Closing the Gap: rhetoric trumps substance

 

I have recently published two CAEPR Discussion Papers on Closing the Gap.

 

The first, titled The first decade of Closing the Gap: What went wrong? (link here), deals with the initial phase of Closing the Gap from 2008 to 2020. This phase extends from the announcement of the new policy architecture for closing the gap by the Rudd Government, established under a COAG agreement known as the National Indigenous Reform Agreement (NIRA), through to its expiry in 2018 -2020.

 

The second Discussion Paper, titled The new policy architecture for Closing the Gap: Innovation and regression (link here), covers the second ‘refreshed’ phase of closing the gap established under the National Agreement on Closing the Gap (link here) promulgated in July 2020.

 

The first Discussion Paper demonstrates how LNP Governments from 2013 progressively dismantled and/or defunded the various National Partnership Agreements that were encompassed by the NIRA, based on an examination of key high level evaluations and reviews, and importantly, on a ‘review’ of the NIRA commissioned by COAG obtained, after extensive effort, under FOI (link here). The key point here (confirmed in the NIRA review prepared by Government officials and endorsed by the Joint Council on Closing the Gap) is that from 2013 onwards, while Prime Ministers stood up each year and delivered heartfelt reports to the Australian people and parliament on closing the gap, the overall funding allocated in phase one was progressively cut back and not renewed as appropriations ended.

 

See this earlier post for an account of the reasons the document was initially refused in full (link here). Following an appeal to the Australian Information Commissioner, and the preparation of multiple submissions countering the agency’s blustering, the Department finally released the document in full in November 2020, in advance of a pending decision by the Information Commissioner. The 15 months delay between the original request (in August 2019) and the release was justified by the agency on the basis that changed circumstances meant that it was no longer not in the public interest to refuse access. I for one was not persuaded by the agency’s rationales, both in refusing access initially, and releasing later in advance of the Information Commissioner review.

 

The second Discussion Paper critically analyses the policy architecture put in place by the ‘refresh’ process which was based on a codesign process with the Coalition of Peaks, comprising over 50 Aboriginal and Torres Strait Islander community-controlled peak and member organisations across Australia. After describing the processes leading up to the negotiation of the new National Agreement on closing the gap, the analysis discusses the relevant academic literature and critically assesses the implementation risks that could undermine the success of the second phase of closing the gap. Those risks are more than substantial. The Discussion Paper then outlines a series of further reforms that might  be considered to address those risks.

 

While each Discussion Paper stands on its own, they are complementary insofar as they are chronologically sequential. The evidence shows that the LNP Government has for eight years cut or failed to renew financial resources directed to closing the gap. Over time, these decisions effectively eviscerated the capability of the initial policy architecture to gain traction. Looking forward, the LNP Government has deliberately shifted responsibility for much of the heavy lifting to the states and territories, and allocated what can only be described as a miserable contribution going forward (link here). In the future, any shortfall in meeting the Closing the Gap targets will be primarily the fault of the states and territories. Over the past eight years, the Opposition ALP, and to a lesser extent the Greens, appear to have run dead on these steadily accumulating incremental cuts, preferring to score vapid political points rather than mount a sustained campaign directed to holding the LNP Government to account for its (deliberate) policy failures. In these circumstances, the likelihood that the nation will get serious about closing the gap and make a substantial difference in the near future seems remote. Only sustained and effective political pressure will change this pessimistic reality.

 

I hope these Discussion Papers will go some way to highlighting the ways in which governments are failing not only First Nations, but the nation as a whole, and consequently, point towards strategies that might ultimately take us out of the wilderness. While the issues are articulated in bureaucratic and technical terms, the outcomes on the ground are measured in shortened lifespans, reduced educational opportunities, increased family violence, increased incarceration, increased out of home care, higher rates of mental illness, higher unemployment, and significantly reduced life opportunities. To some, this may sound like ‘deficit discourse’, but my point is that these outcomes are real and they are clearly and demonstrably a function of the lack of substantive policy and political commitment by governments and the political class generally.

The Joint Council on Closing the Gap review of the National Indigenous Reform Agreement

 

His promises were as he then was, mighty,

But his performance, as he is now, nothing.

Henry VIII, Act 4, scene 2.

 

The path-breaking December 2018 Closing the Gap Partnership Agreement (link here) between COAG and First Nation interests made a commitment to review the National Indigenous Reform Agreement (NIRA). The NIRA established and formalised the Closing the Gap process that operated from 2008 to 2018. The Partnership agreement also established a Joint Council co-chaired by the Minister for Indigenous Australians and the CEO of the Coalition of Peaks, Ms Pat Turner.

