Ministerial appointments in the Indigenous Australians portfolio: time for reform

 

There is a law in each well-order'd nation
To curb those raging appetites that are
Most disobedient and refractory.

Troilus and Cressida Act 2, scene 2

 

This post is assesses the recent Ministerial appointments in the Indigenous affairs portfolio, and makes a series of reform recommendations.

 

Appointments to Board positions in the Indigenous Australians portfolio generally fly under the radar. Yet, they involve the management and oversight of billions of dollars in Indigenous-directed assets, and bestow considerable power and influence, not least the power to appoint Individuals to the Boards of myriad subsidiaries of statutory corporations, which themselves control substantial financial resources. These appointments, and the actions of Boards, receive far less media attention than Ministers and senior bureaucrats. Accordingly, the appointments of Directors to government owned corporations, and the actions of those corporations, deserve far more attention than they normally receive both by the media and (dare I say) academia.

 

Perhaps the most consequential recent appointment was that of Ms Jodi Broun as CEO of the NIAA. She has a term of five years, which took effect on 14 February. The Minister’s 12 January 2022 media release provides some biographical background (link here). Broun is an experienced public servant and I expect her to make a positive and well informed contribution to the administration of NIAA and the Indigenous Australians portfolio.

 

In relation to the Indigenous Land and Sea Corporation (ILSC), the Minister has made a number of new appointments (link here, link here). Following the expiry of the term of the former Chair, Mr Eddie Fry, Mr Ian Hamm has been appointed. A Yorta Yorta man and experienced public servant, Mr Hamm’s three year term began on 1 December 2021. Also appointed were Ms Gail Reynolds-Adamson, Ms Kate Healy and Mr Nigel Browne. On 15 February, the Minister announced that Ms Kristy Masella would join the ILSC board for a three year term beginning 16 March 2022. On 7 April 2022, the Minister announced the reappointment of Mr Roy Ah-See, but did not mention the term.

 

In relation to Indigenous Business Australia (IBA), the Minister announced on 21 December 2021 the appointment of Mr Richard Callaghan from South Australia, and the reappointment of three Directors, Mr Eddie Fry (chair), Mr Rick Allert, and Ms Shirley Macpherson. The Ministers media release made no mention of the terms of appointment (link here).

 

Shortly after the Minister’s December announcement, on 21 December 2021, I published a post regarding these reappointments (link here) based on the absence of any information regarding the terms of the reappointments. Information in the Government Business Directory at the time indicated that the reappointments would expire in February 2022. In that post I focussed on a number of unanswered questions regarding serious governance issues within the ILSC Board and the Minister’s own acknowledgement of his loss of confidence in Mr Fry as Chair. It now transpires that the Government Directory entry for the IBA Board has been updated to show that the terms of appointment for the reappointed IBA Directors are not three months, but three years, ending on 17 December 2024 (link here). With regard to that eventuality, my previous post made this comment:

A more worrying possibility is that the Ministers recent announcement applies to the post February terms of the three Directors. If so, this would lock in a serious failure of good governance principles.

For the full context of this comment, I recommend readers consult my earlier post (link here) and the links included there.

 

More recently, the Minister announced the appointment of Mr Joshua Gilbert to the IBA Board (link here). While the media release makes no mention of the term, the Government Directory indicates it is a three year term.

 

The Minister has also made a number of other recent statutory appointments. Ms Vonda Malone has been appointed as CEO of the Torres Strait Regional Authority (link here), Ms Tricia Stroud has been appointed as Registrar of Indigenous Corporations (link here), perhaps the key regulatory appointment in the Indigenous Australians portfolio. The Minister also announced the appointment of Mrs Suzanne Hullick and Mr Justin Ryan to the Interim Board of the Northern Territory Aboriginal Investment Corporation on 6 April 2022 (link here). For a discussion of some of the risks facing this new corporations, see my earlier November 2021 post (link here).

 

Other recent non-statutory appointments made include Ms Fiona Cornforth and Ms Catherine Liddle as co-chairs of the Indigenous Expert Group guiding the implementation of Supporting Healing for Families (link here) and the reappointment of Mr Daniel Bourchier to the Board of Outback Stores (link here).  The Government also announced the appointments of Ms Gina Castelaine and Ms Cara Peek, two new members of the revamped Indigenous Reference Group on Northern Australia, on 24 December 2021 (link here). This body has recently been renewed by Minister Littleproud after it was effectively sidelined by Minister Pitt. To date, there has been no critical assessment of the success or otherwise of the IRG in advancing the interests of Indigenous Australians within the Government’s Northern Australia policies. The processes for the appointment of members of the IRG are particularly opaque, it not even being clear which Minister makes the appointments, and which portfolio is responsible for taking any policy recommendations forward.

 

Discussion

 

Given the number of Ministerial appointments, the significance of the bodies they are charged with managing, and the powers bestowed on Boards to appoint Directors to subsidiaries of Commonwealth corporations, the information provided by governments should be much more extensive and accessible than it is.

 

There is no requirement for a Minister to announce appointments, and as is apparent from a close reading of Minister Wyatt’s announcements, there is no requirement for the Minister to identify the term of the appointments, nor the basis of appointments (merit based selection process or ministerial selection). Nor is there any requirement for the Minister (or appointees) to publicly identify potential conflicts of interest nor to explain how they are to be managed. The quality of transparency in relation to the management of portfolio bodies is underwhelming, and contributes to the creation of an environment where the public interest can be set aside in favour of political agendas and machinations.

