Systemic myopia: Public investment challenges in remote Australia

 

When clouds are seen, wise men put on their cloaks;

When great leaves fall, then winter is at hand;

When the sun sets, who doth not look for night?

Richard III, Act 2, scene 3.

 

My previous post focussed primarily on the social cataclysm engulfing remote communities through the primary lens of social and property violence and the impact of anti-social accelerants such as alcohol. Rather than focussing on spelling out the inevitable and significant implications for families, children, and the social stability of the communities, I sought to argue that there was a shortfall in the capabilities of governments to ensure citizens were able to live peaceful lives, thus raising questions regarding the legitimacy of governments.

 

In this post, I turn my attention to some of the sustained and systemic shortfalls in public investment in remote communities, and particularly capital investment requirements. While it would be foolhardy to argue that adequate public investment is all that is required (sufficient) to meet the complex challenges facing remote communities, I would ague that it is a fundamental prerequisite (necessary) for doing so.  Of course, even so, public investment must be well targeted, sustained, and be well designed. Accordingly, if we turn the proposition on its head, long term absence or under-provision of high quality public investment can be seen as a fundamental precursor, if not a major cause, for ongoing social dysfunction within remote communities. We cannot expect to address the social challenges in remote communities without ensuring that public investment is adequate and high quality.

 

Of course, the overwhelming majority of Australians have minimal experience of the conditions of remote communities. Families resident in remote regions constitute only 2.3 percent of Australian families (link here). While we may complain about the quality of government services, we expect, and mostly receive, a first-world level of government service provision from three levels of government. This is far from being the case in remote Australia.

 

A number of recent reports relating to infrastructure provision illuminate this observation.

 

Infrastructure Partnerships Australia (IPA), a body not previously on my radar, has recently released an extraordinarily useful report titled Remote Communities: Improving Access to Essential Services (link here).

According to its website, IPA is

Australia’s longest standing infrastructure think tank, formed in 2005 as a genuine and enduring policy partnership between Australia’s governments and industry. We exist to shape public debate and drive policy reform for the benefit of the national interest.

Our public sector membership is drawn from Commonwealth, state and territory infrastructure, planning, environment, finance and treasury departments, as well as government-owned corporations.

Our private sector members include major financiers, law firms, contractors, consultants, equity and debt investors, infrastructure technology providers, super funds and operators.

 

The IPA Remote Communities report is extraordinarily accessible, setting out key data points and utilising clear and striking graphics. I recommend readers take a look at it (not least because I cannot do it justice in this brief post). The report seeks to do two things. First, it lays out in stark terms the essential services shortfalls facing remote communities: communities ‘consistently experience poor water quality services’, ‘electricity supply is often unreliable’, and ‘have limited access to telecommunications services’. Contributing factors include ‘isolation’, ‘lack of meaningful engagement with communities for service delivery’, ‘inequality barriers’, lack of resources’ to utilities charged with delivering these essential services; a ‘systematic lack of transparency and reporting’, ‘skills and education shortages’, and inconsistent regulation and poor governance continue to impede improvements’. This is a pretty challenging set of constraints. The report then goes on to identify a range of technological possibilities, noting that ‘There are a variety of established technologies and governance approaches being applied across all jurisdictions — but they are coming at a glacial pace for most remote communities.

The Report’s second aim is to lay out the way forward. It argues for establishing a national minimum service baseline based on government commitments to National Cabinet, and a process whereby governments are accountable for meeting the baseline. It suggests existing Community Service Obligations should be ‘evolved’ or transitioned into Community Infrastructure Partnerships which lock in obligations to innovate, improve transparency, provide a social licence and facilitate collaboration and coordination between sectors. Funding and financing mechanisms for remote infrastructure should be reviewed and updated and regulatory reform undertaken to support community infrastructure partnerships.

 

The report appears to be unaware of the recent moves (yet to be included in the Productivity Commission Information Repository) to establish a new Closing he Gap target for community infrastructure (link here and link here ). The new target is framed as follows:

Target 9b: By 2031, all Aboriginal and Torres Strait Islander households: Within discrete Aboriginal and Torres Strait Islander communities receive essential services that meet or exceed the relevant jurisdictional standard; In or near to a town receive essential services that meet or exceed the same standard as applies generally within the town (including if the household might be classified for other purposes as a part of a discrete settlement such as a “town camp” or “town based reserve”.

 

The new target 9b differs from the IPA recommendation insofar as it accepts current jurisdictional essential services standards (which may in fact require strengthening – see below), whereas the national approach advocated by the IPA Report would ensure both uniformity and reduce the likelihood that some jurisdictions standards will lag national expectations. One would hope that the forthcoming Productivity Review of the National Agreement (link here) would recommend that the Joint Council consider amending target 9b to ensure appropriate/strengthened national standards for remote essential services are applied.

 

The IPA report is an exceptionally comprehensive and far sighted assessment. It proposes an extremely ambitious agenda; one which will be highly susceptible to governments’ reluctance to commit to new expenditures, and governments’ propensity to baulk or fall at the implementation stage. Nevertheless, this is an extraordinarily important report, and deserves wide circulation and attention across the Indigenous policy domain.

 

Notwithstanding the vision and focus the Report’s authors have brought to this analysis, I do have one criticism. The focus on water, power, and telecommunications is in my view too narrow. The policy reforms advocated by the Report should be broadened to include sewerage, roads, cadastral and related land surveys, and most importantly, housing in remote communities. The vast bulk of housing in remote communities is public housing, and it is a core component, a core foundation, for the associated essential services that we normally see as infrastructure. As the largest public housing peak body in the US notes on its website (link here):

Public housing plays a critical role in our nation’s public infrastructure, providing families with a stable home and helping them gain access to other services, including education and health. When we invest in public housing, we help low-income families achieve self-sufficiency and improve life outcomes, but we also generate economic growth, bolster productivity, and positively impact support services while significantly decreasing costs.

 

Of course, the IPA is not alone in Australia in failing to see social housing as infrastructure. Infrastructure Australia was very slow to acknowledge that social housing is infrastructure (link here and link here) and when it did, it never really gained traction within the bureaucracy and beyond.

