Expectations in Indigenous Affairs policy

"Oft expectation fails, and most oft there
Where most it promises; and oft it hits
Where hope is coldest, and despair most fits."

All’s Well That Ends Well Act 2, scene 1

A recent post (link here) by Pia Malaney on the blog of the Institute for New Economic Thinking titled ‘Mortality Crisis Redux: the Economics of Despair focusses on recent research by economics Anne Case and Angus Deaton about the demographic crisis in middle America and compares it to a previous demographic crisis which followed the collapse of the Soviet Union, In both cases, there were significant upturns in mortality rates of middle class men and women.

In the US, these impacts were focussed on the white middle class, and Malaney notes that ‘Case and Deaton estimate that the upturn in mortality rates in the US is starkly divergent from other developed countries, and accounts for 96,000 deaths that could have been avoided between 1996 and 2013’.

Malaney, summarising Case and Deaton, suggests that these increased mortality rates – caused by suicide, drug overdose, and alcohol abuse - cannot be explained merely by declining or stagnant income levels, but are likely due to ‘declining outcomes not just in the labor market but also in health, marriage and child rearing. In other words, the stress accompanying the shock of downward mobility is likely driving this health crisis’.

Similar forces were at work in the Soviet Union, where Malaney suggests there were 1.3 to 1.7 million premature deaths, mainly of middle age men and women between 1989 and 1995. The proximate causes were increases in suicides and drug and alcohol abuse. The in depth research she refers to suggests that it was not deprivation driving these premature deaths, ‘Rather they could be traced to the psychological stress likely brought on by the shock of severe economic transition’

I recommend readers read Malaney’s short blog post in full.

Of course, Indigenous Australia and in particular remote Australia, exhibits many of the characteristics of the demographic crises in the US and the Soviet Union. Suicide levels are much higher than mainstream Australia, labour market outcomes much poorer, alcohol and drug abuse are substantial issues, health issues much worse, mental health issues are worse, overall mortality rates are much worse.

It is not my intention to closely analyse the relevant statistics, nor to undertake the fine demographic analysis which would identify which groups within Indigenous societies are most at risk and vulnerable.

Instead, I want to make an admittedly speculative, but intuitively appealing logical comparison between the causes of the demographic crises in the US, the Soviet Union and Indigenous Australia. That is to say, it seems more than plausible that the causes of deep seated inter-generational Indigenous disadvantage are to be found (if not entirely, then in substantial part) in the psychological stresses involved in the long process of transition from traditional to modern ways of life.

In particular, I want to focus on the role of expectations, and especially the role of unmet expectations in contributing to psychological stress in the Indigenous policy domain.

There are at least two types of expectations which may be relevant.

Indigenous citizens inevitably acquire and formulate expectations about the shape and form of the lives which they seek to live. These are a function of longstanding cultural and social norms, the expectations of family and peers, but also are increasingly influenced by access to social and public media, interactions with mainstream groups, corporations and individuals, and the operation of the market based economic system which is pervasive and ruthless in the rewards and penalties it allocates.

Any mismatch between individual expectations and actual outcomes is likely to cause psychological stress. While I am not aware of any research on this topic, my intuition tells me that in many cases, expectations of many Indigenous citizens (especially in remote regions) for the elements of a meaningful life will exceed actual outcomes.

A second set of expectations which operate is the increasing propensity of governments to seek to intervene, to direct specific courses of action, and to impose conditions on entitlements and program benefits. All this is reinforced by an encompassing rhetoric or ideology in favour of participation in market activities and economic development, seemingly oblivious to the ways in which markets can be tilted in favour or against particular interests and groups in society.

In fact, the vast majority of government programs are deliberately designed to influence changed behaviour of one kind or another. Sometimes the behavioural change might be justified, but often it is arguably not. But taken as a whole, the vast panoply of government programs impose an all-encompassing framework which sets up a complex array of expectations as to how Indigenous citizens are desired or even required by governments to act.

While individual programs interventions are almost always well intentioned and justifiable, and many have positive impacts of one kind or another, the totality of program interventions on Indigenous citizens has a cumulative impact which in effect signals to the Indigenous targets (and I use the term advisedly) that their life course is not acceptable, that they are expected to change, and that they are somehow defective or second-class. Many Indigenous citizens are simply overwhelmed by these expectations, unable to operate, and in effect are pushed over the precipice by the cumulative weight of amorphous mainstream expectations.

It is no coincidence that not only do we see widespread symptoms of deep psychological stress referred to above, but that in many cases, Indigenous citizens vote with their feet to reject specific program interventions even where it would seem to be counter-productive.

For example, Indigenous ‘jobseekers’ (in reality welfare recipients) are being penalised at astronomical rates in the remote income support / jobs program (cynically named the Community Development Program) for lack of compliance (with rules which are more onerous than non-remote rules applicable to mainstream citizens) even though it means reduced or delayed payments.