 

At its second meeting on 23 August 2019, the Joint Council met to consider the Closing the Gap process. The communique issued after the meeting (link here) noted:

The Joint Council considered a review of the National Indigenous Reform Agreement (NIRA), completed by the Partnership Working Group, and agreed to develop a new National Agreement on Closing the Gap, covering the next ten years, continuing the NIRA’s successful elements, strengthening others and addressing foundational areas that were previously excluded from consideration.

 

On 26 August 2019, I submitted a Freedom of Information request for the review. Following a long and convoluted 15 month process, that review was released in full on 23 November 2020, and is available on the FOI disclosure log of the NIAA (link here).

 

The review takes the form of a nine page agenda paper for the Joint Council prepared by a ‘Partnership Working group’, presumably comprised of representatives of NIAA, the states and territories, and the staff of the Coalition of Peaks. It is headed ‘Lessons learned from the National Indigenous Reform agreement’. The review paper is not so much an independent assessment of the NIRA as a consensus document that lays out its supposed strengths and weaknesses. It thus effectively provided each of the parties with the opportunity to introduce their perspective, and to begin to lay out their log of claims for the negotiation ahead. This is presumably the explanation for the countervailing and somewhat inconsistent views embedded throughout the document.

 

This post does not attempt to summarise the document. It is short and easily read. Instead, I have subjected it to a brief critical assessment and commentary, focussing particularly on the more contentious or self-serving claims made. Going forward, the review document will also provide a useful benchmark against which to assess the final outcomes of the negotiation as agreed in the July 2020 National Partnership on Closing the Gap (link here).

 

In a section titled Strengths and Weaknesses - Overview, the review states:

Target setting was highly aspirational. While this helped to highlight the issues and create a sense of urgency, the trajectories were not based on historical trends or evidence about what could be achieved in a given timeframe. This lack of distinction between final policy goals and an ambitious-yet-achievable rate of progress further contributed to a deficit narrative by creating the perceptions of continuous failure…

 

This text is both deeply problematic and fundamentally misconceived. Problematic, because it betrays an underlying agenda to abjure aspiration, and replace it with acceptance of limited progress or even implicit regress. The whole point of a strategy is to aspire, to lay out objectives that will move the nation and First Nations forward, and devise a feasible pathway to achieving those objectives. Misconceived, because it betrays an attempt by governments to appropriate and apply to themselves an argument or viewpoint that has been promulgated by Indigenous advocates to the effect that pointing to deficits implicitly define First Nations citizens as failures. The argument may have some validity when applied to analyses of the actions of Indigenous peoples, but in my view, it has absolutely no validity when used as an excuse for government failures or shortcomings.

 

Governments are effectively arguing that we should not focus on their failures and the structural implications of their policies, because to do so somehow reflects negatively on First Nations. Deconstructed, this text is signalling that governments are not committed to substantively closing the gap, but instead are focussed on the mere appearance of action.

 

In a further paragraph, the review notes that while NIRA did not provide funding:

…it was underpinned by a series of Indigenous specific and mainstream National Partnerships that committed Commonwealth funds often paired with state and Territory funds. These provided the critical foundation for Closing the Gap implementation, and as these began to expire from 2013 without renewal, bipartisanship and implementation fell away.

 

This text is misleading in two respects.

 

First, the pairing of state funding was invariably comparatively minor. The Commonwealth provided the vast bulk of funding under NIRA addressing Indigenous disadvantage. One might argue that the states should have provided more, but the reality is that Closing the Gap was effectively a Commonwealth Government initiative. The states do not have the fiscal capacity of the Commonwealth, and are subject to electoral and political dynamics that virtually ensure under-investment in addressing Indigenous disadvantage. Commonwealth policy leadership is essential if the nation is to successfully close the gap.

 

Second, the non-renewal of the National Partnerships as they expired was a conscious and explicit decision of the incoming Abbott Government elected in September 2013. Bipartisanship and implementation did not gradually and incrementally ‘fall away’. These were deliberate decisions made by the current Liberal/National Coalition Government to stop the pre-existing and arguably inadequate funding directed to addressing Indigenous disadvantage, and thus closing the gap. The most egregious example of this was the decision not to renew the National Partnership Agreement on Remote Indigenous Housing that I have analysed at length in previous posts. See the dot points on page 4 of the review document for more specific examples.

