Misdirected focus: the case for institutional policy reforms to alcohol supply

                                            To weep with them that weep doth ease some deal,

                                        But sorrow flouted at is double death

Titus Andronicus, Act three, Scene one.

The House of Representatives Standing Committee on Health, Aged Care and Sport has recently released a report titled Issues paper relating to the health impacts of alcohol and other drugs in Australia (link here). The report is effectively an interim report and is designed to form the basis of a more comprehensive report assuming the next Government is prepared to renew its terms of reference. While the terms of reference span mainstream society, the report unsurprisingly addresses Indigenous issues at various points.

Like most Parliamentary reports of this nature, this Issues Paper carefully navigates its way through what is a complex and at times prickly thicket. Its value in the Indigenous policy context is to remind readers of the multitude of ways in which AOD, the report’s acronym for alcohol and other drugs, impacts indigenous people and communities. Thus, there is mention of Foetal Alcohol Syndrome (FASD), criminal justice, numerous health impacts and in passing the potential influence of poor social and environmental infrastructure in driving AOD use and abuse. It is not my intention to seek to summarise the report, but rather I intend to cherry pick a number of propositions as a stepping stone to further discussion.

The report provides an excellent introduction to the overwhelming numbers of research activities, advocacy NGOs and treatment and service providers all operating across the mainstream system.

In the Chapter on AOD services, at paras. 4.19 to 4.36, the report provides an extended discussion of Indigenous issues related to AOD use, relying in large measure on submissions from NACCHO and the Queensland based Institute for Urban Indigenous Health.  These submissions were largely premised on arguments for community-controlled service provision based on evidence that Indigenous people are over-represented in the statistics depicting the adverse impacts of AOD abuse. At para 3.58, the Committee records this plea:

The Institute for Urban Indigenous Health submitted that Aboriginal and Torres Strait Islander-led research and evaluation of AOD services must be recognised as a separate, dedicated stream of research and evaluation component of the AOD system. Such an approach would recognise that AOD has a disproportionate effect on Indigenous communities. According to the Institute, more Aboriginal Australians die due to drug and alcohol-related causes than any other disease group, including suicide and cardiovascular illnesses. Among young Aboriginal people aged 15 to 24, alcohol is the number one contributor to the burden of disease.

In a discussion of the links between AOD use and the prison population generally, the report notes (para 459):

People entering adult prison are more than four times as likely to report recent illicit drug use than people in the general community, and seven times more likely to drink to excess, according to the Legal Aid Commission of New South Wales (Legal Aid NSW). Mental health conditions also tend to be over-represented in the prison population.

Given the over-representation of Indigenous citizens in the prison system, these correlations are likely to apply to that subset too.

Chapter Five of the report deals with preventing and reducing harm caused by alcohol and other drugs. This strikes me as the crucial set of issues for policymakers. At para 5.18, the report notes a submission arguing:

 there is growing evidence to support a shifting of focus away from the law enforcement response, ‘especially with regard to communities disproportionately impacted by policing, including LGBTQ+ people, but also First Nations communities and people experiencing complex mental distress’.

The crucial issues for reducing the harm of alcohol across the community are somewhat buried within the report. At para 5.18 and following, there is a discussion of regulatory oversight policy issues including product labelling. At para 5.100, there is an important point made by the Foundation for Alcohol Research and Education regarding the extent to which the current regulatory regime in Australia is out of date and in effect unfit for purpose. At para 5.97, the report notes:

Multiple submissions, … drew the Committee’s attention to the World Health Organization’s three key strategies … in the regulation of alcohol beverages to reduce health harms from drinking: • restricting exposure to alcohol advertising • increasing excise taxes on alcohol beverages, and • restricting the physical availability of retailed alcohol.

There is discussion in the report in relation to each of these points, albeit largely anodyne and descriptive. There is no criticism of the fact that advertising of alcohol appears to be largely based on industry formulated schemes. As is the way with these reports, the views of diverse interests are laid out without detailed analysis or critique. It is largely an exercise in ‘He said / she said’…. Perhaps we are meant to be reassured by the Committee’s observation (para 5.123) that:

In their submissions to the inquiry, industry representatives highlighted that the majority of Australians were drinking responsibly and in moderation.

The Committee’s final commentary (para 5.131) is carefully framed to acknowledge the range of points raised, but it assiduously steers clear of suggesting that there may be a role for government in controlling alcohol advertising, and crucially in limiting access to alcohol or in raising taxes to reduce demand and to remove inconsistent volumetric rates for tax on alcohol. The Opposition members’ addendum goes further making very clear that the current report has no status whatsoever and is merely an issues paper. They go on to make crystal clear that commercial interests must be engaged before reaching any substantive policy positions:

In chapter two, in relation to the regulation and effects of alcohol there is a need to hear from both sides before coming to any concluded views. In chapter three there are a range of controversial observations that have been made about harm minimisation and the approaches of law enforcement—these need to be tested with evidence from state and territory police. In chapter five, a range of highly contested policy responses are raised. It will be important that the Committee receives submissions and takes evidence from a much wider range of stakeholders to test the evidence, on all matters contained in that chapter, before reaching any conclusions.

For Indigenous interests, this report provides a case study which should cause them to rethink their advocacy strategy in relation to alcohol. The advocacy voices representing Indigenous prison inmates, Indigenous victims of family violence, Indigenous families of individuals suffering acute health issues, Indigenous children growing up in alcohol induced poverty and trauma are either non-existent or severely muted. Instead, the Indigenous interests making submissions to this inquiry are service delivery organisations with a particular focus on accessing the resources necessary to ensure service delivery is effective. These are important and legitimate interests, but they are not the whole picture. The consequence is that the report is able to effectively ignore these hidden or muted perspectives in favour of a focus on service delivery. This amounts to a structural blind spot that will only be filled when Indigenous interests adopt a broader advocacy strategy. In my view, the Coalition of Peaks (which I acknowledge is fundamentally under-resourced) should make addressing these systemic issues a priority for its advocacy efforts. The absence of such a broader systemic perspective in Indigenous advocacy leaves the field open to those mainstream interest groups arguing against reform.

The clear if implicit message from the major parties is that they do not wish to upset the apple cart vis a vis the major alcohol industry interest groups. Instead of policy reforms aimed at reducing access to alcohol and other drugs, the major parties will focus on the provision of health services and other supports. The report made no attempt to address the particular issues facing remote Indigenous communities (but see para 6.4) notwithstanding that they arguably bear the brunt of lax regulation and encompass the most vulnerable subset of the Indigenous population. The submissions to the Committee by NACCHO and the Institute for Urban Indigenous Health (available on the Committee website link here) were premised on making the case for community-controlled service delivery and largely ignored the importance of institutional reforms to reduce easy and cheap access to alcohol, and the issues associated issues around incarceration and domestic violence. The NIAA submission ( #140 at this link but not available on its website) focusses on its financial support for AOD treatment:

Through the IAS, the NIAA provides approximately $70 million annually to deliver around 90 AOD activities across Australia. IAS AOD funding is supplementary to Health and state government funding and prioritises treatment that is culturally safe and tailored to First Nations clients. These services offer evidence based, and trauma informed models of care for First Nations people and their families. This includes individual and group based therapeutic care, client-based family support, case management, referrals, and AOD prevention and education activities.