Parents fail to see the point of sending their children to school.  

Young people are blithely oblivious to benefits of adopting safe sexual practices despite the efforts of policymakers to communicate safe sex information.

What then are the policy implications of this line of conceptual (but unproven) analysis?

First, it seems to me that there is a case for governments, and particularly the Federal Government, to step back and reconsider its overarching approach. In the light of the research results referenced above in relation to the USA and the USSR, the federal Government may wish to commission the Productivity Commission (or some other reputable research body) to undertake a similar research analysis focussed on Indigenous disadvantage.

Second, I would argue that two essential precepts which should underpin all government actions in the Indigenous policy domain are to maximise Indigenous agency and informed choice as paramount values in all indigenous policies.

Third, there is an urgent need to reassess the cumulative impact of programs on Indigenous citizens. This is no easy matter as many programs operate in the mainstream and cannot legally be denied to any relevant citizens. They can however be designed in such a way so as to minimise the likelihood that they impose unreachable expectations. Implicit in this assessment of the cumulative impact of programs is that the solution does not lie in better evaluation of individual programs (which happens to be the Government’s solution du jour to Indigenous disadvantage).

Fourth, it follows that governments may well be better off in focusing on creating frameworks within which Indigenous citizens can make their own choices. This goes to questions of existing institutional design, but might also involve the creation and establishment of new institutions. For example, there is much to be said for relying much more on incentives rather than penalties in all sorts of contexts on the premise that ‘nudging’ citizens to adopt different behaviours is likely to be more successful than mandating the new behaviour and finding that it engenders resistance and opposition.

A fifth policy implication is that governments should be extremely careful about raising expectations which they cannot deliver. The Indigenous policy domain is replete with examples of governments doing just that (think Bob Hawke’s commitment to negotiate a treaty; or the present interminable discussion about constitutional recognition).

A sixth and final implication is that policymakers need to give much greater attention to the role of expectations, both endogenous and exogenous, in shaping the Indigenous policy domain. There needs to be a greater sense of humility amongst policymakers and governments about what is achievable by external action.

But we cannot expect Indigenous agency and choice to resolve Indigenous disadvantage if the institutional framework is not a level playing field, such that reasonable Indigenous expectations are in fact not achievable. In these circumstances, dashed expectations lead to deep psychological stress, and ultimately (as has been demonstrated in the US and the USSR) to large numbers of preventable deaths.

The Federal Government recently announced its intention to appoint an Indigenous Productivity Commissioner, but has so far not made an appointment. While there has been virtually no public discussion of the proposed focus of the new Commissioner, the issues raised here would provide a good starting for her agenda.

Policy issues arising from communal and inalienable Indigenous land tenure.

Following my previous post, I had a number of after-thoughts and reflections along the lines that perhaps I had not dealt with the issue as comprehensively as I might have. In particular, I worried that some readers might have gained the impression that I was giving precedence to cultural over economic aspirations of Indigenous land holders. To the contrary, my view is that both are legitimate aspirations deserving of equal support from policymakers. This post is an attempt to rectify that omission, again as far as possible in non-technical language.

But first an update on the Native Title Amendment (Indigenous Land Use Agreements) Bill. The Senate Legal and Constitutional Affairs Legislation Committee has now issued its final report: link here. As predicted in my previous post, the Committee has recommended the Bill be passed, with Labor and the Greens critical of the rushed introduction of the Bill and limited consultation. Labor supports the Bill whereas the Greens oppose it and issued a minority report setting out their reasons.

Stakeholder responses have been muted and largely positive. The Minerals Council and related bodies in Queensland and Western Australia issued a media release welcoming the ‘considered report’: link here. An Aboriginal group involved in opposing the Adani Coal mine issued a media release critical of Labor for supporting the Bill: link here. The National Native Title Council, the Indigenous peak body on native title issues have remained silent, with no media release on their website (they supported the Bill).

The Government will consider a number of minor adjustments proposed by the Committee and may make amendments. The Bill will likely pass the Senate with Labor support and thus amend the Native Title Act once the House of Representatives reconsiders any Government amendments.

As argued in my previous post (and in my own submission to the Committee: link here) I am concerned that the proposals in the Bill open a pathway to the undermining of communal decisions over land management, and thus to the very nature of communal title itself.

I turn now to the issues of inalienability and communal title. The High Court in Mabo acknowledged that native title continues to exist in Australia as part of our common law, and that the rights involved were not able to be bought and sold (that is it is inalienable) and were held by all members of the relevant land owning group according to Indigenous tradition (that is it is a communal property right).

My previous post made an argument in favour of respecting the diversity of Indigenous approaches to managing their country, and against imposing arbitrary decision rules based on western notions of fairness (such as majority voting) in relation to management of Indigenous land. In particular, I was concerned that changes to decision rules (such as have been proposed by the Government in the current Native Title Amendment Bill) might have the effect of creating a opportunities for undermining the communal nature of native title.