 

Indeed, in the last year of the former Government’s term, it took steps to explicitly ensure that Infrastructure Australia did not consider social housing. In April 2022, the Shelter WA website reported (link here) that the former Deputy PM and Minister for Infrastructure, Transport and Regional Development, Barnaby Joyce, issued a Statement of Expectations to the Board of Infrastructure Australia (link here) that omits inclusion of social infrastructure such as social and community housing in IA’s list of priority sectors.

 

The Shelter newsletter states:

…As reported by Community Housing Industry Association (CHIA), regrettably, the new statement of expectations removes social infrastructure from the list of priority sectors despite its inclusion in IA’s 2021 Infrastructure Plan, and affordable housing being the most frequently cited infrastructure gap in regional areas. This is step backwards in efforts to treat housing as essential infrastructure.

 

What the Shelter website does not mention is that housing shortages are endemic in remote and regional Aboriginal and Torres State Islander communities, and that Aboriginal and Torres Strait Islanders are over-represented in waiting lists for social and community housing in regional and urban locations. Moreover, if one were to aggregate the outstanding remote community housing needs across regions or jurisdictions and treat addressing them as individual projects, the financial costs would exceed the capital costs of many of the major economic projects that Infrastructure Australia recommends (and the North Australia Infrastructure Facility funds: link here).

 

The failure to gain traction is evident in the recent release of the Independent review of Infrastructure Australia, and the associated Government Response to the Review (link here). The Independent Review recommended (pages21-22) that Infrastructure Australia’s remit be expanded to include social infrastructure, albeit without seeking to define or stipulate just what such a term covers:

The Review recommends that Infrastructure Australia’s remit be expanded to include social infrastructure (where it is relevant to the infrastructure investment project, or place and precinct in question) as well as future investment challenges where Infrastructure Australia’s position as the national advisor best enables it to incorporate those challenges in its advice and analysis.

 

Disappointingly, (particularly given the Government decision to make Infrastructure Australia a more influential adviser on infrastructure matters) the Government Response adopts the Barnaby Joyce approach, and effectively set this recommendation aside:

Support in part. The Government considers Infrastructure Australia’s focus should be on nationally significant projects relating to transport, water, communications and energy infrastructure, in support of Australian Government functions.  From time to time, it may be appropriate for Infrastructure Australia to consider social infrastructure implications where it is part of broader network analysis or place-based project advice. Where required, the Government can request this work through the Statement of Expectations. The Government notes that this approach minimises any duplication with regional and urban policy and program functions within the Australian Government…

For those who require a translation from bureaucratic parlance, this means ‘not on your nelly’!

 

Yet the Infrastructure Australia Regional Strengths and Infrastructure Gaps Report released recently (link here: Overview report) identifies the availability, diversity and affordability of housing as the most common identified gap across regional Australia (page 11) and in relation to Indigenous communities’ concerns, noted (para.4.7.7 page 38):

The availability, affordability and quality of housing was highlighted across consultations as being a key issue for First Nations communities. The 2019 Australian Infrastructure Audit (Challenge 126) identified that housing is not meeting the needs of First Nation communities across remote Australia, exacerbating health, education and well-being outcomes. Overcrowding is leading to poor outcomes for First Nations peoples in Remote Areas, which is also identified on our Infrastructure Priority List.

 

It is worth contextualising these persistent shortfalls. This week, Infrastructure Australia released its 2022 Market Capacity Report which identifies significant risks and pressure on the infrastructure pipeline currently in place across the nation. But more saliently for Indigenous citizens in remote Australia, the report notes that the current 5 year pipeline of major public infrastructure projects ‘is valued at $237 billion - an increase of $15 billion in the last 12 months and equivalent to 6.7% growth’ (link here). Or to contextualise the Commonwealth’s effort in relation to remote housing, where it has allocated $100m for the NT over five years, this represents on my calculation 0.04 percent of the total five year public infrastructure pipeline.

 

Taken together:

• v  the IPA Report outlining the extraordinary remote infrastructure challenge (albeit narrowly focussed);
• v  the current inability of the Productivity Commission’s Closing the Gap Information Repository to provide information on housing progress (target 9) in remote areas — it is listed as future reporting (link here); and
• v  the deliberate decisions to narrow the remit of Infrastructure Australia to exclude advice on disaggregated remote social housing needs  in favour of geographically focussed commercial infrastructure;

all provide a rather pessimistic insight into the longstanding systemic challenges driving under-investment in public infrastructure within remote communities. These challenges are exacerbated by the deliberate decision of the former LNP Government (not reversed by the current ALP Government)  to not continue the public investment in remote housing provision in the 2008 National Partnership Agreement on Remote Indigenous Housing (link here;  link here and link here).

 

Yet the public investment shortfall is deepening as the challenges of climate change are rising (link here).

 

A recent research note in the Medical Journal of Australia by Simon Quilty, Norman Frank Jupurrula, Ross Baillie and Russell Gruen (link here) is titled: Climate, housing, energy and Indigenous health: a call to action. The authors first paragraph states:

Most Australians take safe housing and uninterrupted electricity for granted. Yet in remote Indigenous communities, low quality poorly insulated housing and energy instability are common. Most houses require prepaid power cards, resources are meagre, financial literacy is low, and people often have to choose between power and food. New evidence reveals extreme rates of prepaid electricity meters’ disconnection in these communities, making people with chronic diseases who depend on cool storage and electrical equipment particularly vulnerable. The convergence of excessive heat, poor housing, energy insecurity and chronic disease has reached critical levels in many parts of northern Australia, and a multisectoral response is needed to avert catastrophe. Medical professionals have a key role to play.

 

The article is short and highly recommended. Among other things, it argues for the strengthening of building codes and housing standards in remote settings, not the acceptance of existing standards.

 

To sum up, over the past two decades at least, public funding in core capital investments related to essential services, social housing, and community infrastructure has been severely deficient. This has undoubtedly reduced the levels of recurrent funding by governments in remote settings, and also limited the opportunities for local employment, and stronger economic development and progress. It is undoubtedly one of the key contributors to limiting the opportunities available to the rapidly growing youth cohort within communities. While reversing the sustained under-investment is not sufficient to address all the challenges facing residents of remote communities, it is a necessary element in any viable transition to a more stable future for remote communities. The onset of climate change is making addressing these challenges even more urgent.

