Politics drives policy: the slow motion remote housing disaster

Your bait of falsehood takes this carp of truth;

And thus do we of wisdom and of reach,…

By indirections find directions out.

Hamlet Act 2, scene 1.

It is a common aphorism in political and policy circles that good policy is good politics (link here). It’s a rather novel approach, usually honoured in the breach rather than in practice. For those keen to look below the surface, events more often appear to raise the interesting question of whether bad policy is bad politics. The answer appears to be it depends what you can get away with.

Consider the Government’s approach to remote housing, an issue which informed and objective commentators would unanimously agree is an important issue in addressing the extreme disadvantage which permeates the hundreds of remote Indigenous communities across the outback.

I have previously dealt with the policy issues in a number of posts (link here, here and here). This post will simultaneously attempt to do two things: to provide an update of more recent developments since 20 December 2017, and to place them into the political context which best explains what is happening.

Just to recap, in 2008, the Rudd Government persuaded COAG to agree to a National Partnership on Remote Indigenous Housing (NPARIH), which involved the allocation of Commonwealth funding of $5.5bn over ten years to states with remote populations for the construction and refurbishment of housing in remote communities. This was a continuation of Commonwealth funding for remote housing which had been in place since the Commonwealth obtained its concurrent responsibility for Indigenous affairs in the 1967 referendum.

The National Partnership represented a major increase in previous funding for remote housing, but did not and would not meet the totality of outstanding need. The intention in adopting a ten year timeframe was to provide certainty for state and territory capital investment programs, to drive a reform program on land tenure to ensure investments were underpinned by the negotiation of leases which would make clear the responsibility of government housing authorities for ongoing landlord responsibilities, and to facilitate a new model of concentrated capital investment to upgrade housing infrastructure in whole communities (rather than randomly house by house as was formerly the case) and to facilitate Indigenous employment. The program largely met or exceeded its overall targets, and notwithstanding substantial criticism from the then Opposition (led by the current Minister) must be assessed as having made a major positive difference to at least 50,000 remote citizens.

Going forward, there are two obvious potential broad policy criteria we might use to assess the adequacy of the nation’s investment in remote housing. The first, and in my view best, is to assess what is proposed against the outstanding need. A second, and less satisfactory, but more pragmatic approach would be to assess what is proposed against the quantum of previous investment.

Taking the first criterion, my conservative estimate of the outstanding need is that an investment of around $9bn over ten years is required. I laid out the rationale for this figure in my November post The next phase of funding for remote indigenous housing  (link here).

Taking the second criterion, the previous program involved a Commonwealth investment of $5.5bn over ten years, or an average of $550m per annum nationally. Last year the new Labor Government in the NT unilaterally committed an extra $1.1bn over ten years to 2026.

It seems clear however that the Commonwealth has decided on a policy to substantially reduce its funding for remote housing, and along the way upend the national partnership agreement approach which locked in long term funding. Rather than announcing its new policy, and outlining its justification in a transparent and open way, the Government appears to have decided upon a politically driven strategy to avoid responsibility for its policy decisions. The tactics are focussed on creating conflict with the states, and manipulation of media messaging in the hope that by the time what has transpired becomes apparent, the media will decide its old news and adverse publicity will be limited.

A key part of Minister Scullion’s strategy appears to have been to release limited and partial information via informal media interviews rather than in formal correspondence to his state and territory counterparts, or formal policy announcements of the Government’s total investment allocations. This allows him to incrementally move forward without divulging the Government’s overall plan or intentions. This confuses most of the people most of the time (and I have not been immune). So I need to add a caveat that my analysis runs the risk of being incomplete due to the lack of comprehensive information in the public domain.

So let’s look at each of the key steps since around 20 December.

In the week before Christmas, and importantly in the week after MYEFO (which meant the Government was not required to include future funding allocations in its forward estimates projections), the Department’s officers contacted officials in each of the four jurisdictions still part of the National Partnership.  Officials in SA, Qld and WA were told that there would be no further funding for the program on the basis that they should take over responsibility for remote housing. The NT officials were apparently told that the Commonwealth was prepared to contribute funding (though the terms of those discussions are not in the public domain).

The WA Minister for Housing immediately went public (‘Commonwealth abandons remote Australia: axes remote housing deal’) criticising the Commonwealth’s apparent decision to cease all funding (link here). Radio comments by the SA Minister backed up the WA critique, and a subsequent media release dated 21 December criticising the Commonwealth’s decision was released jointly by the three jurisdictions housing ministers (link here). They criticised Minister Scullion for continuing to fund the NT while cutting funding elsewhere. Federal Labor shadow ministers Doug Cameron and Patrick Dodson also released a statement (‘Cutting remote housing funding unfair and unjustified’ – link here).

Minister Scullion responded the same day (21 December) with a media release titled “More Labor lies on remote housing’, which he has not placed on his website, but did circulate it to some parties. It is available on the NACCHO website (link here). The media release criticises the state ministers for making ‘misleading and outrageous statements’ and for ‘undermining good faith negotiations between the Commonwealth and state governments about the future of remote housing’.  It goes on to admit that the Commonwealth commenced discussions with [state] officials only yesterday about a future funding contribution to remote Indigenous housing’. The release went on to erroneously suggest that the National Partnership was a ‘one-off’, and to claim (rather bizarrely in my view) that the states had been paid to reduce overcrowding ‘yet they abjectly failed to achieve this – this is why we are once again in negotiations with the states’. If the states had failed to reduce overcrowding, then so too had the Commonwealth. The release goes on to justify the ‘offer of longer term funding’ to the NT on the basis of their funding commitment of $1.1bn over ten years and ‘the severe overcrowding’. The states failed to reduce overcrowding, so their funding is cut. The NT fails to reduce overcrowding, so its funding is continued!