In relation to regulation, the NIAA states:

There are various regulations, laws and restrictions that aim to reduce alcohol related harms in jurisdictions around the country. While some laws, such as the legal drinking age, are in place across Australia, the majority of alcohol regulation is the responsibility of the states and territories. The weight of evidence suggests measures to reduce the availability of alcohol through strengthened controls on price and promotion can contribute to reducing harm and improving public safety.

The submission’s conclusion states:

While substance use impacts all Australians, it disproportionately affects First Nations people. The NIAA emphasises the importance of working in partnership and taking a strengths-based, trauma informed, culturally safe and holistic approach to addressing harmful AOD use. It is critical that First Nations voices are elevated throughout the Inquiry, and that the Committee’s recommendations are informed by the unique histories, cultures and experiences of First Nations people.

The subliminal message from the NIAA then is don’t look to the Commonwealth to drive institutional policy reform, its someone else’s responsibility. See this page on their website too (link here). For what it’s worth, I just don’t buy that argument.

The appendix to the NIAA submission ( #140 at this link) which I strongly recommend readers seek out and read very usefully provides a comprehensive and powerful snapshot of the impacts of alcohol on various sectors. Here are a few data points I have cherry picked from the NIAA submission appendix:

… First Nations people were 4.2 times as likely to die from alcohol-related causes as non-Indigenous Australians. They were also 3.8 times as likely to die from alcoholic liver disease, and 4.7 times as likely to die from mental and behavioural disorders due to alcohol use….

AOD are involved in more than half of all police-reported family and domestic violence incidents in Australia, and are likely to be involved in a substantially greater proportion of all family and domestic violence…. For homicides in the period from 1989–90 to 2016–17, 72% of First Nations offenders were under the influence of alcohol at the time of the incident, as were 71% of First Nations victims…

If those data points don’t make the case that a national crisis exists and is ongoing for Indigenous communities in relation to the use of alcohol, then what will?

For those still unpersuaded or just interested in exploring the issues further, the following posts deal with various aspects of alcohol policy in remote Australia (link here, link here, and link here). The consistent theme of these posts has been to point out the excessive influence of the alcohol industry in shaping remote alcohol policy, to encourage the Commonwealth to engage proactively in driving reforms including in relation to the accessibility of alcohol.

Conclusion

If Australia was serious about reducing Indigenous incarceration, we would implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

If Australia was serious about reducing family violence within Indigenous contexts, we would implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

If Australia were serious about improving Indigenous health status, we would implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

If Australia were serious about improving socio-economic status within the Indigenous community, we would implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

If Australia was serious about closing the gap, the Commonwealth would step up and lead, and one of its first steps would be to implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

Unfortunately, it is quite clear from a close reading of this report that neither the Government nor the Opposition are serious about any of these issues.

 

18 March 2025

Indigenous housing system reform: alternative approaches

 

How shall your houseless heads and unfed sides

Your loop’d and window’d raggedness, defend you

From seasons such as these? O, I have ta’en

Too little care of this!

King Lear Act three, Scene four.

This month, AHURI published a new paper titled ‘Indigenous housing support in Australia, the lay of the land’ (link here). Authored by a team led by Associate Professor Megan Moskos, the paper is one element in a larger inquiry into developing a suggested architecture for a long-term governance and resource framework for sustainable and effective Indigenous housing in Australia (link here). The research team has substantial expertise in research into Indigenous housing issues.

This is an important research report as it lays the foundations for the development of what is planned to be a comprehensive proposal for a national policy reform agenda for Indigenous housing in Australia. A second research paper will present evidence collected in eight case studies of different elements of the Indigenous housing system, and a third research paper is planned to combine reports one and two to present a national Indigenous housing governance and resourcing framework. I strongly recommend the report to readers, as it combines comprehensive analysis, builds on and references a deeper literature related to Indigenous housing, and begins the process of exploring potential policy and reform options.

However … the report and the larger inquiry are seriously ambitious as they are seeking to develop an analytic framework that encompasses a truly diverse and complex set of institutional and administrative arrangements across eight jurisdictions, that are themselves confronting rapidly changing demographic circumstances spanning major urban centres to very remote communities and homelands.  Moreover, the public sector environment within which policies are developed and implemented is itself facing significant change in the face of societal level political pressures and ongoing social, economic and technological change both nationally and globally. The report itself acknowledges this when it refers to ‘a very dynamic policy and program environment’ as the first key point of the Executive summary.

The report does an excellent job of summarising at a high level the state of Indigenous housing governance, resourcing and regulation across the nation. It avoids assessing the trajectory of the Closing the Gap strategy in relation to both mainstream and community-controlled housing (I am not optimistic). But it is more definite in pointing to the absence of a single agency with overall responsibility for developing a strategic direction for Indigenous housing policy and for comprehensive reporting on its outcomes. I would have been more critical, as this is a role that a proactive Minister and NIAA could and should run with. Their failure to do so is likely a reflection of more systemic constraints. Instead — notwithstanding the Commonwealth’s powers granted in the 1967 referendum — decisions on strategies and funding allocations have in recent years increasingly been left to the states and territories. The Commonwealth does retain some specific funding in the NT (and thus concomitant influence over policy should it wish to exercise it) because at the prescient insistence of the Land Councils, a substantial number of social housing leases on Aboriginal land were granted to the Commonwealth and are sub-leased to the NT Government.

The report argues that the tenure profile of Indigenous households nationally differs fundamentally from that of mainstream households. Over two thirds of Indigenous households live in private-sector tenure (home ownership or private rental) and around one quarter of Indigenous households are in social housing (in contrast to only 4 percent of mainstream households). The report argues that high rates of homelessness, overcrowding and housing affordability stress along with the distinctive distribution of the Indigenous population necessitates a very different set of policy responses than those for non-Indigenous households. This is a conclusion that warrants reconsideration in my view.

A crucial element in the analytical edifice the report constructs is an assessment of what is termed Unmet Core Housing Needs.  Utilising an established methodology for assessing housing needs, the report estimates that in 2021, some 47,700 Indigenous households had unmet core housing needs. This comprised three elements: over 81% arose from rental stress (ie rent payments above 30 percent of household income), 14% arose from severe overcrowding, and 4% arose from inadequate housing. According to the report:

Areas with the greatest levels of unmet need include many parts of New South Wales and Queensland, where rental stress is concentrated, and remote Australia, where much of the unmet need arises from overcrowding in social housing (page 4).

The report goes on to identify ‘a strong need’ for the development of a national strategic framework underpinned by robust, needs based, evidence and accompanied by state and territory strategies that set clear targets. It also argues for a national body to be established by legislation. Such a body, the report argues, should provide a mechanism for local and regional housing interests to be represented and heard at the national level. The policy frameworks established should be flexible and responsive and adopt a ‘pathways approach’ from homelessness to social housing and from private rental to home ownership.

Finally the report argues that:

Any policy development should also account for the geographical and demographic diversity of Indigenous populations… flexible strategies are required that provide for representation and responsiveness to local contexts and needs. … Most importantly, it means the focus on remote housing does not come at the expense of urban housing but remains [focussed] on the distinctive needs of Indigenous people in both urban and remote areas (page 5).

As one would expect, the report’s data analysis is rigorous and perceptive. Where I diverge from the perspective of the report’s authors  is in the normative assumptions that are embedded within the report’s vision for the future.