I didn’t make the argument, but given the capacity of claimant groups to agree to the extinguishment of native title in return for other benefits, one might argue that a similar opportunity to undermine inalienability might also be created. Certainly, in the context of the Native Title Amendment Bill discussed above, the Committee discussed and appeared to accept that this is a real issue when it stated at paragraph 2.74:

Moreover, the Commonwealth should examine the proposals to amend the Act, so that where ILUAs involve particularly significant consequences for native title holders (such as the surrender of native title rights), then the minority viewpoint is given due consideration, perhaps through a higher threshold for decision-making.

Unfortunately, this sentiment was not included in the Committee’s recommendation.

The arguments against communal and inalienable title have a long history in conservative circles, and essentially boil down to concerns that they impact adversely on economic incentives, and thus inhibit economic development; that communal title is akin to socialism, and inhibits individual enterprise, and that inalienable title is not able to be used to secure debt finance (as a bank cannot step in and sell the land involved where a borrower defaults on a loan, and thus will not lend in the first place) and that this too is an inhibition against economic enterprise and thus economic development. For those interested in considering and assessing these arguments (amongst others), a good place to start is with Helen Hughes book Lands of Shame, published by the Centre for Independent Studies in 2007: link here.

Interestingly, a more progressive analyst, barrister David Yarrow, has also made an argument against the notion of inalienable native title from a perspective which highlights the alleged inequality and disadvantage inherent in the constraint of inalienability; refer to his article ‘The inalienability of native title in Australia’ in Brennan et al ‘Native title from Mabo to Akiba’ published by the Federation Press in 2015: link here.

My own view (contra Hughes and Yarrow) is that while there is logical merit to these arguments, they ignore the issue of respect for Indigenous cultural values and the core elements of Indigenous land ownership.

Moreover, there is a policy solution based on the use of long term leases which both protects the core ontological and cosmological integrity of Indigenous notions of land and ‘’country’ and rebalances the opportunities for economic development. Properly designed, such mechanisms protect the underlying title while allowing individual or corporate enterprises and commercial or residential developments to proceed with security of tenure and a capacity for lenders to step in and repossess if necessary.

Clearly, under the various statutory land rights models in place, there needs to be specific provision for such arrangements. The NT land rights legislation has always had provision for leases (section 19) and since 2006 has had provisions related to so-called ‘township leases’ (section 19A).

The Native Title Act has general agreement related provisions, but no specific provision for native title holders to issue leases over determined native title. It is arguable that native title holders with exclusive possession have the capacity now to issue leases over their land. Nevertheless, the recent Northern Australian Development White Paper did include the idea of making provision for leases (or what they refer to as ‘transferable interests’) on native title tenure as part of its long term policy agenda; link here: refer to pp 18 to 26..

There are at least four further constraints on the leasehold policy ‘solution’ as a driver of economic development; but these constraints also apply, to a greater or lesser extent, to the conservatives’ preferred model of freehold tenure.

The first is that the design of the lease mechanism is crucial; in particular, transaction costs can easily outweigh the benefits which might be expected to flow from a particular lease. The second is that the existence of other legislative or technical constraints unrelated to tenure can often inhibit the operation of economic incentives in remote contexts. One example in the NT is the planning laws which require subdivisions (funded by developers) to be in place for leases in excess of 12 years. A third constraint is that there is a clear policy relevant distinction to be drawn between appropriate rangeland tenure and that necessary within communities or townships. Communal and inalienable tenures are more compatible with rangeland tenure options than in townships. And finally, the financial costs to government to move from current native title tenures to freehold tenures, given the just terms provisions in the Australian constitution, are enormous.

The bottom line is that economic development in remote contexts is much more than changing the characteristics of land tenure, and indeed, the other factors at play (and I haven’t mentioned the tyranny of distance; or poor transport and communications infrastructure; or ineffective and patchy government service provision; or demographic factors) are arguably of much greater significance in constraining economic outcomes than tenure.

In conclusion, there are sound pragmatic and philosophical reasons for supporting the existence of inalienable and communal forms of Indigenous tenure. They align with Indigenous cultural traditions and precepts, and in any case would be enormously expensive to remove.

Nevertheless, Indigenous groups also have economic aspirations, and communal and inalienable tenures are not optimal in underpinning these aspirations. Accordingly, policymakers should seek to facilitate mechanisms which allow Indigenous landowners to freely decide to establish subsidiary forms of tenure which are long term, potentially tradable, and involve low transaction costs. These mechanisms should not however pose a threat to the underlying Indigenous tenure.

And finally, policymakers and others should not fall into the trap of suggesting that Indigenous tenure is the only constraint to economic development in the Indigenous policy domain.

Native Title Amendment Bill: update and some more generic commentary

'We have strict statutes and most biting laws' 

Measure for Measure I, iii, 19

In a recent post (link here), I made mention of the proposed amendment to the Native Title Act following the McGlade decision in the Federal Court.