 

Yet relevant policymakers appear to be both deaf and blind to the systemic and structural nature of the crisis their predecessors have initiated and for which they have the current responsibility to address. It is past time for the Commonwealth to step up, commit funding and ensure that the states and Territory are focussed on these priorities, which after all are core responsibilities of governments.

 

 

 

 

 

 

Cataclysm and crisis: the two sides of the policy tragedy engulfing remote northern Australia

 

This bodes some strange eruption to our state

Hamlet Act 1, scene 1.

 

Over the past two years, it has been increasingly apparent that remote communities across the north have been struggling. There has been an ongoing surge in youth crime across East Kimberley communities, particularly in Halls Creek , Fitzroy Crossing, Derby, Kununurra and elsewhere. A recent article in WA Today (link here) states:

A surge in crime across the Kimberley has been partly attributed to social media, with youths filming themselves stealing cars and challenging others. More than 300 children have been charged with offences in the region during 2022, according to figures tabled in parliament.

 

According to a January 2022 ABC news story (link here):

A surge in alcohol-fuelled crime across the Kimberley during the New Year's Eve long weekend has pushed frontline workers to the brink and angered residents who woke up to violence outside their homes. A steady stream of injuries and arrests from a night of relentless brawling in Kununurra overwhelmed paramedics, hospital staff and police officers for hours on New Year's Eve.

 

The same article reported:

In Derby, police attended more than 50 alcohol-fuelled family violence and assault incidents on New Year's Eve alone. Senior Sergeant Dave Whitnell took to Facebook the following day to announce temporary alcohol restrictions, barring the sale of spirits and full-strength beer. He told ABC Radio the restrictions had an immediate impact, giving frontline workers some respite for the rest of the long weekend.

 

In May 2022, the WA Government sent and extra 24 police to the region in Operation Regional Shield ‘to address soaring youth crime rates and criminal violence in the region’. The Operation identified over 600 ‘at risk’ children (link here). Just last week, a crisis meeting in Halls Creek of senior WA Government officials and the Halls Creek Shire met to discuss option to address the ongoing crime wave (link here). The headline says it all: ‘Kimberley crime wave prompts more police and youth 'social hub' to be built’.

 

Yet these issues are not limited just to the Kimberley nor to Western Australia.

 

In late April 2022, ABC news reported (link here) that in Wadeye in The NT:

dozens of homes have been destroyed in recent weeks, amid widespread unrest. Police said 37 homes have been extensively damaged in the past three weeks, with efforts underway to "support and relocate some of the vulnerable". About 400 people, who were living in the overcrowded homes, are seeking refuge in the bush on the fringes of the community,

 

In July, the ABC reported (link here) that the NT Government had established a Task Force to assist the 545 people who had been displaced and  oversight repairs to the 125 houses that had been damaged since March (including at least 35 destroyed). Yesterday (9 December 2022), ABC news reported (link here) that the NT Police Commissioner stated that:

around five per cent of the community of just under 2000 people is currently in jail, following police operations both in Wadeye and Darwin.

The article also commented on the role of alcohol in contributing to the ongoing unrest:

As part of a four-week operation beginning in October, police roadblocks were set up to crack down on alcohol being smuggled into the dry community….Since the police roadblocks were removed, Thamarurr Development Corporation chief executive, Scott McIntyre, said he believed alcohol-fuelled violence had increased again. "[The operation] had a big impact on reducing the amount of alcohol coming into the community," he said.

 

According to the ABC, in November, for the second time in a month, access to the Alice Springs CBD was closed off by police due to an uncontrolled surge in vehicle thefts and misuse within the CBD (link here). The NT Police Commissioner sent in 40 additional police to manage the situation.

 

Last week the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs held public hearings in Darwin and Alice Springs as part of its Inquiry into Community Safety, Support Services and Job Opportunities in the Northern Territory. The Hansard transcript is not yet available. An ABC news article (link here) reported that the Committee heard evidence of an upsurge in alcohol related domestic violence, an increase in hospital presentations involving alcohol and violence, and calls for the reinstatement of alcohol bans that were lifted earlier this year.

 

A written submission to the Committee from the Alice Springs community advocacy group, the People's Alcohol Action Coalition presents persuasive data backing up the evidence provided to the Committee (link here).Amongst other things, this submission demolishes comprehensively the disingenuous rationale provided previously by a number of NT Ministers that the continuation of the previous alcohol restrictions would breach the Racial Discrimination Act.

 

Clearly, the crisis engulfing northern Australian remote communities and towns is widespread, long lasting, and ongoing. Its causes are undoubtedly complex and the consequences for the victims of violence and social chaos far reaching and serious.

 

Yet the media reports listed above (and many I have not cited) rarely reach national attention, and if they do, they do not lead to more than a transitory response by governments aimed at downplaying their significance and more often than not framing them as isolated instances of aberrant behaviour. Rarely is there any detailed Government commentary or policy analysis seeking to explain the deeper causes, and to deepen community understanding of the conditions facing most remote Indigenous communities. This reluctance reinforces the apparent incapacity or unwillingness of governments to pursue policies directed to ameliorating underlying and systemic issues and to adequately fund the sort of services required. Instead, governments appear determined to sequestrate the social and economic chaos and insulate mainstream communities from any detailed understanding of what is transpiring effectively out of sight and out of mind.

 

Stepping into the grandstand, it is apparent that this ongoing crisis has multiple facets. It has been developing for at least two decades, and the gross levels of under-investment in basic services by governments within communities (along with active policy antipathy to supporting remote communities) has seen an inexorable shift in population towards towns and away from the bush.  While the crisis is geographically dynamic, waxing and waning in particular locations, it is also functionally dynamic, exhibiting different characteristics (symptoms if you like) and concomitantly having multiple repercussions and ramifications. To give readers just a sense of this, I thought I would list the various posts I’ve written on different aspects of the remote crisis over the past two years. I don’t claim that this is any where near a comprehensive account, reflecting as it does my own interests and limited expertise.

