, a key contributor to the low level of public discussion around these issues is the lack of transparency in relation to key metrics about the situation in remote communities and the key metrics about the program. While there are myriad ‘data points’ available to a diligent researcher, compiling them into a coherent whole which is both accurate and understandable to the wider community (including the Indigenous community) is almost impossible, and constitutes a serious impediment to community discussion and understanding. There is in my view an onus on government to lay out in a clear and succinct way the current state of play in relation to this issue, particularly a government which argues that there is a need for more evaluation of government programs.

The Department obtains six monthly reports from each of the funded jurisdictions, and the agreements specify that the Commonwealth may release data and information in relation to the operation of the program, yet it doesn’t happen in any coherent form.

The level of information available on the Department’s website in relation to what is one of the three major government programs for Indigenous Australians is extremely poor, reinforced by the rebadging of the program in 2016. The decision to withhold the recent review, without offering any reason, merely serves to reinforce the Government’s tactic of micro-managing and constraining public discussion and debate on this issue rather than encouraging greater understanding in the wider community.

Third, if the Government is interested in pursuing the PM’s Advisory Council recommendation for improved local governance and community management of housing, a good place to start would be in the provision of a much more robust program management data set in a format which is automatically updated and publically accessible. In addition, careful design of local arrangements based on both upward and downward accountability, a focus on capability and continuous improvement, and default arrangements for when local structures break down or are subject to a crisis will be required. In other words, there is considerable devil in the detail in the Advisory Council’s advice which requires upfront attention fi the Government intends to take it seriously.

Fourth, my major concern relates to the Minister’s call for matching funding from the states and the NT. In particular, I am concerned that the Government may be using this argument as a ploy to reduce investment levels in the remote housing sector. While I have no in principle objection to jurisdictions being required to invest in the remote housing sector, there are a series of practical constraints which will constrain their capacity to commit.

The new NT Labor Government went to the last election committing to spend $1bn over ten years, but I am sceptical that it will manage to meet this commitment. The NT carries a huge debt burden in Commonwealth borrowings (which went to building their social housing system in the 1960s and 1970s) and has a large number of ‘locked in’ financial commitments relating to metropolitan based infrastructure developments.

In addition, in Indigenous policy contexts, it has major financial pressures in relation to expanding serviced lots in most remote communities; many remote communities have met the limits of their essential service infrastructure (thus limiting new housing investment until it is expanded); and the National Partnership Agreement does not cover smaller communities and outstations nor essential services in remote communities (which the Commonwealth has offloaded to the states in recent years).

These are all pressures the Commonwealth does not co-invest in, so why should the states and the NT be required to suddenly co-invest in the remote housing program when the Commonwealth refuses to meet them half way on other key remote community investment needs.

The stark reality hidden by debates about financial burden sharing with the states is that remote communities continue to face a deep-seated and structurally serious crisis in terms of housing quantum and conditions. Any solution will require both robust and innovative policy design and significant ongoing investment. In this context, the fiscal capacity of the Commonwealth far exceeds that of the states and the NT. By all means incentivise the states to do more, but the bottom line ought to be that the Commonwealth does not reduce its overall funding commitment of around $550m per annum. Indeed, in a world where comparative need rather than political powerlessness determined funding allocations, the case for taking the opportunity of this second ten year National Partnership Agreement to increase funding levels over what was allocated in 2008 would be irrefutable.

My fifth concern follows on from, and in a sense mirrors the fourth. The Minister’s rhetoric on Indigenous employment and local involvement in housing management contracts plays to deep seated Indigenous community concerns about ‘owning’ what happens in their communities: ‘But those houses cannot be built by whitefellas getting off planes with nail bags. Those times have to go’. I wholeheartedly agree that maximising Indigenous employment is an important policy objective, but it must not be pursued to the point where it places housing outcomes at risk.

Yet what the Minister’s stated approach implicitly requires is the rejection of the reality that fixing the structural and systemic issues in remote housing in a timely and cost effective way across scores of major communities requires major system wide investments managed as a very small number of major infrastructure projects rather than a disaggregated program funding hundreds of micro projects. To be blunt, the capability for major project implementation does not exist in remote communities. It probably doesn’t even exist in the Minister’s Department. 

Major projects involving complex legal, engineering, survey, hydrological, commercial and technical issues require specialist capabilities. This is not about some ‘whitefella with a nailbag’. The risk Indigenous remote residents face is that the Minister will regress the program into a pre-NPARIH form, where available funds are split into hundreds of project splinters, involving a myriad of players, contractors, architects, builders and the like, all of variable quality, and where effective regulatory oversight is virtually impossible. In this scenario, effective outcomes would be fundamentally compromised.

Of course, in a hypothetical world where a Government decided to strip substantial levels of funding out of the remote housing program, one way to manage the politics of that would be to develop and give prominence to the rhetoric of Indigenous employment and business engagement, and actively reshape the program as a myriad of locally managed micro projects with only lose regulatory oversight.  