I thought it might be worth providing a short and largely non-technical layman’s update, and to provide some commentary on the policymaking process.

The Bill is being considered by the Senate Legal and Constitutional Affairs legislation committee, a public hearing was held in Brisbane earlier this week, and their report on the Bill will shortly be tabled. This will then clear the way for the Senate to consider the Bill further.

The Native Title Act is necessarily complex, not least because it creates processes for facilitating dealings in land which has been claimed, but not yet determined as native title, largely through mechanisms termed ILUAs, or Indigenous Land Use Agreements.

The McGlade case essentially held that The Native Title Act requires that a category of ILUAs required unanimous consent by the applicants, overturning a previous decision of the Federal Court (the Bygraves decision). The McGlade decision thus throws into doubt the potential validity of a significant number of previously finalised ILUAs, and going forward, creates a situation which gives an effective veto over the terms of an ILUA to any one of the applicants, a situation which is inherently unstable, and creates significant disincentives for developers to begin negotiations on a proposal to use land under claim.  

The potential problem had been raised before both by Indigenous interests and less directly by the 2015 Australian Law Reform Commission Report titled ‘Connection to Country: Review of the Native Title Act’ (link here). Despite this, there had been no response by the Federal Government prior to the Federal Court decision.

Following the Federal Court decision on 2 February 2017, the Commonwealth Government moved swiftly to draft and introduce an amendment bill on 15 February 2017. The reason for swift legislative response can be traced to the concerns from state governments and business interests regarding the potential adverse consequences of the decision on past ILUAs and the potential disincentives on negotiating future ILUAs given the substantial uncertainty regarding the likelihood that Indigenous consent would be able to be obtained.

The Senate Committee is due to finalise its report today (after seeking a short extension form the Senate last week: link here). I expect that the Government members will endorse the Government’s Bill; Labor and the Greens may call for a more extensive inquiry which would allow greater consultation. In any case, speculation is not particularly productive as we will shortly have a report.

Rather than dwell solely on the merits or otherwise of the Committee’s approach, I wanted to make some more general observations regarding the state of play in the Indigenous policy domain.

First, at the risk of stating the obvious, the Indigenous policy domain and particularly native title is one of the most complex areas of public policy.

Second, the variety of submissions from Indigenous interests to the Committee, encompassing a number in support of the Bill, a number opposed to the Bill and a number in the middle, points to the increasing variability in views and approaches from within the Indigenous world. This variability has probably always been the case but it is increasingly in the open. Certainly Indigenous interests have always been extremely heterogeneous in nature notwithstanding the apparent commonalities in their histories and circumstances.

Third, in a world where there is a diversity of legitimate and informed Indigenous viewpoints, the notion of consultation, at least insofar as it is used by governments to justify particular actions or decisions, needs to be reconsidered and questioned. Consultation is still important in explaining government motivations, and the rationale for actions, and hopefully in talking on board points of view from outside the purview of the bureaucracy and government, but it is less useful as a means of justifying (or indeed criticising) particular policy actions or decisions.

Fourth, the transcript of the Committee’s hearing on the Bill is instructive (link here). While the ostensible purpose of hearings such as this is to assist the Committee to understand the issues involved and the  implications which flow from the proposed legislative amendment, there is also an element of ‘going through the motions’ or to put it more positively, being seen to consult.

My reaction to reading of the transcript was quite positive; I felt that all participating Senators did an excellent job in drawing out issues and trying to understand what was involved. Nevertheless, it was also apparent that most participating Senators have limited understanding of the complex interactions between various provisions in the Native Title Act (this is not a criticism, but a reflection of the fact that members of parliament must deal with issues from across the policy spectrum), and ultimately will be forming a view in relation to the Bill based on a range of considerations, not all of which are raised in or evident from the Hearing.

There is a sense in which this is inevitable and some might argue it was ever thus. Nevertheless, there is a persuasive argument for injecting greater technical capacity into the operations of parliamentary committees. An idea I favour is the potential use of an expert akin to a Counsel Assisting in a royal commission, so that the issues which are at the nub of the proposed legislation are drawn more clearly, made more transparent, and subject to greater testing. This would have implications for those making submissions as they would be subject to a level of cross-examination, but this seems to me to be a good thing.

A fifth issue which implicitly emerged in some Indigenous groups’ submissions, but not in others, is the deeper question of the fundamental nature of native title tenure and what it should look like going forward. In essence, this goes to the largely nascent debate about the importance of inalienable and communal title versus notions of alienability and individuation.

These issues are complicated by the diversity of circumstances across the nation, with some groups seeking to maximise commercial opportunities from their land whereas others seek to emphasise or prioritise more traditional ways of engaging with ’country’. Clearly, Indigenous groups’ views about their country will change over time, and ought not be cemented into some archaic past. But nor should more traditional groups be pressured to ‘give up’ their beliefs about ways of engaging with country.

