Indigenous Advice to Government

 The world is still deceived with ornament…

…Thus ornament is but the guiled shore

To a most dangerous sea.

Merchant of Venice Act III, scene ii

A recent article (link here) in the National Indigenous Times revealed that the Registrar of Indigenous Corporations had issued a compliance notice related to a number of apparent irregularities and made a number of recommendations for immediate action in relation to the administration of the Winun Ngari Aboriginal Corporation (WN), a significant Kimberley Aboriginal corporation which operates in the West Kimberley. Key documents related to WN including the compliance notice and the latest financial statements can be found on the ORIC website (link here).

The compliance notice while carefully drafted provides very little comfort that the corporation’s directors have been effectively managing the affairs of the Corporation over the last few years, and raises issues related to the administration of the corporation by its senior management.

The Corporation is heavily involved in delivering three important and high profile programs in the West Kimberley, the Community Development Program, the Remote School Attendance Strategy Program, and the Kimberley Money Management program. The latest available financial statements suggest Winun Ngari has revenues of around $10m plus per annum, mainly for delivering these programs, and also operates a number of other smaller businesses. Its balance sheet is carrying loans to a range of related and third party entities exceeding $1 million in value. Senior management (which is undefined in the financial statements) is reported as being paid around $300k per annum.

While hardly unprecedented in relation to matters of corporate governance, the issue of poor corporate governance in a publicly funded entity takes on greater significance (as noted by the National Indigenous Times) because the CEO of Winun Ngari since October 2013 has been Ms Susan Murphy, a relatively new member of the Prime Minister’s Indigenous Advisory Council (IAC).

Ms Murphy was also appointed to the ‘independent’ review of the Remote Housing Strategy by Minister Scullion in November last year (link here), a matter not mentioned in the NIT article.

Ms Susan Murphy is described as follows on the PMC website page on the membership of the IAC (link here):

Ms Susan Murphy is the CEO of Winun Ngari Aboriginal Corporation, the largest community development provider for remote Aboriginal communities in the West Kimberley. Ms Murphy has previously held positions in a number of government organisations and has extensive experience working within Aboriginal health, child care and justice.

While not a good look, the appropriateness of her appointments to high profile government roles in the light of the regulator’s findings is largely a matter for the Prime Minister and the Minister who appointed her. In particular, it is the Directors of Winun Ngari Aboriginal Corporation who must take ultimate responsibility for any shortfalls in corporate governance performance of the corporation.

Of wider policy significance in my view is the lack of transparency in the operations of both the Indigenous Advisory Council and the current remote Housing Review, matters which are thrown into sharper relief by the Murphy imbroglio. When issues such as that reported above emerge, the lack of transparency in the activities of these key bodies makes it extremely difficult for an interested observer to assess whether there is in fact a potential conflict of interest or a risk of reputational damage to the wider activities of the government bodies involved.

Governments can hardly make a persuasive case for strong accountability and corporate governance in funded organisations when they fail to operate in a transparent manner themselves. Let’s take each in turn.

The Prime Minister’s Indigenous Advisory Council was established in the early months of the Abbott Prime Ministership. The Council was initially chaired by Warren Mundine, who held a full time appointment.

A review of the Council was undertaken in 2015, see link here  to the heavily redacted document on the PMC FOI Disclosure Log. There appears to have been no public announcement regarding the findings of the review, nor the government’s decisions in relation to it.

Following the accession of Mr Turnbull to the Prime Ministership, the Council has undergone a revamp; Mr Mundine’s term was not renewed, and new members were appointed.

The Terms of Reference for the Prime Minister’s Indigenous Advisory Council were revised in 2016, and are available here.

Along with the new appointments, in a sensible gesture Prime Minister Turnbull allowed the Council members to decide their Chair. The Council has appointed Andrea Mason and Chris Sarra as co-chairs, both of whom have been courageous contributors to Indigenous policy issues over a considerable period. The PMC web site notes that the new members are:

highly regarded, pre-eminent thinkers and practitioners who have been appointed to the Council for the depth of their experience in their respective fields and will bring a strong focus to policy design, implementation and practice.

The communique from the latest meeting (and first with the new membership) is available here. One interesting snippet of information mentioned in the communique, of which I had not previously been aware, is mention of a new Indigenous policy committee within the Government, presumably involving either a range of ministers, or senior public servants.

The Council’s annual letters to the Prime Minister for 2014 and 2015 are here, again from the PMC Disclosure Log. While the letters each canvass a score or more of issues which have been the subject of ‘advice’, there is no inkling of the substantive content of that advice in the letter, nor in the communiques issued after each formal meeting. While the disclosure log indicates that the FOI request included the 2016 year, and was finalised in March 2017, the response does not include the 2016 letter from the then Chair, Mr Mundine, which suggests that it may not exist.

The only other point of interest is that the signature over the Mr Mundine’s signature block has been redacted, citing section 47F of the FOI Act, which protects the ‘unreasonable disclosure of personal information about any person…’ It seems quite strange to apply such an exclusion in relation to a person’s signature, though I suppose one might make an argument for doing so. Nevertheless, it serves to add a degree of uncertainty as to whether Mr Mundine actually signed the letters sent to the Prime Minister in his name.

I think there are two substantive points to be made in relation to the current advisory arrangements in relation to the Indigenous affairs policy domain.