 

Over the past two years, I have written numerous posts on this blog on the following topics (in bold) related to remote Australia. I have included underneath the title of each post (without context or attribution) key points made in that post:

 

Deflection and inaction: the Australian Government’s formal response to the Productivity Commission Review on Expenditure on Children in the Northern Territory 27 May 2021 (link here).

… What is crystal clear — even from a cursory reading of the report — is that the system for funding and delivering children’s services in the NT is not fit for purpose….the Government’s response is deflection rather than action. It reflects the deep-seated inability of governments to come to terms with the deep structural issues confronting disadvantaged Australians in remote regions.

 

Regulating Alcohol in the Northern Territory: in whose interest? 9 June 2021 (link here).

My recommendation to the NT Government is that they should take the opportunity of the publication of this report to undertake a fundamental reconsideration of their policy approach to alcohol regulation. To do otherwise will be to deepen their complicity in an entirely preventable scourge that is taking a terrible toll on many Territorians, including a substantial proportion of Indigenous Territorians.

[In relation to the Australian Government] Silence and sitting on the fence is not an adequate response to the ongoing health crisis linked to alcohol abuse across the NT and beyond.

 

A strong start for every Indigenous child: early childhood policy and deep disadvantage 9 August 2021 (link here).

Nonetheless, almost all trends pertaining to child health and well-being in Australia are worse for Indigenous Australian children (Wise, 2013[38]). In addition, a clear gradient is evident of increasing disadvantage the further children live from major cities (Bankwest Curtin Economic Centre, 2017[39]). …  Aboriginal and Torres Strait Islander children in remote Australia are more likely to experience a lack of access to appropriate services, known to mediate the impact of adversity in early childhood (SNAICC, 2020[40]).

 

Energy insecurity in remote Australia 13 January 2022 (link here).

Indigenous communities in remote Australia face dangerous temperature extremes. These extremes are associated with increased risk of mortality and ill health …. Poor quality housing, low incomes, poor health and energy insecurity associated with prepayment all exacerbate the risk of temperature-related harm … We find that nearly all households (91%) experienced a disconnection from electricity during the 2018–2019 financial year. Almost three quarters of households (74%) were disconnected more than ten times. …

 

See How We Roll [book review] 24 January 2022 (link here).

In the perilous movement of people through time and space, both places and kin are made and remade. A primary driver of movement is the opportunistic pursuit of resources: a meal, an adventurous ride, the numbing release of alcohol or ganja, the conviviality of assembled kin … All of these forms of Warlpiri movement, no matter their diversity, never seem to be in search of a destination per se.

 

Indigenous land and economic development in northern Australia 14 February 2022 (link here).

The bottom line arising from a closer reading of the Joint Standing Committee on Northern Australia’s report, …. is to reinforce how little the government has done since coming to office in 2013 to encourage the inclusion of Indigenous landowners and communities in economic activity.

 

The Commonwealth is taking us headlong into a remote policy chasm: but who cares? 18 February 2022 (link here).

In relation to alcohol, such an outcome would remove the alcohol regulation framework currently in place, and implicitly shift regulatory responsibility to the NTG. The SFNT policy framework was primarily focussed on harm minimisation. Any shift of responsibility to the NTG will introduce a number of levels of uncertainty.

 

The ANAO performance audit of the NIAA NT Remote Housing program 2 March 2022 (link here).

Of course, the more fundamental issue here is that the Commonwealth is the underlying owner of the assets, that are scheduled to revert to direct Commonwealth control in 2023. Yet it is deliberately underinvesting in the PTM, which means that the assets degrade faster than they should, will need to be replaced earlier than should, and the tenants (real families with real needs) will continue to live in sub-optimal conditions longer than they should. These are the nuts and bolts of structural racism, laid out in plain view by the ANAO, but not reflected in its findings or recommendations.

 

The ongoing social and governance catastrophe in remote Australia. 8 May 2022 (link here).

Remote Australia requires a ‘new deal’. It requires significantly increased government investment. Most importantly, it requires greater and more effective engagement with remote residents based on acknowledging their prior ownership, their violent dispossession, and an acknowledgment that mainstream Australia is the source of the fundamental disruption that is creating ongoing chaos. The ubiquitous assumption amongst mainstream Australia’s institutions dealing with remote Australia has been that the past is irrelevant and that we should all just look forward. This assumption has not worked and mainstream Australians need to be smart enough to rethink our fundamental approaches to the interaction of the nation state with remote communities.

 

Neil Westbury article on regressive changes to remote alcohol laws in the NT 3 June 2022 (link here).

In these circumstances, the current NT Government appears to have decided that rather than maintaining a system — based on their own reluctance to effectively regulate alcohol in towns — where remote residents who wish to drink have an incentive to come into town, they have decided to shift the problems back to remote communities.

 

Paying the rent: policy or politics? 26 July 2022 (link here).

…the structural issues that pervade the remote housing sector. These include gross and longstanding underinvestment by governments in addressing overcrowding, and in ensuring that existing remote housing assets are adequately managed and maintained…. In my view, the responsibility for addressing these issues falls primarily to the Commonwealth for three reasons. First, housing is central to much of the structural dysfunction that exists in remote Australia, and involves complex interaction between functional responsibilities of all three levels of government. In particular, the social security system is central to the administration of social housing in remote Australia…

 

Alcohol policy reform in remote Australia: a potential roadmap 14 August 2022 (link here).

…corporate alcohol interests have a stranglehold or veto over policy initiatives designed to address or mitigate the consequences of alcohol misuse. Notwithstanding the Commonwealth’s reluctance to engage with these issues, the Commonwealth does have a policy responsibility. It is clear that the issues involved are structural and extend beyond any one state or territory. On its own this suggests that Commonwealth action may be necessary.

 

Conclusion

 

The succession of media reports over the past two years (and in fact the previous twenty years) makes it clear that there is an ongoing cataclysm across remote northern Australia. I hope my posts over the past two years commenting on a succession of more detailed policy reports, documents and events makes out a persuasive case that from a normative policy perspective, governments are failing to coherently and comprehensively address this ongoing cataclysm. The inability of governments to envisage, understand and put in place effective strategies to address the multiple facets of the economic and social cataclysm facing remote communities amounts to a massive and fundamental failure. This failure is in and of itself a crisis; a crisis of governance capability, a crisis of will power, and ultimately a crisis of government legitimacy.