My own view is that while it would be desirable for Indigenous interests to themselves be more open about the diversity of fundamental perspectives in relation to land across different groups, there is a case for public policymakers to temper the headlong rush toward alienability and individuation of tenure.

In conclusion, the pace of change in Australia, driven by globalisation, the primacy of markets and economic development, runs the risk of rolling over those Indigenous groups who retain more traditional priorities. It is not that change should not occur, or that markets are somehow illegitimate, but rather is a plea for greater respect for the diverse circumstances of Indigenous Australians.

In particular, this requires a degree of compromise from governments and policymakers in devising and driving policy ‘reforms’. The reality is that governments do need to take decisions and implement policy, but there is a need for greater sophistication in exploring the potential consequences of particular policy approaches.

To take an example from history, in 15^th century Spain, the Inquisition required Jews to convert to Catholicism, and demonstrate the bona fides of their conversion in various ways under pain of death. Today we (almost) universally reject such policy approaches. Yet we often implicitly adopt quite similar assumptions to those of the Spanish Catholics in relation to Indigenous policy: there is often evident a sense of policy arrogance that ‘we know best’, and by implication, that Indigenous citizens must change their fundamental beliefs, including about how to manage their land, for their own good.

My own view is that the Government’s proposed Amendment Bill, with its focus on majority votes as a default where Indigenous applicants cannot or do not adopt an alternative decision making method, is an example of this sort of policy arrogance. It opens a pathway for the undermining of communal decision-making over country, and is thus potentially a challenge to fundamental values at the core of native title tenure.

The fact that the Government’s motives are well intentioned, and aimed at remedying an obvious flaw in the current institutional framework, merely serves to demonstrate how complex the policymaker’s task is. Good policy in the Indigenous policy domain must be both effective and workable, but also respectful of the diversity of Indigenous aspirations and concerns. The Government’s proposals in my view pass the first test, but not the second.

A substantive agenda for progress

In a recent post at the blog Club Troppo, the invariably stimulating and innovative Nicholas Gruen ruminates on the dilemmas of Indigenous recognition, reconciliation, closing the gap, symbolism versus substance, and the insidious dangers of ‘memefication’. His post ‘Seeking traction in the swamp of identity politics’ (link here) is well worth a read, as is the YouTube clip he attaches of Steven Oliver reciting his poem ‘Hate he Said’.

There was much in the post which I agreed with, particularly the frustration with symbolism in the face of deep-seated disadvantage, the absence of a coherent strategic agenda from the Indigenous leadership, and the assessment that the power structures which allow Indigenous disadvantage to continue are primarily non-Indigenous (notwithstanding Peter Sutton’s and Noel Pearson’s well-made arguments pointing to the role of Indigenous agency in determining social outcomes and arguing in favour of an Indigenous responsibility agenda).

I was however slightly disturbed by the note of pessimism Nicholas struck:  his comment on the boredom elicited from hearing yet again of the deep-seated disadvantage facing Indigenous citizens; and his resort to contemplation of technicist interventions/solutions notwithstanding the systemic lack of commitment to implementation which Nicholas recognises (correctly) to be ubiquitous; and finally the note of despair (or is it desperation) which emerges from the final paragraph which returns to the truism that symbolism won’t solve or resolve all issues, but which also doesn’t attempt to offer a way forward.

Let me quickly emphasise that I am not singling Nicholas out here – he expresses a set of views which I think are widely shared. I also recognise this pessimism and tendency to despair in my own thinking about these challenges. But it seems incumbent upon those of us who focus on these issues to at least move toward identifying substantive, and Nicholas’ post caused me to ask: well what would I propose?

My proposals here are not intended to be comprehensive; there is no silver bullet, nor a short term fix. These proposals are as much a ‘note to self’ as a critique of others given my own propensity to ‘go with the flow’ and too quickly accept that it is all too hard.

Here are three proposals (perhaps more accurately termed ‘ideas’) designed to make a long term difference:

First, mainstream Australia is too quick to dismiss symbolism; it is not sufficient to resolve deep-seated disadvantage, but as a nation we have comprehensively underestimated the deep, ongoing and inter-generational psychological impact of cultural dispossession. The statistics on Indigenous mental health are testament to this. Symbolic actions by governments, corporations and individuals all have an important role to play in healing this insidious damage. Paradoxically, for many if not most Indigenous citizens, many ‘symbolic’ actions by mainstream Australia are actually demonstrations of good faith with tangible consequences for the way they feel about their status as citizens and the ways they see themselves within the Australian society and polity.

Second, as a nation, and in our public policies, we display remarkably little commitment to enabling and encouraging informed Indigenous choice in all sorts of contexts. There will be areas where society imposes its own rules (road rules; taxes, mandatory education) and reasonable people will differ on how far society should go, but within the realm of the Indigenous domain however large or small that might be, we should actively support and acknowledge the potential for different choices to be made. Too often, we step in and impose solutions, views, conditions, pre-requisites and the like; and just as often we fail to support Indigenous preferences, choices and decisions, and more covertly, we undermine Indigenous ways of deciding, and choosing.

