The Yoorrook Justice Commission Final Report: Reaction and implications

 

A wretched soul bruised with adversity,

We bid be quiet when we hear it cry;

But were we burdened with like weight of pain,

As much, or more, we should ourselves complain.

Comedy of Errors, Act two, Scene one.

The Final report of the Yoorrook Justice Commission, the Victorian Royal Commission into systemic injustice against the State’s First Peoples has this week handed down its third and final report: Yoorrook: Truth Be Told (link here). The terms of reference can be found in Appendix One; the 148 recommendations from all three reports are spelt out in Appendix Two of the final report.

In this post, I don’t propose to attempt to summarise or even distil the broad arguments nor the recommendations in any comprehensive way. Rather I wish to take as my starting point two articles in The Australian in recent days (both of which are unfortunately behind a paywall) which were scathingly critical of the report, its methods and findings. On July 4, Henry Ergas wrote an article headlined ‘Yoorrook inquiry’s ‘truth-telling’ is an egregious fraud’ (link here). This was followed the next day by a Janet Albrechtson article titled ‘Tell the truth: we’re a single sovereign country’ (link here).

Ergas’s argument was to attack the Yoorrook Commission for adopting flawed historical analysis:

Cavalierly dismissing conventional evidentiary standards, it replaces them by what it calls ‘a profound assertion of First Peoples’ ongoing sovereignty over their stories, knowledge and futures. In its proceedings, it frankly states: ‘truth telling was not about debate’ — and indeed there was none. Nor was there any testing of evidence, presentation of contrary views or attempt to engage with critics. Comfortably ensconced in the realm of naked assertion, the commission found truth because it knew it.

He proceeds from this rhetorical platform to excoriate the commission for its discussion of genocide, for inciting ‘unvarnished arrogance’, and for encouraging further demands from Indigenous interests that are increasingly extreme and poorly founded. After questioning why it is that the ‘enormous ongoing transfers’ of land, royalties and public subsidies have failed to alleviate entrenched Indigenous disadvantage, he argues the report has ignored the possibility that these transfers are enriching a privileged elite while condemning entire communities to hope-destroying social pathologies.

Albrechtson using vigorous language zeroes in on a series of targets that constitute a comprehensive list of ‘woke’ or extreme left concerns (though she doesn’t use these terms): cultural safety, genocide, decolonisation of the education curriculum, recompensing publicly funded Indigenous staff for the ‘colonial load’ they carry, while blaming ‘ivory tower academics’ for inventing the concept. The core of her argument is the report’s failure to address or accept the following proposition:

After five decades of failed policies demanding separate rights with no mention of responsibility, this report demands that we formally and permanently cement victimhood into Australian law. … This report ….is a badge of shame…

The shame, in Albrechtson’s view, extends to the Andrews Government for commissioning the report and framing its terms of reference around systemic injustice, to the many elites who have ‘indulged a separatist project’ that leaves children to mull over ‘actionable cultural rights’ rather than their rights to physical and mental safety and extends to judges who ‘indulge themselves in undermining High Court authority’ when they announce that Indigenous sovereignty has not been ceded [in acknowledgements of Indigenous elders and country].

For Albrechtson, the issue of sovereignty is at the core of her argument. She argues that the Commission’s claims that Indigenous sovereignty was exercised before the arrival of the British and was never lawfully acquired by the British under international law, is both wrong and underpins the ‘entire edifice of separatism’ asserted by the Yoorrook Commission. In her argument, the 1979 High Court decision in Coe v Commonwealth is authoritative and not subject to question. She then argues that the ‘fundamental falsehood’ of Indigenous sovereignty drives a series of deeply flawed separatist demands that are both undesirable (she uses the term ‘unhelpful daydreaming’) and politically infeasible (‘taxpayers will surely baulk at having to fund this divided Australia’). This leads to the inexorable conclusion:

The ultimate tragedy of this report is that none of this political extremism is conducive to social cohesion.

The arguments advanced by both Ergas and Albrechtson are, in my view, intellectually flawed and compromised by their own ideological preconceptions. Ergas sets up a strawman built on principles derived from classical historiography to bolster his argument that the Commission’s processes could not amount to ‘truth-telling’ and thus should not be seen as credible. Yet the perspectives of those affected by government policies, whether those documented and considered by the recent royal commission into disability, or the royal commission into the robodebt fiasco, have not been criticised for their illegitimacy. Clearly the perspectives of citizens (whether right or wrong, refutable or irrefutable) matter in a democracy and it seems to me that governments have the right to establish a royal commission which inter alia seeks to ascertain and interrogate those perspectives.

Nevertheless, there is a distinction between the views and perspectives of citizens on policy matters generally and the need for objective criteria and rigorous analysis in determining effective policy. For example, The Australian has been an active participant in the debate on the nation’s ‘cost of living’ crisis driven in large measure by citizens with young families facing ever increasing house prices and high mortgage repayments. However determining appropriate policy responses requires consideration of broader macroeconomic factors, medium and longer term implications, impacts on other segments of the community, and indeed a broader comparative assessment of what is meant by ‘crisis’ in one of the top twenty wealthiest economies on the planet (link here), none of which detract form the legitimacy of the views of families under financial pressure. In other words, contra Ergas, I would argue that the Yoorrook Commission’s high-level narrative should not be dismissed as without value or as intellectually compromised; it is akin to an expression of widely shared concern. It serves some purposes very well, but not necessarily all purposes. For example, the concept of Indigenous ‘truth telling’ is clearly also a rhetorically or ideologically loaded term aimed at building or sustaining group solidarity and a sense of shared interests. Importantly it gives Indigenous citizens a sense that their voice extends beyond their own domain into the wider community and that voice is seen both symbolically and substantively as legitimate. Like advocacy from any interest group, it is not however necessarily a detailed roadmap for optimal policy reform in the public interest.

Albrechtson’s focus on the Australian legal system’s forthright refusal to recognise the existence of Indigenous sovereignty within Australian law is tendentious insofar as it ignores the possibility that forms of Indigenous sovereignty continue to exist within the Indigenous domain albeit without legal recognition at law. A parallel might be the example of native title: our legal system held that it didn’t exist (eg In the Milirrpum Case) until the High Court changed course and determined in Mabo No.2 that it could be recognised under various conditions. Once determined, native title over a tract of country is legally acknowledged to have always existed.

Moreover, while the focus on legal determinations is convenient, there are real world indications that Australian Governments have at times voluntarily diminished or compromised Australian sovereignty to achieve wider policy aims. The increasing encroachment of international trade agreements and trading rules is one case in point; the headlong expansion of the US presence in Australia (including arrangements that ostensibly enable the Australian Government to not be advised when the US brings nuclear weapons into Australia) are cases in point. In our 2019 Policy Insights paper Overcoming Indigenous Exclusion (link here), Neil Westbury and I provided an extended discussion on these issues, along with an analysis of the concept of shared sovereignty, a term used in The Uluru Statement from the Heart.