My sixth and final concern relates to maintaining investment in both the current and additional asset base. Property and tenancy management is an essential component of the remote housing system. It was an essential element in the reform design of the original NPARIH. Without effective PTM, the remote housing system will run down, asset life spans will shorten, and the cost of necessary repairs will rise exponentially. What has become clear in recent years is that the quality of tenancy management by the states and the NT continues to fall far short of what is required to protect the asset base, and what is required by the relevant tenancy legislation in the various jurisdictions. A major shortcoming of NPARIH and potentially of the current NPRH is that there was no effective line of sight by the Commonwealth to implementation of PTM by the states and the NT. This needs to be fixed urgently.

There are encouraging signs that the 2016 NPRH Agreement recognises this in principle, but in practice, the Minister’s 2013 decision (described in more detail here) to cut $95m from PTM under NPARIH continues to reverberate. The Minister should ensure in any refinancing of the remote housing program that in addition to continuing the current levels of Commonwealth funding under the National Partnership, that the PTM funds of $95m he cut are reinstated.

Alcohol policy reform: addressing the underlying economic incentives

In the previous post on the recent Australian Law Reform Commission Discussion Paper, I pointed to the failure of the Discussion Paper to canvass options to address the taxation of alcohol, notwithstanding the underlying incentives to consume some forms of alcohol over others, and the potential to constrain overall consumption of alcohol through use of price based incentives which might be imposed through increased taxation of alcohol.

More generally, the ALRC had in my view ignored the economic costs of high rates of imprisonment which were in turn a product of high rates of alcohol abuse by the minority of Indigenous people who drink.

I was pleased therefore to come across the recently released report from the Foundation for Alcohol Research and Education (FARE): ‘The Price is Right: Setting a Minimum Unit Price on Alcohol in the Northern Territory’ (link here).

The core argument is summed up in the first paragraph:

Relative to wages, the cost of alcohol has reduced considerably in the Northern Territory (NT) over the past 20 years. Lower prices and the resulting increase in demand has contributed to unacceptable levels of harm in the community. With rates arguably among the highest in the world, the harm caused by alcohol is more prominent in the NT than in any other Australian jurisdiction. While the Commonwealth Government remains uncommitted to reforming a defective alcohol tax system, which has driven the proliferation of cheap alcohol, it is incumbent on the NT government to explore options to stem alcohol’s harm. A minimum unit price, which would set a price per unit below which alcohol cannot be sold, is one such measure.

This report is short, succinct, well researched, outlines the harm caused by alcohol abuse, explores options for utilising the tax system to address the issue, and is admirably focussed on arguing for a practical and achievable policy change which will drive myriad benefits across the NT if implemented.

I strongly recommend readers to have a look at it. You will almost certainly learn something new.

I want to note just two points in relation to the report.

The first is that the report notes in passing the failure of the Commonwealth to reform the ‘defective alcohol tax system’. It doesn’t explore the reasons for this reluctance. Those who wish to understand the reasons for this reluctance would do well to look into the resources allocated towards advocacy, lobbying and political donations by the alcohol industry in Australia. Taxpayers are the losers. Rent-seeking is alive and well in Canberra, including by the alcohol industry, with terrible consequences for those affected by alcoholism, and insidious implications for our democracy (link here).

Second, nowhere does the report explicitly mention Indigenous people. This is clearly deliberate insofar as the report is arguing for a mainstream policy intervention which will impact all alcohol consumers. Yet the exceptional status of the NT as subject to the most disproportionate alcohol harm in the nation (see Figure One in the report) is due in very large measure to the high proportion of Indigenous people in the NT, and the high levels of alcohol abuse amongst those Indigenous people who drink.

Taking these two points together provides a clear example of how mainstream policy (or more accurately lack of policy) can operate to disadvantage Indigenous Australians economically, socially, health wise, and ultimately in terms of high mortality rates.

Of course, alcohol abuse is not solely an Indigenous issue. Nevertheless, the high levels of harm identified in the NT are also likely to be present in areas with high concentrations of Indigenous people in other jurisdictions. While the Northern Territory Government appears to have a greater incentive to adopt the policy approach advocated by FARE, other jurisdictions also face increasing costs in their health systems, their justice systems, their social housing systems, their welfare systems, and their child protections systems. These costs are all linked either directly or indirectly to alcohol and other substance abuse.

And of course, the highest costs fall on those directly affected by alcohol abuse, either as a drinker or as a family member of a drinker. The impact in terms of constrained and reduced life opportunities is enormous, and demands action. It is time for some national leadership.

ALRC Discussion Paper on Indigenous incarceration

.