 

Issues that I would point to as potential or actual issues of concern in the Indigenous Australians portfolio include:

·         attempts to co-opt Boards to ensure that they will give favourable consideration to Ministers’ views and wishes;

·         attempts to stymie future governments’ capacity to bring new expertise or skills onto Boards; or to build in a level of internal conflict beyond a Ministers term of office to ensure a continuity of policy;

·         the use of appointments as rewards; and

·         making appointments that assist in moderating the capacity of key intermediary organisations to exercise truly independent judgment on issues that may come before the intermediary in the future. 

 

I have necessarily articulated these issues at an abstract level, and note that they often involve what might be termed preparatory moves by a minister akin to a general positioning troops on high ground in advance of a possible battle. In other words, they involve strategic political management and do not necessarily involve inappropriate action. Nonetheless, to the extent that they occur, they are highly likely to be inconsistent with the public interest.

 

A particular issue of more serious concern is the reappointment of Mr Fry to the IBA without any explanation from the Minister in regard to his previous loss of confidence in him at the ILSC, and without any formal response being published to the recommendations of the Thom report. This report commissioned by the Minister only came to light as a result of an FOI request. The previous ILSC Board had also lost confidence in Mr Fry (expressing a formal lack of confidence in his leadership on a number of occasions). Adding to the aberrant sense of distorted reality around the Minister’s decisions regarding the ILSC and Mr Fry was the Minister’s decision to reappoint Mr Ah See, — one of those ILSC Board members who had expressed deep concern with Mr Fry’s governance approach — to the ILSC Board. Mr Ah-See is widely respected in Government circles and was a former co-chair of the Prime Minister’s Advisory Council under the current Government (link here). Rather than setting a benchmark for standards of governance in the portfolio, the Minister seems to be having a bet each way. The real issue here is this: is the Minister focussing on the wider public interest, or has he cobbled together a shabby compromise due to pressure from deeper political forces in play protecting Mr Fry? My money is on the latter. 

 

Other issues raised by these appointments include the overlap between government activities in general and the appointments of some individuals. For example, Mr Bourchier is an ABC journalist, and Ms Kate Healy is a partner in PwC’s Indigenous consulting arm. Both of these organisations can be expected to have dealings of one sort or another with the Minister and his portfolio. While both individuals appear eminently qualified for their appointed roles and it seems unlikely that either individual would place themselves in a position of actual or potential conflict of interest, there is a risk that the Government is attempting to exercise a more nuanced form of influence directed to subtly encouraging a pro-government attitude in matters of a general nature within both the ABC and PwC Indigenous Consulting.

 

At a more systemic level, the lack of diversity in appointments suggests the risk of governance failures is built into the present selection processes.  The current Government appears to have made many appointment decisions that suggest a process of churn has been underway from within a small group of appointees, By 2025, Mr Fry and Mr Allert will each have had in excess of ten years as remunerated appointees on the IBA, ILSC, and various Commonwealth subsidiaries such as Voyages Pty Ltd. Ms Reynolds-Adamson was previously a Director of IBA for eight years from 2006 to 2014. Mr Joseph Elu who (understandably in my view) resigned from the ILSC in the middle of its governance issues (clear evidence of the cost of the dysfunction) had previously been Chair of the IBA for 11 years. Mr Ah-See had been a Director on the IBA before being appointed to the ILSC. Ms Shirley Macpherson was previously a longstanding Chair of the Aboriginal Development Commission (forerunner of IBA), a longstanding Chair of the ILC (forerunner of the ILSC), and is now a member of the IBA Board. By 2025, she will likely have accumulated around thirty years on key Boards in the Indigenous portfolio. Taken together, this accumulation of repeated appointments suggests an extremely serious level of insularity and resistance to bringing in fresh talent. It is no wonder that the ILSC experienced the internal crisis of governance discussed above.

 

To be clear, I am not suggesting that the individuals appointed are necessarily unqualified, nor that this is an issue limited to the present Government. Lax selection processes have an inbuilt tendency to encourage Ministers to re-appoint from within a small select group of potential appointees. I am suggesting, however, that this is a real issue, and that it is unacknowledged and under-recognised. To the extent that poor governance is the result, Indigenous Australians are the losers.

 

So what are the solutions?

 

Listed below are some high level ideas that would in my view improve the systemic quality of corporate governance within the portfolio bodies across the Indigenous Australians portfolio. While I am under no illusions that governments of any stripe will be attracted to reforms of this kind, I do consider that these are issues that the Coalition of Peaks, and the yet to be established Indigenous Voice might take up and prosecute.

 

First, there is a need for the establishment of a legislated multi-partisan/independent selection committees that proposes a merit based short list to the minister for each vacancy on the Board of a portfolio body. The process used for the ABC (link here), and largely ignored by recent Prime Ministers, is one potential model.

 

Second, I would go further and propose that any legislation should provide that where Ministers ignore an independent selection committee shortlist in making an appointment, the nominee should be required to stand down with a change of government.

 

Third, there should be a legislated requirement in the First Nations portfolio for the NIAA to maintain a current, comprehensive and publicly available register in one location on its web site of all Ministerial appointments and re-appointments to portfolio bodies over the previous twenty years. Further, when Directors are listed, a footnote should list all prior appointments within the portfolio (and in related portfolios e.g. Indigenous health). A separate register of short Director biographies should be linked to the main register.