In other words, the High Court’s categorical legal assertion of absolute sovereignty is not necessarily inconsistent with the existence of coexisting forms of sovereign powers within the Indigenous domain, albeit only recognised by those Indigenous citizens who choose to do so. Nor is it inconsistent with the potential for the Australian Parliament to effectively delegate elements of the Crown’s sovereign powers. The possibility of future legal recognition of the exercise of such authority is both possible (but clearly not certain) and a matter which is legitimately able to be advocated for by Indigenous citizens.

The Yoorrook Commission was in my view entitled to reflect the views of those Indigenous citizens who aspire to see such reforms, and to recommend reforms consistent with those views. In this account, the oft-cited statement that Indigenous lands were never ceded can be interpreted both as a claim to the continued existence of an Indigenous sovereign status, and simultaneously as an argument for formal recognition of such status (on terms yet to be negotiated).

Albrechtson is on stronger ground in my view in relation to her concerns regarding what she terms ‘separatist demands’. It is not that I agree with her febrile rhetoric on the issue of separatism, rather it strikes me that the Yoorrook Commission has failed to contextualise and adequately account for the reality of the daily existence of Victoria’s Indigenous people.

Indigenous Victorians invariably lead modern lives, live in modern housing, drive cars or use public transport, use roads, and access government provided services such as garbage disposal, sports facilities, communications networks. They routinely engage in commercial behaviour either as consumers in private markets or as entrepreneurs. I could go on at length. As Noel Pearson has observed we all have layered identities, and Indigenous citizens are no different. While Indigenous citizens are inextricably entwined and interconnected with mainstream Australia, their Indigenous identity is crucially important. It would be misguided and morally unjustified for the nation to seek to erase that element of their identity, just as it would be inappropriate for the nation to seek to erase elements of non-Indigenous citizens’ identity. While Indigenous citizens are not separate, neither are they assimilated or uniformly mainstream. Unfortunately, the Yoorrook Commmission in my view gives inadequate attention to this reality, thus skewing the emphasis of its recommendations towards emphasising separateness over interconnectedness.

Of course, these issues are devilishly complex. Since colonisation occurred, Indigenous citizens have experienced violence, coercion, social and economic and cultural exclusion. These experiences have led to (or accompanied) loss of languages, poor health, discrimination and more. These consequences are in many respects ongoing and inter-generational and raise serious issues regarding how Governments (with their much-vaunted sovereign powers) should respond, how any such response should be framed, and what policies might be adopted to address those consequences. These are the issues that are encompassed by the term systemic injustice, the core element in the terms of reference of the Yoorrook Commission.

Where I part ways with Albrechtson in relation to separatist policy approaches is that it seems both morally unjustified and practically unwise to seek to prevent or avoid any open discussion with Indigenous interests about systemic injustice and its consequences. Her argument frames Indigenous concerns as politically extremist and then argues that such extremism undermines social cohesion. In turn, this justifies silencing this type of public policy advocacy. My view is that ongoing exclusion (structural and tangible) leads unsurprisingly to frustration and ultimately to more extreme views, and the politically astute remedy is to engage and include Indigenous interests in an open and transparent way regarding the way forward.

In essence, I am arguing for dialogue and mutual deliberation rather than unilateral silencing and suppression of legitimate perspectives which are the source of ongoing and widespread pain, trauma and social dysfunction. I am not arguing that Indigenous citizens deserve a blank cheque nor for a process that raises expectations that will never be met. Arguably the current approaches of Labor Governments in establishing what are effectively one-sided pre-treaty processes such as the Yoorrook Justice Commission (or the Morrison Government in establishing a Senior Advisory Group on the Voice Referendum) raise the expectations of Indigenous interests beyond what our political system is currently prepared to deliver. To the extent that this is the case, it is my view that the approach is misguided.

In relation to systemic injustice affecting Indigenous citizens, and given the reality of layered identities, the question of whether governments should focus specific policies and programs on those who identify as Indigenous or instead focus on wider need encompassing both mainstream and Indigenous constituencies comes to the fore. This will not always be a clean binary choice; often it will be clear which side of the line the answer falls, but in many cases, there will be legitimate arguments that the public interest will best be served with a dual approach. In many cases, the appropriate answer may be unclear.

My own perspective on how the nation should build on the work of the Yoorrook Commission and address these issues of systemic injustice can be summarised in seven propositions:

First, whether policies relevant to Indigenous citizens should be focussed on past events or present consequences is a legitimate subject for policy dialogue, debate and consideration. Given the reality of finite fiscal capacity within governments, there will always be trade-offs involved.

Second, whether particular policies should be designed as mainstream or Indigenous specific is a legitimate subject for policy dialogue, debate and consideration.

Third, the design of policies to address systemic injustice impacting Indigenous citizens should involve both mainstream interests and Indigenous interests and should focus primarily on the public interest broadly defined. To be clear, I am suggesting (perhaps controversially) that responsibility for resolving these issues and designing reforms should be shared between mainstream and Indigenous Australians, and therefore must be resolved by negotiation, not fiat.

Fourth, the usual processes of policy development for these high-level Indigenous policy frameworks have not worked and should be reconfigured to ensure a level of deep transparency. In my view, the existing practices of governments operating behind closed doors, and engaging with selected interlocutors in private will not find the compromises necessary to ensure durable solutions. We should not expect Indigenous interests to spend years developing policy proposals (four years in the case of Yoorrook) only for Governments to exercise a unilateral veto on whether to implement what has been proposed.

Fifth, governments, mainstream interests, and Indigenous interests should accept that the likelihood of a once only grand bargain (treaty) that solves all the issues encompassed by the existence of systemic injustice is a chimera. What will be required is a general commitment to a process that incorporates and engages with both the wider mainstream community and Indigenous communities as well as the interests that are most directly affected on both sides. This will take time but once initiated will engender trust and reduce the likelihood of backsliding by future governments. It also will allow for the iterative accretion of policy successes in relation to the more straightforward issues thus building the capability and experience necessary on all sides for addressing the hardest issues.

Sixth, the Commonwealth must be engaged in any such process, even where state-based processes are identified and set in motion. Our federal structure is too entwined for one level of government to resolve these issues on its own. Moreover, the Commonwealth has a responsibility, arising from the powers granted to it by the 1967 referendum. This suggests too that the Commonwealth lead agency should be a central agency (other than NIAA) able to take a holistic perspective of Commonwealth interests.