Thou shouldst perceive my passion, if these signes
Of prisonment were off me

The Two Noble Kinsmen, Act Three, Scene One

In a recent post (link here), I canvassed a small number of the complex issues contributing to the over-representation of Indigenous people in Australia’s prisons.

Last week, the Australian Law Reform Commission (ALRC) released a Discussion Paper as part of its review of the laws relating to Indigenous incarceration (link here).

The report is over 200 pages and full of interesting analysis, summaries of the key legal issues which influence incarceration rates of Indigenous people, and interesting insights into how the structure of laws and the overall justice system pipeline operates to influence incarceration rates.

The sheer volume of analysis and the complexity of the issues defies easy summary. So I won’t try. The report is structured to allow those interested in particular issues (eg the role of fine defaults in driving incarceration, or the role of alcohol laws) to focus on those particular interests. The report is also a source of interesting information about the approaches of various jurisdictions, both inside and beyond Australia. For example, there is an interesting analysis of the policy history of minimum prison terms in Western Australia, the only jurisdiction to explore this strategy. And an extensive discussion of the Canadian approach to sentencing which allows a much stronger focus on the impact of colonial policies on individuals in the justice system.

The Discussion Paper is structured to elicit feedback from the general community (submissions are due by 4 September) and thus it is not entirely clear what the Commission will ultimately recommend. Nevertheless, this is without doubt an important and highly useful source document for those interested in the issue of Indigenous incarceration rates, and reflects an enormous amount of detailed high quality research work by the Commission.

Notwithstanding this excellent work, I think there are some major shortfalls arising from the Commission‘s work on this topic. Some are specific to the terms of reference, others relate to the role of the ALRC more generally.

My major concerns are threefold:

First, the very volume and complexity of the issues raised in the Discussion Paper (and we can safely assume in the Final Report) work against their implementation. This issue is exacerbated by the reality (acknowledged in the Terms of Reference and the Discussion Paper) that the bulk of the laws under review belong to the states and territories. Of course, complexity is grist for the mill in the work of policymakers, and there is an argument for laying out in a comprehensive and succinct way the key issues which potentially impact on Indigenous incarceration. But there is a sense here that the Federal Government may have adopted a strategy of commissioning this inquiry as a substitute for focussed action. Indeed, it is clear from the detailed terms of reference that the policy experts in the Attorney General’s Department already have a pretty good idea of the key drivers of Indigenous incarceration. By commissioning this inquiry, the Government has bought space and time. When the report is finally delivered, it will likely point to the need for joint action by states and territories, and the very complexity of the issues raised will mean that the Commonwealth will be under minimal pressure to drive a coordinated and sustained law reform policy agenda through COAG.

Second, the record of Law Reform Commission Reports providing the basis for major reform processes in the Indigenous policy domain is poor. I have in mind the largely unimplemented 1986 Report on Aboriginal Customary Law (link here), which included a draft Bill which was never considered by the Parliament, and the more recent Commission report on native title, ‘Connection to country’ which to date appears to have been relegated to the ‘too hard’ basket (link here and here) This is not a criticism of the Commission, but of the commitment of Governments to follow through once they receive a report. In the light of this sorry history, (and I suspect it is an issue beyond the Indigenous policy domain), there is in my view a requirement on the Commission to structure and shape its advice in ways which make implementation more likely.

Accordingly, I was disappointed that nowhere in the Discussion Paper was there any   discussion of the economic cost of incarceration both on taxpayers and Indigenous people themselves. It may be that this is a matter which will be addressed in the Final Report, but it is in my view disappointing that while the Report manages to discuss issues such as whether the courts might take into account the impact of past dispossession on Indigenous people in the sentencing process, it makes no attempt to consider and discuss at any length measures to counter contemporary structural forces (such as mandatory sentencing laws and broader ‘tough on crime’ policy approaches) which operate to exacerbate Indigenous incarceration. The rapidly rising financial and social costs of incarceration generally and Indigenous incarceration in particular, is a potential countervailing factor. So too are doubts about the effectiveness of imprisonment in encouraging rehabilitation. A recent Victorian Ombudsman report into rehabilitation and reintegration of prisoners in Victorian prisons was critical of the inattention to this issue in the management of prisons generally, and pointed to the significant economic implications of short-sightedness for the state in this area. There is no a priori reason to believe that the Victorian system is any better or worse that other jurisdictions in Australia (link here).

The response to this critique may well be that I have misunderstood the nature and purpose of the ALRC, and that its Terms of Reference mean that it is narrowly focussed on identifying the technical changes to laws and justice processes which might reduce over-representation. My point however is that laws are not made nor administered in a vacuum, and it is underlying political and societal forces which shape them. An effective reform agenda needs to acknowledge, understand and ideally address these structural forces.