Following Minister Scullion’s release, WA Minister Tinley issued a further media release welcoming the Ministers apparent backflip on the cessation fo Commonwealth funding, but also expressing scepticism regarding its accuracy (‘Scullion ‘phone home’ for Christmas update on remote communities’ - link here)

On 22 December the Australian Healthcare and Hospitals Association released a statement (‘$676 million federal cuts to remote housing will lift already-shocking rheumatic fever rates’) (link here).

One of the confusions which permeate the whole discussion is the lack of specificity about funding. The figure of $776m, which emerged in some press reports possibly quoting the minister, relates (I think) to the balance in the National Partnership for Remote Housing over the last few years. It is not an annual figure, so the actual annual magnitude of the proposed Commonwealth allocation, and hence actual quantum of the cuts remains unclear.

On 8 January 2018, the Chair of NACCHO, representing 143 community controlled health organisations across the country issued a statement calling on the Government to ‘invest in remote housing’ (link here).

On 9 January an NT News article reported comments by Minister Scullion at Gunbalanya (link here):

In Gunbalanya, Indigenous Affairs Minister Nigel Scullion announced the Federal Government would kick in $1.1 billion into remote housing in the NT. A separate $776 million commitment by the federal government to the National Partnership Agreement on Remote Housing has meanwhile been slashed to just $100 million and only for homes within the NT…

…Mr Scullion said other jurisdictions should follow the NT’s lead in pledging significant cash if they expected Federal Government money.

In response to criticism from WA Housing Minister Peter Tinley, who accused the Turnbull government of turning its back on Aboriginal Australians through the NPRAH cuts, Mr Scullion said WA was having “a bit of a whinge”.

Senator Scullion said the WA government hasn’t pledged any cash so far. “Show me the money, as they say, West Australia,” he said.

On 10 January the NT Housing Minister welcomed the Commonwealth’s funding for remote housing (link here), and indicated he looked forward to meeting with the Minister in coming weeks to finalise the details.

On 11 January, the NT News reported that Minister Scullion is backing away from his comments in Gunbalanya (‘Federal Government backtrack on remote housing pledge’) (link here). The reports states:

INDIGENOUS Affairs [Minister] Nigel Scullion has backed away from his claim that the Federal Government would match the Territory’s $1.1 billion investment in remote housing across 10 years.

Speaking in Gunbalanya on Tuesday, Mr Scullion praised the NT Government for having the “gumption to put money on the table” in remote housing.

“And we’ll be matching that money, significant funds. They’ve put over $1.1 billion on the table and that’s why we’re having a conversation with the Northern Territory,” he said.

Mr Scullion said remote housing was a “shared responsibility”. But Mr Scullion’s office yesterday backed away from the commitment, and said no formal agreement had been reached.

The NT Government are quoted as expressing concern that the Minister’s reported pledge may not hold.

So what’s going on here?

It seems incontrovertible that the Commonwealth Minister is indulging in a deliberate process designed to both sow confusion and lower expectations of Commonwealth responsibility and investment.

The debate is being framed explicitly as one about jurisdictional responsibility for remote housing. Of course it would be desirable to see the states increase their investment in remote housing, but traditionally it has been the Commonwealth which has been the major funder in this space (notwithstanding the assertions of Minister Scullion and his officials). A debate framed around good policy would be focussed on maximising the quantum of resources for remote housing allocated by both the Commonwealth and the states, and a Minister focussed on such a policy framework would have convened a meeting with the his/her counterparts in the relevant jurisdictions and engaged in a constructive discussion. Instead, Minister Scullion has left negotiations to the very last moment, and then initiated a shouting match over who is responsible for the remote housing function.

A policy of unilateral withdrawal within six months of the expiry of a major Commonwealth-State Partnership Agreement will inevitably lead to a significant hiatus in investment across the sector in construction, refurbishments, and potentially worst of all, in ongoing routine maintenance. The Commonwealth strategy is placing at risk the effectiveness of the bulk of its investment in remote housing assets over the past decade or more.

Moreover, as Minister Scullion’s 21 December statement notes, while the states have primary responsibility for delivering social housing, the Commonwealth is a major funder both through the states themselves to the tune of around $1.5bn pa and most significantly to the tune of around $4.5bn pa through Commonwealth rent assistance. The structural problem however is that there is no private rental market in remote Australia, so the nation’s largest social housing program funded entirely by the Commonwealth is not available to remote residents. The current Commonwealth investment of $550m / year should be seen as a notional replacement program for the lack of access by remote residents to Commonwealth rent assistance which is a needs based program.

The views of the Indigenous Advisory Council appear to carry little weight. Their communique of 15-16 August 2017 noted (link here ): 

 Indigenous Housing: Acknowledged reductions in overcrowding as a result of investment over the past 10 years. Discussed the importance of ongoing investment in Indigenous Housing and the engagement and commitment from states and territories to address new housing, refurbishments, maintenance and tenancy management matters. The importance of engagement of the local community in housing design, decision making and developing sustainable employment and business opportunities was also raised. Members emphasised the importance of adequate remote housing as a pre-requisite for social outcomes.