Seventh, it strikes me that the Coalition of Peaks and the framework established by the National Agreement on Closing the Gap should comprise the starting point for engaging with Indigenous interests in establishing such an ongoing process, although there might be grounds for expanding and modifying that framework to ensure greater inclusiveness. There is no reason why Indigenous interests could not reform their internal processes to enhance their negotiation capability themselves without government action.

Conclusion

I am sceptical that the Victorian Government has the capacity to engage substantively with the Yoorrook Justice Commission’s 148 recommendations, nor with the evident pain and concern that pervades the Victorian Aboriginal community. Without Commonwealth leadership and impetus, the most likely result will be the creation of further process, further delay and ultimately stagnation leading to irrelevance.

The process to date has clearly been worthwhile for Victorian Aboriginal interests, but to take the Commission’s work to a new level, there will be a need for Aboriginal interests to synthesise and prioritise the policy reforms that will have most impact and consider carefully their strategies going forward.

The lesson I draw from The Australian is that their aggressively critical perspective is a forerunner of what is to come and lays down a roadmap that more conservative interests will use to seek to suppress and prevent the greater social, economic and cultural inclusion of Indigenous interests.

The lesson from the Voice referendum for both mainstream and Indigenous interests is that strategic considerations, preparedness to compromise, and a unified and professional advocacy capability will be crucial in grasping the opportunities that flow from the work of the Yoorrook Justice Commission.

Finally, the stark choices facing both the Victorian Government and Indigenous interests in taking the Yoorrook Commission report forward are either win/win or lose/lose. There is no halfway house. Whichever outcome is chosen will have long term national implications, and shape not just Victoria, but the nation as a whole for generations to come.

 

11 July 2025

Addendum:

A reader brought to my attention the Victorian Government's response to the Yoorrook Commission's  second report (link here) which provides a template for the likely response to this third report.

Youth detention, incarceration, closing the gap, and who we are

 

Your dishonour

Mangles true judgement, and bereaves the state

Of that integrity which should become it.

Coriolanus Act three, Scene one.

 

According to ABS census data from 2021 (link here), one-third (33.1%) of Aboriginal and Torres Strait Islander Australians were aged under 15 years compared with 17.9% of non-Indigenous people in the same age group.  The median age nationally of the Aboriginal and Torres Strait Islander population was 24 years. While remote and very remote Indigenous populations comprise only 15 percent of the national Indigenous population, and two less than one percent of the Australian population, they are amongst the most disadvantaged citizens across virtually every social indicator.

In recent months, there have been several articles focussed on the plight of remote communities; places where the demographic profile is heavily slanted toward those under 24.

In October, Daniel James, a Yorta Yorta man wrote a searing indictment of government policy in Central Australia in The Monthly titled Children of the intervention (link here). More recently in The Saturday Paper (link here), Ben Abbatangelo, a Gunaikurnai and Wotjobaluk writer wrote a searing — yet hopeful —  indictment of the situation in Wadeye titled  Yidiyi Festival returns hope to Wadeye. I have quibbles with both articles related to their focus on particular places thus de-emphasising the wider structural drivers of disadvantage across remote Australia generally, and their implicit choice of temporal perspectives. Both articles are nevertheless extremely powerful critiques of Government policy neglect and ineptitude, while not ignoring the complexity and nuance which bedevils any close analysis of these issues.

It was within this overarching policy context that the Joint Council on Closing the Gap met last week. The Joint Council includes every Minister for Indigenous Affairs in the federation plus representatives of the Coalition of Peaks. Their communique (link here) mentioned a number of issues, but focussed particular attention on one specific issue:

Joint Council discussed critical matters regarding youth justice and agreed that Target 11 of the National Agreement on Closing the Gap (the National Agreement) is an urgent priority that requires collective action across multiple government portfolios and jurisdictions to deliver on the ground results. Target 11, to reduce the rate of Aboriginal and Torres Strait Islander young people (10 – 17 years) in detention by at least 30 per cent by 2031 is not on track to be met. Joint Council agreed to escalate this urgent priority and progress work that will achieve improved accountability, coordinated jurisdictional actions and outcomes. It was agreed that Joint Council Co-Chairs write to First Ministers to seek details of how their governments are currently taking steps to meet Target 11, including consideration of remand, alternative accommodation and health and disability care and education in youth justice facilities.(emphasis added).

According to the Productivity Commission Closing the Gap dashboard (link here):  

Nationally in 2022-23, the rate of Aboriginal and Torres Strait Islander young people aged 10–⁠17 years in detention on an average day was 29.8 per 10,000 young people in the population (figure CtG11.1). The 2022‑23 rate is above the previous three years (from a low of 23.6 per 10,000 young people in 2020‑21) but it is a decrease from 32.1 per 10,000 young people in 2018‑19 (the baseline year). Nationally, the trend for the target shows no change from the baseline. This assessment is provided with a low level of confidence.

So while current levels of youth detention are less than the baseline, they have been rising in the last year.

The Joint Council response is entirely bureaucratic in nature, and reeks of going through the motions. It is unclear why they focus on youth detention and not also on incarceration more generally. Writing to First Ministers for information that should be in the Implementation Plans required by the National Agreement will take months, and as it turns out, if you dig deep enough in the Productivity Commission dashboard, half of the jurisdictions will be able to point to recent improvements and those that can’t will find some other bureaucratic formulation to describe their efforts as deeply committed and focussed on improving accountability and coordinated consultation to prioritise urgent action….or some such …

The real problem, which goes to the heart of the renegotiated targets under the 2020 National Agreement is that nationally, detention rates for First Nations youth are currently 28.8 per 10,000 compared to mainstream youth detention rates of 1.1 per 10,000. In Queensland, detention rates for First Nations youth are 46 per 10,000. Of particular interest is the fact that in Western Australia in 2010, youth detention rates were 79.7 per 10,000 and have dropped to 34.6 in 2022-23, a halving of the rates over twelve years (although still at levels above the national rate for Indigenous youth detention). I don’t know how WA have achieved that outcome, but that would be a question worth asking. It demonstrates that progress can be made. But the bottom line is that nationally, First Nations youth are 28 times more likely to be in detention than non-Indigenous youth. That is the real issue and the real tragedy. It should be cause for a national strategy to fully (not partially) close the gap, to bring Indigenous youth detention rates down to 1.1 per 10,000. It is worth remembering that these are point-in-time statistics; the levels of Indigenous youth that are placed in detention in any one year will be considerably higher. The current levels of Indigenous youth detention should be a national scandal. And it should be a focus for governments to commission detailed and independent analysis from criminologists, sociologists and anthropologists as well as their policy advisers.