My high-level critique of what is proposed is as follows:

First, the proposed architecture for the Indigenous housing strategic framework essentially mirrors the closing the Gap architecture put in place in 2020, where in effect the NIAA vacated the field and rather than playing the role of ringmaster, adopts a more passive role of being just one jurisdiction among nine. This is not what the electorate voted for in 1967, and it has led to a leadership vacuum in the closing the gap process, with the Coalition of Peaks trying to push the unresponsive Commonwealth and the other jurisdictions as if they were pushing lengths of rope. Moreover, there is not one system, but nine separate administrative, programmatic and political systems. We currently have that in the Indigenous housing sector too, but maintaining it is not reform. While a legislated body could theoretically create an effective leadership framework with the Commonwealth in partnership with Indigenous interests in the driver’s seat, the political will to implement such legislation does not exist at present. In my view, setting out to establish a separate policy framework for Indigenous housing will inevitably end up in the same swamp the Closing the Gap process is bogged down in.

Second, while I understand the desire to create a unified Indigenous housing framework that somehow removes the structural tensions that exist between remote and non-remote Indigenous populations, the implicit assumption that rental stress is on par with overcrowding and inadequate housing as the third element of unmet core housing needs is in my view counterproductive. Rental stress is as much an outcome of poverty as of housing policy deficiencies. While I accept unreservedly that non-remote Indigenous populations have significant socio-economic disadvantages to overcome, hyper-incarceration being perhaps the most egregious and obvious example (link here), the elevation of rental stress to a statistical equivalence with the consequences of overcrowding and inadequate housing as currently experienced in many remote communities is high risk and thus a policy mistake.

In my view, the policy priority ought to be unequivocally built on removing all overcrowding and inadequate assets in the social housing system. The inevitable outcome of not doing so would be that more numerous non-remote Indigenous interests would incentivise government to redirect urgently required resources for new housing and infrastructure towards urban and regional populations that are already the beneficiary of basic essential services. I will happily admit that my views here reflect my own normative value framework that sees the circumstances of remote Australia as being a national disgrace and therefore an overarching priority. In defence of those views however, I would argue that housing is crucial, and the appalling state of remote housing is (along with low employment, declining education outcomes and ongoing health issues) a core driver of the rock bottom socio-economic status of a substantial cohort of remote citizens and a key driver of the social crisis that currently envelops many remote communities (link here).

Third, given recent shifts in public opinion post referendum, and indeed recent shifts in global politics which will inevitably place extraordinary pressure on national budgets whatever the partisan makeup of the government in office, there is in my view a very strong argument for rethinking any strategy based on establishing a separate Indigenous housing system. Instead, I am inclined to a view I have heard articulated more generally by the Shadow Indigenous Australians Minister, Senator Price, namely, to shift to a mainstream model built around social housing provision, scope for community housing solutions to complement the social housing asset base, and broad access to Rent Assistance, with a robust needs-based criterion for the allocation of funding resources at its core.

Such a model if implemented effectively would maximise the chances of new and ongoing social housing funding being allocated by governments over the coming decades. Indigenous citizens are over-represented in the social housing cohort, so would be significant beneficiaries while not having the burden of arguing for specific indigenous based funding allocations.

My perspective on this issue is reinforced by the reality that the nascent Indigenous advocacy capabilities across the Indigenous housing policy domain are comparatively weak and are no match for competing interest groups who will want to get access to any available funding. While mainstream social housing advocacy capability found primarily in NGOs is also comparatively weak vis a vis corporate interests, it is more robust than the Indigenous advocacy capability. I am confident that the extent of Indigenous housing needs across the board are such that Indigenous interests would inevitably obtain a substantial proportion of available resources providing a robust needs-based system applied. I might note in this context that the AHURI report tiptoes around the issue of Indigenous advocacy capabilities. Yet any realistic assessment of the scope for building greater self-determination throughout the Indigenous housing policy system must address this issue.

I should note that accepting a mainstream needs-based funding model does not mean that there is no scope for community-controlled entities to pay a significant role in program delivery in particular locations or regions and even in devising more innovative policy arrangements such as greater use of community housing organisations. It is worth remembering in this context that the most successful community-controlled organisations in the country are the medical services that are built on the foundation of access to a mainstream needs-based funding model, namely Medicare.

Finally, given I have been relatively freewheeling in my critique, it is incumbent on me to outline at least in brief my own vision for a future housing policy framework:

Some of it I have mentioned already. A needs-based mainstream policy framework for allocating resources for social housing. A stronger Commonwealth role in shaping the national social housing policy system. A mainstream policy focus addressing rental stress as part of a wider strategy to address economic exclusion and inequality in society generally. Prioritising addressing overcrowding and inadequate housing over rental stress. Prioritising the needs of disabled citizens in both social housing design and management. A push to considerably expand the use of community housing organisations (whether Indigenous controlled or not) which both own and manage housing stock across both remote and non-remote Australia at a scale that makes them commercially viable. A recognition that there is market failure present in the provision of private housing in remote communities and this requires the use of innovative leasing solutions and/or community trusts which sit between the private and public systems. The AHURI website includes some research papers by Louise Crabtree and others on Community Trusts as a policy solution for remote communities (link here).  A renewed focus on infrastructure provision in remote contexts, including by expanding the remit of the NAIF in financing social infrastructure (link here). A much stronger focus on equitable access to renewable sourced power in remote communities (link here). A stronger role for strengthened Indigenous advocacy within high level mainstream policy forums for the housing system (noting that part of the process of strengthening capability is to strengthen internal transparency and governance).

Such a broad model would not remove the ongoing challenges. It would however avoid fracturing the social housing system into artificial silos, such as for Indigenous citizens, for disabled citizens, for recent immigrants, for mainstream citizens…instead it argues for a single overarching model with robust needs-based systems driven by evidence. The advantages of such a model are more than ideological unity; they include minimising the risk of multiple queues based on differing criteria and thus moving at different speeds in terms of waiting times for access to housing, waiting times for repairs and maintenance, waiting times for ancillary support, and maximise choice while reducing risk of governance failure. These risks are not trivial; the history of Australia is that when the nation has a choice, it chooses to prioritise the non-Indigenous queues.

The bottom line is that reform of the national housing system for Indigenous people is desperately overdue. But so too is the mainstream social housing system in need of fundamental reform. Whatever the design of the new model, it will require more than additional funding. It requires the Commonwealth Government to step up. It will require innovative thinking and focussed perseverance at all levels. It will require leadership and deep consultation. Yet it is almost impossible to get wider community engagement on the issues involved. This report (and hopefully the follow up reports) provide a platform for wider discussion of these issues. AHURI and the report authors deserve congratulation for their efforts. While they have deepened the community’s knowledge base on these issues, I hope that over the coming months they and the various peak Indigenous housing bodies can also communicate their ideas to the wider community and broaden our knowledge base as well as taking the first steps in building the case for real housing reform.

 

27 February 2025

The Missing $41m payment from AMT to ARAC: a trust deficit

 

Round and round the cauldron go;

In the poisoned entrails throw….

Sweltered venom, sleeping got,

Boil thou first i’th’ charmed pot.

Macbeth, Act four, Scene one.

 

In my previous post (link here), I provided commentary on a number of the Questions on Notice asked by Senator David Pocock. I mentioned in that post that I would deal with this question in a separate post. Unfortunately, it involves both a convoluted narrative of events and some accounting issues. The bottom line however is much simpler: a Senator asked a question in good faith based on allegations made in correspondence from residents of Groote Eylandt, and received a dismissive, misleading and probably substantively incorrect response from the NIAA which we must presume had the endorsement of the Minister which raises more questions than answers.