 

Finally, the review notes:

Two additional factors compounded the impacts of this withdrawal of resources: the absence of a formal structure for Aboriginal and Torres Strait Islander involvement in the governance of the framework, and the dissolution in 2013-14 of the two key oversight bodies for the Closing the Gap framework (the COAG Reform Council and the Working Group on Indigenous Reform). Both factors facilitated a period of policy drift. The Close the Gap campaign’s 10-year review concluded that:

By 2014-15, the Closing the Gap Strategy as a coherent, national response to Indigenous disadvantage was effectively over. […] In practice, [it] persists in name only…

 

This text was clearly inserted at the insistence of the Coalition of Peaks. In a stark assessment, it supports and reinforces the points I made above regarding the underlying commitment of governments.

 

Implications

 

So what are we to make of this rather sorry document. At one level, it might be argued that it has been overtaken by the National Agreement on Closing the Gap, and is arguably of minimal or merely historical significance. That is certainly its formal status.

 

However, to my mind, it points directly towards the risks inherent in the current Closing the Gap institutional framework. It reinforces the deeply embedded predispositions of the current Government (and potentially future governments) merely to go through the motions while kicking substantive reform down the road.

 

It points to the path-breaking importance of implementing the Priority Reforms set out and agreed to by all governments in the National Agreement on Closing the Gap.

 

It also points to the very real risk of under-investment by Governments in addressing the Closing the Gap targets identified in the new National Agreement. It is significant in my view that since the announcement of the Agreement and notwithstanding the largest ever stimulus budget in the nation’s history, the Commonwealth has not come forward with any major budget initiatives apart from funding of $46.5m for Community Controlled service agencies (link here). Similarly, the states have made no substantive funding announcements, apart from funding for community controlled services. Western Australia recently announced funding of $4.8m for the community controlled sector (link here).

 

While funding community controlled services is important, addressing substantive disadvantage requires much more substantial funding commitments. These are nowhere to be seen. There is a real risk that Governments have decided to invest in the community controlled sector to facilitate a strategy of non-investment in substantive reform. The lessons of the implementation of the NIRA, identified in the review report the Government sought to keep hidden, have clearly not yet been learnt.

 

Furthermore, there is at present no single data repository recording the investments of governments under the agreement. This is a priority if the agreement is to have a substantive impact.

 

Finally, the fact that the Government was not prepared to release this document immediately it was requested points to an underlying fear that its contents would reveal too much about the governments underlying agenda during the negotiation of the National Agreement. That in itself lends credibility to the analysis above. It should be cause for real concern in the engine room of the Coalition of Peaks.

 

Transparency is an important means of ensuring governments are kept to their word. In coming weeks, I hope to post a short outline of the arguments used to justify the review’s non-release for over a year.

 

I have previously expressed concern about the level of substantive commitment by governments generally, and the Commonwealth in particular, to the substantive reforms required to close the gap (link here and link here). Close analysis of the NIRA review does nothing to change my mind on this score.

A steep climb ahead

 

O constancy, be strong upon my side,
Set a huge mountain 'tween my heart and tongue!
I have a man's mind, but a woman's might.

Julius Ceasar, Act 2, sc. 4

 

This post is largely for the record, and links to a recent publication in Inside Story (link here) titled A steep climb ahead, but the landscape has become clearer for Closing the Gap. The article seeks to assess the likely outcomes of the recent negotiations to refresh the Closing the Gap targets, adopting a wider than usual analytic frame of reference.

 

The title reflects my ambivalence insofar as the new National Agreement lays the foundations for a substantial move beyond the structural status quo, but governments have a record of actively preferring stasis to reform.

 

A key issue mentioned, but not deeply analysed is the pre-existing and long-term trend of the Commonwealth shifting policy responsibility for Indigenous policy to the states wherever possible; and where not possible, to mainstream programs. This topic deserves further analysis.

 

Finally, given this post is focussed on milestones, it is worth recording that this is the two hundredth post since December 2015, an average of around 40 per annum. I took the opportunity of re-reading my first post on the subject of 'COAG and Indigenous affairs policy' (link here), and thought that post's last paragraph bears repeating, as it appears to be of continuing relevance:

 

Prime Ministers are known to ask trusted experts and advisers “what are the two or three things I should do in the Indigenous policy area?” My unequivocal answer to that hypothetical question would be as follows: to replace ideology and rhetoric with substance, place a focus on policy over politics in decision-making, listen to local and regional voices, accept the inevitability of diversity amongst Indigenous interests, and put as much focus on policy implementation as on policy development, and thereby provide real, substantive and innovative leadership to the nation as a whole. The Prime Minister’s first COAG meeting falls short of this benchmark.