Instead, governments have squibbed the issue by inventing an arbitrary target, with the aim of lowering the detention rate from 32.1 in the baseline year to 22.5 in 2031. Not only did they invent an arbitrary target, they have failed to articulate a coherent national strategy (and coherent state and territory strategies) to meet this arbitrary and inherently unambitious target. By their inaction, they are continuing to squib this issue day in and day out.

This is bad enough. But target 11 under the Closing the Gap process is just one of numerous targets which replicate the same strategy. Invent an arbitrary target that is reasonably achievable; shift the responsibility from the Commonwealth to nine separate jurisdictions each with their own policies and approaches, thus making real accountability impossible. Avoid developing coherent and realistic policy implementation plans by loading them up with hundreds of pages of bureaucratic flim flam, thus avoiding real political accountability.  And whenever an issue arises that emerges into the public consciousness, claim to be concerned and throw a few dollars at it.

So for example, there was no mention by the Joint Council of the challenges related to Target 10 which is framed as follows: By 2031, reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15%. The baseline adopted in the National Agreement was from 2019 a convenient and almost surreptitious way of diminishing the magnitude of the trends that point to not only an extraordinary level of hyper-incarceration of First Nations citizens, but a substantial increase in indigenous incarceration rates vis a vis mainstream population rates over the past fifteen years.

Interrogating the dashboard reveals the following key data points:

• Nationally the level of mainstream incarceration in 2023 is 149 per 100,000. It has barely changed from 2009, when the national rate was 137 per 100,000.
• For Indigenous citizens, the national level of incarceration is 2235 per 100,000 in 2023, up from 1539 per 100,000 in 2009.
• In WA, the Indigenous incarceration rate is 3469 per 100,000 in 2023, up from 2817 per 100,000 in 2009.
• In the NT, the Indigenous incarceration rate is 3029 per 100, 000, up from 1700 per 100,000 in 2009.

The national indigenous incarceration rate in 2023 is thus 15 times higher than the mainstream rate. In 2009, it was 11.2 times higher.

While it is difficult to visualise the impact of these statistics, Ben Abbatangelo’s article includes a description of the internal community violence that sporadically breaks out, its consequences for the whole community, and notes, almost in passing, the extraordinary statistic that that today, around 5 percent of the Wadeye’s population is incarcerated.

What I find particularly frustrating is that the blatant hypocrisy of governments, laid out in plain view, fails to resonate in the public domain. Political Oppositions across the federation (whether progressive or conservative) find it easier to look away or pretend that the issue is being dealt with appropriately; after all they hope to be in government at some future date and don’t wish to have made commitments they don’t intend to make meet.

The media (with honourable exceptions mentioned above) largely doesn’t look beyond the scandals or antics of the previous week.

Indigenous citizens become inured to the normalisation of violence in their lives, much of it is lateral violence and fuelled by poorly regulated and controlled alcohol and drugs.

The Indigenous members of the Coalition of Peaks on the Joint Council appear to be unable to see a way to go back to basics and call governments out for their inaction. They fear (probably correctly) that if they were to criticise government too openly, and too directly, they would first be defunded, and ultimately the whole edifice of the National Agreement would be dismantled as it would not be serving its purpose. The risks however are that they will ultimately be tainted by their perceived complicity (link here). And eventually a future, more punitive government will just decide to dismantle the whole edifice wile blaming the victims for the ongoing catastrophe.

Notwithstanding the irony of my reliance on their data in this post, the Productivity Commission blithely compiles and updates a plethora of data and statistics, apparently oblivious to its role in diverting attention from the extent and depth of the real-world crises and challenges confronting First Nations citizens. The Commission’s appears focussed on compiling a profusion of data and statistics which have limited relevance to the lived reality of many First Nations citizens, and no relationship to either policy or the concerns of governments.

For our political class and elites, the whole edifice has become an elaborate exercise in convincing mainstream Australia that our democratically elected governments really do care about First Nations when the reality is that they do not give a fig about closing the gap. In their mistaken and fundamentally narcissistic view, it is just too hard.  

Closing the gap is as much about mainstream Australia as First Nations; it is about changing the way mainstream Australia operates and shares this continent. I don’t claim that there are simple solutions to these issues. They require hard policy work, substantive political commitment, visionary political leadership, an ability to see beyond simplistic ideological humbug, and a sense of empathy and understanding that is exemplified in Australian notions of mateship, concern for the underdog and for a fair go for all. What fundamentally concerns me, to the point of disconsolation, is the deepening realisation that we live in a nation where these ideas no longer reflect who we really are.

 

Addendum: for those who might be interested in a more academic critique of closing the gap that reflects the ideas outlined here, I refer you to a couple of Discussion Papers I wrote in 2021 (link here and link here).

 

 

20 November 2024

amended to corrrect two minor typos (original struck through) 24 November 2024.

 

Labyrinth: the Productivity Commission Draft Report on Closing the Gap

 

…. that our stars,

Unreconciliable, should divide,

Our equalness to this.

Antony & Cleopatra Act V, scene 1

The Productivity Commission (PC) has released a draft report on its review of progress on closing the gap (link here). The draft report package comprises a nine page plain English executive summary (which I found extremely useful); a 15 page Executive Summary which includes six draft recommendations and a series of requests for information/feedback; a 101 page Draft Report, and a series of seven information papers totalling around 280 pages.

 

The review arises from the terms of the National Agreement on Closing the Gap (link here), in particular, clauses 121 to 124. In particular, clause 121 states:

The Productivity Commission will undertake a comprehensive review of progress every three years … It will provide an analysis of progress on Closing the Gap against the priority reforms, targets, indicators and trajectories, and examine the factors contributing to progress, including by drawing on evaluation and other evidence. 

 

The political and media reaction to the Draft Review has been predictable with a large focus on the report’s implications for the Voice (which to my mind prioritises means over ends). The Australian ran a series of articles on 26 July 2023 (behind its paywall) with headlines such as ‘Closing the Gap failures “show why the vote must succeed”’ (a view espoused by Minister Burney); ‘Indigenous watchdog “with bite” called for regardless of voice vote to deal with Closing The Gap’; ‘Closing the Gap scheme flounders within states of cynical disregard’ (arguing the states have dropped the ball); and an editorial headed ‘Bureaucracy firmly in the sights’. The Chair of the PC, Michael Brennan published an article in the AFR on 30 July (link here $) titled ‘The gap won’t change without fundamental change’. The money quote was his assessment of progress on closing the gap as ‘in large part, a hotted up version of business as usual’. Crikey published an analysis (link here) with the headline ‘Why the Productivity Commission thinks a Voice is needed to Close the Gap’. This is arguably a misinterpretation of what the PC intends. In a perceptive comment on that article, Jon Altman wrote, inter alia, that the PC

continues to produce detailed and expensive report after report carefully documenting the nation’s failure to properly address Indigenous disadvantage. But it does not address the first order issue: is the National Agreement on Closing the Gap framework a sound basis for policy formation? And will valorising equality for Indigenous populations as state-defined statistical subjects generate positive wellbeing outcomes for First Nations people in all their diversity?