The bottom line here is that the Minister is being too smart by half. He has failed to persuade Cabinet to renew the remote housing program, and decided on a tawdry political tactic of creating a blue with the states to cover for his own policy failure and lack of coherent policy justification.

The implications of this politicised and second rate Commonwealth strategy are disastrous.

First, he has micromanaged the information flow on this issue from the start: from his involvement (admitted by officials in the last estimates hearings) in shaping the supposedly independent review of remote housing, and his ultimate responsibility for allowing a fundamentally inadequate analysis to be placed into the public domain (link here), the delays in publishing the review, the delays in answering questions on notice from the most recent Estimates hearings (link here – they are still not available!) and the irresponsible and unwarranted delay in initiating negotiations with the states and the NT, through to his reluctance to even publish his media statements on his website where they can be independent scrutinised.

Second, Indigenous people will be the losers. Reduced investment in remote housing will deepen disadvantage, will add to health issues such as rheumatic fever (and by the way add to taxpayers liabilities via Commonwealth health funding), will shorten Indigenous lifespans and quality of life for many thousands of remote residents, will add to dysfunction in remote locations, will impact negatively on employment opportunities, and will make getting kids to school harder. It won’t make closing the gap easier either, notwithstanding the apparently cynical strategy of ‘refreshing’ the metrics (link here) to make the failure of government less obvious.

Whether ‘bad policy is bad politics’ is unclear. The bottom line is that despite all the Government’s rhetoric, when it comes down to tin tacks on difficult budget allocation decisions to fund support for Indigenous citizens, the government will do what it can get away with. So called state responsibilities ostensibly matter in remote housing, but not in school attendance (link here); the views of the Indigenous Advisory Council count for little; the Department appears too ready to provide ‘soft’ advice; and despite the Indigenous portfolio being in the Prime Minister’s portfolio, neither the Prime Minister nor his Minister for Indigenous Affairs have any apparent interest in pursuing good policy outcomes for the most disadvantaged Australians.

Taking the two core policy criteria identified earlier, it is clear there is no policy focus on future housing need across remote Australia. And there is no apparent concern about cutting crucial investment in basic social infrastructure. All the Government appears interested in is avoiding responsibility for its policy decisions.

It might work as a political strategy in the short term, but longer term, it will build disenchantment amongst Indigenous citizens as to the sincerity and trustworthiness of all governments. It will not only slow the gradual accretion of remote housing assets, but will likely undermine the effective life span and thus the effectiveness of the considerable past investments in social housing. And most importantly it will seriously constrain the life opportunities of many thousands of remote Indigenous residents, and further reverse progress on closing the gap.

South of My Days

I came across an article this morning (link here) which noted that Judith Wright had been one of five women amongst seventy writers considered for the 1967 Nobel Prize for Literature.

Wright (link here) like me came from New England and I share her love of the New England bush. She was a great Australian, an extraordinary poet, a lifelong social and environmental activist, and a strong supporter of Indigenous rights, joining Nugget Coombs and Stewart Harris as members of the Aboriginal Treaty Committee. Their 1985 book We call for a Treaty is just one indicator of their prescience in relation to Indigenous social justice.

She wrote some wonderfully evocative poems about the Australian bush and its central relationship to our identity as Australians, a relationship which is arguably undergoing inexorable change. She also wrote a number of poems such a Bora Ring and Nigger’s Leap about Indigenous Australian’s and their treatment at the hands of settles (which included Wright’s own family).

I thought I would honour her memory at the start of the year by reproducing here two of her poems: the very well-known South of My Days and the shorter and more amusing poem Magpies.

South of My Days

South of my days' circle, part of my blood's country,
rises that tableland, high delicate outline
of bony slopes wincing under the winter,
low trees, blue-leaved and olive, outcropping granite-
clean, lean, hungry country. The creek's leaf-silenced,
willow choked, the slope a tangle of medlar and crabapple
branching over and under, blotched with a green lichen;
and the old cottage lurches in for shelter.

O cold the black-frost night. The walls draw in to the warmth
and the old roof cracks its joints; the slung kettle
hisses a leak on the fire. Hardly to be believed that summer will turn up again some day in a wave of rambler-roses,
thrust it's hot face in here to tell another yarn-
a story old Dan can spin into a blanket against the winter.
Seventy years of stories he clutches round his bones.
Seventy years are hived in him like old honey.

Droving that year, Charleville to the Hunter,
nineteen-one it was, and the drought beginning;
sixty head left at the McIntyre, the mud round them
hardened like iron; and the yellow boy died
in the sulky ahead with the gear, but the horse went on,
stopped at Sandy Camp and waited in the evening.
It was the flies we seen first, swarming like bees.
Came to the Hunter, three hundred head of a thousand-
cruel to keep them alive - and the river was dust.

Or mustering up in the Bogongs in the autumn
when the blizzards came early. Brought them down; we
brought them down, what aren't there yet. Or driving for Cobb's on the run
up from Tamworth-Thunderbolt at the top of Hungry Hill,
and I give him a wink. I wouldn't wait long, Fred,
not if I was you. The troopers are just behind,
coming for that job at the Hillgrove. He went like a luny, him on his big black horse.

Oh, they slide and they vanish
as he shuffles the years like a pack of conjuror's cards.
True or not, it's all the same; and the frost on the roof
cracks like a whip, and the back-log break into ash.
Wake, old man. This is winter, and the yarns are over.
No-one is listening
South of my days' circle
I know it dark against the stars, the high lean country
full of old stories that still go walking in my sleep. 