An example is the limited support the nation provides for the maintenance of Indigenous languages, and our extraordinary incapacity to recognise the potential value for all Australians that might derive or be sourced from the extraordinary cosmologies, natural history and environmental insights and knowledge which go hand in glove with language.

Encouragingly, the Federal Government recently announced new funding for language support. The world, not just Australia, will be a poorer place if in 100 years we are left with only one or two spoken Indigenous languages.

Third, I propose that perhaps the single most transformative change we could adopt as a nation in relation to Indigenous citizens would be to adopt a constitutional prohibition against racial discrimination directed against all races. The nation was established and founded upon notions of racial superiority, and while we have made great strides as a nation in overcoming racial discrimination, we have a long way to go. The Racial Discrimination Act (section 18C aside) attracts broad support, yet it is vulnerable to the whim of the Executive and a potentially populist Senate, not just now, but into the indefinite future.

I am under no illusions that this is an extremely contentions proposal/suggestion, that tactical or pragmatic considerations can make it seem like an utopian aspiration, and that it will take years if not decades to achieve. But it is an issue which affects all Australians, and the failure of non-Indigenous Australians to prosecute the agenda has left Indigenous Australians grappling with how to address it from a position of political weakness and virtual impotence.

In the context of this proposal, it is worth contemplating, in a spirit of reflexivity, that while we non-Indigenous Australians often demand that Indigenous citizens change and adapt (merely because ‘we won’ or ‘they are a minority’), we are far less keen to seriously consider making substantive changes ourselves which would improve the quality of life and public discourse for all Australians. If we truly believe ourselves to be a free, equal and open society, why would we oppose such a strengthening of our constitution?

Strategic incoherence is not a uniquely Indigenous characteristic: the non-Indigenous leadership of the nation also suffers from the absence of a coherent strategic agenda aimed at protecting our fundamental values and our quality of life!

The Emperor’s New Clothes: remote disability, the ABA and ministerial responsibility

Through tattered clothes small vices do appear / Robes and furred gowns hide all.         King Lear, Act IV, scene vi.

The MJD Foundation provides support services for around 500 remote NT citizens, mostly in north east Arnhem land and virtually all Indigenous, who suffer from or are at risk of succumbing to the Machado Joseph disease, a neuro-degenerative disease similar to Huntington’s disease. Its clients must number amongst the most extremely disadvantaged Australians. The MJD Foundation is a small well run community organisation, and won an excellence in community accessibility award in the 2015 National Disability Awards.

The ABA is an account based on regular appropriations from consolidated revenue of amounts equal to the statutory royalties received by the Commonwealth and the Northern Territory governments (so called royalty equivalents) derived from mining on Aboriginal land in the NT, and must be utilised for the benefit of Aboriginal people resident in the NT. All payments from the Account are made and approved by the Minister on the advice of an Advisory Committee established under the legislation. See this previous post outlining concerns regarding the transparency of reporting on grant decisions made from the ABA: link here.

The previous Labor Minister Jenny Macklin approved a grant from the Aboriginal Benefit Account in 2013 of $10m to be invested in perpetuity (by the Myer Family Company) to provide a core of secure funding for MJD Foundation operations.

Early in his tenure, Minister Scullion overturned this grant. He also apparently decided to not approve grants to three other community organisations which had been recommended by the Advisory Committee, at least one of which, the Karrkad-Kanjdji Trust, is a registered charity with a focus on natural and cultural resource management. Unlike the MJD decision, these applications had apparently not been considered by the former Minister.

The MJD Foundation took legal action given that the grant had been publicly announced, and was for a considerable sum. Justice Flick of the Federal Court overturned Minister Scullion’s decision, finding that there was no statutory basis allowing the Minister to remake Minister Macklin’s earlier decision.

The Minister decided he would appeal that decision to the Full Federal Court. The MJD Foundation published a media release outlining its concerns with the Minister’s decision to appeal and listing a range of inconsistencies in the Minister’s public explanation of his actions: link here.

Following a hearing in May last year, the appeal was finalised on 3 March 2017. Two judges (Mortimer J and Perry J) rejected the Minister’s appeal, while one judge (Perram J) upheld it. As a consequence, the Minister has now suffered two consecutive defeats in the Federal Court.

Coincidentally, Senate Estimates Committee was considering Indigenous Cross Portfolio issues when the judgment was handed down and the outcome of the case was raised in the hearing by Labor’s Senator McCarthy. The Minister acknowledged the loss, and indicated that his provisional view was that there would be no further appeal (Hansard is not yet available). He also indicated he would be examining legislative amendment to the ALRA to require the Minister to follow the advice of the ABA Advisory Committee, albeit retaining a veto power. He subsequently issued a media release (link here) which merely indicated that the Government would examine the judgment before making further comment. The judgment is not yet available on the Federal Court website. Update: link here.