 

Like Jon, I wish to focus on the policy issues rather than the quotidian political debate about the Voice (important as that is).

 

The nature of the PC review

There are a number of seriously problematic issues with the draft review (which I will seek to identify below); but these can be traced in large measure to a more fundamental issue: the PC appears to have veered away from the comprehensive review envisaged in the Agreement. The terms of reference for the review provided by former Treasurer Frydenberg in April 2022 state, inter alia:

Scope of the review: In undertaking the review, the Productivity Commission should:

1. analyse progress on Closing the Gap against the four Priority Reform outcome areas in the Agreement;  2. analyse progress against all of the socioeconomic outcome areas in the Agreement; and  3. examine the factors affecting progress. 

 

These tasks can be interpreted in one of two ways. They might be pursued broadly and holistically, in effect asking the strategic question: is the current Closing the Gap process meeting the objective of the agreement laid out in clause 15 of the National Agreement? Or they might be addressed narrowly and less consequentially, in effect asking the question, are the terms of each element of the agreement being met whether or not they are impacting the overall outcome being sought. Unfortunately, on my reading of the report, the PC has adopted the latter approach. I made this argument more expansively in my submission to the review (link here submission #5) based on my reading of an early issues paper.

The result is that despite nearly 400 pages of investigative narration, we don’t really obtain an effective readout on the required new policy roadmap for closing the gap. Instead we get what seems at times an interminable litany of proposals for improved ways to hold governments accountable for particular cogs in the complex machine that comprises closing the gap. I am all for holding governments accountable, but there is an implicit assumption embedded in calls for improved accountability that governments are in fact focussed on implementing actions designed to achieve the overarching objective of the National Agreement. If that assumption is wrong, then all that will be achieved will be more complexity, more engagement/involvement, more process, more bureaucratic kludge, and no change.

 

How might we determine if that assumption if in fact correct? The answer is by examining the tangible plans that exist to achieve the objective. Take this analogy. If I have an objective to build a new home, I develop a plan (let’s call it an implementation plan). I buy some land. I consider what I need to make the home useful to me. I engage an architect, and develop detailed designs and have the design specifications costed. I allocate financial resources both for the capital costs (construction) and for the ongoing maintenance. If there is a mismatch between design and available financial resources, I either adjust the design or allocate more financial resources. This is not rocket science. If I don’t have a plan; if I don’t develop designs that provide tangible links between my aspiration/vision and the ultimate outcome; if my designs are not able to be constructed at present because the materials required are not available; or if I don’t allocate resources and have some idea about how much it will cost; then an objective observer would conclude that I am not serious…

 

In relation to closing the gap, the National Agreement sets out the aspirational plan and steps to achieve the ultimate objective (clause 15 says it is reduced inequality between indigenous and other citizens). But Governments have failed to take it further. The implementation plans produced so far (required under the agreement) are not in fact implementation plans, but lists of what governments are already doing with some marginal new monies added. The PC identified that jurisdictional implementation plans were not fulfilling their intended purpose. See Box 4 on pages 27-8. I don’t agree with the detail of the PC analysis; for example, the Joint Council has agreed that the implementation plans be produced annually, a matter which strikes me as ridiculous, yet not commented upon by the PC.

 

To return to the house construction analogy, you don’t develop an implementation plan iteratively for each month or quarter of construction, but for the complete project. Instead the PC argues for codesign of these plans which is superficially attractive to Indigenous interests, but will inevitably produce delay and a bureaucratic morass (already a problem with this whole process). The time for Indigenous codesign is in developing the targets. Governments then must deliver against them, consulting and codesigning with relevant Indigenous interests as they go. The fact that jurisdictions do not have adequate and effective implementation plans is a fundamental flaw that requires rectification.

 

In relation to identifying the cost of closing the gap, including perhaps its constitutive elements, Governments have made no commitments. Instead, they merely publicise the financial commitments they make, often with little transparency of what the expenditures are achieving. Worse still, in contrast to the original Closing the Gap architecture under COAG (known as the National Indigenous Reform Agreement or NIRA), governments do not in general utilise decade long financial allocations. The problem with this general approach is that there is no way of knowing whether the financial commitments of governments are adequate or not. It is a truism that money is not everything, but in this case, it is an essential component of strategies to reduce inequitable access to services and basic infrastructure (like housing). Adequate funding may not be sufficient, but it certainly essential.

 

In my submission to the review, I argued that the PC should seek to estimate the likely total cost of closing the gap. To return to our analogy, we don’t start building a house without knowing what it will cost. Unfortunately, the PC has ignored this element of my submission. It is bad enough that governments do not estimate these costs, but it is an egregious dereliction of responsibility for the ‘independent’ reviewer to ignore this issue. No other area of public policy is seriously analysed without a focus on cost. In areas of high ideological salience like defence, the debate over cost is assessed not just in terms of real growth rates, but the proportion of GDP allocated to the task (link here). In Indigenous affairs, all we get is an incessant flurry of media releases announcing this grant and that, often directed at squeaky wheels.

 

One of the consequences of this seemingly deliberate blindness by the PC is to promulgate and maintain the myth that closing the gap is solely of concern to Indigenous interests. If adequate resources are to be allocated to addressing Indigenous disadvantage, then mainstream attitudes need to change. This requires understanding which is best obtained by encouraging wider community involvement in the processes associated with closing the gap. [As an aside, the forthcoming vote on the Voice is another example of the importance of building wider community understanding in relation to the issues of core concern to Indigenous citizens.]

 

A further issue identified by the PC relates to the status of the targets in the Agreement. This is addressed at length in Information Paper 6, but it is too convoluted to dissect here. Instead I suggest interested readers look at the plain English Executive Summary (link here). Alternatively, see the discussion on page 5 of the draft review. Here are some choice extracts from the Summary (pp. 6-7) regarding targets and data (emphasis added):

For clear progress on the socio-economic outcomes and Priority Reforms, the Agreement says there must be: • performance tracking • public reporting. But doing this has been a big challenge.  The Priority Reforms are the basis of the Agreement. Even so, governments report no data on: • the agreed targets  • indicators that support the Priority Reforms.  These are critical gaps in data. 

Also, progress on socio-economic outcomes is measured against national targets. It is not clear how to hold governments accountable for what happens at the regional level.  There are no data developed for: • any of the targets under the Priority Reforms • 4 of the 19 socio-economic targets • roughly 140 supporting indicators  • more than 120 data development items. 