Magpies

Along the road the magpies walk
with hands in pockets, left and right.
They tilt their heads, and stroll and talk.
In their well-fitted black and white.

They look like certain gentlemen 
who seem most nonchalant and wise
until their meal is served - and then
what clashing beaks, what greedy eyes!

But not one man that I have heard 
throws back his head in such a song
of grace and praise - no man nor bird. 
Their greed is brief; their joy is long.
For each is born with such a throat 
as thanks his God with every note. 

Social determinants of health….or structural determinants of poor policy

In March 2017, the Minister for Health, Ken Wyatt announced a new online public consultation portal, with the rather obtuse tag My Life My Lead, to facilitate consultations on the social determinations of health to support the next iteration of the implementation plan for the National Aboriginal and Torres Strait Islander Health Plan 2013-23 (link here).  The Minister’s media release included the following paragraph:

We will use feedback from the consultation portal to consider factors that impact on the social determinants of health like education, employment, justice, income and housing, as well as the important role cultural determinants play in supporting better health outcomes.

On 21 December 2017, the Minister released the report of the consultations undertaken since March (link here).

Seven priority areas have been identified in My Life My Lead, which will be integral to the next iteration of the Implementation Plan for the National Aboriginal and Torres Strait Islander Health Plan. It will also help inform our Closing the Gap refresh agenda,” Minister Wyatt said.

The seven priorities are: 1. Culture at the centre of change 2. Success and wellbeing for health through employment 3. Foundations for a healthy life 4. Environmental health 5. Healthy living and strong communities 6. Health service access 7. Health and opportunity through education.

The full title of the report is:

My Life My Lead - Opportunities for strengthening approaches to the social determinants and cultural determinants of Indigenous health: Report on the national consultations December 2017.

The report is a useful addition to the policy dialogue on Indigenous affairs, and as the Minister noted, should be a useful contribution to the Closing the Gap refresh exercise currently underway. The Ministers reference to a ‘refresh agenda’ in his media release rather than a more neutral term was perhaps unwise, but let’s give him the benefit of the doubt on terminology.

The report is well written and succinctly lays out key data points on social determinants of health within a simple yet effective framework. The authors have done a good job in this respect, and this makes the report worth reading. Here is the link to the full report.

However, the substantive concern emerging from the report in my view is the complete disjunction between the title: ‘opportunities for strengthening approaches to the social determinants and cultural determinants of Indigenous health’, and the sections of the report on ‘next steps’ which are invariably drafted in vague or obtuse bureaucratese, designed to sound positive, but to make no commitments whatsoever (notwithstanding the heading ‘next steps’).

I refer interested readers to the first paragraph under the heading ‘What makes this approach different?’ on page 7, and point out that there is absolutely no indication of how the government intends to implement this new ‘approach’ to the social determinants of health.  Or to take up a particular hobby horse of mine, on Indigenous housing, the report spends just three paragraphs on this issue (in the section on Priority Four: Environmental Health). I reproduce the text in full below:

A lack of adequate and functional housing and overcrowding also remains a significant impediment to improving all aspects of Aboriginal and Torres Strait Islander health. In 2014-15, around one quarter of dwellings in which Aboriginal and Torres Strait Islander people resided had major structural problems.

Furthermore, in remote areas, one in six households did not have working facilities for preparing food and 15 per cent did not have facilities for washing clothes and bedding— double the rate of non-remote areas.

Despite only making up three per cent of the Australian population, one in four clients of specialist homelessness services (24 per cent) in 2015-16 were Aboriginal or Torres Strait Islander. In addition, homelessness, inadequate housing and overcrowded housing have the potential to contribute to higher rates of Aboriginal and Torres Strait Islander people in incarceration, further exacerbating the cycle of disadvantage. (page 17)

The points made are on point, but hardly comprehensive. The relevant section on Next Steps states:

Addressing the underlying environmental health conditions that contribute to poor health outcomes in many Aboriginal and Torres Strait Islander communities will lead to long term improved health, education and employment outcomes and can be achieved by:

·         Supporting safe and secure housing;

·         A national approach to environmental health; and

·         Increasing the Aboriginal and Torres Strait Islander environmental health workforce. (page 19)

There is no indication whatsoever as to how the Government intends to address the three potential actions above, and indeed, each of the identified actions are intermediate steps which if they were to be implemented may or may not be successful depending on policy design, resources, implementation capability, coordination and collaboration, and policy commitment.

In relation to housing, supporting safe and secure housing is a no brainer. Yet there is every indication (link here) that the Government is pursuing a retrograde policy of reducing support for safe and secure housing in remote regions where disadvantage is most severe.

My Life My Lead outlines succinctly in 34 pages and 62 footnotes what we already knew. Yet it provides no substantive indication about how the Government intends to address the reality that the determinants of health outcomes are in very large measure to be found in areas outside the health domain, and worse, ignores entirely the reality that government support for those external determinants of poor health are inadequate or being wound back or reduced.

The absence of any attempt to devise a programmatic link between the target problem (in this case health outcomes) and the resources available (budget appropriations) is the major flaw in this exercise in persuading us that the Government is doing something constructive.

A similar flaw already exists in the Closing the Gap construct (link here) and is likely to be regurgitated in the outcomes of the refresh exercise currently underway.