My third concern relates to the Chapter on alcohol in the Discussion paper, which fails to mention the potential for taxation law reform to address the supply of alcohol. It is clear that alcohol is a key driver of behaviours which lead to criminal behaviour, and thus to incarceration. The costs of alcohol abuse fall not only on individuals and their families, but also on taxpayers. The tax regime on alcohol is both complex and highly variable in terms of the volumetric incidence of taxation on different products, undermining the capacity of alcohol taxation to effectively drive reductions in consumption of alcohol, notwithstanding the significant health, social and economic costs of alcohol abuse (link here). There is a strong consensus amongst researchers concerned about the implications of alcohol abuse by Indigenous drinkers that tax reform is an underutilised policy lever (link here). It is somewhat surprising therefore that the ALRC chose to ignore completely this issue in its Discussion Paper.

So where does this leave us?

The ALRC will finalise its report to Government by December this year. The likelihood of an election in 2018 suggests that it will not be the ‘right time’ for the Commonwealth to enthusiastically pursue implementation of the report’s findings. Later this year the Commonwealth will likely gain COAG approval for the introduction of an Indigenous incarceration target as part of the Closing the Gap targets, which will be a step forward. The states and territories will continue to struggle to find political narratives and policy responses which effectively balance the contradictory forces at play in this area: increasing community concerns about the impact of crime, the apparently intractable and irresistible pressures towards incarceration once vulnerable individuals enter the justice system, the spiralling costs of prisons and the justice system across most jurisdictions, and the extraordinary statistics demonstrating extreme levels of incarceration for Indigenous people.

In such an environment there is much to be said in favour of incremental reforms driven by policy entrepreneurs in the various jurisdictions. The challenge however is to find the policy space in crowded policy agendas, and to find the political and policy commitment to sustain reform. More often than not, incrementalism degrades into policy stasis.

The argument against incrementalism is based on a growing sense of foreboding that incarceration is being normalised amongst many Indigenous citizens, and that it plays a key role in cementing the alienation and disempowerment of a significant proportion of the Indigenous community. The costs on individuals and their families are considerable. But perhaps just as significant, the existence of an alienated and disempowered segment of Australian society will eventually spill over into the mainstream. It has to be said however that the prospects of a full throated and sustained campaign to address extreme Indigenous incarceration rates seems highly unlikely.

The absence of strategic leadership by the nation’s political elites is the real gap which we need to close.

Native title and the paradox of accountability

In a recent opinion piece in the Australian Financial Review, (Native Title needs reforming or more indigenous opportunities will be lost; link here) Senator Dean Smith from Western Australia, provided an exquisite example of political positioning masquerading as policy analysis.

Ostensibly, Senator Smith was making the case for review of the role and responsibilities of native title representative bodies (which represent native title holders in claims) and prescribed bodies corporate (which formally hold title on behalf of native title holders). Yet the subliminal message was that native title was a potential impediment to economic development, that this was the result of poor levels of governance and transparency within Aboriginal organisations, and by implication that it was up to Indigenous people to fix it.

Thus the article argues that the complexity of Aboriginal land ownership and the necessity for negotiation creates a system which ‘can become extremely costly and complicated’; that this can lead to ‘adversarial and opportunistic practices focussed on short term revenue raising’ in the name of claimants and native title holders; and that often ‘the lion’s share of revenue goes not to the traditional owners but the Native Title representative bodies and other native title business brokers’.

Then Senator Smith pivots to a recent ANAO audit of the Northern Land Council (NLC) which fulfils a number of roles including that of a native title representative body in the NT. Senator Smith shares the following quotation:

The report identified a ‘fundamental breakdown in in the governance framework at the NLC, resulting in serious failings in almost all aspects of the council’s administration’, including weaknesses in the NLC’s financial management, reporting ad internal management measures.

Senator Smith did qualify his point by adding the following paragraph:

Positively, the report did identify a commitment on the part of the NLC to implementing ‘a wide-ranging reform agenda covering almost all aspects of the governance and administration of the council’.  

Senator Smith then moves from the value laden and far from neutral heading ‘Opportunism rife’ to his more direct conclusion: ‘Lost Opportunities’.

He argues for review of the roles and responsibilities of native title bodies to improve their levels of governance and transparency, arguing they disadvantage both Indigenous citizens and the wider community. In Senator Smith’s view, the expansion of the Ord River Scheme and the northern cattle herd, the development of the Canning Basin onshore gas reserves, and tourism generally represent opportunities which ‘could easily be lost if we don’t call out the inefficiencies of a current native title regime that has evolved in a way that works against the long term community and economic interests of Indigenous and non-Indigenous Australians’.

So what’s going on here?

First, beneath the surface text which is carefully nuanced to appear objective, and which includes a number of points which are well made and with which I agree, there is nevertheless a clear propensity to attribute primary responsibility for the problems identified and for finding the solutions to Indigenous people and organisations. The glancing mention of Fortescue Metals Group as having negotiated in good faith (link here), the implication that representative bodies and advisers (‘native title business brokers’) are exploiting traditional owners, the overly simplistic reference to the ANAO report, and the framing of lost economic opportunities for the wider community and nation all reinforce this meta-message.