We probably will not see these data developed within 10 years from the start of the Agreement (that is, by 2030).  More effort is needed to: • improve governance  • prioritise data development.

 

In other words, we have the policy architecture, but not the means to implement it. The PC recommendation is for a dedicated government agency to drive data development. I beg to disagree. To return to the house construction analogy, we have constructed the frame, but the walls and roof are missing as the relevant materials are not yet available or developed. Do we appoint another builder to supervise the current builder, or go back to the drawing board?

 

I suggest the Commonwealth should step in and initiate an immediate process of radical simplification to take this process back to its core purpose. There is a need to consider once again what the targets are actually for: instead of providing a policy roadmap indicating that we are heading in the right direction, they have been transformed into an attempt (that is bound to fail) which seeks to guide us each and every step along the way. Nineteen targets times eight jurisdictions plus hundreds of supporting indicators and data development items again across eight jurisdictions, all under constant change and refinement, and we have a data labyrinth which is guaranteed to ensure that any one foolish enough to enter is swiftly lost in the bowels of the machine.

 

There are a range of other issues embedded in this draft review that require detailed consideration by those interested in seeing Indigenous inequality and exclusion removed from Australian society. I will address a few below in no particular order.

 

Conceptual issues

 The philosophical and ethical issues that are embedded within the notion of closing the gap receive too little attention by policymakers. The tension between the state’s rhetorical focus on removing inequality and the right of citizens, particularly Indigenous citizens, to choose fundamentally alternative ways of living (implicit in the rhetoric of self-determination), which Jon Altman alluded to in his comment to Crikey quoted above, is of enduring relevance in the policy quest to close the gap. It is an issue that is generally avoided as ‘too hard’ by policymakers, yet lies at the heart of much Indigenous distrust of governments and their bureaucratic processes. Altman explores this issue at length in this submission to the PC inquiry into an Indigenous evaluation strategy (link here sub.#23). The PC has entirely ignored these issues in its draft report; a reflection in my view of its lack of analytic interest in exploring what it is that the Closing the Gap process is seeking to achieve.

 

Deficit discourse and remote disadvantage

One of the key polemical drivers of the Closing the Gap refresh process initiated by the former LNP Government which led eventually to the National Agreement was an ostensible reaction to the notion of deficit discourse which advocates argue is designed to blame Indigenous citizens for their own disadvantage. This is clearly an important policy insight, one that has recently been highlighted in relation to mainstream disadvantage by the Robodebt Royal commission (link here page iii). Yet when this concept is taken to extremes, it undercuts the whole point of closing the gap.

 

Unfortunately throughout the draft report, the PC appears to have adopted and endorsed such an extreme interpretation uncritically, thus setting up a polemical dichotomy where governments can do no right and must be held accountable for every shortfall and (paradoxically) where Indigenous interests are ongoing victims without agency. So for example, in Information Paper 6 (Link here pp. 14-5), the PC writes:

Review participants indicated a role for performance monitoring in supporting a paradigm shift in policy narratives about Aboriginal and Torres Strait Islander people. This shift moves policy discourse away from framing Aboriginal and Torres Strait Islander people as a disadvantaged minority towards rights-bearing peoples with strong connections to diverse cultures, Countries, and communities that have withstood current and historical institutional racism …  In its submission, the Lowitja Institute explained: Data is a powerful tool. Data can be used to hold governments and the community-controlled sector to account on actions under the National Agreement, however there is a risk that this can be decontextualised and misused if data sovereignty and data governance mechanisms are not in place. The oversupply of deficit-based data has created a discourse that sees Aboriginal and Torres Strait Islander peoples presented as a problem, or as wholly responsible for inequities…. (sub. 15, p. 7). (emphasis added)

 

One consequence of this aversion to anything that even hints at deficit discourse is that important issues at the core of ongoing Indigenous exclusion and disadvantage are being deliberately written out of the policy relevant narrative and thus the policy agenda. It may not be a coincidence that given the current demography of Indigenous Australia (link here), it would be theoretically possible to conjure a positive narrative on progress in closing the gap while ignoring the needs of remote Australia. The losers from this process are the most disadvantaged Indigenous citizens, particularly those in remote regions. So for example, in the 101 pages of the draft report on the status of closing the gap, there are only seven mentions of the word ‘remote’, most just passing references, and there are no specific statement by the PC referencing the fact that Indigenous disadvantage is deepest and most severe in remote regions. The closest is a reference in a case study on the Torres Strait on p.62 where the Torres Strait Council refers to its very remote location as an issue.

 

Yet the PC itself, in its July 2023 Annual Data Compilation Report identifies (albeit in cautious bureaucratese) the dire state of disadvantage in remote regions (link here page 30):

People living in a more remote area may experience additional barriers to better outcomes; for example, not having access to key government services or infrastructure at the same level as people living in other areas. Aboriginal and Torres Strait Islander people typically experienced poorer target outcomes as remoteness increased, which was mostly not the case for non-Indigenous people … Aboriginal and Torres Strait Islander people living in more remote areas also saw less progress toward target outcomes. Target outcomes typically only improved for Aboriginal and Torres Strait Islander people in major cities and regional areas where there may be fewer barriers, including better access to key infrastructure. There was little or no improvement in remote and very remote areas. The exception was for target 9A ‘appropriately sized housing’ where outcomes improved the most in very remote areas, though they remain well below the outcomes in less remote areas…

 

Or more starkly, in the same report the PC states (emphasis added):

One jurisdiction where the worsening outcomes are particularly concerning is the Northern Territory. The Northern Territory’s outcomes worsened across eight target indicators and in most of these they were already performing relatively poorly at baseline compared to other jurisdictions. For example, the adult imprisonment rate in the Northern Territory increased at the highest rate despite already being above the national average at baseline.

 

It is worth noting that the NT has the most geographically concentrated remote population, and has the weakest financial base in the federation.

 

Priority Reforms

The PC’s approach to assessing progress on the Priority Reforms, particularly Priority Reform 3, is in my view deeply flawed. I dealt with this in my submission to the review, so won’t duplicate it at length here. The key point is that increasingly, mainstream policies and programs are gaining greater salience across the indigenous policy domain. Ensuing mainstream agencies are focussed on addressing Indigenous disadvantage in their core activities is crucial to ensuring that there is a whole of government focus on these issues. Yet treating the priority reforms as akin to mechanically constructed targets, and measuring important but incidental issues such as levels of racism within agencies as the metric of success is a recipe for failure and non-performance. Unfortunately, the PC does not see this as they ignore this issue in its entirety.

 

Concluding comments

The problem with this draft review is that it is fundamentally misconceived, and fails to step back and look at the nation’s approach to closing the gap holistically. This was a crucial opportunity only three years into the revised process, and unfortunately, the PC has failed to grasp it. There is a lack of real policy analysis throughout this report, and the attached information papers.