There are two broader observations emanating from this vignette of the Indigenous policy machine at work which are worth making:

First, the effectiveness of government programs and initiatives is more complex than is generally understood, and in particular, program interventions which are aimed at changing behaviour to deliver improved outcomes depend for a large part of their efficacy on the fact that the target population is positively disposed to the intentions and approaches of government. Yet the accumulated experience of disadvantaged citizens, including Indigenous citizens, is that in relation to addressing disadvantage governments are rarely serious, are focussed on rhetoric over substantive action, suffer from endemic attention deficit disorder syndrome, are incapable of sustaining positive engagement, regularly swing toward punitive policies, and are not prepared to enter into real partnerships. In these circumstances, the production of yet another report which is strong on rhetoric but weak on substance just strengthens the cynicism and low expectations disadvantaged citizens have in relation to governments.

Second, Minister Wyatt is an Aboriginal politician with deep experience in the Indigenous health sector and an undoubted commitment to improving the health outcomes of Indigenous citizens. The fact that he oversighted the production and publication of this report is an indicator of just how deep the structural impediments to good policy making are in our public policy system.  

In other words, while the focus on social determinants of poor health and the cultural determinants of improved health are steps in the right direction, it might be time to focus much more attention of the structural and political determinants of poor policy.

Crosscurrents in Native Title: a book review

The notion of crosscurrents as a metaphor for the process of understanding the nature of native title in Australia is apposite.

For Indigenous people, the Native Title Act can be a portal into a long and tortuous process of articulating, clarifying, and resolving complex relationships between people and country, including ‘sea country’; attending meetings to develop claims, interacting with experts of various kinds, including anthropologists, historians, prehistorians, and not least lawyers; giving instructions to representative bodies such as Land Councils or native title representative bodies, and in particular the lawyers engaged by those bodies to advocate the claim; responding to complex tactical issues such as whether to agree to mediation, and if so, on what terms; and giving evidence in court about the individual, family and group relationships to country.

For the legal system, and in particular the Federal Court, the challenges of interpreting complex legislation, new and rapidly developing legal precedents (which change over the course of any one case), mediating or determining the correctness of conflicting and complex arguments between claimants, state and Federal governments, and third parties with potential interests in the claimed lands, all infused with cross cultural challenges and often incomplete or tendentious evidence on all sides.

When one stands back, and looks below the surface as those two sets of ‘currents’ meet in particular locations (which number in their scores if not their hundreds across the continent) it is not surprising that one observes a high degree of ‘turbulence’.

Katie Gaskin’s recent book: Crosscurrents: Law and society in a native title claim to land and sea (UWA Press 2017) examines the turbulent commingling of these two broad currents in one particular case, the Sampi native title claim which covered the northern portion of the Dampier Peninsula north of Broome in the Kimberley, and included a series of islands known as the Buccaneer Archipelago. The archipelago is itself subject to extremely high tides, and strong and dangerous currents and whirlpools. Thus the metaphor for the intersection of law and society in the Sampi native title claim is particularly apposite.

Glaskin’s book, within its chosen parameters, is a tour de force, a riveting narrative of the land claim process, focussing primarily on the interplay between legal process, requirements, and shifting precedent and the ethnographic evidence of the key Bardi and Jawi informants. Glaskin deftly lays out the historical context for the claim, and in particular for the area subject to most dispute, the land and sea which makes up the archipelago, including the role of missionaries, various individuals involved in trade and commerce based on trochus or pearls, government officers of various kinds and the Indigenous peoples whose ancestors resided in the claim area for some thirty thousand years. She goes on to recount the long and winding pathway from the initial research for the claim which began in 1994, its lodgement in 1995 with the Native Title Tribunal and subsequent referral to the Federal Court, three trial hearings through to its final determination by a decision of the Full Federal Court delivered in March 2010. Throughout, the focus is on the interplay between the ethnographic narrative argued by the claimants and the way in which the legal process (and the narrative articulated by the various parties involved including two governments and commercial fishing interests) interacted to shape both the issues which became salient and required resolution and determination in Australian law and social relations within the claimant communities.

Glaskin who was involved throughout and took a close interest in the process recounts these events very much as a neutral participant observer, avoiding taking sides, and leaving judgements at key points to the reader to assess and determine. Nevertheless, the narrative presented clearly demonstrates the ethical and moral strength of the claimants’ aspirations, and the arcane and rather mechanistic processes of the law and lawyers, constrained as they are by legislation and the long and largely successful culture of the common law.

In particular, while the law’s processes are clearly designed to symbolically reinforce the message that laws have primacy over men and women, these legal processes struggle to retain their credibility as their role in determining the ongoing existence or non-existence of native title is shown by the material Glaskin assembles to be simultaneously impacting Aboriginal people’s core ontological assumptions about themselves and their social communities.

While the final outcome of the native title claim is largely positive, the social costs involved in ‘recognising’ peoples existing and continuing native title rights are shown to have been enormous, albeit they are intangible and impossible to measure either within western ways of thinking or across cultures.

I stated that the book is a tour de force for a number of reasons.

First, Glaskin amasses, synthesises and expounds an extraordinary amount of complex and demanding material across the disciplines of prehistory, history, linguistics, anthropology, Bardi and Jawi ethnography, Australian law and to a lesser extent policy and politics.

Second, because Glaskin’s narrative has forced me to ask myself important new questions which I had been prepared to avoid or gloss over. In particular, is the judicial, policy and most importantly political consensus that native title claimants should be required to ‘prove’ connection to their country not just in the present but continuously from the date of the assertion of Crown sovereignty the equitable and morally justified benchmark I had previously accepted it as being?