Second, it is worth noting that Senator Smith has been in the news lately advocating strongly for parliament to resolve the same sex marriage deadlock in our political system (link here, and here). For a Senator who is a member of the conservative wing of the Liberal Party, with a constituency being actively courted by Cory Bernardi’s Australian Conservatives Party and Pauline Hanson’s One Nation Party, it might be timely to send out a reminder to supporters that his liberal tendencies only extend so far.

Whether intended or not, the likely impact of the opinion piece is to provide reassurance to Senator Smith’s core constituency that he remains a staunch conservative. What it also unfortunately demonstrates is that allocating blame for complex policy outcomes primarily on Indigenous interests is alive and well as a political trope in Australia today. The comparative lack of Indigenous political power in Australian society makes them vulnerable to gratuitous criticism designed to advance other political agendas.

Third, the corollary of framing the problem as one caused by Indigenous interests is that alternative analyses are implicitly ignored or ruled out. In particular, what is the role of the government in ensuring that institutional frameworks such as in native title are working effectively? This is the issue which I wish to explore more fully below.

There are two broad arguments advanced by Senator Smith. First, that native title is not working as well as it could or should. I agree with the diagnosis, but not with Senator Smith’s analysis of the causes. Second, the NLC is suffering from a ‘fundamental breakdown’ in governance and administration. Again, this needs detailed unpicking.

As for the native title issue, my starting point is to make the obvious point that Senator Smith is a member of a Government which has been in place for almost four years, yet has delivered very little on native title. One of the Government’s first moves in this space was to reinstate provision for funding of non-native title respondents to native title claims (link here). In June 2015, the Government received a report from the Australian Law Reform Commission reviewing the Native Title Act (Connection to Country: Review of the Native Title Act 1993; link here); they have received a report from an expert Panel established by COAG to investigate Aboriginal Land Administration and Use (link here). In neither case has any substantive comprehensive reform eventuated. The recent requirement for urgent reform of the Native title Act to fix the McGlade decision in the Federal court (link here) merely serves to reinforce the ad hoc and reactive approach of the current Government to native title issues.

Thus even if one were to accept in full Senator Smith’s characterisation of the issues to be addressed (I don’t), there are strong grounds for concluding that the Government has dropped the ball on the native title reform task. It is particularly telling that Senator Smith’s article omits all reference to these reviews, and omits all reference to the role and responsibility of government to ensure that the institutional infrastructure of society is fit for purpose.

 I have previously commented on native title and land issues in earlier posts (link here and here), so will not take this discussion further at this point. My own take on the strategic challenges facing both policymakers and indigenous interests in the native title space can be found a recent Discussion Paper on the CAEPR website (link here).

Turning to the issue of the Northern Land Council (NLC) and the ANAO audit (link here) to which Senator Smith referred, and the role of government in maintaining institutional resilience, there are a number of points to make.

First, a key point to note is that while the NLC is a native title representative body, it is also (unlike most native title representative bodies) a Commonwealth statutory corporation subject to the PGPA Act, with a range of other functions, and governed by its own legislation which is the responsibility of the Minister for Indigenous Affairs.

Second, the key quotation attributed to the ANAO by Senator Smith is in fact a finding of a 2013 review by Deloittes into the NLC, not a 2017 ANAO audit. The implication is that the ‘fundamental’ issues which Senator Smith infers are of current significance are instead some four years old. 

The Deloittes report was instigated by the NLC and the Department of Families Housing Community Services and Indigenous Affairs (FaHCSIA) following a critical Department of Finance Audit of the NLC’s governance in 2009 (link here) was followed by a qualified financial statements audit from the ANAO which identified financial weaknesses, and this led to a Senate Estimates Hearing which was highly critical of the NLC, and led subsequently to the ANAO audit referenced by Senator Smith.

Third, the ANAO appear to have adopted a particularly low key approach to its formal recommendations, as a close reading of the report reveals numerous adverse findings particularly in relation to PMC oversight, and suggests that a set of much more robust recommendations, particularly in relation to the PMC oversight responsibility, was warranted.

Fourth, in relation to the NLC’s functions as a native title representative body, the ANAO audit notes (at para 2.25) that the Minister for Indigenous Affairs Senator Scullion wrote to the NLC in May 2016 that he was ‘satisfied that the NLC satisfactorily performs its existing functions as a representative body under the Act and would be able to continue to do so’. This directly contradicts the messaging in Senator Smith’s article, yet was not addressed by Senator Smith.

Fifth, while the audit identifies substantial progress by the NLC in implementing necessary reforms, it does not provide the NLC with a clean bill of health. For example, the ANAO note that the NLC’s administrative arrangements ‘do not yet effectively support the work of the council’ (page 9).