A Review of the National Indigenous Reform Agreement over the past decade: not in the public interest to share it with the public

                                                                ‘In nature’s infinite book of secrecy

A little I can read’

Antony and Cleopatra

Act One, scene 2

In December 2018, COAG established the Joint Council on Closing the Gap (link here).

The extract from correspondence from the NIAA is self-explanatory and relates to the status of a review of the National Indigenous Reform Agreement (NIRA) established by COAG in 2008.

The correspondence outlines the ostensible reasons for a decision to withhold release of a copy of the review in accordance with the Freedom of Information Act 1982. It does however provide a glimmer of insight into the processes of negotiation currently underway within the Joint Council. I hope to explore these issues in a subsequent post shortly.

The reliance on the Commonwealth state relations exemption appears to be incorrect as the review does not appear to fall within section 47B (b) of the FOI Act (see text below). The other ground of exemption depends on a balancing of the public interest. The factors listed as being against disclosure appear farfetched and to my mind tendentious. I invite readers to form their own opinion.

Taking a more global view, it is little wonder that the public at large is losing trust in government and politicians when government is not prepared to deal openly with the strengths and weaknesses of major strategic public policy frameworks. This is just one example.

[Extract from Correspondence from NIAA dated 24 October and emailed 28 October 2019]:

OFFICIAL

FOI/NIAA/1920/023/IR

FREEDOM OF INFORMATION ACT 1982

REQUEST BY: Michael Dillon

DECISION BY: Group Manager (name and position redacted)

NOTICE OF INTERNAL REVIEW DECISION

Dear Mr Dillon,

I refer to your email, dated 26 September 2019, to the National Indigenous Australians Agency (the NIAA) in which you sought an Internal Review under section 54 of the Freedom of Information Act 1982 (Cth) (the FOI Act), of the original access decision (the original decision) provided to you on 25 September 2019, in which you sought access to the following:

The most recent communique of the Joint Working Group on Closing the Gap (and which was recently published on the PMC web site (www.closingthegap.pmc.gov.au/jointcouncil) included the following text:

"The Joint Council considered a review of the National Indigenous Reform Agreement (NIRA), completed by the Partnership Working Group, and agreed to develop a new National Agreement on Closing the Gap, covering the next ten years, continuing the NIRA’s successful elements, strengthening others and addressing foundational areas that were previously excluded from consideration."

In accordance with the provisions of the FOI Act, I would like to request a copy of the final version of that review.

Authorised decision-maker

I am authorised to make this decision in accordance with arrangements approved by the Agency’s Chief Executive Officer (CEO) under section 23 of the FOI Act.

Matters Taken Into Account

In making my decision, I have had regard to the following:

• the FOI request;

• the document relevant to the FOI request;

• your correspondence of 26 September 2019;

• the FOI Act; and

• the Guidelines issued by the Australian Information Commissioner under section 93A of the Freedom of Information Act 1982 (FOI Guidelines).

Decision

I have decided to affirm the original decision to refuse access to the document, in full, on the basis that it contains information that is exempt under section 47B (Commonwealth-State relations) and section 47C (deliberative matter) of the FOI Act. The reasons for my decision are set out below.

Reasons

The requested document is a reflective assessment of the National Indigenous Reform Agreement (NIRA). The document contains input from all members of the Joint Council on Closing the Gap (the Joint Council). This is one of the key documents currently being used by the Joint Council to develop a new National Agreement on Closing the Gap (National Agreement).

Section 47B of the FOI Act – Commonwealth-State relations

Section 47B of the FOI Act provides that a document is conditionally exempt if disclosure of the document:

b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth.

In your submission of 26 September 2019, you queried ‘whether there was a requisite expectation of confidentiality given all states and the NT as well as up to 40 plus constituent member organisations of the Peak Council, are all potentially privy to the contents of the review.’ In addition, you requested ‘further consideration to the issues of balancing the public interest against the interests of the Joint Council members in operating in secret, given that the review relates to an overarching policy framework put in place over ten years ago.’

The Joint Council consists of forty (40) members made up of representatives from the States and Territory Governments and peak Indigenous bodies. The requested document contains frank assessments of the success and failures of the Closing the Gap program, which were provided on the mutual understanding of confidence to the restricted members of Joint Council. I am therefore of the view that the requisite expectation of confidentiality is satisfied as the audience is limited to the Joint Council, being its 40 members.