Glaskin is at pains to make clear in her Preface what she is not attempting to cover. This is her prerogative, and it is not a criticism to raise issues which fall outside her self-imposed remit. However, her narrative raised two further issues for me which are I think important for the future of native title. The fact that her book manages to raise these sorts of issues for an engaged reader is further proof of its value.

The first relates to a matter which Glaskin appears to tip-toe around. It relates to a change of legal advisers and legal tactics within the Kimberley Land Council between the first and second trial in the Sampi litigation. The second trial before a new trial judge, Justice French arose because the initial trial judge fell ill and could not continue. During the interregnum, the High Court had handed down its decision Yorta Yorta, which resulted in a new focus on the continuity of Aboriginal ‘society’. The KLC reframed its argument around the relationship of the two groups who had brought the Sampi claim, the Bardi and Jawi, and it seems sailed close to the wind in terms of the anthropological evidence. The two anthropologists working on the claimants’ case wrote to the KLC to express their concerns, though Glaskin does not recount the elements of their concern or complaint.

The more general issue raised by this issue or event relates to the privileged and extremely complex role of Land Councils and Native Title Representative Bodies in representing native title groups in litigation and commercial negotiations. This privileged role is one that I support since facilitating unregulated access to this ‘market’ by commercial or private sector advisers is potentially fraught and involves increased risks of fraud, Transparency International recently issues a report in which they identified this risk (link here).  However, a concomitant of providing Land Councils and rep bodies with a privileged advisory role is that these bodies need to ensure they are fully accountable to both their constituents, the claimants they represent in particular cases, and the broader public given that they are funded with taxpayer dollars.

This issue is a sleeper as I am aware of a number of land councils and rep bodies with problematic governance and accountability practices and arrangements. Ultimately, it is governments and ministers who oversee the funding and regulation of these bodies, and it is they who should be held ultimately accountable for failure. Unfortunately, the real world experience of indigenous affairs policy is that the failure of poorly oversighted and regulated organisations is almost always seen by the public as an ‘Indigenous problem’. And the more fundamental risk is that the privileged position of rep bodies and land councils will eventually be undermined, a result which I consider to be sub-optimal.

In the Sampi case, it appears that there were no or limited reasons given for the change of approach by the Land Council, and it is not clear what levels of legal assurance were undertaken by the Land Council in adopting a revised approach. For example, did they seek Senior Counsel’s opinion, and did they take informed instructions from the claimants in relation to the new approach?

While Glaskin does not say this, it seems to this reader of her detailed narrative that the Land Council’s changed tactical approach played a significant role in the claimants’ initial loss in relation to the offshore islands in the archipelago. The consequences for Jawi interests in particular might have been much worse were it not for the Full Court later decision to overturn Justice French’s decision.

A second issue, again which is not highlighted by Glaskin, but merely hinted at relates to the decision by both the Western Australian and Commonwealth Governments to oppose the claim, in particular the claims to offshore lands and seas. This opposition was a prime reason for the failure of mediation, and thus for the length of the litigation, and the social costs inflicted on claimants I referred to earlier. Of course, subsequent cases (Yarmirr in 2001; Akiba in 2010) have found that native title can exist offshore, thus demonstrating retrospectively the wasted opportunities derived from the government actions. Glaskin notes that notwithstanding the sustained opposition to the claim by the Commonwealth, following its resolution, the Environment Department sponsored the declaration of an Indigenous Protected Area over the claim area which was justified explicitly on arguments the Commonwealth had used to oppose the claim. Refer pages 220-1 of the book. Ironies abound!

More generally, despite regular media statements celebrating the award of native title, both state and federal governments have over the past two decades routinely adopted legal arguments and positions which are designed to limit the extent and nature of determined native title. From time to time, these arguments are adopted for reasons which relate to legal policy issues outside the native title realm.

As a general rule, there is almost no transparency or public coverage of the arguments adopted by governments in native title litigation. While the information is theoretically public (as all court proceedings occur in public) there is no way a concerned member of the public can easily monitor what is going on. Similar to the argument for greater transparency from land councils and rep bodies, governments have a responsibility to be open about the positions they adopt, the reasons behind their positions, and to facilitate greater transparency. Such transparency would generally lead to better policy outcomes. It is unfortunate that the short-sighted focus of policymakers on politics over policy leads to these sorts of sub-optimal outcomes for Australia as a whole.  Indigenous advocacy groups might usefully seek to routinely monitor the legal positions of governments in ongoing litigation and publicise it as necessary.

To sum up, this is an extraordinarily stimulating book. It presents its key arguments via an engaging narrative of a single native title claim. It raises issues of substantive policy and societal importance. Crosscurrents will attract a readership primarily in anthropological and perhaps legal circles. I would encourage all those involved in public policy relating to Indigenous affairs, and indeed all those engaged citizens who merely wish to gain a better understanding of the Indigenous policymaking maze, to consider reading the book as it provides important insights into how mainstream society’s institutions interact with Indigenous Australians.

Addressing the ‘turbulence’ created by the commingling and intersecting ‘currents’ of Indigenous and mainstream ‘ways of being’ will be an ongoing challenge for Australian policymakers for decades to come. Katie Glaskin has offered us a rare insight into how this turbulence plays out within Indigenous citizens’ families, groups and the broader Indigenous community, and almost by the way, into why there are never simple solutions to complex problems. 

Pious Action: the Closing the Gap Refresh

               With devotion’s visage

And pious action we do sugar o’er

The devil himself.