 

As a consequence, the review fails to ask the hard questions and ignores many aspects that should have been front and centre. For example, there is no substantive assessment of the operations of the Joint Council. There is no assessment of the capability requirements on the Coalition of Peaks and whether the current levels of support are adequate. There are mentions of states failing to deliver on their commitments, but no real solutions offered in response. There is no recognition of the primacy of the Commonwealth in the federation, and the implications of the deliberate strategy embedded within the architecture of the agreement for the Commonwealth to outsource its overarching responsibilities to the Joint Council and the states. There is no analysis of the nature of the refreshed targets which are increasingly not focussed on comparative economic and social status, but are framed in terms of absolutes (ie improvements on current levels).

 

There is no recognition that the current design architecture for the agreement, while incomplete and thus subject to ongoing remedial work, is simultaneously over designed and in need of radical simplification. As presently configured, it guarantees that the Coalition of Peaks (representing Indigenous interests) will be wading through bureaucratic sludge for the next ten years, and thus effectively distracted from the main policy game. It also ensures that the probability of the national agreement imploding under the weight of its accumulated complexity is high and bound to grow. Proactive reform is preferable to stasis followed by abolition.

 

The bottom line however is that the six recommendations of the draft review (see pages 10-15), if implemented, would in my view not make any substantive difference to the nation’s progress on closing the gap within five or even ten years. They are an amalgam of doubling down on the current hyper-complexity of the policy architecture along with a hefty dose of blind faith in the bureaucratic leadership of the nation. Did the robodebt royal commission not make any impression at all on the PC? Notwithstanding the PC Chair’s view in his recent AFR article that governments are engaged in ‘a hotted up version of business as usual’, the draft recommendations in this report might be characterised in similar terms.

 

I have a recommendation for the Commonwealth Government. Issue the PC with revised terms of reference, and perhaps an extension of time. Request them to (a) develop an estimate of the cost of addressing the entrenched inequality facing Indigenous Australians; (b) map out a realistic timeframe and strategy for achieving that objective; (c) make a more fundamental analysis of the current status of the Closing the Gap architecture; and (d) provide options for radically simplifying the structure and design of the current architecture while retaining the four priority reforms. And for good measure, keep it to fifty pages. Such a report would then allow the Commonwealth Government to meaningfully and honestly engage with Indigenous interests and the states and territories.

 

3 August 2023

Note this post was amended on 4 August to correct a number of typographical and grammatical errors

Interests shape policy more than voters

 

You spotted snakes with double tongue,

Thorny hedgehogs, be not seen;

Newts and blind-worms, do no wrong,

Come not near our fairy queen.

A Midsummer Night’s Dream, Act 2, Scene 2.

  

A few days ago, trudging in misty rain through a field near the village of Tintagel in Cornwall, I came across a recently deceased hedgehog. It had been flattened by a tractor. This put me in mind of the Greek poet Archilocus’ aphorism: "a fox knows many things, but a hedgehog knows one big thing".

 

The philosopher Isaiah Berlin wrote a famous essay, The Hedgehog and the Fox, categorising thinkers and writers as either hedgehogs who interpret the world through a single overarching idea or theory, or foxes who are open to multiple theoretical explanations in explaining events.

 

It strikes me that most policymakers and analysts — not just in the Indigenous policy domain — are prone to being hedgehogs of one sort or another, often without realising it. I don’t exclude myself from this generalisation. If true, one obvious implication is that complexity is systematically overlooked. Another less obvious implication is that particular big ideas become so embedded and ubiquitous that we unconsciously constrain our analyses to processes and options that implicitly assume the correctness or validity of the particular big idea to which we subscribe, and thus ignore the potential influence of alternative big ideas. It is this less obvious implication that I explore here.

 

One particular big idea that is widely assumed to be innately correct is that our system of electoral democracy is of paramount importance in shaping policy outcomes.

 

A recent CAEPR research publication, Indigenous electoral power in the 2022 Federal election: a geographical snapshot of latent potential,  by Francis Markham and Bhiamie Williamson (link here) is just one of numerous examples I could point to which reinforce the big idea that electoral democracy is crucial and/or paramount in framing policy. The consequence is that these analyses implicitly shift focus away from alternative, and potentially more relevant, influences on policy formation.

 

Markham and Williamson’s analysis is at once straightforward and eye-opening. They analyse Indigenous voting participation and persuasively demonstrate that notwithstanding the existence of compulsory voting, the national Indigenous electoral participation rate is extremely low. They estimate it to be around 44%. To my mind this is the most significant policy implication of their excellent analysis, and one deserving of much more attention from policy analysts.

 

However, Markham and Williamson have a different point to make. They go on to compare the winning margins in particular electorates in the recent Federal election (they focus particularly on ten electorates: see Table 3) with an estimate of the estimated Indigenous voting eligible population (VEP). Their detailed analysis demonstrates that there is a theoretical opportunity to mobilise both existing Indigenous voters and electorally disengaged Indigenous citizens, which if successfully implemented could determine electoral outcomes in multiple electorates across remote, regional and even urban Australia. They argue this represents unrealised Indigenous voting power, and conclude, contra the extant dominant narrative of Indigenous electoral powerlessness, that this latent electoral power ‘has significant potential to be assembled in exchange for policy reform or Indigenous representation’.

 

A critique of Markham and Williamson’s argument is feasible, based the undoubted challenges involved in assembling such an Indigenous electoral constituency. These challenges presumably include arguments that Indigenous heterogeneity, including political heterogeneity, is so deeply embedded that it would preclude the assembly of such a constituency; or that Indigenous electoral disengagement is in fact a rational and intentional response by potential Indigenous voters to the ubiquity of political exclusion.

 

My intention however is not to critique this research on its own terms, as it is clearly extremely valuable in understanding the level of Indigenous engagement with the electoral system. While they forego this path, their analysis opens a portal to further analysis that might seek to understand both the reasons for this disengagement, and the consequences. This should be an issue of major concern to both governments and the community at large as it may foreshadow much more widespread disenchantment with the electoral system itself amongst the wider community (link here).

 

Rather, I suggest that by focussing on voting and electoral participation as a pathway to greater political and policy influence, Markham and Williamson have implicitly reinforced the big idea that electoral democracy is crucial in shaping policy outcomes.

 

I take a different view. Elections are important, inter alia because they are the mechanism we use to choose the executive arm of government, and to also choose the Parliament which enacts new laws (and repeals old laws). Yet our system of representative democracy also operates in informal ways. The Executive dominates the legislature, often prioritises political considerations over the public interest, and most importantly, is itself influenced by, and at times captured by, or co-opted by, powerful corporate interests (link here and link here).