First, it is well past the time when governments should find it acceptable to appoint Indigenous representatives to a formal advisory body with a wide ranging policy remit. There has been a long history in Australia of elected advisory and representative bodies: the National Aboriginal Conference, the National Aboriginal Consultative Committee, and of course ATSIC are cases in point.

There is a case for appointing individuals who bring particular expertise for targeted exercises, but in terms of the provision of overarching advice in relation to Indigenous affairs policy, it strikes me that the current IAC arrangements are fatally flawed insofar as they ignore the existence of a large number of peak bodies and (whether it is actually the case or not) raise the spectre of a government choosing and appointing ‘representatives’ who will provide the sort of advice the government feels comfortable in receiving.

The second point which requires consideration is the total opacity and lack of transparency in relation to the advice which is being provided by the advisory body. There is an argument (which I believe is overrated) that public servants require a degree of confidentiality to ensure that they proffer independent and fearless advice to governments. Hence the existence of an exemption to the FOI laws around ‘deliberative advice’. Even accepting that this constraint of transparency is warranted for public servants, It does not follow that ‘advisory bodies’ without executive responsibilities should be provided with the same privilege. There is no obligation on governments to follow advice from the IAC, and governments will nevertheless have access to the hopefully robust advice of its public servants, and thus public policy will not be held hostage to the risk that an advisory council will not have the courage to speak its mind because it will be made public.

Moreover, there is a public interest in knowing what advice is being proffered on behalf of Indigenous interests generally, and Indigenous citizens in particular deserve to know what the appointed representatives are saying to government effectively in their name. This lack of transparency serves to feed the deep scepticism and cynicism in the Indigenous community (and indeed beyond) regarding the motives of government in its handling of Indigenous affairs.

Indeed, if the public knew, at least in broad terms, the substance of the advice being provided by the IAC, any suggestion that the Government had appointed ‘yes men and women’ would have less force, with a consequential strengthening of the authority of those appointed as indigenous representatives.

To cut to the chase, the risk of the current Advisory Council arrangements is that sooner or later they degrade into a generalised ‘talk shop’ without any real substantive policy content, with the real purpose being to provide a cover or façade to shield what are in effect unilateral government decisions from criticism.

Turning to the ‘independent’ review of Indigenous housing announced by the Minister in November 2016, the PMC website explains as follows:

An expert panel consisting of the following members has been appointed to conduct the Review.

·         Ms Rachelle Towart and Mr Robert Griew (co-Chairs)

·      Mr Fred Pascoe

·     Ms Susan Murphy

The expert panel will work with government officers to ensure Aboriginal and Torres Strait Islander voices are at the centre of the Review. Additionally the expert panel will work together, drawing on their expertise and knowledge of remote Indigenous housing throughout the Review, and will provide leadership on consultation and engagement with Indigenous communities and businesses, housing service providers, peak bodies, land councils and state governments.

A consultative committee has also been established to support the Review comprising of representatives from the Commonwealth, Queensland, Western Australia, South Australia and the Northern Territory governments.

Here is the link to the information on the review on the PMC web site. The members of the expert panel all looked to have relevant backgrounds. Robert Griew, the only non-Indigenous member, is a Principal with the Nous Group (link here) and an extremely experienced former bureaucrat with a deep knowledge of Indigenous affairs. The Minister did not mention the connection to Nous in his announcement.

I previously commented in depth on this review in shortly after it was announced. Here is the link. Please read the post in full, but my key conclusion was encapsulated in the following two sentences:

The initiation of the recently announced Review is potentially a pre-emptive attempt to change the narrative away from sustaining the capital investment required [for housing in remote Australia] towards one of encouraging much greater Indigenous involvement in a much smaller and shorter program. Such an outcome if it occurs would be an abdication of political responsibility for the most disadvantaged citizens in Australia.

While the PMC web site page is replete with references to consultation with Indigenous organisations and state and territory governments, there appears to have been no invitation for public submissions, nor any attempt (at least so far) to publish an interim report suggesting what the review team has in mind.

The Government will eventually release this review, probably only after it has settled on its decisions in relation to the future of the remote housing program. Nevertheless, in contrast to the IAC, we will probably get to see the advice proffered (albeit retrospectively), though whether and to what extent it will be truly ‘independent’ of government or ministerial influence (what else does ‘independent’ suggest?) given the use of the Nous consultancy, the iterative process involving state and territory governments, and the secretariat of public servants assisting the review are matters which in my view should attract a degree of scepticism.

If this is the case, and the review actually lacks independence, then the three Indigenous members of the review panel will (unintentionally) have served as a cover or façade for the Government’s underlying policy agenda. Of course, the capacity of the Government to deal with the remote Indigenous housing program in this way is facilitated by the absence of any Indigenous peak body or advocacy group for social housing, or remote housing.

One would hope that in these circumstances, the IAC would step in and take a strong interest in what is being considered. Unfortunately, we will likely never know whether it does or not, and what its substantive advice to the Prime Minister was.

Of course, one might question the wisdom of a Government appointing individuals to its primary advisory structure who are also undertaking policy reviews on major programs (as is the case with Ms Murphy). The potential for a conflict of interest to arise (which for example could in theory operate to ensure that the IAC does not even substantively consider the remote housing review issues, or if they do, are influenced to consider limited sets of options) seems extremely high.

Perhaps the strongest argument for greater transparency around Indigenous advisory structures would be to eliminate the possibility that sceptics such as myself have cause to doubt the robustness of the policy process itself.