So for example, the ANAO notes (para 3.12) that prior to February 2016 ‘the NLC executive and senior staff had no visibility of the organisations allocation of resources and internal budgets (para 3.12); that as at 1 March 2017, the NLC did not have a procurement policy, and procurement practice did not meet requirements set out in the Commonwealth Procurement Rules (para 3.14); that issues with the road worthiness and safety of the NLC’s vehicle fleet management procedures have been reported since 2011-12, but remain outstanding as at March 2017 (para 3.18). Apart for the questions which clearly ought to be directed to the NLC and its leadership, the obvious questions is: where was the Ministers Department and its oversight function as these problems emerged? It is not as if they were not warned!

In response to the 2015 issues the Minister requested the NLC develop a plan that outlines its approach to addressing concerns about its performance. The ANAO states that ‘while many of the actions in the plan have been completed and others are underway, the NLC has not provided progress reports on outcomes against the plan, although agreeing to do so’ (para3.65). Where was the Department as this emerged?

In Chapter Four of its report, the ANAO consider in detail the NLC’s planning and budget processes, and in particular examine the relationship between the NLC and the Minister’s Department in relation to budget issues.

The ANAO find that there is a need for better alignment between the NLC’s performance and planning frameworks and the Commonwealth’s performance framework set out in the PGPA Act 2013. The ANAO examines in some detail the role of PMC in setting the budgets for the NLC. It recounts in some detail the process followed in the 2015-16 and 2016-17 budget discussions, which involved a formal written requirement by the minister to implement a zero-based review of all budget bids and items. The ANAO notes that PMC held meetings to discuss the changed approach, and in a telling point, noted that:

No records of these meetings were kept, and there was no evidence as to the outcomes of the discussions and if they met their stated aims. There was no documented advice or guidance provided to Land Councils on the new approach (para 4.21).

In a classic example of audit understatement, the ANAO conclude:

Broadly, there are shortcomings in the process for providing funds to the NLC under s64(1) of the Aboriginal Land Rights Act. There was little evidence that zero based approach and application of the funding principles had been followed by the NLC in submitting bids or by PMC in assessing the bids, and a lack of transparency of the basis for the funding decisions. (Emphasis added).

It is difficult to interpret or understand this mutual dynamic of inconsistent formal rhetoric of good budget practice and informal reality of total lack of process as anything but a cynical ploy to avoid accountability for decisions. It is inconceivable to me that the department would subvert the written requirements of the minister without his implicit consent. The ANAO finding goes to the heart of ministerial responsibility, and (assuming the minister is not incompetent) leads to the inevitable conclusion that good process was being deliberately subverted. To what ends we can only guess.

The ANAO went on to footnote the Full Federal Court decision which overruled the Ministers attempt to overturn a decision made by his predecessor in relation to a grant to the MJD Foundation (link here), a clear example of ministerial over-reach consistent with the lack of transparency in his decision-making around land council budgets and it is worth noting the billion dollar Indigenous Advancement Strategy program (link here). As if to reinforce the point to the cognoscenti, the ANAO goes on to list the advice from PMC over a number of years for more rigorous budget processes (see paras 4.24-25), advice which appears to have been ignored or dismissed by the Minister. In reading this report, it needs to be remembered that the ANAO is not authorised to examine the actions of ministers, and its remit is focussed on the actions of agencies. It is no surprise then that it appears to hold back.

So the sixth point to make is that PMC and its responsible Minister appear to have comprehensively failed to establish and maintain an effective process of regulatory oversight of the NLC (and by implication) the other NT land councils. The ANAO specifically note that their report (footnote 3, page 7) may be relevant to other land councils.

Given the sustained absence of effective regulatory oversight of statutory corporations by the responsible minister, his or her department, and the Department of Finance which has responsibility for the PGPA Act 2013, attempts to criticise the statutory corporation for alleged misdeeds will always be highly problematic.

Senator Smith’s sideways slap at the NCL based as it was on a fundamental misreading of the currency and time frames of the issues he raised, and complete absence of any analysis of the role of the Minister for Indigenous Affairs in ensuring that agencies such as the NLC in his portfolio are operating effectively, falls squarely within this set of problematic critiques. While we should not be surprised when politicians pursue political agendas, it does seem important that we hold them to a level of accountability in relation t the factual accuracy of their claims, both in terms of what they say, and what they omit to say.

Finally, my own take on the rather sorry saga of which the NLC audit was culmination of almost a decade of poor administrative and governance performance is that that the cross cultural nature of organisations such as the NLC and other native title bodies makes them extremely vulnerable to governance challenges which have the potential to disadvantage their constituents and Indigenous citizens more broadly. The solutions lie in the promotion and support of leadership within these organisations by all who engage with them (whether they are commercial partners, philanthropics, governments or individuals) and in the establishment by government of robust regulatory and governance frameworks which adopt high expectations and hold Indigenous organisations to the highest standards of accountability on a sustained basis. Noel Pearson’s concept of the ‘soft bigotry of low expectations’ (link here) is particularly apposite in this context

The paradox of course is that our own political system appears incapable of holding ministers to account for ongoing and systemic shortfalls in regulatory performance. I am unaware of any academic or media reporting of this NLC audit which examines the shortfalls identified on the government side of the ledger, let alone any concern or criticism of the supposedly responsible minister for the identified shortfalls of his department.