Here is the question and answer provided:

Senator David Pocock’s Question #8

In an article dated 20 July 2024, The Saturday Paper referred to correspondence to your predecessor signed by dozens of Groote residents which alleged that an amount of $41m was paid from the Anindilyakwa Mining Trust (AMT) to the Anindilyakwa Royalties Aboriginal Corporation (ARAC) but which has not been accounted for. A recent review of the relevant publicly available financial statements pertaining to ARAC appears to confirm this. There is also explicit evidence that the ALC effectively controls ARAC and has a direct role in managing ARAC finances. Is the Minister/NIAA aware of the $41m payment and if so has the matter been investigated? If not, will the Minister instruct the NIAA or ORIC to advise her regarding the $41m payment and the circumstances of its payment by the AMT and receipt/utilisation by ARAC?

NIAA Answer #8

The NIAA has made enquiries regarding the recognition of payments made from the Anindilyakwa Mining Trust (AMT) to the Anindilyakwa Royalties Aboriginal Corporation (ARAC) and has been informed that reporting differences arose because of the entities recognising these transactions in different financial years. The NIAA notes that the accounting records of both entities are subject to independent audit. Detailed questions regarding the recognition of financial transactions of the ALC and associated entities should be directed to the ALC.

Below I set out my detailed commentary on the answers to the question and various related issues:

Comment mcd #8

I have previously posted contextual comments on this issue in three posts. The posts were titled Royalties, flawed governance and non-transparency: a potent brew (link here) dated 26 July 2024; The Anindilyakwa Royalties Aboriginal Corporation: micro accountabilities; macro policy implications (link here) dated 3 August 2024; and Annual Reports on Groote: an unconventional assessment (link here) dated 18 January 2025. I strongly recommend that readers keen to understand the context within which the AMT, ARAC and the ALC operate read these posts, especially the first two.

In the light of the NIAA answer provided above I sought to revisit the financial statements for the relevant periods. I was surprised to find that the 2022 Audited Financial statements for ARAC had been removed from the ORIC website without explanation. I find this somewhat strange especially given its relevance to the issues raised by the correspondents form Groote referred to in the Saturday Paper article. I requested a copy and was provided one, but as of 24 February 2025 it has not been published on the website. Financial statements for the previous years which I had obtained from ORIC in 2024 have still not been published on the ORIC website. Given that section 35(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 requires land councils to distribute section 64(3) royalty equivalent payments on to CATSI corporations, there would seem to be substantial merit in the Registrar ensuring that the financial statements of CATSI corporations in receipt of such payments are published on the ORIC website. In any case, should readers wish to read the relevant financial statements I cite below, I suggest you contact ORIC direct.  

The basic facts are as follows.

The 2022 AMT financial report lists under the heading Grants a payment to ARAC of $41,324,957.

The 2022 audited financial statement for ARAC under the heading Revenue records a s.64(4) grant from the ABA of $9.6million (which would have been approved by the Minister) and a grant of $14.3m in s.35 payments from the ALC (the equivalent amount in 2021 was $34.8m). Total income is listed as $23.0m. There is no record of any grant being received from the AMT.

The 2023 audited financial statements for ARAC identify a series of grants and other revenue, including $31.9m in section 64(3) payments from the ALC.  Total income for 2023 is $40.2m. In addition, an amount of $8.1m in investment income is recorded. There is no record of a grant or payment for $41.3m being banked in the 2023 year.

In neither ARAC financial report is there a line item showing a payment of $41,324,957. The explanation provided to the Senate by NIAA that the payment was recognised in a different financial year is thus prima facie incorrect. Moreover, it has the effect of misleading the Senate and the wider community. That is not to say there may not be a perfectly appropriate explanation, but without a forensic audit that identifies the bank account(s) into which the AMT payment was deposited, we will never know.

The comment in the NIAA answer about the financial affairs of the relevant entities being independently audited reeks of either naïveté or an attempt at gaslighting. Auditors can make errors or be provided with incorrect information.

As pointed out in my previous post on ARAC (link here) and extracted in the Appendix below, the ARAC 2022 financial statements identify the cancellation of an infrastructure debt commitment (for $39m) from AMT to ARAC. Whether the auditor was misinformed or failed to follow up the issue, it is clear that the $41m was not deposited in the 2022 year (and not in a later year) and that this is reflected in black and white text in the 2022 financial statement. This reinforces the conclusion that the unidentified person who the NIAA consulted regarding the transaction has misled them; they in turn have misled the Minister and she in turn has misled the Senate (given that Ministers approve or are responsible for answers to Questions on Notice).

Rather than focussing on the independence of auditors while providing incorrect information, NIAA should perhaps focus on the persons who do have the requisite knowledge, namely, the Directors of ARAC. The Directors of AMT and of ARAC were identical and apart from independent Directors were also ALC Board members (see the discussion in my earlier post ‘a potent brew’ (link here). Both the AMT and ARAC Boards considered and formally resolved to approve and certify as true and correct the financial statements for the respective entities in the 2022 year. Prima facie (even on a hypothetical assumption that the NIAA explanation is correct) there appears to have been a failure of the ARAC Board to identify the absence of the $41m grant in ARAC’s revenue for 2022 and 2023. Has the Minister or NIAA requested the Registrar of Aboriginal Corporations to investigate this prima facie error? In this context, see the comments in my recent post on annual reports (link here) related to the ARAC Board’s decision to purchase at considerable cost (sourced from funds notionally provided for the benefits of traditional owners) personal liability insurance for the Directors. Did this decision raise any concerns with the Registrar or the NIAA when it was reported in the ARAC financial statements? And if not, why not?

The assumption that in the face of allegations of a missing $41m, that NIAA, the ALC’s regulator, would ask a person they fail to identify for an explanation and then accept that explanation without being taken through the detailed figures that would allow the allegation to be put to rest, seems at best naïve and incompetent. The fact that this explanation is confidently provided to the Senate as if there is nothing to see here is extraordinary. It reeks in my view of indifference, deliberate disregard, obfuscation and disrespect.

The whole purpose of the Estimates process is to allow Senators to obtain an explanation from the Executive arm of the activities of agencies and corporations within a legislative framework that is entirely the responsibility of the Minister. If the NIAA can’t provide the assurance the Senate seeks, they should themselves take the action necessary to obtain it for Senate. ARAC is not an entity that appears before the Estimates Committee and is incorporated under the CATSI Act that comes within the Minister’s portfolio. The ALC which appears to exercise effective control over ARAC and assists with its bookkeeping and preparation of financial statements is within the Minister’s portfolio. The former CEO oversighting ARAC’s bookkeeping has been dismissed by the ALC at a meeting attended by the NIAA on grounds which the Minister has seen fit not to make public. The former CEO’s spouse (who has not been mentioned in any of the public statements related to the termination the CEO by the ALC and the Minister) was at various times an employee of the ALC working in the Royalty Development Unit that assisted corporations such as ARAC with their finances and operations.

Conclusion

Given the complex web of potential and actual conflicts of interest in play, and the fact that there is a missing $41m also in play, the Minister and the NIAA have an obligation in my view to do much better than they have with this answer and the others discussed in my previous post.

Indeed, given the extraordinary refusal to agree to commission an independent forensic investigation (bearing in mind that not all malfeasance will necessarily be corrupt or criminally illegal), it is difficult to avoid the conclusion that the Minister and NIAA are, through their inaction and deliberate obfuscation, contributing to the social and economic harm that will inevitably emerge once the full ramifications of the maladministration on Groote becomes apparent.