 

Fourth, there is an urgent need for much greater transparency over the appointments of Directors to subsidiaries of Commonwealth statutory corporations, their terms and remuneration, and any identified potential conflicts of interest. Indeed, these appointees should be included within the register recommended above. Further, there is a need for much greater financial transparency over these entities. To mention just one example, they are Commonwealth owned bodies, yet access to their accounts is only available from ASIC upon the payment of a fee. Indigenous Australians in particular deserve to have full access to this information without a fee. This could be achieved by a requirement that all documents with ASIC should also be made available on the relevant websites.

 

Fifth, an independent body such as the Law Reform Commission should be tasked to undertake a short and sharp inquiry with public submissions to draw out any other reforms that might be required to appointments processes for portfolio bodies in the Indigenous Australians portfolio.

 

Finally, I would note that one of the reasons for improving the quality of governance in key portfolio bodies such as the ILSC and IBA in particular is that it is clear to me that their shelf life as statutory corporations within the Australian government system is within one or two decades of coming to an end. In a chapter in a recent book on Self Determination (link here), I argued the case for transitioning these bodies into a form of First Nations ownership and control. Amongst the key preconditions for such a process is to ensure that they have been governed effectively in the periods leading up to such a transition, and that their Boards are truly governing these corporations in the interests of First Nations rather than facilitating the political machinations of Governments. Any such transition will be complex and will require careful planning from within the existing corporations. In turn, this will require Boards that are prepared to think long term, and undertake the hard work of persuading governments of the potential benefits of giving up control of these key institutions.

 

Unfortunately, I have very little confidence that Australian governments, present and future, or the current Boards in the Indigenous Australians portfolio would bring the level of vision required to even start this process, let alone bring it to a constructive conclusion. This is why Board selection processes are strategically important for First Nations interests, and why the Coalition of Peaks and the future Voice should work together to persuade the Australian Government to change these processes for the better.

 

Indigenous land and economic development in northern Australia

 

I have been long a sleeper; but I trust

My absence doth neglect no great design

Which by my presence might have been concluded.

Richard III, Act 3, scene 4

 

The Parliament’s Joint Standing Committee on Northern Australia has recently released its report: The engagement of traditional owners in the economic development of northern Australia (link here). The inquiry was initiated, at the suggestion of North Qld MP Warren Entsch who chairs the committee, in late 2018, lapsed in April 2019, and restarted in August 2019. It has thus been in preparation for over two years (see paras. 1.43/44). The Terms of Reference were broad and relatively open ended, and cover a lot of ground both literally and metaphorically. The report comes in at over 100 pages, and is clearly written. The report is essential reading for anyone interested in the interplay of native title and economic development.

 

On my first scan of the recommendations, I was pleasantly surprised, as the Committee has focussed on some of the key challenges confronting the native title/land rights policy space in northern Australia (and beyond), and identifies the actions that Governments must take if they wish to see Indigenous communities across northern Australia contribute to and indeed drive the take up of economic opportunities over the coming decades. Implicit in the committee’s thinking (but not stated) is that the failure to grasp these opportunities will not merely be a lost opportunity, but will lead to the development of an Indigenous underclass excluded from economic participation, and will ultimately have an adverse impact on opportunities for mainstream economic development of the north.

 

In particular, the Committee recognises the crucial importance of effective Indigenous organisations in managing the Indigenous land estate in northern Australia.  Recommendation one which recommends increased funding for PBCs and native title Representative bodies, and to a lesser extent, recommendation two, which recommends increased support for capacity building of PBCs and NTRBs, are crucial to the future viability of the native title system nationally. The importance of the effectiveness of the native title system is made crystal clear if we consider that almost 80 percent of northern Australia is held under some form of Indigenous tenure or subject to an unresolved native title claim (para 1.42). Yet the report also notes that the Government was advised in a report conducted by Deloitte Access Economics in 2014 that the native title system required greater financial support (para 2.14). Paras 2.13 to 2.35 in the report lay out the case for increased funding in detail, but notwithstanding the unequivocal recommendation, the committee fails in my view to effectively portray the extent of systemic underfunding, and says nothing about why Government has ignored the issue for the past seven years.

 

Upon closer reading, the following eight recommendations usefully point the way forward on a series of issues that require attention, but each of them is framed in an equivocal fashion, that simultaneously would allow a government to accept the recommendation without necessarily committing it to action. So, recommendation three recommends a review of systems for appointment of PBC directors rather than recommending specific changes; recommendation four recommends that the Commonwealth should give consideration to crating an Indigenous strategy for northern Australia and a northern Australia Indigenous economic development body, recommendation five recommends the Commonwealth should support (unspecified) initiatives to make innovative use of land tenure systems to make land management effective (whatever that actually means)…and so on....Only recommendation ten is unequivocal. It recommends that the NT Aboriginal Land Rights Act be amended to reinstate separate vetos at exploration and mining stages, a policy change I support, but which I suspect has zero chance of being implemented.

 

The Committee’s report follows the standard model for these reviews: an introductory chapter describes the lay of the land (so to speak), then a series of chapters on the key issues. Each chapter sets out a high level narrative supported by extensive quotation from stakeholder submissions, and concludes with a Committee comment. The three substantive chapters in the report are titled: ‘strengthening representative bodies’; ‘role and performance of government entities’, and ‘pathways to economic development’, with a concluding chapter summarising the overall analysis.