The MJD Foundation also issued a media release (link here) calling on the Minister to accept the court’s decision, citing the moral and ethical grounds in favour of supporting the grant as much as the legal issues at stake.

Minister Scullion has used a number of at times intertwined rationales to justify his decision to reverse the $10m grant and to pursue an appeal after Justice Flick’s first decision:

First, in his 2013 letter to the MJD Foundation advising his decision to overturn the previously announced decision, he stated:

 It has been a longstanding policy and practice to not provide recurrent funding from the Aboriginals Benefit Account. Notwithstanding the undoubted value of your project, I am of the strong view that providing a cash advance is an unsustainable and indefensible mechanism to work around this existing policy. This Aboriginal Benefit Account grant would set a dangerous precedent for the fund and the previous grant of $6million should not have been approved in my opinion. (Letter to MJD Foundation dated 18 December 2013 cited in Perram J’s judgement).

Second, at times he has appeared to suggest that his concern is with the sustainability of the Aboriginal Benefit Account as opposed to a policy position on what should be funded. Thus in a media release in December 2015, he elaborated:

 “Eroding the ABA is an inappropriate use of this fund and threatens the integrity and sustainability of this legacy fund that is meant to be used to support Aboriginal people in the Northern Territory for many years to come, including for the operation of land councils. (Link here).

In a letter to the Editor of the Australian, he stated:

The ABA is a legacy fund which holds accumulated reserves from mining royalties and provides funds for one-off projects that benefit Aboriginal people in the Northern Territory. It is facing diminishing returns. The ABA is not intended to provide an investment pool for organisations to fund recurrent expenditure….…It is not appropriate, in my view, to use the Aboriginals Benefit Account as an investment vehicle to fund administrative costs of such organisations. (Link here)

Third, he asserted that his appeal would have ‘no impact on the Government’s support for the foundation’ (link here).

Fourth, he has argued that Indigenous owned or sources funds (what he has sometimes erroneously called Indigenous specific funding) should not be utilised:

Minister Scullion said the fact the majority of people suffering from MJD were Aboriginal did not mean Indigenous-specific funding should be spent on it….“Aboriginal people with serious health issues should not have to fund their own support services and this Government will stick to this fundamental principle.” (emphasis added).(Media release 11 Dec 2015 Link here)

“The ABA is Aboriginal money and should not be used to fund basic health services,” the Minister said. “We do not ask that of people living in other communities. The Australian Government, rightly, has the responsibility to provide funds for social housing, health and education to Australians, regardless of their background or where they live.” ….The Minister said his announcement today upholds the fundamental principle that the ABA should not be used to fund services that the Commonwealth should be providing directly.  (Media release 28 February 2014 Link here).

It is worth considering the policy merits of each of these arguments in turn.

The Minister’s first argument rests on a view that the ABA should not fund recurrent expenses, but should focus on capital investments. The underlying rationale for this distinction in some government programs, based on my own experience of funding programs in the Indigenous sector, is to ensure that governments do not start initiatives which they will not be able to afford to continue, thus leading to complaints in the future that funding is being cut. This is essentially a pragmatic argument driven by bureaucratic and political imperatives based on what is essentially an arbitrary accounting criterion.

Thus the fund has often been used to fund capital items like store buildings, morgues, heavy machinery for earthmoving, ranger facilities, boats for sea rangers and so on. However it has also been used for the recurrent costs of festivals (Garma is the most notable, but a particularly infamous example was former Minister Brough’s decision to provide ABA funding to a festival in his Queensland electorate on the basis that some NT performers were in attendance (Link here). 

While the Minister asserts the funding model used by MJD is a ‘work around’ to avoid the recurrent funding rule/guideline, in conceptual terms, there is no difference between the ABA funding a capital asset (a store building say or earthmoving equipment) which provides ongoing revenue and other benefits to the Aboriginal group, and the grant of a capital fund which provides ongoing benefits to the MJD Foundation and their clients. Indeed, arguably the capital fund model is more effective as it will produce revenue in perpetuity, whereas most capital items funded by the ABA have finite (and often very short) effective lifespans.

The Minister’s second argument that the fund is limited and facing diminishing returns makes little practical sense since all expenditures from the ABA (including related provisions for funding land council administration (which the minister controls) contribute to the diminishment of its balance; there is no logic in focussing on this one funding proposal. Moreover, as the Minister has noted, the majority of current revenues are derived from royalty equivalent appropriations which can be traced back to the manganese mine on Groote Eylandt; it seems perverse to punish the very people whose lands have been affected by mining on Groote. 

