The new Administrative Arrangements Order: native title policy implications

We have strict statutes and most biting laws.
The needful bits and curbs to headstrong weeds,
Which for this nineteen years we have let slip;
Even like an o'ergrown lion in a cave,
That goes not out to prey.

             Measure for Measure, Act 1, scene 3

Following the recent restructure of Commonwealth ministerial arrangements, the Prime Minister has put in place a new Administrative Arrangements Order (AAO) to operate from 1 February 2020 (link here). This is the mechanism that allocates broad functions to ministerial portfolios, and also allocates responsibility for the administration of legislation.

In terms of Indigenous policy issues, there appear to be no changes. The primary responsibility for Indigenous policy rests with the Department of Prime Minister and Cabinet (PMC). The PMC portfolio includes a number of Commonwealth entities and companies (link here) including The National Indigenous Australians Agency (link here), the primary administrative unit responsible for Commonwealth policies and programs related to Indigenous Australians.

Other portfolios with responsibilities for specifically Indigenous related legislation include the Department of Agriculture, Heritage and Environment (Aboriginal and Torres Strait Islander Heritage Protection Act 1984); Attorney Generals Department (Native Title Act 1993), and the Department of Finance (Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018). Of course, many other portfolios have responsibilities that directly impact Indigenous Australian albeit in notionally generic ways. Two examples include the Attorney General’s Department responsibility for the Racial Discrimination Act 1975, and the Department of Social Service’s and Department of Education, Skills and Employment joint responsibility for income support/employment programs, particularly in remote and disadvantaged communities.

At the most generic level, every portfolio will to one degree or another have an impact on Indigenous citizens where relevant to their responsibilities. It is worth noting that this structure of Indigenous specific, and mainstream or generic involvement is paralleled at state and territory levels of government. To state the obvious, tracking the engagement paths between government and Indigenous citizens is conceptually complex. In these circumstances, ensuring that elected governments are fully accountable to Indigenous citizens and the community at large, and that Indigenous interests have effective means of influencing policy and program designs, is also complex and challenging.

As a minor aside, PMC’s choice of nomenclature in the AAO is also worth noting. Notwithstanding the fanfare around the shift in the name of the primary Commonwealth agency to National Indigenous Australians Agency, and the new title of Minister for Indigenous Australians, the AAO continues to use previous forms of language. So for example, in the section listing ‘matters dealt with’ by PMC, ‘Commonwealth Aboriginal and Torres Strait Islander policy, programmes and service delivery’ is listed as a matter dealt with.

So are there value judgments or policy implications embedded within the AAO?

Of course, the answer is yes, notwithstanding there is no media and virtually no academic focus on these issues. Decisions regarding which portfolios deal with policy issues are significant, and they signal or identify underlying priorities of the Government.

Perhaps the most obvious example of this relates to the allocation of responsibility for the Native Title Act 1993 (and most associated policy) to the Attorney Generals portfolio rather than to PMC/NIAA. This decision signals that the management of native title litigation is more important to the Commonwealth than the development of innovative policy options in the emerging native title space.

In the period immediately following the passage of the Native Title Act, policy responsibility rested with PMC in the then Office of Indigenous Affairs. Within a few years as claims began to move through the system, and the pathways laid down by the legislation began to followed by native title claimants, litigation and test cases followed aimed at resolving the inevitable uncertainties. In response, policy responsibility for native title was re-allocated to Attorney Generals early in the life of the Howard Government. This revised allocation of responsibilities has persisted ever since, surviving changes of government in 2007 and 2013.

One potential reason for the shift would have been to ensure maximum alignment between the Commonwealth’s native title litigation strategy and the Commonwealth’s broader litigation strategy. Another more disquieting explanation may be that the Commonwealth was seeking to minimise and narrow the ambit of native title wherever possible.  While I have not undertaken a detailed analysis, I am confident in asserting that over the past 26 years of the Native Title Act’s existence, the Commonwealth has routinely opposed native title claims and claimants in litigation (as have the states and the NT).

The placing of responsibility for native title policy with Attorney Generals has facilitated the largely autonomous formulation of Commonwealth native title litigation strategy by lawyers rather than policy experts. While mechanism exist within the Commonwealth (and presumably state and territory governments) for cross-agency input and coordination into litigation matters, there are always technical legal reasons available for adopting narrow litigation stances. Moreover, without PMC/NIAA having policy responsibility, they are unlikely to have a core of expertise on call to develop counter-arguments when overtly negative litigation strategies are proposed by the Attorney Generals Department.

The more perverse ramification of the current allocation of native title responsibilities is that the focus of the relevant staff in Attorney Generals is inevitably on litigation strategy. They have limited exposure to broader developments and issues in the Indigenous policy domain. In turn, this means that they are less likely to be the source of innovative policy initiatives designed to leverage native title rights in ways that meet both the national interest and the broader aspirations of First Nations citizens.

In effect, the current AAO embeds an implicit and largely unrecognised bias against the interests and aspirations of First Nations’ interests. While I am not asserting that public servants in PMC/NIAA are automatic conduits for Indigenous aspirations, it is highly likely that they will be more open to well constructed policy advocacy than public servants in the Attorney General’s Department with a strict remit to protect the Commonwealth’s narrow legal interests at all costs. There is thus a very real opportunity cost for Indigenous citizens, and for the nation as a whole, in the current allocation of the native title responsibility in the AAO.

To sum up, the present and longstanding allocation of responsibility for native title policy to the Attorney General’s portfolio in the AAO is not a mere technical and neutral decision. It has real consequences in an area of law that is still developing and will thus have long-term consequences. Indigenous interests and particularly the peak body for native title matters, the National Native Title Council, should not overlook the potential benefits of sustained advocacy for a reversion of the responsibility for native title policy in the AAO to PMC and the NIAA.