The Minister and her agency are accruing a substantial trust deficit through her unwillingness to be transparent on what has transpired within the ALC and its associated entities. Given the standard of answers provided to the Senate in response to Senator Pocock’s questions, that trust deficit will inevitably continue to grow unless decisive action is taken. My recommendation is that the Minister should immediately request the ANAO to undertake or commission a comprehensive and independent forensic audit of the operations of the ALC and its associated entities over the past seven years.

Without such decisive action, the levels of distrust will at some point reach a tipping point where wider political consequences will take hold and potentially destroy the current institutional framework of land rights as we know it. In the meantime, the fallout will inevitably have adverse impact not just on the constituents of the NT land councils, but on those nominal servants of the public interest who have been prepared to look away while the cauldron of distrust boils over.

 

Appendix

The following text is taken from my previous posts and provides more contextual detail on the information above. It has been lightly edited.

Extract from Royalties, flawed governance and non-transparency: a potent brew

The AMT/ARAC financial transactions

The notes to the 2016 Financial statements for the AMT which are available on the on the ACNC website (link here) include the following text:

12 Commitments During the year ended 30 June 2016, Anindilyakwa Mining Trust committed to contributing $3,500,000 to the Economic Development Unit (which has been established by the Anindilyakwa Land Council) on or prior to 30 June 2018. The first instalment of $500,000 was made during the 2016 financial year. 

The notes to the 2017 AMT Financial Statements state that the first instalment of $500,000 was made during the 2016 financial year and the second instalment for the first year of $500,000 and the first instalment for the second year of $750,000 was made during the 2017 year.

The notes to the AMT 2018 financial statements comment:

12 Commitments During the year ended 30 June 2016, Anindilyakwa Mining Trust committed to contributing $3,500,000 to the Economic Development Unit (which had been established by the Anindilyakwa Land Council) of which $1,000,000 was paid during the 2016 financial year and $750,000 was paid during the 2017 financial year. During the 2018 financial year, an instalment was made for $1,250,000. Therefore, as of 30 June 2018, the Trust has a $500,000 outstanding commitment.

During the year ended 30 June 2017, Anindilyakwa Mining Trust committed to contributing $51,122,311 to Anindilyakwa Royalties Aboriginal Corporation (ARAC) for costs associated with the purchase of infrastructure and funding of the operational budget. During the year, $6,000,000 was paid to ARAC. Therefore, as of 30 June 2018, the Trust has a $45,122,311 outstanding commitment. [mcd comment 24 Feb 2025: it is worth noting that the payment of $6m from AMT to ARAC was transparently listed in ARAC’s revenue for the 2018 FY. A clear contrast with 2022 and 2023.]

The 2019 AMT financial report included a note indicating in relation to the 2016 commitment, a further instalment of $500,000 had been paid thus meeting that initial commitment. The note also states that in relation to the 2017 commitment, the AMT had paid an instalment in the 2019 FY of $5,975,000, thus leaving an outstanding balance to be paid of $39,147,311.

The 2020 and 2021`AMT financial reports note that no payments had been made and the outstanding commitment remained at $39,147,311. The Notes to the 2021 AMT financial report note that the outstanding amount was paid in FY 2022; this suggests the payment was made in the first half of the financial year. The 2022 AMT financial report lists under the heading Grants a payment to ARAC of $41,324,957. No rationale is provided for why the amount has increased from $39m to $41m.

There are no further payments reported in the 2023 AMT financial report.

The 2022 financial statement for ARAC was previously available on the Registrar of Aboriginal Corporations website. It has been taken down (link here). Under revenue, it records a s.64(4) grant from the ABA of $9.6million (which would have been approved by the Minister) and a grant of $14.3m in s.35 payments from the ALC (the equivalent amount in 2021 was $34.8m). Total income is listed as $23.0m. There is no record of any grant being received from the AMT. Nor is there any record of such a grant being banked in the following financial year.

That a payment of $41m appears to have disappeared is somewhat strange. It is even stranger when one considers that the AMT has no staff and its administration appears to be undertaken by Mutual Trust, an established and highly experienced financial services firm, that ARAC has no staff (see the 2022 ARAC General Report) and its office is at 58-62 Macleod Street Cairns, the same address where the Commonwealth transparency portal lists ALC’s Finance and Royalty Development Unit (RDU) employees being located. The staff servicing ARAC Board meetings and probably implementing Board decisions (including managing income and payments) are likely part of the ALC’s Royalty Development Unit, a small team in Cairns. Clearly a forensic audit is required to determine the reason for the apparent disappearance of these funds. I should acknowledge that I was alerted to the issues around the missing $41m by the recent story in the Saturday Paper (link here).

 

Extract from The Anandilyakwa Royalties Aboriginal Corporation: micro accountabilities; macro policy implications

Each of the six ARAC financial reports from 2017 to 2022 inclusive include a statement, signed by two Directors and resolved by the Board, outlining the corporation’s purpose as follows:

The Corporation's operations purpose [in its first year] has been, to hold assets and manage statutory royalty equivalents and negotiated royalties in such manners as determined by the Anindilyakwa Land Council, consistent with its goals for effective, responsible and sustainable use of such royalty flows [emphasis added].

This statement appears to make plain that the ALC exercises direct control over the operations of ARAC….

… In my previous post I noted that the payment of $41m from the AMT to ARAC did not appear to be accounted for in the ARAC 2022 financial statements. With the availability of the previous year’s reports, it was possible to track the recording of an amount of $39,147,311 as an ‘AMT infrastructure debtor’ in the ARAC 2020 and 2021 financial reports. In 2022, the year that the AMT paid ARAC $41,324,957, there was no record in ARAC’s Financial statements of any such grant being received. However, there was a line item now called Payment in Advance (whereas it was previously termed AMT Infrastructure Debtor) which showed an outstanding debt of $39,147,311 in the previous year, but nil in the current 2022 FY. Rather than resolving the problem, this treatment of the outstanding commitment, whether intentional or not, obscures the recipient of the payment while acknowledging that the commitment no longer applies. [The discrepancy between the amount of $39m and $41m appears to be related to differing CPI treatments of the original commitment by the AMT and the ALC].

 

24 February 2025

Nothing to See Here: NIAA’s answers to recent Senate Questions related to Groote

Let’s talk of graves, of worms, and epitaphs,

Make dust our paper, and with rainy eyes

Write sorrow on the bosom of the earth.

Richard II, Act three, Scene two.

The NIAA has provided answers to a series of Questions on Notice lodged By Senator David Pocock following the last Estimates Hearings in November 2024 (link here). The questions related to the ongoing situation on Groote Eylandt, the status of various issues within the Anindilyakwa Land Council and the NIAA’s actions throughout this rather sorry and complex saga.

Given that there appears to be few external parties taking an interest in these issues (apart of course from the ongoing NACC investigation which may not report for months), I feel it is incumbent upon me to provide some commentary if only for the record. For the larger context, I recommend readers look at my previous post and in particular, the article I co-authored with Bill Gray in the Mandarin (link here).

In this post, I have focussed on those answers which I consider to be inadequate. In a subsequent post, I will address the issues raised by the answer to Question #8.

I have italicised the questions and the NIAA answers and indented my comments in relation to each answer.

 

Senator Pocock Question #1

Will the Minister initiate an independent, comprehensive, forensic audit into the administration and operations of the ALC and of those Aboriginal Corporations that received funding determined by the ALC, so that the new Board of the ALC can move ahead in confidence to regain the trust of the Anindilyakwa community and other key stakeholders, and achieve the standard of governance that will ensure the ALC can properly represent its people and achieve its mission? If not, why not?