 

The implication that inevitably follows is that the solutions (for they will inevitably be multiple) must go beyond focussing on a single issue (housing, or health or food security or alcohol, or crime, or education, or incarceration, or unemployment or economic development, or land tenure, or dispossession or the impact of colonisation). The solutions if they are to be effective must simultaneously and comprehensive make significant inroads into all of these issues. This is an enormous and extraordinary challenge confronting the nation. It is a challenge that appears to be either incomprehensible or inconceivable to governments and policymakers, yet it is extraordinarily real nevertheless not least to the lives of thousands of Australian citizens it adversely impacts.

 

Addressing it will require a national effort that starts from a premise of constructive engagement with Indigenous citizens and their representative and advocacy organisations, that renounces the use of simplistic and punitive policies, and that emanates from a consensus that transcends the limited imagination of governments and included civil society more generally.

Industrial relations horse-trading: mainstream reforms impact the Indigenous policy domain.

 

 

All things are ready, if our minds be so.

Henry V, Act 4, scene 3.

 

The ABC interviewed Tony Burke, the Minister for Employment and Workplace Relations, this morning on the status of negotiations with the cross-bench. He claimed that the Government now had the support of Independent Senator Pocock to pass the Government Industrial Relations Bill. In explaining the terms of the Government’s concessions, he listed a third change outside his portfolio dealing with the establishment of an independent panel of experts to provide public advice on welfare payments prior to each budget. The ABC is reporting the proposal in the following terms (link here):

Finally, the third change sits outside the scope of these laws but could be consequential for people on government support payments such as JobSeeker.

An independent panel will be established every year to review the level of support payments — such as JobSeeker — ahead of each federal budget.

That advice to the government will have to be published at least a fortnight before the budget is handed down.

Senator Pocock said he was happy with the changes, and the new review of support payments was a "game-changer" for those living below the poverty line.

 

The Guardian’s report (link here) emphasised the role of the Committee in providing advice on the structural challenges of inclusion:

On the ABC’s Insiders Burke revealed that a third plank of the deal would create “a new statutory advisory committee made up of experts that, in the lead-up to every budget, will provide independent advice as to the structural challenges on economic inclusion”.

The committee would review “the different rules and the levels of payments to provide independent advice to the government, as those budgets are put together”, Burke said.

 

I wanted to make two brief points regarding this proposal.

 

First, if implemented, it will amount to a fascinating precedent of the Parliament and the Executive Government being prepared to make policy decisions under a carapace of public independent advice. While it will not constrain the freedom of movement available to governments and the Parliament, it represents a sensible and overdue addition to the public information base on policymaking decisions that will, for better or worse, substantially affect the poorest quintile of the Australian population. This change can only add to the quality of policymaking in a domain where governments have traditionally been prone to disregard the very tangible impacts of their policy decisions on people’s lives. Given that the panel is described as a ‘statutory advisory panel’ it seems that Senator Pocock has — wisely in my view — ensured that these changes will be legislated.

 

The parallels with the proposed Indigenous Voice are obvious and provide a clear rationale for why a legislated mechanism for the Voice is overdue. Of course, there is a world of difference between a focussed expert Advisory panel with a remit to provide key structural advice on one narrow set of issues, and a proposed Indigenous Voice with a remit across numerous functional issues including health, education, social security, environment, heritage, land rights, and so on. Mastering the technical policy expertise to add value on a broader front will be a major challenge for the Indigenous Voice if and when it is established.

 

The second point worth considering is that this mainstream mechanism will impact proportionally more Indigenous citizens than mainstream citizens. The AIHW (link here) has noted that Aboriginal and Torres Strait Islander people disproportionately receive government cash pension or allowance as their main source of income compared to non-Indigenous Australians.

 

My very rough back of the envelope calculations suggest that the indigenous proportion of the lowest income quintile is around 7 percent, almost double the Indigenous  share of the population overall.

 

Whatever the actual proportion, the key takeout is that the effectiveness of the newly proposed mechanism is of major significance to Indigenous interests, as its analysis and recommendations will disproportionately impact the 45 percent of the Indigenous population whose major source of income comes from government payments. These citizens are not limited to the lowest income quintile (see below).

 

To my mind, this is a structural reform with huge potential over time for mitigating the poverty levels within the Indigenous community and more generally amongst the poorest Australians.

 

 

Appendix for those who are interested in the derivation of the 7 percent figure.

The calculations below are back of the envelope only and in particular depend for their accuracy on the income levels of those newly identified Indigenous citizens added between the 2016 and 2021 censuses.

 

The ABS (link here) reports that

As at 30 June 2021 there were 984,000 Aboriginal and Torres Strait Islander people, representing 3.8% of the total Australian population. This is an increase of 185,600 people (23.2%) since 30 June 2016.

 

In other words, the 2016 Indigenous population was around 800,000

 

The AIHW reports (link here) that

The 2016 Census of Population and Housing (Census) found that almost 4 in 10 Indigenous adults (37%) were living in households with the lowest equivalised gross weekly household income (1st quintile), almost twice the proportion of non-Indigenous adults (20%). One in 10 (10%) Indigenous adults were living in households with the highest income (5th quintile). Among non-Indigenous adults, there was an even spread across all five income quintiles.

 

The same link notes that:

The 2018–19 National Aboriginal and Torres Strait Islander Health Survey (Health Survey) found that the main sources of income for Indigenous Australians aged 18–64 were employee cash income (44%; 195,700) and government cash pension or allowance (45%; 200,200) However, based on responses from the 2014–15 National Aboriginal and Torres Strait Islander Social Survey, 47% of Indigenous Australians aged 18–64 received a government cash pension or allowance as their main source of income, compared with 14% of non-Indigenous Australians.…..

….There exists a large gap in understanding the implications of income support and its association with health, despite 45% of Indigenous Australians aged 18–64 receiving income support as their primary source of income in 2018–19.

 

If we take just the lowest quintile, 37% of the 2016 population equates to 296,000. If we assume the Indigenous proportion in the lowest quintile is roughly the same as in 2016, the Indigenous population in the lowest income quintile will be around 364,000. The Australian population is estimated at just above 25.9 million in 2022 (link here). If we assume the mainstream population remains evenly spread across the five income quintiles, then the lowest income quintile will have a population of around 5.2 million. The indigenous proportion is around 7 percent, almost double their share of the population overall.