Hamlet Act 3, Scene 1

The Government has launched a public consultation process related to the projected refresh of the Closing the Gap targets adopted by COAG in 2008. A new web site (link here) provides access to relevant background resource materials, and invites submissions which are due by 31 March 2018.

The webpage provides access to a Discussion Paper (link here) and outlines a proposed framework built around the notion of ‘prosperity’ which identifies four components: economic, individual, community, environment (link here). This framework is implicitly contrasted with the existing framework which is allegedly deficit based, and thus fails to acknowledge adequately the success and achievements of First Australians.

The current targets were always designed to be milestones along a longer pathway:  the mortality target is aimed at 2031, and the education and employment targets are aimed at halving, not entirely closing, the gap in those particular metrics. The Closing the Gap targets thus implicitly recognised that achieving structural equality between Indigenous and non-Indigenous Australians would be a long term process.

Notwithstanding the attempt to make the targets realistic and long term, Australian governments have been unable to meet the targets originally set. The Discussion Paper admits that of the seven high level targets, only one is on track.

The adoption and utilisation of targets as a policy tool is not entirely straightforward. By definition it focusses attention on a select number of measureable criteria. It runs the risk that governments will focus on these to the exclusion of other important issues. And to the extent that the targets are poorly specified it can allow governments to claim success where it is not warranted, or lead to resource misallocations which might not otherwise occur.

On the other hand, the case for targets is that it creates a specific focus on issues which are for one reason or another considered to be important and deserving of explicit attention or which might otherwise be neglected. Targets can assist governments to sustain policy attention on issues beyond the normal electoral and policy attention spans determined by legislated electoral terms, and/or the tenure of particular ministers or governments. This has been particularly the case with the Closing the Gap process as the requirement for the Prime Minister to publish a progress report at the start of each Parliamentary year has meant that the high level issue of continuing Indigenous disadvantage has received significant attention above and beyond what would have occurred without the targets. The symbolic importance of this Prime Ministerial involvement has been particularly significant.

The Closing the Gap process has always had its critics, with some commentators arguing that it was effectively based on assimilationist assumptions that all Indigenous citizens aspired to be like most other Australians. One can argue that such assumptions underpin much government policy in the Indigenous affairs domain. In my view, an alternative interpretation is that driving for longer Indigenous lifespans, improved health, educational and employment outcomes is fundamentally ‘choice enhancing’ policy. Longer lifespans, better education, improved health, and employment all enhance Indigenous choices. The radical critique of Closing the Gap as inherently assimilationist is in my view difficult to sustain.

However a second critique, with much more force, is that the Closing the Gap framework suffers from a serious flaw, namely that there is no explicit program logic which links the design and delivery of specific program interventions to particular targets. Instead, the Closing the Gap targets are unattached to particular program activities, and it was always unclear which levels of government were responsible for progress against particular targets. That said, governments are able to make informed decisions when considering particular programs and their funding allocations linked to the annual progress on particular targets. Thus education initiatives aimed at improving outcomes are no doubt informed by the metrics associated with the relevant Closing the Gap framework, and similarly for some other targets. But to maximise the effectiveness of targets, something more than a loose connection between programs and outcomes is required.

There is thus clearly a case for strengthening the effectiveness of the current Closing the Gap framework. Unfortunately, the current refresh proposals appear designed to weaken the framework, not strengthen it.

Minister Scullion in his media release (link here) announcing the refresh discussion paper merely asserts that a refreshed process will lead to better outcomes:

However, it is clear that the Closing the Gap agenda can be better designed and more effectively delivered. This is a view shared among Aboriginal and Torres Strait Islander people, governments and the broader community.

In 2008, the original Closing the Gap targets were developed without consultation from Indigenous Australians and without the direct involvement of state and territory governments – which meant targets were not as effective or as well directed as they should have been.

Apart from the fact that he is prejudging the consultation process, he offers no evidence for these assertions, and only his point about consultation with Indigenous Australians is unequivocally correct. He then goes on to state:

A new approach to Closing the Gap must value the aspirations, strengths and successes of First Australians. Importantly, it must be built on meaningful conversations with Aboriginal and Torres Strait Islander Australians.

New Closing the Gap targets will drive better outcomes for Indigenous communities because, for the first time, state and territory governments will establish targets in areas for which they are responsible and all targets will be designed to drive change, with specific action plans to support targets.

The problem with this argument is that the Minister is conflating the Closing the Gap targets with the policies which underpin it. It is the policies which ought to be built on meaningful engagement. The gaps implicit in each target will continue to exist whether or not there is a target, and these gaps cannot be fixed by focussing on Indigenous strengths (important as such a focus is). And shifting policy focus and responsibilities to state and territory governments is, in my humble opinion, a recipe for non-delivery and non-accountability. The Minister’s proposals provide no indication that either COAG or the Commonwealth itself will hold governments to account for lack of progress against the targets. The current Government has overseen the dismantlement of the COAG reform council which monitored progress against COAG targets across the board, replacing it with a ‘dashboard’ and a suggestion that the Department of Prime Minister and Cabinet would have ‘interim responsibility’ for monitoring the performance of governments (link here).

If the Government wished to focus on Indigenous aspirations and strengths, there is nothing to stop it establishing a policy framework, resourcing it, and pursuing it enthusiastically. But using this rationale as a cover for dismantling the Closing the Gap framework, is in my view not only retrograde, but involves an attempt at deliberate policy deception.

To cut to the chase, the Closing the Gap process is an embarrassment for the Federal Government. It provides regular and tangible evidence the Government’s Indigenous affairs policies are not working; that its policy rhetoric is not aligned with the reality of its actions on the ground; and that Indigenous citizens, particularly in remote regions, remain severely disadvantaged in comparison to most other Australians.