NIAA Answer #1

The former Minister for Indigenous Australians, the Hon Linda Burney MP referred concerns regarding Anindilyakwa Land Council (ALC) governance and operations to the National Indigenous Australians Agency (NIAA) for review and action as required. In response, the NIAA commissioned an independent review of the ALC’s responses to the Australian National Audit Office (ANAO) governance audit and has subsequently been overseeing the ALC’s actions to improve its governance, transparency and accountability.

The NIAA has and will continue to refer all relevant matters to law enforcement and other agencies as required. 

Comment mcd #1

A preliminary and more general point: The NIAA is under the direct control of the Minister. Both she and her agency have regulatory responsibility for the ALC (and for the Registrar of Aboriginal Corporations who is the regulator for CATSI Corporations who are the beneficiaries of section 64(3) payments). Any shortcomings of the NIAA are ultimately the responsibility of the Minister. Any failure to answer questions asked are a failure of the Minister as well as her agency.

The Minister/NIAA have not answered the question regarding the forensic audit. The so-called ‘independent’ review commissioned from BellchambersBarrett was constrained in its terms of reference and focussed only on the formal ANAO recommendations and not on the wider issues which were identified by the ANAO in its fine-grained analysis. The NIAA and the ALC were involved in finalising the BellchambersBarrett Report, and for this reason it was clearly not independent. The answer refuses to contemplate an independent forensic review and fails to provide any assurance that this is covered off in some other way. The deeper question this raises is why? Why won’t the Minister initiate the action required to get to the bottom of what has transpired on Groote? Why doesn’t she want to the public to know?

Senator Pocock Question #3

Can the Minister confirm that the conflicts of interest identified by the ANAO in May 2023 and again more recently in the BellchambersBarrett review of August 2024, have now been addressed to the satisfaction of the Minister and NIAA?  If not, what are the issues still outstanding?

NIAA Answer #3

The ALC has developed a schedule of activity to address the ANAO and Bellchambers Barrett recommendations, including those associated with conflicts of interest management. The NIAA has been overseeing the ALC’s performance of those activities and is satisfied that implementation of acceptable arrangements for conflict of interest management will be progressive over the forthcoming months. The conflicts of interest noted in relation to the former ALC Chief Executive Officer (CEO) have been resolved following the termination of Mr Hewitt and his removal from positions in all associated entities. The current ALC Board Chair does not hold any of the positions that gave rise to the conflict of interest concerns in relation to the former Board Chair.

Comment mcd #3

The question has not been answered. The answer makes clear that the Minister is not yet in a position to be satisfied (“acceptable arrangements for conflict-of-interest management will be progressive…”), yet they have not gone on to identify the issues that remain in progress.

The unqualified assertion that the termination of Mr Hewitt and the election of a new Chair addresses the conflicts of the past is problematic. It ignores the complex web of influence previously exercised by the former CEO and his spouse, and the inevitable expectations on Groote that the benefits flowing form those prior arrangements will continue. The current status and oversight of the various positions and financial interests previously held by Mr Hewitt’s spouse remain completely obscure.

One important but unintentional revelation of this answer is the reference to Mr Hewitt’s ‘removal from positions in all associated entities.’ How was this achieved? Did the Minister and NIAA give Mr Hewitt and his spouse some kind of ultimatum to resign (and if so what was the quid pro quo) or did the ALC direct the ‘associated entities’ to dismiss him, thus confirming that they in fact exercise control over these entities? The public interest requires that clarification and answers to these questions be provided.

Senator Pocock Question #4

Has the Minister/NIAA approved any arrangements for the management of the conflicts of interest that were identified in the ANAO and Bellchambers Barrett reports? If so, will the Minister please table those arrangements.

NIAA Answer #4

Formal approval of the ALC’s conflict of interest arrangements is the responsibility of the ALC Board in consultation with the ALC Audit Committee and ALC management.

Comment mcd #4

The implication is that the Minister and NIAA have not approved any arrangements for the management of conflicts of interest. The ALC has been riven with actual and potential conflicts of interest for at least six years; this Blog has previously identified and discussed many of them. Without ministerial engagement and approval of the actions being put in place, there is no guiderail in place to prevent the re-emergence of conflicted influence over decision-making in the future. Moreover, without a forensic audit, it is unclear whether the pre-existing conflicts of interest led to misallocation of funding and resources (with detrimental impacts on individuals and corporations on Groote), and whether there is remedial action required to rectify such misallocations. The laissez-faire approach of the Minister and NIAA is patently inadequate and represents in my view a serious lapse of ministerial responsibility. The minister has numerous and far-reaching powers under ALRA to play a direct role in the ALC’s administration for however long it takes to establish a new set of watertight operational procedures.

Senator Pocock Question #5

Can the Minister confirm that the Aboriginal residents of Groote Eylandt have not been subject to predatory commercial behaviour and financial losses arising from the actions of the former CEO, his spouse and the former Chairman of the ALC? If not, what action is she taking to ascertain the extent of the potential losses to the community?

NIAA Answer #5

As previously noted, the former Minister referred concerns regarding ALC to the NIAA for review and action as required. The NIAA has and will continue to refer all relevant matters to law enforcement and other agencies as required.

Comment mcd #5

One obvious problem with this answer is that not all commercially predatory behaviour will be illegal or corrupt. If it is the case that legal and non-corrupt predatory behaviour has occurred, the question becomes: is the Minister prepared to allow the officers and staff of agencies within her portfolio to engage in such behaviour, and more directly, why was she not prepared to take action within her regulatory powers when she became aware of such activities rather than hiding behind the convoluted and time-consuming processes of law enforcement agencies?

Given the deliberate policy of minimising the disclosure of relevant information, we do not know if the issue of potential predatory commercial behaviour was even of concern to the Minister or her predecessors, nor whether it is of concern to her today.

What were the concerns that she referred to the NIAA and onwards to law enforcement? When were those concerns formally referred to the various agencies? Which agencies received referral? How long transpired between the Minister and her agency becoming aware of the concerns and referrals being made? Why won’t she indicate the general nature of those concerns? I am sure the people who are the subject of any investigations understand that investigations are underway. Why keep the public in the dark? What has the Government got to hide?

The bottom line is that the answer to this question is deliberately designed to hide crucial accountability information. This is not in the public interest.

Senator Pocock Question #6

According to the ALC website, in the period 2019 – 2023, the ALC distributed $361m of s64(3) monies to various corporations and organisations on Groote Eylandt. Can the Minister/NIAA confirm that these distributions were determined by the ALC in compliance with the provisions of the ALRA, including s23(3) & s23 AA of the Act?

NIAA Answer #6

Distributions were determined by the ALC in compliance with the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA).

Comment mcd #6

This answer exudes unwarranted confidence. In my view it is both misleading and wrong. Section 23AA requires the ALC to undertake its functions inter alia, in a fair manner. The ANAO identified a series of payments to corporations where the ALC CEO played a major role in the application and/or was on the Board or had a conflict. The obverse of this favouritism is unfairness to the traditional owners who might otherwise have been beneficiaries.

The ALC’s effective control of associated corporations (in my view implicitly acknowledged in the actions taken by the NIAA to have Mr Hewitt vacate all his positions on associated entities) is itself an effective breach of the legislative requirement that land councils pay 64(3) payments to (independent) corporations and not to an entity it controls.