Accordingly, I consider the requested document to be conditionally exempt under section 47B of the FOI Act. Where a document is assessed as conditionally exempt, access must be given subject to the public interest test detailed in section 11A(5) of the FOI Act.

Public interest

Section 11A(5) of the FOI Act provides that the requested document must be disclosed to the applicant unless its disclosure would, on balance, be contrary to the public interest.

In determining whether disclosure would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public interest factors in favour of disclosure against the factors against disclosure.

Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must not take into account when deciding whether access to the document would be contrary to the public interest:

• access to the document could result in embarrassment to the Commonwealth Government, or cause a loss in confidence in the Commonwealth Government;

• access to the document could result in any person misinterpreting or misunderstanding the document;

• the author of the documents was (or is) of high seniority in the agency to which the request for access to the document was made; or

• access to the document could result in confusion or unnecessary debate. I have not taken any of the above factors into account in making my decision.

My consideration of the public interest in relation to the application of section 47B of the FOI Act follows.

Factors favouring disclosure

I have considered the factors set out in section 11B of the FOI Act that may operate in favour of disclosure and acknowledge that disclosure of the request document may:

• promote the objects of the FOI Act;

• would inform a debate on a matter of public important; and

• promote effective oversight of public expenditure.

Public interest factors against disclosure

The factors against disclosure in relation to section 47B, in my view, are that disclosure:

• would inhibit the interests of good government and sound public administration;

• would restrict the candour and utility of future discussions;

• may impair the Commonwealth’s ability to obtain information for the purposes of assessing the delivery of Commonwealth programmes, namely all related Closing the Gap initiatives;

• could reasonably expect to harm the interests of a group of individuals, namely Aboriginal and Torres Strait Islander peoples. In particular, release could reasonably be expected to diminish the NIAA’s ability to manage its ongoing service delivery operations relating to Closing the Gap initiatives in an effective and efficient manner; and

• could reasonably expect to prejudice the management function of the NIAA. In particular, the NIAA’s ability to manage its functions in meeting the Government’s Closing the Gap agenda priorities, policies and programmes for Aboriginal and Torres Strait Islander peoples.

After careful consideration of all relevant factors, I have decided that the factors against disclosure of the requested document outweigh those favouring disclosure. I am of the view that disclosure of the request document would, on balance, be contrary to the public interest at this time.

I am therefore satisfied that the requested document is conditionally exempt under section 47B of the FOI Act.

Section 47C of the FOI Act – deliberative processes

Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency, a Minister or the Government of the Commonwealth.

In order to determine whether a document is conditionally exempt, the FOI Guidelines explain at paragraph 6.58 that:

A deliberative process involves the exercise of judgement in developing and making a selection from different options: The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

In your correspondence of 26 September 2019 you contend that ‘further detailed consideration be given to whether this is in fact a deliberative comment; to whether factors in favour of release were adequately identified’.

Upon review of the document, I am satisfied that the document contains opinions, advice and recommendations provided for the purpose of consideration of the Joint Council in developing a new National Agreement. These assessments were provided to the Joint Council in confidence, to assist in their deliberations on the new National Agreement. The development of the National Agreement is still ongoing and the premature release of the requested document would substantially and adversely impact the effectiveness of the National Agreement and the future success of Closing the Gap initiatives.

I therefore consider the requested document to be conditionally exempt under section 47C of the FOI Act.

Public Interest

I have not taken any of the irrelevant factors listed above into account in making my decision.

Factors in favour of disclosure

The particular factors in favour of disclosure in this case are that disclosure would:

• promote the objects of the FOI Act;

• improve public over sight and scrutiny of government decision making; and

• promote effective oversight of public expenditure.

Factors against disclosure

The factors against disclosure in relation to section 47C of the FOI Act are, in my view, that disclosure:

• would inhibit the interests of good government and sound public administration;

• would restrict the candour and utility of future discussions relating to the ongoing development of the National Agreement;

• would restrict the candour, completeness and utility of future advice;

• may impair the Commonwealth’s ability to obtain information for the purposes of assessing the delivery of Commonwealth programmes, namely all related Closing the Gap initiatives;

• would reasonably expect to prejudice the management functions of the NIAA. In particular, the NIAA’s ability to manage its functions in meeting the Government’s Closing the Gap agenda priorities, policies and programmes for Aboriginal and Torres Strait Islander peoples.

After careful consideration of all relevant public interest factors I have decided that, on balance, the factors against disclosure outweigh those favouring disclosure. I am therefore of the view that disclosure of the requested document would, on balance, be contrary to the public interest at this time.