 

The concluding chapter tells a coherent and valuable story, but it is a story that is far from new, and which doesn’t really break new ground. The Committee identifies the longstanding power imbalance between traditional owners and development proponents, argues that it can only be ‘redressed with resources and institutional capacity’ (para 5.3), which leads into the rationale for recommendations one and two. What the recommendations ignore however is the potential for governments to take seriously their role of representing the public and national interest (rather than particular corporate interests) and adopt and implement policies and legislative change that rebalances the playing field. In other words, we need to acknowledge and address structural exclusion and systemic power imbalances.

 

The report argues for increasing the transparency of decision making in representative bodies, (para 5.9) which I strongly support, but makes no mention of the reciprocal and arguably more important need for governments to increase their transparency.

 

The Committee’s analysis is somewhat confused and arguably one-sided when it seeks to address the tensions arising from the inalienability of both statutory and common law Indigenous tenures. At para 5.10/11, the Committee states, somewhat tautologically, that

 ‘A major barrier to the productive use of title to land under native title or land rights is land tenure….One of the key problems is the limited fungibility of land, especially that held under native title legislation, and the consequent problems of using land for investment…’.

 The Committee goes on to espouse the benefits of township leasing in the NT, making specific reference to the recent amendments that provide for community owned corporations to hold the headlease, which likely reduces the likelihood that banks and corporate lenders will take a mortgage and provide finance. I dealt briefly with this issue in a June 2021 post relating to the proposed changes to the NT Land Rights Act (link here). See also the Parliamentary Library’s Bills Digest on those amendments (link here)

 

The Committee discussion of these tenure issues extends from para 2.64 to para 2.106, essentially setting out the problem, and canvassing various solutions, but failing to alight on any specific solution. The core of the problem is that there are multiple factors mitigating against the ability of Indigenous land owners to raise capital using their land as collateral. The problem is best described as multi-faceted market failure. See the AIG submission for some case studies (link here). Leases (linked to ILUAs) are part of the solution, but while necessary, they are not sufficient. The way forward is for Government to establish an institution or mechanism to provide an underlying guarantee for loans which are utilising Indigenous land as collateral. Yet after two years of hearings, the Committee failed to explicitly identify the required policy action. Para 2.106 makes it clear that PMC (now NIAA) and AGD intuitively understand this, however they won’t take the final step as they understand too that there is no political will at the Government level to do so. As a result, the Committee is left lamely suggesting (para 5.13) that:

The financial challenges that prevent more effective leveraging of Aboriginal and Torres Strait Islander land assets should be seriously considered, including by financial institutions and banks.

 

Finally, it is worth considering what is missing from this report.

I will nominate three high level issues.

 

First, while there are multiple reference regarding the desirability of greater accountability within PBCs and NTRBs, there is virtually no recognition that Governments too need to be accountable for their policy actions and inaction, and that the best way for this to occur is via greater transparency.

 

Second, there is a desperate need for greater (not less) proactive policy engagement by government with a focus on the policy opportunities that exist within the native title /land rights space. The longstanding decision to place the administration of the bulk of the native title Act with AGD (and not with NIAA) is a recipe for adding ever more legal complexity at the cost of policy coherence and policy vision. In my view, it is major oversight that the Committee says nothing about the overarching portfolio responsibilities and what the means for the outcomes on the ground.

 

Third, given the focus on the intersection between Indigenous landowners in northern Australia, and economic development, it seems extraordinary that there is no mention in the Committee report of the operation of the North Australia Investment Facility, the Government’s $7 billion flagship for its northern development policy framework. The mention of the NIAF in the Office of Northern Australia submission (link here) is underwhelming. I don’t propose to go into detail here (I have previously discussed this issue here), but the fact that Indigenous interests have accessed only a miniscule proportion of the funds committed to date is clearly worth some attention.

 

While this appears somewhat negative, there are some positives. The Committee clearly put a lot of effort into building a consensus position, something that is probably necessary to gradually shift mindsets among the political elites who will determine the pace and nature of policy reform into the future. And the Committee inquiry created the opportunity for some substantive policy contributions from stakeholders and academics, including from the Indigenous Reference Group for Northern Australia (who promoted the idea of a northern Australia Indigenous economic development body supported in recommendation four. The submissions (amongst others) by Altman and Markham, by the ANU, by the Aboriginal Investment Group and of course by the Department of Prime Minister and Cabinet and the Attorney Generals Department are all worth reading (link here) and add to the quantum of accessible and policy relevant information in the public domain.

 

The bottom line arising from a closer reading of the Joint Standing Committee on Northern Australia’s report, both in what it recommends, and what if fails to deal with, is to reinforce how little the government has done since coming to office in 2013 to encourage the inclusion of Indigenous landowners and communities in economic activity. The Committee’s report deserves to be widely read with a critical eye. It identifies some positive directions, but falls short of providing a clear roadmap or policy agenda for taking Indigenous participation in the northern Australia economy to the next level. Unfortunately, there is also a risk that if there were to be a change of Government in May this year, then the new Government might be tempted to use this report as a partial policy roadmap. Such a result would be disastrous in my view for Indigenous interests, and a lost opportunity for a new Government, and would signal a lack of real engagement at systemic levels by the new Government.

 

The Committee is correct in highlighting the economic opportunities for Aboriginal and Torres Strait Islander interests in northern Australia, but fails in my view to lay out an effective pathway to ensure those opportunities will be grasped anytime soon. The responsibility to act however falls upon governments. It is time they roused themselves from their drowsiness, and woke up to the opportunities available from pursuing policy reform designed to reverse the ongoing exclusion of Indigenous interests in northern Australia, and beyond.