For those who wish to drive substantive and sustained positive change for native title outcomes, rather than see native title as an impediment to economic development and a problem caused by Indigenous citizens, they might encourage governments to focus on improving the regulatory oversight of native title bodies, building their capacity, and strengthening the support offered by governments to ensure native title institutions work effectively and Indigenous organisations involved contribute to the delivery of sustained outcomes for all Australians. 

Closing the Gap on Indigenous incarceration

When sorrows come, they come not single spies
But in battalions.

Hamlet Act 4, scene 5.

A recent blog post from NACCHO, the peak body for the Community controlled health organisations brought to my attention that research published in 2011 had found that 94 percent of Indigenous prisoners in the Northern Territory suffered from hearing loss. 94 percent!

Here is a link to the ABC news story earlier this month. Here is a link to an article in the Indigenous Law Bulletin in 2012 reporting the research.

Apart from the obvious issues related to the administration of justice which arise from this level of disability, and which are discussed in the articles linked above, it strikes me as a terrific – or terrible  -  example of how in the Indigenous policy domain, and more saliently for Indigenous people themselves, challenges come ‘in battalions’, not as ‘single spies’.

We all know intuitively that one problem contributes to another. Poor housing, poor sanitation, poor access to fresh fruit and vegetables, poor diet, and poor education and literacy leads to poor health, particularly for vulnerable children. Poor environmental conditions and poor health, particularly amongst children, leads to ongoing chronic disease, and lifelong conditions such as diabetes, kidney disease, eye nose and throat conditions, and hearing loss. Hearing loss leads to learning difficulties, frustration, and ultimately to a loss of interest in attending school. Dispossession leads to social and cultural trauma, and constrains economic opportunity; impacts which are increasingly recognised as having intergenerational impacts. Lack of economic opportunity, poor education and skill deficits lead to loss of self-esteem, boredom, mental health issues, and potentially anti-social behaviour including alcohol, drug and substance abuse. In turn, these conditions can lead to widespread Fetal Alcohol Syndrome (FASD), which in turn limit educational options, predispose individuals to mental health issues and potentially suicide, and adversely affect life opportunities across the economic, social and cultural domains.

I set out this admittedly anecdotal and random snapshot merely to illustrate the overwhelming magnitude of the challenges facing many individuals and the concomitant complexity of the policy challenge which aims to remediate or reverse disadvantage.

One of the consequences of deep seated individual and societal disadvantage is that many individuals breach social and cultural norms, and end up in the justice system. The extent of that problem is enormous, particularly in remote Australia.

An April 2016 post on the Parliamentary Library blog Flag Post (link here), assessing progress over the 25 years since the landmark Royal Commission into Aboriginal Deaths in Custody, reported mixed results: in those 25 years, the absolute numbers of Indigenous deaths in custody were less than the 1991 benchmark in only one year. Encouragingly, rates of Indigenous deaths in custody had declined by more than half, from a high of around 0.45 per 100 prisoners in some years to around 0.1 per 100 prisoners in the most recent statistics, a rate which was below the non-Indigenous rate. This suggests that determined policy action backed by political will is able to make a positive difference.

Yet while rates of indigenous deaths in custody have declined, rates of Indigenous incarceration have increased. In fact, the Parliamentary Library cites data indicating Indigenous prisoners as a proportion of the overall prison population have doubled since the Royal Commission from14 percent to 28 percent of all prisoners.

Under the heading ‘What next?’ the Parliamentary Library concluded with the following assessment:

In the wake of this dramatic increase in incarceration, some have argued that the recommendations of the Royal Commission, particularly on prosecution for minor offences and steps to Indigenous self-determination, were never adequately implemented. Others argue that the Royal Commission did not correctly prioritise the causes of high crime and therefore incarceration rates: substance (abuse, and childhood deprivation, abuse and neglect. The Change the Record Coalition, the Australian Medical Association, the Australian Red Cross, and Save the Children agree that alcohol and drug abuse and poor childhood outcomes are driving Indigenous incarceration, and Indigenous-led programs practicing ‘justice reinvestment’ are needed.

Many stakeholders have called for a new Closing the Gap target to be created for incarceration rates. Introduction of a ‘justice target’ was a recommendation of the 2011 House of Representatives Committee inquiry Doing Time - Time For Doing: Indigenous youth in the criminal justice system. In 2013 setting this target was part of the ALP’s Federal Election Indigenous policy. Minister for Indigenous Affairs Nigel Scullion stated in 2014 that the Government would prioritise acting on Indigenous incarceration through the existing Closing the Gap targets.