 

 

Mitigating embedded contradictions within the proposal for a constitutionally enshrined Indigenous Voice.

                                                                                         We are not the first

Who with the best meaning have incurred the worst

King Lear Act 5, scene 3

 

It is now five and a half years since the Uluru Statement (link here) was issued, and its call to action has progressively gained increasing traction both within the popular imagination, and from governments. The previous LNP Government undertook a convoluted time-consuming process (the Indigenous Voice Co-design Process) led by Professors Tom Calma and Marcia Langton, involving appointed members including government officials, to recommend and design the broad shape of the proposed Voice, albeit without committing to constitutional enshrinement. Their report (link here) was finalised in July 2021. There was no further action until after the May 2022 election. The incoming Labor Government committed from day one to take the Voice proposal to a constitutional referendum within its first term but has made no commitment in relation to the timing of legislation should the referendum succeed.

 

Public debate on the proposal for a constitutionally enshrined Indigenous Voice is inexorably building following the Prime Minister’s announcement that the Government intends to take it to a referendum in either the second half of 2023 or the first half of 2024. The battle lines between supporters and opponents are taking shape. They have been on full display in recent weeks. For example, Noel Pearson in his recent First Boyer Lecture (link here) laid out the proponents’ case in a measured and sophisticated argument designed to persuade and reassure the wider community that the proposal represents in effect the essential step to achieving the nation’s quest to come to terms with its history and destiny. In response, former Prime Minister Tony Abbott authored a long op-ed in last Weekend’s Australian making the case against this proposal arguing for an alternative form of constitutional recognition (‘Pass of fail, this referendum will surely leave us worse off’ Weekend Australian 5-6 November 2022) . I don’t propose to summarise or analyse in detail the respective arguments here.

 

Instead, I want to step into the grandstand, and examine the intensifying debate underway from an alternative vantage point. In doing so, I am not purporting to comprehensively deal with all the arguments for and against the proposal, but merely to contribute a further perspective to be put into the mix. To do so, it is first necessary to recognise that as with any major political and policy issues, the proposal is inherently complex and multifaceted.

 

In particular, the proposal is simultaneously an attempt to have our nation’s founding document, the Constitution, explicitly recognise in a positive way the original inhabitants of this land; a proposal to constitutionally entrench an institution designed to rebalance the structural inequities between Indigenous and mainstream interests; a proposal to strengthen the ongoing process of reconciliation between First Nations and the broader Australian community; a proposal to grant greater prominence to the place of Indigenous cultures within the Australian nation; a proposal to ensure Indigenous interests have a forum to formally contribute to policy initiatives that potentially affect them; and ideally a proposal that will lead to better policy outcomes across the Indigenous policy domain and over time to thus ‘close the gap’ in economic and social outcomes. These different and in some cases overlapping facets to the Voice proposal span the spectrum from symbolic to substantive, but it is too simplistic to encompass these facets, and those I have perhaps not identified, within such a binary conceptualisation.

 

Some of these objectives may be achieved merely through the successful passage of the referendum, and thus the concomitant amendment of the Constitution. Others require the implementation through legislation of an institutional entity with the resources, organisational resilience, and perhaps most importantly, the sustained capability to effectively identify and advocate persuasively on issues of potential concern to Indigenous interests. Implicitly embedded within the requirement for ‘sustained capability’ is the necessity of ensuring on an ongoing basis high quality leadership and organisational stability within the Voice. These are not challenges unique to Indigenous institutions and organisations, but they are nevertheless crucial to the long term success of the proposed Voice.

 

It needs to be emphasised that the Voice is not envisaged to be a mirror of the Parliament. It is not a third chamber. It is more akin to an extra-parliamentary committee with the capacity to provide timely and high quality advice on the implications of proposed legislation and policies for First Nations citizens. It is about ensuring lawmakers and policymakers understand the implications of their proposed decisions from the perspective of First Nations citizens and peoples. This in turn suggests that while the Voice should be broadly representative of First Nations (an issue that received detailed attention in the Calma/Langton report), it should also be designed to ensure it has the expertise necessary to fulfil its policy advocacy function successfully.

 

The Government has appointed a Referendum Working Group to advise on the Voice and a Referendum Engagement Group to provide an information conduit to the wider Indigenous community (link here). It has also appointed a Constitutional Expert Group to provide advice on legal issues associated with the referendum proposal (link here).

 

In this post, I explore the repercussions and implications that flow from two contradictions embedded in the current proposal for a constitutionally enshrined Indigenous Voice.

 

The first contradiction is primarily related the implementation path chosen by governments to date. There is a stark contradiction between the argument that a Voice is essential to recognising the centrality of First Nations in having a role in shaping and influencing policy affecting them, and the reality that no such Voice mechanism has yet been established by the current Labor Government. The former Government established, and then sidelined and abolished, the Prime Minister’s Indigenous Advisory Council  — at the very time it had commissioned a codesign process for the Voice — when its advice did not accord with the then Government’s political agenda (link here and link here). The extraordinary insincerity of the former Government in commissioning a high profile exercise to design a legislated Voice having sidelined and abolished without announcement its own appointed ‘Voice’ is both remarkable, and almost never remarked upon.

 

In a similar but less egregious vein, the current Labor Government continues to effectively pursue a policy of ‘look here, not there’, planning for a legislated Voice to be established following a constitutional referendum, but foregoing any action now to establish an equivalent mechanism. It is now almost four years since the former Government’s Indigenous Advisory Council was sidelined in early 2019, and there is little likelihood that a constitutionally enshrined Voice will be legislated before 2025: a six year interregnum. Reinforcing this contradiction is the limited transparency on how the Government is currently engaging with Indigenous interests on ongoing policy matters beyond the proposal for a referendum and the Joint Council established under the National Agreement on Closing the Gap. If the Voice is of substantive importance, how can the nation afford to stand by for six years while we design and construct the ‘perfect’ version?