Policymaking in a maelstrom: preliminary thoughts on the longer term implications of the current crises

This world to me is as a lasting storm

Pericles Act 4, scene 1

What are the implications of the current crises for Indigenous policy in the future? At a national level, the current health and economic crises exude uncertainty at multiple levels. Neither governments, their health and economic professionals, nor the citizenry at large have answers to key questions: how long will the crises endure, where will the impacts fall most severely, which demographic cohorts will be most severely affected; what will be the most effective strategies to ameliorate adverse impacts, how will the inevitable trade-offs between competing objectives be managed and determined, and so on and so on.

In this post, I don’t wish to focus on the immediate consequences, risks and even opportunities emerging as a result of the crises. Others are doing this, and I don’t have anything substantive to add.

On the health front, I would point interested readers to the NACCHO web site and their regular updates on the virus (link here). See also recent articles from The Conversation focussed on the health implications of the crisis  (link here) and some economic implications of the crisis (link here).

On the economic front, the Treasury web site has a succinct and accessible document outlining the economic consequences of the Covid19 pandemic and the Federal Government’s most recent response (link here) which they estimate at $189 bn over the forward estimates.

At the macro/mainstream level, governments have set in train a rolling program of ever stronger health related precautions, including constraints on immigration, internal movement, on assemblies in public places, and on non-essential businesses, and are likely to extend to school closures in the near future. These all have economic costs and consequences, and will over time lose their effectiveness as the virus spreads within the community. They are likely however to be difficult to remove once in place.

The economic measures are designed to counter the macro-economic contraction of demand within the economy and to support the resilience and capabilities of firms  who are being forced to lay off employees and reduce or cease trading activities.

While huge in historical terms, the size of this intervention is likely to rise over the coming months. For example, it seems likely that the Government will have to step in to further support or effectively nationalise some or all of the nation’s airlines.

It is clear that notwithstanding the government’s intervention, the nation is facing a recession this year. What is unclear is just how deep and how prolonged it will be. A prolonged recession will itself have severe social and health costs for the nation, including perhaps increased mortality over the ensuing years, although there will be no obvious link between economic contraction and individual morbidity and mortality outcomes. Intuitively, these hidden costs and ramifications are most likely to fall on the vulnerable within the Australian community.

What is also clear is that the nation’s policymakers have a gargantuan and once in a generation policy challenge on their plate. The politicians among them have an additional side dish of diabolical political challenges to manage. The next federal election is due in mid-2022 (link here), so there is a strong likelihood that the Prime Minister will not call the next election until the first half of 2022.

Given these sudden and largely unforeseen circumstances, the question I wish to explore is what does this mean for Indigenous policy into the future?

Perhaps we should first list the known changes and their likely consequences, before moving to list the potential policy outcomes.

Known changes:

Indigenous communities and citizens are more likely to be vulnerable to the virus, and to have higher adverse morbidity and mortality outcomes . This is particularly the case in remote regions, but urban and regional populations are also vulnerable. Offsetting this is the knowledge that the Indigenous population is comparatively young, with the median age in 2016 being 23 years compared to the mainstream population median age of 34 years (link here). The virus appears less dangerous to younger cohorts.

The economic changes announced to date will allocate an extra $10 bn or so into social security payments over each of the next two years. To the extent that Indigenous citizens are over-represented amongst social security recipients they will benefit more pro-rata than mainstream interests from these allocations. They are likely under-represented in small businesses and will thus benefit less pro-rata than mainstream interests. Without a detailed study, the ultimate incidence of the stimulus in relation to Indigenous interests is unclear; however it does not appear that economically vulnerable Australians including Indigenous Australians have been given preferential treatment in the stimulus package.

Potential policy changes:

The following points are largely speculative insomuch as the future is fundamentally uncertain, and in current circumstances, even more so. Nevertheless, there seems value in at least considering what might emerge from the current crises in the Indigenous policy domain.

In terms of the Federal Government’s existing (or perhaps more accurately pre-existing) policy agenda, there are three significant policy reform initiatives in train: the development of new Closing the Gap targets in conjunction with COAG and the Coalition of Peaks under a COAG Partnership Agreement (link here); the development of proposals for an Indigenous Voice to Government; and the implementation of a northern Australia policy agenda under the recently signed Northern Australia Indigenous Development Accord (link here). A fourth policy agenda with the potential for significant policy implications is the eventual Government response to the forthcoming Productivity Commission report on an Indigenous Evaluation Strategy (link here). The Commission’s draft report is now scheduled for May 2020 (it was initially to be released in February 2020), to be followed by a final report currently scheduled for October 2020.

So how will each of these policy agendas now play out? My own assessment is that there is likely to be delays across three of the four agendas. Policy reform momentum will stall. The reasons are two-fold: the difficulty in gaining policy attention from policymakers who will be consumed with handling the implications of the health and economic crises; and the difficulty of gaining attention from Indigenous citizens and others as they strive to survive in increasingly difficult circumstances. A third, more cynical, reason worth considering is that governments generally respond to pressure, and in the absence of pressure, prefer the status quo to change. In a crisis, pressure will shift from calls for medium and longer term reform to calls for more immediate action. For all these reasons, the political incentives on the Government will be to focus on managing short term measures, and this will work against finding the time and resources to develop longer term policy reforms.