 

In fact, once you start looking, the determinative influence of interest groups on policy are ubiquitous, including in the Indigenous policy domain. Why did the Hawke Government’s proposals for national land rights fail? Why is there no mining veto in the Native Title Act? Why did the Federal Environment Minister not take action to prevent the destruction of Jukuun Gorge? Why did the NT Government seek to ignore its Licencing Regulator and allow a major alcohol outlet to be built near Aboriginal camps in Darwin? (link here). Why has the NT Government recently reversed 14 years of policy to implement a policy that nudges remote communities towards allowing alcohol in previously dry communities (link here).

 

Moreover, the collateral damage amongst vulnerable and Indigenous citizens as interest groups pursue their interests in mainstream contexts are also considerable: Why are punitive policing and incarceration the first ports of call in the administration of justice in Indigenous contexts? Why are social security payments maintained below the poverty line? Why are funds available for tax cuts targeted primarily at high income owners, but not for essential services and housing in remote communities? (link here). Why do governments fail to adequately fund the policies required to close the gap? (link here).

 

Of course (to adopt some fox like traits), not everything is explained by the role of external and powerful corporate interest groups: politicians develop strong views, often ideologically determined; partisan politics rather than interest group advocacy can determine particular policy approaches; and some Indigenous interest groups within the Indigenous domain exert influence over policy.

 

Nevertheless, it is my contention that the big idea of democratic electoral politics being the primary pathway to policy influence in today’s Australia is deeply flawed. An alternative big idea, that interest groups, together and individually, shape most significant policy should replace it or be added to the mix.

 

This leads me to the view that the pathway to greater policy influence and ultimately greater inclusion and political power within Australian society for Indigenous interests lies in building robust and independent Indigenous advocacy capability. To do this requires building Indigenous advocacy institutions independent of direct government funding and support. Implicit in this idea is the notion that the influence and power of mainstream interests must be countered and alternative policy narratives proposed and advocated at the genesis of policy proposals. Moreover, an effective Indigenous advocacy capability would operate to ‘plough the ground’ with politicians and policymakers in advance of particular issues arising to ensure good channels of communication exist and can be available when needed. This is not rocket science; it is exactly what key interests such as the National Farmers Federation or the Minerals Council, or the scores of lesser interest group organisations do now. 

 

Assuming my assessment has merit, what are the implications for key existing and proposed institutions in the Indigenous policy domain?

 

The first point to make is that the National Agreement on Closing the Gap, and the emergence of the Coalition of Indigenous Peaks has been, and should continue to be, an extraordinarily important step in the direction of building a robust Indigenous advocacy capability in Australia. I have discussed this in some detail previously (link here). Nevertheless, it is still in its infancy and will take at least ten years to reach the level of effectiveness required to begin to meet its full potential. Moreover it faces considerable challenges going forward, not least transitioning from its current leadership that has built it from the ground up, to a second generation leadership focussed on embedding and strengthening the substantial and in many respects extraordinary gains made to date. Additional challenges include strengthening its financial independence as insurance against future co-option by governments (it is presently entirely funded by government), and strengthening its internal coherence given that its membership comprises some fifty or so sector specific peak bodies, each with their own agenda for prioritising the Coalition’s focus and efforts.

 

A key reason that the Coalition of Peaks is so important is that it effectively covers and has expertise in the broad expanse of policy, from health, ageing, housing to criminal justice, disability, alcohol policy, human rights, social security and native title. This extraordinary policy breadth is increasingly impacted by mainstream policies, thus ensuring a logarithmic growth curve in policy complexity that must be mastered to ensure it is working in the interests of Indigenous citizens, particularly the most vulnerable of them.

 

The second development is the near certainty that a referendum to amend the constitution to require the establishment of an Indigenous Voice will be held next year, and if successful, that legislation will be enacted to create such a Voice.

 

The currently proposed text of the amendment (link here) is as follows:

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

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

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

 

It is presently unclear how the membership of a Voice would be selected, though it seems likely that it will involve elections of members wither directly or in some tiered arrangement where regional elected bodies choose a representative such as was used by ATSIC.

 

While it seems likely that many of the members of the national Voice will have policy expertise and experience, the reality will be that very few will have broad policy experience across multiple sectors, and the complexity of the policy issues the Voice will confront will be daunting. The stark reality is that members of any national level Voice will inevitably rely on access to the views of Indigenous organisations (interests) dealing with the particular issues under consideration, and these views are most likely to be best developed by the peak bodies dealing with those issues.

 

My core point is that for Indigenous interests to be effectively advocated, the proposed Voice, and the existing Coalition of Peaks are necessarily complementary, and will need to work together and in tandem. This point is valid whichever of the two big ideas discussed above are paramount. But it is especially the case if it is accepted that the advocacy of interest groups are more important than the operation of the institutions of representative democracy in shaping policy.

 

In February 2021, I posted an article (link here) arguing that any Voice would require a substantial research capability, and arguing that it would be undesirable to give the Voice a remit beyond advice to Parliament. This post is worth reading or re-reading. I maintain the views expressed in that post, while recognising that the temptation to give the Voice a wider remit is difficult for both Indigenous proponents and governments to resist.

 

My earlier post also argued that Indigenous interests should advocate for a mechanism to ensure that whichever design is chosen by the Parliament in the near term or the longer term, it is not able to be starved of financial resources. A failure to achieve some level of financial independence means that future governments will be able to use the carrot or stick of funding to influence and co-opt the Voice.

 

Whether the Voice’s remit is limited to Parliament or extends to the Executive as well, it will still be the case that the Voice and the Coalition of Peaks are complementary and synergistically related. It would be a simplistic misreading to argue that they are duplicate. To make a rough analogy, the existence of the NFF does not mean that National Party representation in Parliament is not seen as important by primary production interests, and nor does the existence of substantial parliamentary representation mean that the NFF does not have a role to play in advancing primary producer interests. The same duality applies to the Indigenous domain in the context of the Voice.

 

To return to where I began, the hedghog’s big idea is that it can rely on its spines and its ability to roll into a ball to protect itself from most predators. Yet this survival strategy evolved in an environment where tractors were unknown.

 

If the Indigenous leadership base their long term strategy on the big idea that electoral processes are the secret to shaping better policies, they run the risk that they will be flattened by the tractor of mainstream interest group dominance. The solution is to build the capability to counter mainstream interest group influence with sophisticated and sustained Indigenous advocacy insulated against co-option by governments or others. In my view, this will require that the Voice, the Coalition of Peaks, and other significant Indigenous organisations work in tandem. In the absence of such coordinated leadership, Indigenous interests will likely continue to be marginalised, and their influence in shifting the embedded structural imbalances within the Australian polity will be constrained and sub-optimal.