I am therefore satisfied that the requested document is exempt under section 47C of the FOI Act.

[Further content of the document related to review rights, complaint rights, contact details, and a signature block and date].                                     

COAG and Indigenous Affairs Policy

COAG and Indigenous Affairs policy



Prime Minister Turnbull chaired his fist meeting of COAG on 11 December 2015 in Sydney. Set out below is an edited extract of the press conference transcript held after the meeting which sets out only the comments relating to Indigenous affairs:

COAG Press Conference with Premiers and Chief Ministers Sydney

Prime Minister:

Welcome, everybody. I want to thank the leaders of the states and territories and of course the President of the Local Government Association for a very good discussion. It was a very good and cooperative, congenial discussion today over many issues and we've reached agreement on some very important priorities…..

I'm sure Adam will speak about this also but we've agreed on a new strategic framework that puts Indigenous economic participation at the heart of the national agenda and that is absolutely critical.

We recognise - as in the Chief Minister's words - this is not just a social issue, this is an economic issue and we need to prioritise our economic advancement, economic participation by Indigenous Australians.

Chief Minister Giles:

Prime Minister – congratulations on your first COAG. I think it was a very important meeting from the Territory perspective.

We have also had the opportunity of reaffirming COAG's position with yourself as new Prime Minister on statehood for the Northern Territory, working towards 1 July 2018, that's a very important message to Territorians. We've had the opportunity of talking a little bit about the federation reform and I think that will continue a lot more into 2016.

But, particularly, today was a day where you and COAG have made your mark on Indigenous affairs, particularly around indicating the need for the development of a strategic framework for Indigenous economic participation. That is something new in Australian conversation. We often hear about social outcomes, Closing the Gap targets. We don't put enough focus on business and employment opportunities that drive social and cultural change so the decision by COAG today to come back at the next meeting in 2016 with a framework that can acknowledge national principles and priorities but work bilaterally with States and Territories, what we can do to advance economic opportunities for Indigenous Australians I think is first rate in terms of a new initiative for Australia.

We've been doing it in the Northern Territory for the past couple of years, seeing major changes both in the public and private sector and to be able to acknowledge that and seek to advance those collective desires through a strategic framework across the nation and other jurisdictions is really important and it shouldn't go unheralded with your leadership today and all the colleagues around the table. So, thank you very much for that and I look forward to 2016.

In a media statement released after the COAG meeting titled Health funding, statehood and Indigenous economic development key COAG issues for NT, Chief Minister Giles noted inter alia:

The health funding challenge, statehood, domestic violence prevention and increasing opportunities for Indigenous economic development were key issues for the Northern Territory at today’s Council of Australian Governments (COAG) meeting.

The Chief Minister updated Leaders on progress towards statehood with a joint report from the Northern Territory and Commonwealth Governments to be provided at the next meeting of COAG in 2016.

“Statehood is about equality and ensuring Territorians are not treated as second class citizens so I’m pleased all Leaders continue to support the Northern Territory’s resolve to become Australia’s seventh state by 1 July 2018,” he said.

Mr Giles welcomed the Leaders’ agreement to a new approach that put Indigenous economic participation at the heart of the national agenda.

The Chief Minister said the Territory Government had implemented a range of innovative policies to significantly grow Indigenous business development and job opportunities across the Territory, especially in remote communities.

“We’ve set a number of ambitious employment targets and policies including doubling public sector Indigenous employment from 1800 to 3600 employees by 2020, and initiating Aboriginal employment requirements for all Government infrastructure contracts above $500,000,” he said.

“In addition, we’ve introduced a new remote contracting policy aimed at ensuring 70 per cent of small contracts for construction repairs and maintenance in remote Aboriginal communities go to local Aboriginal businesses by 2017.

“These policies set a clear direction and encourage Aboriginal and non-Aboriginal businesses to work together in a spirit of partnership across remote areas to build wealth creation for remote Aboriginal communities.

“The innovation in the Territory’s approach is that culture and economy are not treated as mutually exclusive, but as the essential ingredients in delivering improved social outcomes in areas of education, health and justice.

“The Northern Territory Government looks forward to working with the other States and Territories, the Commonwealth Government and Indigenous leaders to develop targeted actions to boost Indigenous economic participation right throughout the country.”