The Closing the Gap targets may well be the exception; the federal Government has an incentive to substantially shift the policy goalposts this year to avoid the reiteration of ongoing and deep-seated policy failure highlighted in the annual presentation of the report to Parliament. Moreover, the process of policy redesign is well advanced (albeit the details of the discussion have not been made public) and has the support of the national Coalition of Peaks. The Coalition of Peaks will be pushing for the target changes to proceed if they are agreed and perceived to be substantive and positive reforms. In a recent media interview (link here),  Minister Ken Wyatt went on the record confirming that the process remains on track:

Patricia Karvelas: Very briefly, Minister, before we end - the 2020 Close the Gap campaign report has been released today, and it's warned that only systemic reform will make up for the harrowing failure of the last 12 years of government policy on Closing the Gap. It seems to me closing that gap is ever more important as we now deal with the Corona virus. Are you still working to deadline on changing those targets?

Ken Wyatt: Yes, we are. And whilst we're focussing on COVID 19 we're also continuing with business as usual. And this means finalising the targets and then looking at what systemic commitment and change must occur at all levels in order for us to close those gaps. We have to do things differently. [inaudible] Closing the Gap, led by Tom Calma and then endorsed by Prime Minister Rudd, was a great way forward, but we collectively have not seen the systemic reform that would help achieve those gaps and close them.

While both the Government and the Coalition of Peaks appear to see benefit in the refresh process, I am wary and see significant risks as well as opportunities (link here). To date, there is inadequate information in the public domain to enable a close assessment of the likely results of the refresh process.

The other three policy reform agendas appear much less likely to be advanced in a timely fashion.

The process established to develop a National (and locally constituted) Voice to Government (link here) appears cumbersome, with three separate committees tasked to consult and develop proposals over a two phase process. Those Committees will find it difficult to convene over the next three to six months, and even harder to consult communities on the ground. The current schedule suggests that advice will be provided to Government by the end of 2020, with no timeframe on the Government’s own internal deliberations regarding how to proceed. I will be amazed if the Committees advice is ready before mid 2021, and see little prospect of the Government prioritising legislation or executive action to establish such a Voice before the next election.

The Indigenous component of the Government’s northern Australia agenda has been extremely slow to emerge. The Indigenous Reference Group to the Ministerial Forum was appointed in December 2017, and in its most recent meeting communique (link here), noted inter alia,

The IRG provided the Ministerial Forum an update on the extensive work undertaken to investigate access to capital, reform of the northern Australia Indigenous institutional landscape, and improve opportunities to leverage and commercialise the northern Australia Indigenous estate. This will help ensure that Traditional Owners can fully use their land and rights holdings should they choose to support economic development.

While the details of that work are not yet in the public domain, there seems little evidence to date that the Government has been serious about the structural reforms necessary to reshape the institutional and policy landscape in northern Australia to deliver a step change in Indigenous economic development outcomes. The likelihood that this will change in the current crises seems remote, not least because the two ministers who designed this policy architecture (Matt Canavan and Nigel Scullion) are no longer in place. We may see some policy change at the margin, but this would be window dressing. A close analysis of the Northern Australia Indigenous Development Accord (link here), the centrepiece of the policy process to date, suggests that it is largely process oriented: compare the proposed outcomes in clause 15, with the detailed outputs in the attached Implementation Plan. It seems likely that the IRG will continue to meet and the jurisdictional parties to the Accord will continue to ‘scope options’ and ‘engage constructively’ in working parties and the like, but actual and tangible reforms are unlikely this side of the next election.

On evaluation of Indigenous policies, the Treasurer requested the Productivity Commission to

develop a whole-of-government evaluation strategy for policies and programs affecting Indigenous Australians. The Commission will also review the performance of agencies against the strategy over time, focusing on potential improvements and on lessons that may have broader application for all governments.

Policy and program evaluation is a complex area, and I cannot do it justice here. See this previous post (link here). I expect the Commission will produce a detailed and comprehensive report, but it seems unlikely that the Government will set aside the policy resources required to institute the far reaching reforms to evaluation practice required to improve policy and program performance across the board in a time of ongoing crises. Nor do I think it is likely that the current Government will mandate ongoing Productivity Commission reviews of all agencies evaluations strategies. Let’s wait and see what the Commission recommends. The more robust its recommendations, the more likely that the Government will sit on the report and do nothing or little. In such circumstances, the existence of interrelated health and economic crises will be the perfect excuse for inaction.

It is also worth considering some ‘blue sky’ Indigenous policy ramifications of the dual crises we currently face.

On Constitutional recognition, the Government has been consistently sceptical of anything with more than symbolic content. The likelihood of any constitutional change agenda emerging over the next two years appears close to zero. Indeed, the likelihood of a post-election / post-2022 constitutional reform agenda emerging must be assessed as much lower today than may have been the case two months ago.

In terms of broad policy focus in the Indigenous domain, the stars appear to be aligning for a shift towards a much greater focus on Indigenous health issues. The Minister, Ken Wyatt has a long background in the health sector. NACCHO, the peak body for Indigenous medical services is the most effective peak body and First Nations advocacy body in the nation, ably led by Pat Turner, an experienced ex-public servant, who herself has a strong background in health sector issues. And of course, the political prominence of the impact of the Covid19 virus will propel greater focus on wider health risks and issues for Indigenous citizens, particularly vulnerable cohorts within the Indigenous community.

Of course, the corollary of a shift towards health will be shift away form focussing on other non-health policy sectors (such as land rights / native title).

More speculatively, I suspect that the impact of the dual crises, combined with the changing demographic shape of the Indigenous population, will accelerate the importance of mainstream programs in the lives of First Nations citizens. To the extent that Indigenous specific policy agendas are left to languish, this will merely serve to reinforce this trend.