 

This contradiction will come into crystal clear focus in the event that the proposed constitutional referendum fails. In such an eventuality, what will the Government do? In a rational world, logic would suggest it should proceed to seek to legislate a Voice without constitutional enshrinement (the former Government’s preferred approach), or alternatively establish such an entity by administrative fiat in the same way that the previous Government established its Prime Minister’s Advisory Council. However, the world is not rational, and the political viability of either of these options would be severely impaired by a negative referendum result. In such circumstances, conservative opponents are likely to conflate the referendum question and the Voice, and would argue that any legislation goes against the will of the people. Administrative action to establish a Voice post referendum would face fewer obstacles, but would be contentious and have no guaranteed tenure beyond the next election, particularly as the timing of the referendum is likely to abut the next election. In the event that the referendum fails, the likelihood of any such structure eventuating into the medium term future approaches zero. The potential downside costs in terms flawed future policies are clearly considerable.

 

The first contradiction can thus be stated as follows: How is it that the governments have been prepared to allocate the considerable financial resources, and considerable intangible political resources, to moving towards a legislated and constitutionally entrenched Indigenous Voice designed to give Indigenous Australians a greater say over policies that affect them, while avoiding the establishment of an interim Voice.

 

The second and more significant contradiction relates to the potential for inappropriate influence by governments over the structure, operations, and ultimately independence of the proposed Voice. Arguably this contradiction was embedded within the original proposal for a Voice to Parliament, but the risks involved are substantially greater given that it is now proposed that the Voice may provide advice to both the Parliament and additionally to the Executive arm of Government. The reason is that the operations of the Executive arm of government are largely shrouded in secrecy and opacity, subject to backroom deals and tradeoffs involving multiple interests, and in many respects are best characterised as being shaped more by processes of state capture than electoral considerations. Whichever characterisation one prefers, the relative power of Indigenous interests in these processes are much weaker than the interests that continue to shape the extant institutional architecture of Australian society.

 

Transparency is the best weapon of weak interests. Pressure, intimidation, coercion, and co-option are the most significant threats to weak interests. The independence of the Voice can only be guaranteed by complete transparency; yet engagement with the Executive arm of governments will only be granted on the condition of secrecy (e.g. see dot point 7, p.148 in the Calma/Langton Final Report). To contextualise the potential risks to the independence of the proposed Voice, it is worth imagining the political uproar, consternation and reaction were a government to propose legislation that re-established the National Farmers Federation or the Minerals Council as a statutory entity, with its governance and representational structures controlled by processes laid down in legislation. In short, the wider the remit of the Voice, the deeper and more extensive are the associated risks.

 

This expansion of the proposed remit of the Voice has attracted virtually no public discussion since the Voice proposal was first articulated. It is worth setting out briefly the genesis of this change.

 

The original proposal appears to have been for a Voice that solely advised the Parliament. See the discussion in this note (link here) from the Parliamentary Library in 2017. The notion of the Voice providing advice to the Executive arm of Government as well as to Parliament appears to have been in accordance with views promulgated by the then Minister in the lead up to the commissioning of the Calma / Langton process. Tim Rowse’s insightful analysis from February 2021: ‘Is the Voice already being muted?’ (link here), provides a useful chronological account of the development of the idea of the Voice providing advice to Government. See also my February 2021 post on this issue in the context of the Calma / Langton interim report (link here). That post also listed five arguments in favour of limiting the Voice’s remit to advice to Parliament.

 

The final report of the Calma / Langton codesign process made a robust case for the Voice to have the wider remit, basing the rationale on the ‘critical need’ for the Voice to provide advice early in the policy and law making process. The report discusses the issue in detail at pages 150 to 153. While it notes that some submissions argued for greater focus on advice to Parliament, these views are dismissed, essentially by arguing that advice to Parliament would be a ‘core function’. The report avoids or understates the implications of non-transparent engagement between the Voice and the Executive arm of Government, and while it sets out extensive requirements for transparency around the Voice’s engagement with the Parliament (section 2.9) it fails to provide any similar analysis for engagement with the Executive.

 

The most serious flaw in the Report’s analysis is the evasion of any discussion of the respective roles of the Executive and the Parliament. The unquestionable reality is that the Executive arm dominates the Parliament, a relationship that can be traced to the short-sightedness of the Constitution’s founders (link here). The pragmatic and hard headed assessment that the legislative design of the Voice must deal with is whether to seek to participate, in secret, and at risk of co-option, in the day by day struggles for influence within the executive arm where stronger interests with extraordinary financial backing play hardball, or to rely on the transparency and public narrative opportunities of using the Parliament to make the case for the fairer treatment of First Nations interests.

 

Given this analysis, it is perhaps not surprising that a change of Government has apparently not led to a new approach to the proposed role of the Voice.

 

On 30 July 2022, Prime Minister Albanese recommended (link here) draft text to be incorporated into the Constitution (emphasis added):

Our starting point is a recommendation to add three sentences to the Constitution, in recognition of Aboriginal and Torres Strait Islanders as the First Peoples of Australia:

1.     There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

2.     The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.

3.     The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

 

The current suggestion endorsed by the new Government’s Referendum Working Party is that the proposed Voice should have a role in advising Government as well as the Parliament.

 

In the communique released by Minister Burney after its first meeting (link here), the Working Group stated, inter alia (emphasis added):

The Working Group discussed common principles for the Voice drawn from the work already done to define the Voice. Those principles identify the Voice as a body that:

•          provides independent advice to the Parliament and Government.

 

A wider remit for the Voice is a recipe for disaster. The core reasons are two-fold: a wider remit will (i) fundamentally undermine the independence of the Voice; and (ii) set up a situation where the Voice inexorably becomes the paramount mediator and promulgator of Indigenous views to Government. Chris Kenny ( a member of the Senior Advisory Group for the Indigenous Voice Codesign Process) recently argued that the Voice should subsume existing Indigenous advocacy organisations and that the architecture of Indigenous organisations can be rationalised and streamlined (‘Recognition and a fair go to bring us together’, Weekend Australian 5-6 November 2022). In turn, a wider remit increases the incentives on Governments to seek to cajole and co-opt the membership of the Voice, including by controlling the resources made available to the proposed Voice, and ultimately through threatening to amend its structure and membership to ensure it receives the advice it expects. This risk is substantially less if the remit is limited to advising Parliament, leaving advocacy and engagement with the Executive arm of government to other First Nations peak bodies and organisations.