In a communique issued later that day, COAG outlined its decisions on Indigenous issues:

Indigenous economic development

Leaders agreed to the development of a new strategic framework that puts Indigenous economic participation at the heart of the national agenda, recognising that economic participation underpinned by cultural participation leads to improved social outcomes. The framework will drive genuine cooperation, including with Indigenous leaders, to ensure we learn from and share what works. It will also support an increased focus on place-based solutions. This will support increased economic independence and reduced reliance on welfare, and help achieve Closing the Gap targets.

Early childhood and school education are both critical in opening future economic opportunities for Indigenous children. COAG agreed to prioritise and accelerate efforts in this area, and set a new early childhood education Closing the Gap target of 95 per cent enrolment for all Indigenous four year olds by 2025, extending beyond the expired 2013 target for remote communities.

COAG welcomed Northern Territory Chief Minister Giles’s proposal for more targeted national and bilateral action to boost Indigenous [economic] participation. Leaders will discuss a range of actions at their next meeting, featuring innovative approaches to procurement that promote entrepreneurialism and real jobs.

COAG considered the report of the investigation into Indigenous land administration and use that it commissioned in October last year. To better enable Indigenous land owners and native title holders to use rights in land for economic development, jurisdictions will implement the recommendations of this report subject to their unique circumstances and resource constraints.

All jurisdictions reaffirmed their shared commitment to the recognition of Aboriginal and Torres Strait Islander peoples in the Commonwealth Constitution, and noted the Commonwealth’s announcement of a Referendum Council to lead a significant national consultation process on recognition. COAG noted the importance of state and territory governments being engaged in this national consultation process, and Premiers and Chief Ministers agreed to participate.

Key points arising from the above record include the brevity and selectivity of the Prime Minister’s comments, the absence of commentary from any of the major states and the ACT to the Indigenous issues apparently discussed, and the lack of any real detail as to what will be included in the proposed strategic framework for Indigenous economic participation.



Indeed, it is what was not mentioned in the First Ministers’ Press Conference and the Chief Ministers Media Statement which is of most significance.



The announcement in the communique of a revised ten year target for early childhood education participation target is essentially an admission of defeat by First Ministers. The Commonwealth has made school attendance in remote Australia a flagship program, and the target for early childhood participation in remote areas was originally devised in acknowledgment that early childhood programs offered one of the most decisive policy levers for improving educational outcomes in remote regions, and played a key role in driving good health outcomes as well.



The Productivity Commission report National Indigenous Reform Agreement Performance Assessment 2013-14 released to Governments in November 2015 and publicly on 2 December 2015 assesses progress on the Close the Gap targets. The early childhood target, originally aimed for 95 percent enrolment in pre-schools for four years olds in remote communities by 2013. The Commission reported that the target had not been met falling short by ten percentage points, albeit after substantial gains in enrolments over the five years of the target.



The Commission noted that it is attendance, not enrolment which matters, yet COAG in refreshing the target, and pushing it out to 2025 has retained a focus based on enrolment. Table 4.1 in the Commission’s report indicates that the NT has a substantial discrepancy between enrolments and attendance of almost 20 percentage points; a discrepancy which is not present in other jurisdictions. By extending the timeframe to ten years, shifting the goalposts away from remote enrolments to national enrolments, and ignoring the Productivity Commission’s observation that it is attendance which matters, COAG has essentially taken the pressure off the worst performing early childhood jurisdiction in the nation, and concomitantly reduced the likelihood that the least engaged Indigenous pre-schoolers in the country receive priority attention from policymakers.



In relation to the COAG initiated Land Administration review, initiated at the instigation of the Northern Territory at a previous COAG, First Ministers were entirely silent at their press conference.  There appears to have been little if any discussion of the substantive recommendations of the finalised report. Yet the Commonwealth is currently actively supporting the Human Rights Commission to progress policy development in what appears to be a parallel process, albeit with little clarity as to the actual proposals being advanced. As recently as Monday last week, the Attorney General and three human rights commissioners met with Indigenous leaders to press ahead with the land rights reform agenda begun earlier this year in Broome. The Social Justice Commissioner, Mick Gooda, in his recently released Social Justice Report called for greater coordination of the various land reform initiatives by the Commonwealth Government.



The COAG discussion was a real opportunity to provide greater clarity on this front. It is difficult to resist the interpretation that the Commonwealth is loathe to see any Indigenous issues raised before the next federal election, given the likelihood that any firm action would open up divisions within the Government between the left and the right.



To cut to the chase, the actual outcome agreed by First Ministers amounts to a classic cop out. They announced:

To better enable Indigenous land owners and native title holders to use rights in land for economic development, jurisdictions will implement the recommendations of this report subject to their unique circumstances and resource constraints.