Instead of re-evaluating its underlying policy settings (including funding allocations), the Government appears to have decided that it is better to shift the goalposts. It would prefer to muddy the policy waters rather than improve its own performance.

There may well be a case for ‘refreshing’ particular targets, and there is a case for strengthening the link between the Closing the Gap framework and the underlying programs. However the Government’s proposed consultations are based around an extremely vague and rhetorically slanted discussion paper, with no indication of the sorts of targets it is considering, no commitment to providing information on the specific feedback it is receiving in the consultations to date, no recognition that there needs to be a stronger link between targets and programs, and no acknowledgment that the independent oversight arrangements for COAG activities has been abolished.

The bottom line is that at its core, Closing the Gap is not about the Indigenous community, but is about the commitment of the wider Australian community to support policies which remove structural disadvantage.

Rather than leading a national debate on removing structural disadvantage, and supporting policies which would facilitate such outcomes, the Government appears to be pursuing a policy of focussing on the rhetorical aspiration of ‘prosperity’ (who can object to that?), and shifting the policy focus from the Commonwealth Government to the states.

Add to this a sustained attempt to argue that the problem of continuing Indigenous disadvantage is largely down to a lack of good program evaluation and lack of access to Indigenous data by Indigenous citizens (links here, here and here) and the strategy confection is complete.

The deeply cynical strategy appears to be to direct the spotlight onto the legitimate aspirations of Indigenous citizens for their successes and achievements to be recognised while using the shadows outside of the glare of the spotlight to mischievously shift the Closing the Gap goalposts to avoid the necessity to make substantive policy and program commitments (like resourcing remote housing: link here) which will underpin and drive improved Indigenous life opportunities. 

Three strikes and you’re…..

The Commonwealth decision on remote housing

In a number of posts over the past seven weeks, I have discussed the way the Commonwealth was positioning itself in relation to an announcement on the future of the National Partnership on Remote Housing. Just two days ago in a post on MYEFO, I commented on the likelihood the Minister would deliver an acceptable remote housing program for Indigenous remote citizens, and noted: ‘whether he has the capability or intrinsic motivation to ensure something substantive is done about it will become clear over the coming six months’. Little did I know that the question would be answered within two days, and on both counts, it appears to be a resounding ‘no’.

Information emanating from both South Australia and Western Australia indicates Commonwealth officials have informed the state governments of WA, SA and Queensland that Cabinet has decided to cease any funding for remote social housing from July 2018 when the current National Partnership ceases. The fourth jurisdiction currently part of the National Partnership, the NT, is apparently going to continue to receive funding, though it is as yet unclear at what level and over what terms.

The West Australian Minister for Housing has issued a media release on the matter (link here) and the South Australian social housing minister has made public comments critical of the decision.

This decision will be a disaster for remote Indigenous citizens, will place at risk the current asset stock of housing in remote communities, will effectively waste the previous Commonwealth investment in remote housing as housing asset lifespans are reduced, will exacerbate the demographic shift from smaller remote communities to larger towns, placing further pressure on the states’ mainstream social housing systems, and other social support structures.

Questions which remain to be answered include what is the rationale for maintaining funding in remote NT communities, but not remote housing in adjacent jurisdictions? What is the total allocation going forward for remote social housing, and will it be over a ten year term or some shorter period?

This decision represents a watershed in Commonwealth policy towards remote Indigenous Australia. The Commonwealth is turning away from seeing a role for the public sector in underpinning investment in basic infrastructure. While its rationale will be that these are areas where the states should step up, this ignores the reality that the Commonwealth has the most significant tax base, that the GST distribution system provides no incentive to the states to invest in remote Aboriginal regions (notwithstanding the existence of an Indigenous relativities factor in the equation), and that the Commonwealth has been involved in remote housing for at least forty years precisely because the response from the states was inadequate.

Most importantly, the decision ignores the reality that the most, repeat the most disadvantaged sector of the Australian community are remote Indigenous citizens. For all the rhetoric about refreshing the Closing the Gap metrics (link here), this decision represents a deliberate and deeply tone deaf decision to further marginalise remote residents.

The political calculus underlying this decision includes the Government’s overarching focus on addressing the budget deficit, the fact that because it is a renewal of a longstanding National Partnership, there are no forward estimates allocated and there is no requirement for Parliamentary approval to harvest these savings. Moreover, remote citizens have limited political influence, particularly in the states where the relevant Federal seats affected are dominated by towns servicing non-Indigenous mining populations. In the NT where Aboriginal votes are more significant, the Commonwealth has backed off. In other words, the Government is punishing remote Indigenous citizens because they can.

The Government’s extreme sensitivity over this decision is patently obvious, reflected in the fact that it has been dropped out two days before Christmas, and that there has been no ministerial announcement or correspondence to the relevant state governments.

This decision completes the trifecta for Minister Scullion. He has overseen the disaster of the roll out of the inherently non-transparent Indigenous Advancement Strategy (refer to the ANAO critique of the IAS here, and my post on the topic here); he has driven the rolling disaster associated with the Community Development Program (see the ANAO critique of the program’s establishment here, and my post on the issue here, and a media report on a recent Senate Committee report on the scheme here). And now we have a fundamentally retrograde and highly damaging decision to cease funding the remote housing program in three states.

Three strikes, and you’re ……Minister for Indigenous Affairs.