 

Thus, we can summarise the second and most serious contradiction within the Voice proposal, whether its remit is broader or narrower, as follows: that the mechanism that constitutes the Voice will fundamentally be a creature of the Executive arm of Government and indirectly the Parliament. Both the Executive and the Parliament overwhelmingly reflect mainstream interests and political views. The challenge is to design a Voice that ensures independent Indigenous views are taken into account in the political and policy processes that constitute Australian democracy.

 

In my view, the two contradictions embedded within the current approaches to the Voice proposal, if left unattended, represent existential risks to the viability and effectiveness of the proposed Voice and to the longer term capacity of Indigenous interests to effectively influence legislation and other major policy initiatives directed at, or significantly impacting, First Nations in Australia.

 

How then might these risks be mitigated? I see three inter-related and complementary initiatives that would go a considerable way to reducing these risks.

 

The first risk mitigation initiative would be to establish an interim policy advisory body with a remit to advise the Parliament through the publication (to the world at large) of advice on Indigenous policy issues across the board including potentially issues arising in the course of legislating the Voice. Such a body would be explicitly interim, and thus its own design would not purport to foreshadow the design or operations of an eventual Voice. Inevitably however, its operations would provide valuable insights into the practical issues likely to arise.

 

One of the most difficult issues in pursuing such a strategy would be the selection of members of the interim body. Recent Governments have displayed a penchant for making unilateral appointments, often without a public selection process. Such a process in relation to an interim Voice, where the legitimacy of its membership to represent diverse Indigenous interests is likely to be questioned, is in my view problematic. The current Government has made unilateral appointments to a number of advisory groups (to the Executive) designed to assist in managing the process towards a referendum (link here and link here). The Government has gone out of its way to appoint members from across the political spectrum, including the former Minister Ken Wyatt. Similarly, given the likely political heat over the coming two years, the implementation of any interim general policy advisory body would need to meticulously seek a cross partisan and diverse membership.

 

A second risk mitigation initiative to address the risks of inappropriate influence by mainstream interests over the constitution and membership of the Voice would be aimed at insulating the Voice from the partisan politicisation that infuses virtually all public policy issues in Australian democracy. The current default in establishing representative structures are either appointments or elections. Unfettered and non-transparent appointments by Governments or the Parliament are unlikely to meet the expectations of Indigenous interests. Elections are a better option, but have serious downsides. The adoption of mandatory elections would be problematic, and would exacerbate internal conflict along mainstream partisan lines. An elected membership of the Voice will be constituted by Indigenous politicians, rather than Indigenous policy experts. There is a risk that mainstream political parties would colonise electoral processes with funding and technical support to the detriment of more local and regional concerns. It is also indisputable that trust in electoral processes is under challenge both here in Australia, and more overtly in the US, and Europe. Increasingly, trust in elected officials worldwide is dropping (link here).

 

In other words, while appointments or elections are framed as mechanisms to achieve representativeness, they are demonstrably inadequate in guaranteeing independence from external influence. This leads me to suggest consideration of a third approach.

 

My admittedly innovative suggestion for the constitutionally enshrined Voice established after a successful referendum, would be to adopt a process based on sortition or random selection. The Australian Electoral Commission would oversee the selection process. It might first call for public nominations, then use an independent panel appointed by a cross party selection panel, to cull the number of nominees to say 200 based on merit and perhaps with some adjustment to ensure adequate numbers of women and a roughly pro-rata split of urban, regional and remote nominees, and then use a process of sortition to randomly select say 12 to 15 members for appointment to staggered two year terms. Such a selection process would be cheaper than elections, remove strategic behaviour by Voice members seeking re-election, minimise the incentive for politically aligned governments or parliaments to seek to co-opt Voice members, and arguably lead to more effective representation within the Voice of the span and diversity of Indigenous interests across the nation.

 

The third risk mitigation initiative would be to revisit the suggestion that the proposed Voice have a role in advising the Executive arm of Government as well as the Parliament. My counter-intuitive assessment is that a narrower remit, where the functions of the Voice are limited to advising the Parliament, would lead to a more influential and effective Voice. The Voice would automatically focus on the major structural and institutional issues which will shape the opportunities available to First Nations citizens into the future, without being overwhelmed (either intentionally or not) by the miasma of transactional influence peddling and bureaucratic secrecy that pervades the operations of the Executive arm of Government. It would ensure that the entirety of its operations are undertaken transparently and its advice provided largely in the open, thus reducing the incentive for Governments to seek to manipulate or co-opt its membership, and it would pre-empt the otherwise inevitable arguments that existing Indigenous advocacy organisations and peaks should be sidelined and/or abolished.

 

Conclusion

 

I have identified two complementary contradictions that sit at the core of the current processes aimed at implementing a constitutionally enshrined Indigenous Voice. If the proposal for a Voice is worthwhile and important, why have Governments not implemented an interim version given the extended time frames involved in establishing the Voice? And if it is designed to represent First Nations interests to mainstream policymakers, how is it that mainstream interests retain powers to shape and influence its constitution and membership? These contradictions are deeply embedded in, and are a reflection of, the fact that the nation has yet to satisfactorily resolve its relationship with First Nations, and are thus part of the intractable reality that the nation must confront. In response, I have outlined three strategies designed to mitigate (but not necessarily entirely overcome) the risks that emanate from these extant contradictions.

 

The success of the proposed referendum is far from certain. And virtually all the public debate implicitly assumes that a successful referendum will resolve the nation’s fraught relationship with First Nations. In fact, the planned referendum is just the beginning of a much longer journey that the nation must travel. It behoves those of us with an interest in Indigenous public policy, and those of us committed to greater justice for First Nations, whether we are First Nations members or not, to look beyond the rhetoric on both sides of the current debates, and think through the difficult choices that await the nation whether the referendum succeeds or fails. Not to do so will inevitably exacerbate the challenges the nation faces in building an inclusive society that treats all citizens justly and equally. Such an outcome would be a tragedy for First Nations citizens and for the nation as a whole.