The announcement is drafted to sound positive and to suggest support for Indigenous economic development, but involves absolutely no commitment, no timeframes for action, and provides no information on the part of the states, the territories nor the Commonwealth as to actual intentions.



It is worth noting that many of the report’s recommendations relate to the Native Title Act which could be unilaterally advanced by the Commonwealth given that it is Commonwealth legislation.



While Chief Minister Giles initiated the review, it was implemented by the Commonwealth under the direction of the Minister for Indigenous Affairs, Nigel Scullion, who is himself a member of the CLP in the Northern Territory. At the time the review was initiated, Scullion was involved in a tense standoff with the NT Land Councils over proposed amendments to the NT Land Rights Act, and it seems slightly odd that Giles proposed the review to COAG given that the NT land Rights Act is Commonwealth legislation. Giles total silence on the discussion and outcomes at COAG of the review he initiated is even odder.



In the year since, Minister Scullion has backed away from his attempt to drive a fundamental overhaul of the NT Land Councils, and is now working hard to build more productive relationships with the Land Councils.  Moreover, given that the NT faces an election next year, the disjunction between the high rhetoric of reform and the non-commitment to actual policy change in relation to Indigenous land rights reform seems to be designed more for electoral than policy purposes.



The announcement of a joint report from the NT and Commonwealth Governments relating to NT Statehood by 2018 are clearly in this same election-related category, though in this case the NT Government is keen to talk up the prospects of statehood in the lead up to the next NT election. Given the history of attempts to move to a state of the Northern Territory, it is clear that achieving statehood will be extremely difficult, and any substantive policy change has the potential to become a polarizing issue for Indigenous Territorians who have been wedded to implicit Commonwealth oversight of Indigenous affairs in the NT since self-government. Talk is cheap, action will be more expensive.



The silence of First Ministers on Indigenous policy issues generally is symptomatic of a more fundamental concern, namely the comparative disengagement of the states in the Indigenous affairs policy domain. The key policy responsibilities which drive outcomes in health, education, and housing for Indigenous citizens are primarily state responsibilities, yet we see very little acknowledgment of this in the public dialogue on Indigenous affairs and virtually no pressure applied to the states and territories for the slow progress on the Close the Gap targets.



The Abbott Government, by centralising all policy and program responsibilities within PM&C (Health excepted) effectively removed the responsibilities of mainstream agencies to focus on their Indigenous stakeholders and as a consequence relieved pressure on the states and territories to deliver outcomes through their own mainstream agencies. This is retrograde policy and needs to change. Poor institutional arrangements contribute to poor policy outcomes.



In a month where the Productivity Commission determined that the Close the Gap targets established by COAG over the past decade are largely not being met, the rhetorical focus by COAG on Indigenous economic development to the exclusion of underlying social indicators as well as to the acknowledgement of the importance of cultural and environmental aspirations of Indigenous citizens, appears at best insufficient and at worst an attempt to distract attention from the lack of progress on COAG’s past decisions and initiatives.



The total silence of COAG on the Productivity Commission’s call for a renewed focus on policy and program evaluation in Indigenous affairs merely serves to reinforce that Indigenous policy development has fallen into the doldrums, and currently lacks any clear policy leadership. Ideology and rhetoric flourish to the exclusion of solid policy innovation.



While COAG and the Productivity Commission have formal coordination and monitoring roles in ensuring the states and territories are up to the mark in addressing Indigenous disadvantage, the stark political reality is that it is the Commonwealth which must keep the pressure on the federation to keep moving forward in this area.



In circumstances where the laggard jurisdiction in so many areas is the NT, it is apparent that for a Prime Minister to appoint a Territorian as Minister for Indigenous Affairs has the potential to create a conflict of interest in political and policy terms. The Indigenous policy outcomes of the recent COAG meeting – particularly the silence on the early childhood target and the land administration review -  provide tangible demonstration that these concerns are more than hypothetical.



Prime Ministers are known to ask trusted experts and advisers “what are the two or three things I should do in the Indigenous policy area?” My unequivocal answer to that hypothetical question would be as follows: to replace ideology and rhetoric with substance, place a focus on policy over politics in decision-making, listen to local and regional voices, accept the inevitability of diversity amongst Indigenous interests, and put as much focus on policy implementation as on policy development, and thereby provide real, substantive and innovative leadership to the nation as a whole. The Prime Minister’s first COAG meeting falls short of this benchmark.







15 December 2015