The PMC 2016 Annual Report which includes the financial statements for the ABA lists the total equity of the account at $580 million, up from $514 million the year before (refer page 153; link here). While perhaps it was diminishing in 2013, it no longer appears to be diminishing. My memory tells me the account’s net equity was around $400 million in 2010, so the long term trend for the account appears to be growing.

The Minister’s third argument can be addressed succinctly. Of course, if he had been successful in his appeal, the MJD Foundation would have lost the $10m grant that was allocated by the Commonwealth, and would lose access to the perpetual investment stream which would flow from the investment account which has been set up for the grant. Minister Scullion has made no commitment (and nor could he) to perpetual funding for the MJD. His statement is clearly hyperbole.

The Minister’s fourth argument is based on two points: the ABA is Aboriginal money; and second, that Aboriginal money and thus the ABA should not be allocated to government services. He nominates this as a ‘fundamental principle’ to which the Government is committed.

The first proposition is in fact incorrect; the ABA is replenished each year by government appropriations, calculated on the basis of the royalty equivalents which are paid to government from mining on Aboriginal land. Aboriginal traditional owners do negotiate ‘private’ royalties from mining on their land in the NT, but the funds in the ABA are government funds which are statutorily required to be allocated for the benefit of Aboriginal people in the NT. This is why the Minister approves the grants. This is why the fund reports in the PMC Annual Report. This is why the Account is audited by the ANAO. These are government funds appropriated for the benefit of Indigenous citizens, just like the Indigenous Advancement Strategy.

There is a strong policy argument for transferring control of the ABA to Indigenous control and ownership, but no government has to date been prepared to do this. In continuing to assert that ‘the ABA is Aboriginal money’ the Minister is behaving like the Emperor with no clothes; the department seems incapable of advising him how the Account actually works, and thus setting him straight about his inaccurate rhetoric. Of course, while this reflects poorly on the bureaucracy, the responsibility for creating a situation where the bureaucracy is not prepared to correct his errors falls squarely on the Minister.

The second proposition falls away once the first is accepted. But say it didn’t. How fundamental is the principle to which the Minister claims to adhere? The answer can only be found in assessing actions and not rhetoric.

The reality is that much of what the ABA has always funded, and to this day continues to fund is a substitute for government service provision. The morgue in the ACT is government provided. So are the facilities for running the environment department rangers in ACT national parks. So is the multicultural festival and the acclaimed Floriade festival. But in remote NT communities the Minister and his predecessors from both sides of politics have been happy to use the ABA to fund these types of services. Many are justifiable, some are not (the most egregious again being former Minister Brough’s extraordinary decision to use the ABA to contribute $4 million to the funding of the Alice Springs swimming pool: link here).

The level of commitment by the Minister to this ‘fundamental principle’ is demonstrated in his involvement only last year in funding the expansion of police services on Groote Eylandt with the former NT Government in an arrangement which required the local Groote community to use their own funds (presumably royalties) to contribute to the investment (link here). The joint media release issued by then Chief Minister Giles and Minister Scullion (link here) indicated that the funding of $15m for the upgrade of police stations came from the AIS (it is not clear whether it went through a comprehensive application process), and that there was an unspecified but significant co-contribution from the Anandilyakwa Land Council which is funded from the ABA and also has access to so called ‘affected communities’ monies from the ABA So much for a ‘fundamental principle’.

To sum up, the Minister has clothed himself an assortment of rhetorical raiments all designed to justify his decision to retrospectively deny the ABA grant to the MJD Foundation, a charitable organisation advocating for and providing important ancillary support for MJD sufferers and importantly their families and carers. These various arguments have one thing in common: they don’t stand up under detailed scrutiny.

This raises the possibility that other factors influenced the Ministers decision making in this case, a possibility given greater credence by the revelations in the recent ANAO audit report on the Minister’s approach to decision making under the AIS (see my post on this matter here), the major grant program available in his portfolio. It seems unlikely that he would operate in one way in relation to the AIS and in another in relation to the ABA.

Of course, the issues pertaining to a single grant from the ABA will not in themselves close the gap. But the way these issues are dealt with are emblematic of the approach of the Government to Indigenous disadvantage, and in particular to the extremely challenging issues facing disabled Indigenous citizens.

It is time that governments got serious about remote Indigenous disability. The larger issue at stake, not dealt with here, is the longstanding deficit in government services to remote disabled Indigenous citizens, and the very real specific and unique challenges they will face into the future as the NDIS is brought on stream,

The numbers of remote citizens living with disability may not be large in an absolute sense, however they and their families and carers face enormous challenges. Yet they end up being doubly penalised, victims of disability itself and victims of government neglect and care-less-ness (in the sense that the evidence suggests that governments couldn’t care less!). How else does one explain the convoluted contortions which have been gone through to justify retrospectively denying Indigenous disabled citizens access to a grant which had been recommended by the ABA Advisory Committee and was intended to fund ongoing support services by a charitable foundation with strong and enduring links into Aboriginal communities?