While Government rhetoric will not necessarily reflect this, the reality is that mainstream institutions (the social security system; the justice system; the child protection system; the disability support system; the education system; the telecommunications system; the health system and the nation’s finance system) already dominate and shape the lives of Indigenous citizens much more than Indigenous specific policies and programs. Indigenous advocacy is yet to appreciate this reality, and if, as I suspect, the current crises represent a critical juncture which strengthen radically the influence of mainstream institutions across the Indigenous policy domain, it will become even more important that Indigenous leaders and peak bodies build the capability to advocate across mainstream policy domains, and seek out common cause with like minded mainstream advocacy bodies.

It is worth reminding ourselves that these crises will inevitably have uncertain outcomes, and the policy responses of Governments, both in the short and medium terms, will have unanticipated consequences. At the micro level, the social and health costs of mental anguish will likely be significant across the whole community. At the macro level, the potential for social and political breakdown and unrest will rise. Vulnerable members of the community (among whom First Nations citizens are over-represented) will be particularly at risk in these uncertain times. The impacts of structural inequality and exclusion are magnified in times of crisis.

Finally, it would be remiss of me if I did not turn my gaze backward rather than forward. In particular, should governments have given more attention to the risks of a pandemic, and more generally to the regularity of crises. Or to put it another way, when I stated above that the pandemic was unforeseen, was that in fact a reflection of poor and ineffective governance in relation to a foreseeable and inevitable eventuality. Part of the issue is that public policies are most effective when they operate as a neutral arbiter between competing interests, including in relation to the risk of temporal trade-offs. To the extent that policy is captured by special interests, it becomes much less attuned to managing for wider societal risks.

In the Indigenous policy domain (and beyond), this is reflected in a shift over the past two decades to privileging corporate over community interests in terms of program delivery (eg in the realm of social security). In turn, this opens up service delivery gaps when markets fail (eg in the shallow coverage of providers within the disability sector).

One outcome of the current crises is that a much stronger light will be shone on the risks and failures of recent policy settings in Indigenous affairs (and beyond). Whether future governments will have the independence, vision and political will to change course seems to me to be a moot point. One of the comparative advantages First Nations communities and citizens have is that there is widespread acknowledgement amongst the wider community and policymakers that they do have particular and unique needs and aspirations. Looking forward, this is a cause for hope that policy reforms and necessary reversals may be considered, notwithstanding the myriad reasons for pessimism in what appears to be a once in a century social, health, economic and political maelstrom.

Indigenous policy and northern Australia

Nothing will come of nothing: speak again

King Lear Act One Scene 1

The Prime Minister, Minister for Resources and Northern Australia, Minister for Indigenous Australians, and First Ministers of WA, NT and Qld issued a media release on 13 December titled ‘Boosting Indigenous participation in Northern Development’ (link here). The media release states, inter alia:

Indigenous Australians will take a stronger role in the economic development of Northern Australia under a new Accord launched at a Northern Australia Ministerial Forum in Katherine…

[The accord] will provide a framework for parties to work together to advance Indigenous economic development in northern Australia.

Prime Minister Scott Morrison said …“This is about creating jobs across northern Australia, which is so important for the region, and our indigenous population….”

Minister for Resources and Northern Australia Matt Canavan said Indigenous participation had always been a key aspect to economic development in the north…“The Northern Australia Indigenous Development Accord (the Accord) will ensure that governments, communities, individuals and industry work together to advance Indigenous economic development across our north.” …

… “The Accord sets out the commitment of governments to strengthen Indigenous economic participation in this nationally significant northern development agenda…” Minister Wyatt said…

…Ministers agreed to extend the term of the Indigenous Reference Group until December 2020. The next steps in developing an Indigenous Commercial Research Plan and locations for Regional Collaboration Areas will be considered at the next Ministerial meeting in 2020.

This all sounds terrific. Please read the whole statement.

While optics are not everything, it is strange that in contrast to Minister Ken Wyatt, the Commonwealth Minister for Northern Australia, Matt Canavan, failed to post this media release on his ministerial website. Moreover, his claim in the media release that Indigenous participation ‘had always been a key aspect to economic development in the north’ is not only historically misleading if not incorrect, but remains problematic today.

Of course, it is the new Accord (link here) where the rubber hits the road. Set out below is my brief and selective assessment of the likely impact of the NAIDA.

The headline conclusion must be that this is a deeply unambitious document.

The Accord has been developed in consultation with the Government appointed Indigenous Reference Group (IRG) (para.1) and is intended to provide a framework…to advance Indigenous economic development in northern Australia.

Point one: this framing of policy opportunities for northern Australia as all about commercial development is in my view deeply problematic. It essentially operates to provide a cover for governments to tread water on other potential policy opportunities, for example, the implications of climate change (link here) or mass incarceration of Indigenous citizens (link here) or welfare policy (link here).

Point two: given the extraordinary levels of deep-disadvantage impacting remote Indigenous citizens, one might have expected that the IRG and governments would have laid out a comprehensive policy agenda to address structural disadvantage and if necessary to allocate greater resources to improving outcomes. Instead, the Accord states (para.3):

The IRG has challenged governments to do more with existing resources; go beyond business as usual to facilitate Indigenous economic development; and improve collaboration across government…(emphasis added).

Point three: the contrast between the co-design approach adopted by COAG in relation to the Closing the Gap refresh where COAG has entered into a partnership agreement with the Coalition of Indigenous Peaks, and this process where Indigenous interests are not parties to the agreement, and the Indigenous representatives are appointed by the Commonwealth is stark.