The provision (s.23(1)(ea)) that allows land councils to assist local corporations has a rider that such assistance must not cause the land council ‘to incur financial liability or enable it to receive financial benefit’. The ANAO found instances where the ALC could not demonstrate that this was the case. More substantively, where a land council effectively controls a corporation, then the liabilities of the corporation are those of the land council. This inevitably leads to a breach of section 23(1)(ea).

In a grave error of judgment, the NIAA and Minister appear to have lost sight of both the first and second Laws of Holes (link here). They should stop digging, and the Aboriginal citizens on Groote are still in a deep hole.

Conclusion

The answers to the questions above are in my view deliberately obfuscatory, are incomplete and by failing to provide the full story have the effect of misleading the Senate. In some cases, they are just wrong. This is a continuation of the approach adopted from the first day the ANAO tabled its performance audit in May 2023, which is best described as a policy of ‘nothing to see here!’ At best, this involves putting the political interests of the Government above the public interest. At its worst, it is much more serious than that. It erodes trust in Government and diminishes the quality of our democracy.

The failure to get to the bottom of what has transpired on Groote (not all of which will necessarily meet the definition of corruption, or criminal behaviour) will lead to ongoing and deep-seated disadvantage to the Aboriginal population of Groote Eylandt and may have wider implications for the viability of the core institutions established by the Commonwealth’s NT land rights legislation. These disadvantages will certainly be political, and financial, but most importantly they will also have social consequences for the fabric of community life on Groote. This is the tragedy that is unfolding.

 

21 February 2025

 

 

 

 

Why understanding what has happened at the ALC is important

To fear the worst oft cures the worse

Troilus & Cressida Act three, Scene two

 

Along with my co-author Bill Gray, a former senior Commonwealth public servant with extraordinary experience across the Northern Australia and Canberra, I recently penned a short article focussed on the importance of regulatory oversight of the Anindilyakwa Land Council in particular, and by implication, all statutory entities in general.

Published in The Mandarin, with the title  Minister McCarthy and oversight of the Anindilyakwa Land Council  (link here), the article is available for open access once readers create an account.

I wont try to summarise the article here, but instead will make a couple of more general points.

First, robust and proactive regulation is important in establishing and maintaining high quality organisations, whether in the public or private sectors. The ongoing quality of statutory corporations is particularly important because they are invariably established for public purposes and thus are intended to pursue and contribute to the public interest.

Second, over recent decades there has been a general trend towards the overt politicisation of the public service. I do not mean partisan politicisation but instead refer to the co-option of the public service to supporting the Executive arm of government in its ongoing efforts to dominate the legislative arm, that is, the Parliament. Ministers are theoretically responsible to Parliament, but in fact in recent decades it has become apparent that the tables have turned, and in practice it is Parliament that is in most respects subservient to the Executive.

This leads to a situation where Ministers no longer feel obliged to maintain standards of accountability and deference to the law that constitutional theory requires. In these circumstances, regulatory oversight is made subservient to politics, and over time the quality of institutions degrades.

Third, I suspect that in the Indigenous policy domain, there is a reluctance by many public servants to be seen to be critical of Indigenous organisations or officeholders. Such reluctance may be exacerbated when the Minister that public servants are reporting to and supporting happens to be Indigenous. My own view is that it remains important for office holders in statutory corporations to be held to high and rigorous standards of accountability whatever their background. Not only is it paternalistic to adopt lesser standards, but for the reasons outlined above, high quality regulation creates the preconditions for high quality service delivery.

I have focussed on these issues to explain why it is that I have spent so much time and effort in analysing and understanding what has been happening on Groote in this Blog and elsewhere. The issues involved are of much wider significance than the possible shortcomings of a single statutory corporation on a remote Island off the northern Australian coast. The fact that the mainstream institutions designed to hold public sector institutions to account are not working effectively is the real issue.

The reforms required to reverse these developments are structural and systemic. Without close and detailed analysis of public sector developments in locations such as Groote Eylandt, (or in policy realms such as Robodebt), the task of devising the necessary reform agendas, and finding the political coalitions necessary to advance those reform agendas becomes impossible.

This is why the issues on Groote Eylandt are so important. It is also why it is essential that there be a comprehensive and independent forensic audit of the activities of the ALC and its associated CATSI corporations in receipt of royalty equivalent payments. I recommend readers have a look at the Mandarin article with these more general points in mind.

 

12 February 2025

Indigenous hyper-incarceration: a remote problem?

 

Were such things here as we do speak about? Or have we eaten on the insane root that takes the reason prisoner?

Macbeth, Act one, Scene three.

 

Yesterday, I read an important and I suggest ‘must-read’ assessment of the state of carceral policy in Australia. Published in The Conversation (link here), and titled Prisons don’t create safer communities, so why is Australia spending billions on building them? The article is co-authored by a disciplinary diverse team of academics headed by Emma Russell from La Trobe University. The article summarises available data by jurisdiction and while the focus is on the mainstream, it refers in passing to Indigenous incarceration rates which have been skyrocketing across the nation.

One data point quoted stood out:

As of January, the Northern Territory hit a grim milestone. More than 1% of the territory’s total population is now incarcerated in adult prison.

This was supplemented with an extraordinary graph titled Percentage of the Population in Adult Prison, showing the incarceration rates for each Australian jurisdiction since 1860. What jumps off the page is the stratospheric growth in incarceration rates in the NT, rising from 0.22 % in 1980 to 0.66 % in 2020, and then to 1.03% in 2025. No other jurisdiction records any such increase, though virtually all jurisdictions have recorded close to a doubling in their incarceration rates off a low base over the same period.

The ABS released data on incarceration rates on 19 December 2025 (link here). The report a national prison population of 44,403 persons on 30 June 2024. Of these, 15,871 were Indigenous. The Indigenous prison population increased by an extraordinary 2019 persons or 15% over the previous year.

The remote angle

While The Conversation article is extraordinarily valuable, it strikes me that it underplays the role that the hyper-incarceration of remote Indigenous people is playing in driving the rise in incarceration rates. The article points to changes to policy for these trends (longer prison sentences and less access to bail) and cites Andrew Leigh’s 2020 article The Second Convict Age: Explaining the Return of Mass Imprisonment in Australia in the Economic Record (link here). The abstract to Leigh’s article states, inter alia:

Fully 2.5 per cent of Indigenous adults are incarcerated (2,481 prisoners per 100,000 adults), a higher share than among African-Americans. The recent increase in the Australian prison population does not seem to be due to crime rates, which have mostly declined over the past generation. Instead, higher reporting rates, stricter policing practices, tougher sentencing laws, and more stringent bail laws appear to be the main drivers of Australia's growing prison population.

These reasons are fine as far as they go, but where are these stricter policies being applied, and why? The answers to these questions are required to find the appropriate policy responses.

My hypothesis is that the accelerating growth in incarceration rates is associated with more punitive approaches by governments to criminal behaviours in remote regions, which are themselves a response to increasing dysfunction associated with alcohol and drug abuse, and longstanding lack of investment by governments in finding substantive policy solutions. To be clear, social dysfunction is an institutional affliction impacting Indigenous communities, but its causes can be traced to the long-standing failure of governments of all persuasions to establish and maintain the institutional and economic frameworks required to ensure social cohesion is guaranteed. Intuitively, it seems clear that the causal relationship between social dysfunction and alcohol and drug abuse goes in both directions; that it they are mutually reinforcing.

In the NT, according to an NT Treasury paper (link here), in 2021, 74.6% of the NT Aboriginal population resided in remote or very remote locations. The Aboriginal population of the NT comprises around 30 % of the NT total population of just over 250,000.