A recent May 2017 report by PwC and four partners titled Indigenous incarceration: Unlock the facts (link here, also available at www.pwc.com.au) outlines in a highly accessible format the extraordinary levels of over-representation of Indigenous Australians in prison. The report notes that Indigenous men are imprisoned at 11 times the rate of the general male population; Indigenous women at 15 times the rate of the general female population; and Indigenous youth are imprisoned at 25 times the rate of non-Indigenous youth. In remote regions such as the Kimberley, Indigenous people are 40 times more likely to be incarcerated than the non-Indigenous population (Kimberley Development Commission Regional Investment Blueprint p 40: link here).

The PwC report helpfully identifies and discusses the key drivers of Indigenous incarceration, estimates the substantial cost to the Australian economy of Indigenous incarceration ($8bn) and thus the potential reform dividend available if reform is successful.

Finally, the report goes on to recommend a reform approach involving a suite of five broad policy components which they argue are essential for lasting reform. The five components are:

1.    Self-determination;

2.    System reform;

3.    Law reform;

4.    Increased community awareness; and

5.    Specific initiatives and programmatic responses, particularly Indigenous controlled and led.

It was at this point that I baulked. Reform in complex policy areas requires more than the identification of the problem, and more than an implicit diagnosis of causality. The Parliamentary Library identified a range of diagnoses (albeit embedded in the links to their final paragraphs). But unsurprisingly they stopped short of advocating specific policy interventions. The PwC report, in listing the five elements of lasting reform, implicitly merges their diagnoses with policy prescription: a lack of community ownership and control of policy responses; the continuing persistence of deepseated disadvantage, unspecified reforms to laws; a lack of community support for reform, and an absence or continuing need for specific programs. As policy prescription, this essentially amounts to an exercise in tautology.

PwC do however use the continuing existence of disadvantage to promote one specific policy initiative, the introduction of a ‘justice target as part of the Closing the Gap targets.

The advantage of such a target would be that it would focus policymakers’ attention, both in Canberra and the states and territories, on the issue of Indigenous incarceration and incentivise them to explore a wide suite of initiatives, large and small, which would hopefully drive changes to reduce the rate and levels of incarceration.

The reality is that where policy challenges are characterised by complex causality, it is most often the case that no single initiative or intervention will of itself be decisive in driving positive change. Moreover, policymakers act within contexts and environments which are constrained: by policy capability, by politics, by resources, and so on. The real world policy challenge is to design a set of incentive structures which encourage policymakers across jurisdictions, and at all levels within jurisdictions, to work on a sustained basis toward the desired outcome.

One such innovation was reported on in The Australian last week: ‘Home detention to keep indigenous offenders out of jail’ (link here). While not a panacea, it seems clear that greater use of home detention and community corrections orders offers many advantages apart from the obvious metric of keeping individuals out of prison. The Victorian Auditor General (link here) recently identified significant cost savings from the use of community corrections orders, along with reduced recidivism rates compared to prisoners. He was however also critical of the levels of support which were allocated to supporting community corrections orders, suggesting that implementing such a policy is not necessarily simple.

There will be many other similar opportunities, large and small, across the nation which could assist in lowering Indigenous incarceration rates. Perhaps an innovative policymaker in the NT will devise a way to reduce juvenile hearing loss in an effort to address a key precursor to youth offending!

A new justice target in the Closing the Gap targets would appear on its face to assist in driving desired policy innovation and reform. Of course, the target needs to be well crafted and able to be measured clearly, and needs to be ambitious enough to drive sustained action.

There are strong indications that the Government is prepared to reverse its previous antipathy and consider such a justice target as part of the current review by COAG of the Closing the Gap targets. See this ABC story from March this year (link here).

The ongoing failure to gain traction in what are in most cases relatively modest aspirations appear to have caused a rethink of the current Closing the Gap targets. COAG at its June 2017 meeting (link here) noted:

COAG leaders welcomed the work to refresh the Closing the Gap agenda, focussing on a strength-based approach that supports Indigenous advancement, working in partnership with Aboriginal and Torres Strait Islander peoples. This work will inform efforts to develop a refreshed agenda and targets over the remainder of 2017, implementation principles, as well as advice to COAG’s second meeting of 2017 on an approach for the next phase of Closing the Gap.

A refreshed set of targets would open an opportunity to strengthen the whole of government focus on Indigenous incarceration.

If policymakers responding to a national target design interventions which incentivise the police, the courts, and indeed the community appropriately, there is a prospect that solutions to the crisis in Indigenous incarceration might emerge over time, and progressively reduce the ‘sorrows’ embedded in the current policy settings. That would be a good outcome.