Point four: the specific roles and responsibilities of the various governments are spelt out in the Implementation Plan at Schedule A of the Accord. They are deeply unambitious while apparently designed to give the appearance of government proaction. When contrasted with the aspirational language in para. 15 of the Accord, the Implementation plan is pathetically inadequate. Para.15 states, inter alia:

The Parties …agree to undertake decisive actions that contribute to…creating jobs…attracting infrastructure investment…facilitating access to capital…..activating the economic value of land….creating institutional arrangements that work to activate , accelerate and optimise Indigenous economic development across northern Australia.

The Implementation Plan proposes [underling added for emphasis]:

·         ‘expanded fee for service opportunities for Indigenous ranger groups’;

·         development of a ‘proposal for developing a Northern Australia Indigenous Enterprise and Employment Hub system’ (presumably four or five enterprise incubators across the North);

·         the ‘Ministerial Forum to understand options for funding feasibility studies’;

·         the provision of ‘proposal/s to consider for progressing land use planning and water reforms”;

·         the identification, trialling and scoping of ‘a process for selecting Regional Collaboration Area sites’ in each jurisdiction; and finally

·         the provision of a ‘proposal for developing a Northern Australian Indigenous Commercial Research Roadmap and Research Plan.

Decisive action indeed! The Government and the IRG have been developing this agenda since 2107, and on the present timeframes outlined in the Implementation plan, decisions to develop what are a set of extremely modest key initiatives will only be green-lighted by the Ministerial Forum later in 2020 and in some cases perhaps 2021. In the words of Sir Humphrey Appleby, implementation will follow in ‘due course’.

So what might a comprehensive plan for Indigenous participation in Northern Australia look like? Set out below is a provisional list of just some of the blindingly obvious candidates for driving improved economic, social, health and environmental outcomes in remote northern communities:

Increased investment in remote human capital development: Greater investment in early childhood programs, teacher quality and tenure, and a stronger focus on bicultural and ‘two way’ curriculums are each a prerequisite for improved outcomes.

Remote housing: A major need and opportunity is to significantly upgrade the quantum and quality of remote housing. This might be through expansion of public housing, but a better option may be to pursue alternative policy ideas including community housing options (link here). Capital might be obtained from a re-energised NAIF, from the Commonwealth’s new social housing bond aggregator (the National Housing Finance and Investment Corporation), and ultimately from the private sector (particularly if underwritten by a short or medium term government guarantee).

Remote property and tenancy management: a plan to ensure locally based Indigenous corporations undertake remote housing maintenance would pay big dividends both socially and economically. 

Land tenure reform: There is a major and complex policy challenge in this area, but it requires sustained policy commitment and a clear vision of the outcomes sought. The failure of Governments to advance the COAG endorsed land tenure reforms (link here) serves to reinforce the political unwillingness of Governments to move forward even on the issues they identify themselves as important. Note that while land tenure is a major transaction cost impediment to efficient services and commercial activities in remote communities, it is not the only transaction cost impediment to commercial development in remote communities.

Governance reform of the native title benefits space: This is primarily a matter for the Commonwealth, Reforms might include requiring PBC’s to appoint independent directors from an approved list; to appoint their auditors from an approved list; and most importantly the provision of adequate core funding for PBCs by the Commonwealth. This is an area where there is probably a case for a short sharp review aimed at identifying a reform agenda.

NAIF Reforms: The Commonwealth could allocate say $1bn for remote Indigenous infrastructure from the $5bn in concessional loans available for infrastructure generally. This would need to be accompanied by a wider definition of infrastructure to include social infrastructure (as suggested by Infrastructure Australia in its most recent reports). Because the NAIF is effectively structured to provide access to concessional loans, there will be a need to develop a delivery strategy to ensure that these funds are able to be both allocated and spent for the benefit of remote Indigenous communities. For example, the Commonwealth might expand the capital base of Indigenous Business Australia with NAIF loans for on-provision to smaller Indigenous owned projects and enterprises in northern regions.

CDP Reforms: the operation of the operation of this program is excessively punitive and creates strong incentives for remote citizens to disengage entirely from both welfare and other government services.

Strengthened financial literacy programs: it was striking that a number of the case studies in the Hayne Royal Commission into the banks were drawn from the experience of Indigenous communities in the remote north.

Finally, it is worth asking the question, is the IRG model fit for purpose? Why is it that after two years work, none of the pressing policy priorities identified in the alternative comprehensive plan set out above have emerged in the IRG’s advice to Government? Is it the case that the Commonwealth Government is limiting the advice that it is prepared to receive? Alternatively, is it the case that the IRG is providing hard-hitting advice, but government is not listening or hearing? Either way, there seems to be a case for an independent review of the IRG’s operations.

The details of the IRG’s advice to the Ministerial Forum do not appear to be public, and I would argue that this lack of transparency is a case where the confidentiality of advice (contra the accepted wisdom reiterated in the recent Thodey Review of the APS link here) actually encourages and facilitates sub-optimal outcomes. There is in my view no justification for the advice of a Government advisory body to be kept confidential. Indeed, how can the appointed members reassure their own communities that they are providing effective advice if their work remains confidential? The question whether the subsequent consideration by policymakers of those recommendations should be kept confidential under FOI is a separate matter. The risk is that the Commonwealth is effectively using the IRG as a convenient cover for government inaction. How else might we explain the deep-seated and sustained lack of substantive action in relation to the Government’s stated policy objectives for northern Australia?