Unfortunately, while the Productivity Commission Closing the Gap Information Repository / data dashboard includes a number of disaggregations in its reporting on Target 10 related to over-representation in the criminal justice system (link here), the dashboard does not record the geographical status of prisoners and/or arrests leading to imprisonment. Nor does it record any information related to the association or role of alcohol or drugs in the crimes leading to incarceration. Nor does the ABS publish this data. We are left to extrapolate pending some detailed demographic research by academic criminologists or geographers…

In an earlier post titled The drivers of stratospheric rates of Indigenous incarceration (link here), I spent some time discussing the recent research report by Don Weatherburn, Michael Doyle, Tegan Weatherall and Joanna Wang titled Towards a theory of Indigenous contact with the criminal justice system (link here).

The following paragraph from the Executive summary of the Weatherburn et al paper supports my hypothesis:

The strongest risk factor is having used illicit drugs and alcohol over the preceding 12 months, which increases the marginal risk of arrest by 14 percentage points…The strongest protective factor is school completion, which reduces the risk of arrest by 7.9 percentage points….

According to the ABS (link here) the total NT prison population on 30 June 2024 was 2284. Of these, 2023, or 88.5%, were Indigenous. The extraordinary increase in NT incarceration rates is almost entirely Indigenous, and three quarter of the NT Aboriginal population reside in remote or very remote locations. It seems clear that Indigenous hyper-incarceration is predominantly a remote issue in the NT. Based on my experience of some decades, and the anecdotal media reports on social dysfunction in remote communities in WA, SA, and Qld, it seems likely that similar trends will be found to exist in these jurisdictions. The only reason they are not apparent is that the Indigenous populations of these states is proportionately much lower than in the NT.

The other gap in The Conversation article (which flows perhaps from the line of argument above) is that role of alcohol or drug abuse in driving criminal behaviour particularly in remote regions. There have been longstanding calls by Western Australian police for alcohol controls in remote regions of WA (link here), and the debate over alcohol controls in the NT has been in play for decades. I don’t propose to recapitulate the case on the damaging impacts of alcohol and the case for stronger policy action on the availability of alcohol in remote regions, but will merely point readers to some previous posts on this blog (link here; link here; link here; link here; link here; link here; link here; link here; and link here).

Policy Solutions

While there is undoubtedly a case for much greater investment in developing alternatives to incarceration both in mainstream contexts and in relation to Indigenous incarceration across the whole nation as advocated by the extraordinary and energetic work of the Justice Reform Initiative (link here), reversing the dire state of social dysfunction across remote Australia is in my view the only way to address the extreme hyper-incarceration of Aboriginal people.

I am under no illusions that the political vibe nationally has taken a more punitive turn and like the authors of the Conversation article, I see this as deeply counterproductive. Reversing the cataclysm confronting remote communities will require sustained political vision and commitment, and a substantive focus on expanding and accelerating some clear policy priorities.

The policy solutions outlined by Don Weatherburn and his co-authors in their Institute of Criminology research paper referenced above were framed as follows:

Measures to reduce illicit drug and alcohol use, improve school retention and improve economic outcomes for Indigenous Australians are essential if Australia is to achieve any long term reduction in the scale of Indigenous over-representation in prison.

I wholeheartedly agree.

Yet each of these three identified actions, are themselves comprised of assemblages of complex policy measures involving legislative and/or regulatory changes, access to adequate and increased funding, and most importantly, an institutional structure that can operate at scale, and is guaranteed to be sustained over at least a decade. To take an example of a recent national priority, AUKUS, each of these elements have been provided for. Unfortunately, the operation of our day-to-day political system, especially in relation to an issue that is invariably defined as the responsibility of the states, does not normally guarantee that these essential elements are provided for. I will repeat this point: our democratic politics as usual is not working to fix this issue.

Below I set out one potential model designed to ensure progress is made in reversing the worsening crisis of Indigenous hyper-incarceration. The details are less important that its description of the level and intensity of action that would in my view be required to drive real change.

As the issue of hyper-incarceration has bedevilled the nation for decades, it is clear that new approaches and ways of operating are required. The first, and most obvious, is that the issue of Indigenous over-representation in our prisons should be made, substantively and not merely rhetorically, a national priority. To this end, the Commonwealth should step up and exercise its constitutional powers granted in the 1967 referendum to develop and drive a truly national policy framework on Indigenous incarceration.

Second, for the purposes of delivering the necessary policy and program reform initiatives to underpin the incarceration reform agenda, the Commonwealth should carve out notional jurisdiction across remote northern and remote Australia and drive a comprehensive and coordinated reconceptualisation of core service delivery across remote communities and their associated service.

A core element would be the establishment of a legislated ten-year policy framework providing for ministerial regulations to implement key reforms, and the establishment of a small five-person Commission comprised of both Indigenous and non-Indigenous members to develop policy and program recommendations to apply across remote Australia. The Commission should aim to work cooperatively with existing bodies (state and local governments, Commonwealth agencies, community organisations, landowners) to drive innovative reforms and to recommend policy and program changes to governments at all levels. Its recommendations should be public and would need to be agreed and implemented by governments. The Commission’s legislated powers and functions would be such as to ensure that Commonwealth agencies and states and territories alike would be required to cooperate and to respond to recommendations within three months.

Such a Commission would not be required to delve into each and every policy issue but should be statutorily required to decide which issues are most relevant to the continuation of dysfunction and to focus on identifying reform strategies for the Commonwealth to implement, hopefully in conjunction with existing service delivery institutions. Obvious areas for attention would include controls on the availability of alcohol across remote Australia; upgrades to educations systems and infrastructure, and the necessity or significant expansion of subsidised remote employment focussed on community needs such as land care, ranger programs, appropriate policing models, disability support, and community maintenance.  A key assumption of this model is that the Commonwealth should be responsible for outcomes, and for bringing the states and territories to the table.

Third, a parallel structure to the remote Commission, perhaps relying more on the National Coalition of Indigenous Peaks, should be developed for addressing the challenges of reversing Indigenous incarceration rates in regional and urban areas of the nation.

Conclusion

The extraordinary levels of Indigenous hyper-incarceration are a national disgrace and are causing untold and ongoing harm to myriad Indigenous families across the nation. There are no short-term solutions, but it is clear that the punitive approaches being pursued by jurisdictions right across the nation will not be successful in preventing recidivism and repeat offending, will be extraordinarily expensive for taxpayers, will likely weaken social cohesion, and are causing permanent emotional and psychological damage to hundreds of thousands of Indigenous family members.

It is the case that the process of colonisation turned the world upside down for Indigenous people across the nation, and the people of remote Australia are generations closer to that social cataclysm.

Mainstream Australia cannot undo those social processes, and the world has moved on for all Australians. However, given the clear evidence of deep dysfunction arising from those social processes that were neither chosen nor desired by Indigenous people, and the impacts those changes inevitably imposed and continues to impose, the nation and its policy elites must be prepared to consider policy options that turn established modes of policy formulation upside down. Not to do so would amount to an extraordinary admission of national policy failure. Indigenous incarceration is just one of the impacts that arise from widespread social and economic dysfunction across remote Australia and woven through pockets of urban and regional Australia.

To allow this level of dysfunction to emerge, to grow and develop, and to persist as if it is somehow outside the nation’s field of vision is both a political failure and an indictment on the moral underpinnings of our nation.

 

24 January 2025