Christmas fudge: eight ways to mislead the Senate - an update on Minister Scullion, the ILC, and the treatment of Senate Estimates Committees

‘Tis an ill cook that cannot lick his own fingers

Romeo and Juliet, Act IV, scene 2

Further to my recent post (link here) on the Minister for Indigenous Affairs’ failure to comply with his statutory obligations, the Minister has now belatedly provided his response to the question taken on notice during a recent Senate Estimates hearing.

In essence, the issue relates to the reasons for the failure of the Minister to terminate an ILC Director who missed five consecutive meetings in early 2018.

Section 192H(4) of the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) states:

If an Indigenous Land Corporation Director who holds office on a part-time basis is absent, except on leave granted under section 192C, from 3 consecutive meetings of the Indigenous Land Corporation Board, the Minister must terminate the appointment of the Director.

I recommend readers re-read my original post as I will cross reference key information therein in analysing the adequacy of this response.

Here is the question and the answer submitted on 17 December and copied verbatim from the Parliament web site (link here):

Senator the Hon Kristina Keneally: asked the Department of the Prime Minister and Cabinet on 2 November 2018

During Estimates, Senator Keneally asked:

Senator KENEALLY: I want to be clear. My concern is not so much with Mr Martin's actions. It is with the actions of the minister in accordance with the act. As you have flagged, if there are particular challenges of people being able to attend meetings or being supported to do so, could you also provide advice as to what you are doing to address that. Senator Scullion: I will take that on notice. I appreciate your comments, Senator. This is about me and this is about the board and reporting on the act. I do appreciate that that is what the questions are about. I will provide a comprehensive answer to that on notice.

Can the Minister advise what steps he has taken in this matter?

Answer — The Indigenous Land Corporation Chair wrote to the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion, about the absences of Mr Martin and subsequently confirmed on 31 August 2018 that Mr Martin had been granted leave of absence from these meetings.

Perhaps the easiest way to analyse this answer is to focus on how many ways it manages to mislead the Senate.

First, the Minister promised a ‘comprehensive response’. He acknowledged that the question was about his actions (or inactions), about the Board’s involvement, and about the reporting from the ILC of relevant information.  He provided his response in one sentence of 42 words, with no explanation of his role and actions, vague reporting of the ILC Board’s role and involvement, and no information on the adequacy of the reporting of relevant information in relation to the requirements of the Act. This is patently not a comprehensive response. On the basis of this response, the Minister’s statement to the Estimates Committee that he would provide a comprehensive response was patently misleading.

Second, the ILC Chair wrote to the Minister about some but not all of the relevant absences of Director Martin (see my previous post for details). The answer provided states that the Chair wrote to the Minister about the absences, but in fact he did not mention all the absences. It is misleading in this respect.

Third, the Chair of the ILC wrote twice to the Minister (see previous post for details), once on 4 May advising that the requirements of the legislation relating to termination of the Director had been met and requesting that Director Martin be terminated in accordance with the Act, and later in July reversing his position and suggesting termination was no longer required (notwithstanding the clear intent of the legislation). The Minister’s failure to outline and explain this is misleading by omission.

Fourth, the response states that the ILC Chair had confirmed in a letter dated 31 August 2018 that Director Martin had been granted leave of absence from ‘these meetings’ (ie the incomplete set of meetings). The Minister’s response omits to mention that the granting of leave of absence was retrospective, and is thus misleading by omission.

Fifth, the response fails to mention that while the ILC Chair did confirm that leave of absence had been granted, the ILC had subsequently formed the view that the Chair’s purported actions in granting retrospective leave of absence were beyond his authority, and thus of no effect (see previous post for details). The Minister should have been advised of this discovery particularly as it meant that the 31 August letter to the Minster was substantively incorrect. By the time the Estimates questions were answered, the relevant information was available on the ILC FOI log and had been the subject of an article on 14 December in the Mandarin (link here). There seems little basis for an argument that the Minister or PMC were not aware that the 31 August letter was substantively incorrect (and if they were not, they should have been), yet the Minister went ahead and used it as the basis for his lack of action in his response to the Senate. The response was thus fundamentally misleading in relying on the ILC Chair’s 31 August letter without further explanation.

Sixth, the response omits to mention that the Minister and the Chair had discussed the issue in June (refer previous post). The response not only fails to indicate the tenor and content of those discussions, but avoids any mention of the meeting notwithstanding that it was clearly a crucial element in the Minister’s consideration of the events. Given that the question explicitly refers to ‘what steps’ the minister took, the response appears to be deliberately misleading in relation to this meeting albeit by omission.

Seventh, the response omits to deal with the issue of the delay between the third consecutive missed meeting (on 9 March 2018) and the eventual effective granting of retrospective leave of absence on 1 November, a period of almost eight months. Even were we to grant the Minister the benefit of the doubt and use the purported granting of leave of absence in August as the relevant date, the delay amounts to almost six months.

Eighth, the response provides no information or any explanation for the Minister’s failure to act in a timely way to comply with his statutory obligations under the legislation. It is clearly deliberately misleading in this respect.

What might we make of all this. I focus on two general points.

The first relates to the particular issue relating to the minister’s statutory obligations, and the analysis in my previous post. The Ministers ‘explanation’ offers no alternative explanation which might cast doubt on my earlier analysis.

It leaves major questions unanswered concerning the quality of governance within the ILC under the current Chair’s tenure, the quality and accuracy of information provided to the Minister, the processes put in place by PMC to ensure the Minister is in a positon to carry out his statutory obligations under the Act, and to oversight more generally the activities and operations of a statutory corporation within his portfolio. Further, while it implicitly lays blame and attention on the information provided by the ILC, it fails to acknowledge that that information was in many respects incorrect, misleading and inaccurate, and it fails to identify what action the Minister has taken or intends to take to rectify these deficiencies in the future.

Most importantly, the response and ‘explanation’ fails to address the likelihood that the Minister played a direct role in encouraging the Chair to change his formal advice and instead request that the Minister defer action while a retrospective leave of absence for Director Martin was put in place.  Determining what transpired in relation to this issue goes to the heart of determining what has occurred here, and has significant implications for the independence of the ILC. It also raises serious questions about the capacity and preparedness of the ILC Chair and ultimately the Board to carry out their statutory responsibilities independently of Ministerial interference. All in all, the extreme parsimony of the Minister’s response only adds to the weight of suspicion that he was involved in an inappropriate plan aimed at avoiding the necessity for him to carry out his statutory duty.

The second point relates to the apparent disdain with which this Minister treats the Senate and in particular the Senate Estimates Committee. He promised a comprehensive response and delivered what amounts to a deliberately misleading fudge. He missed the key deadlines in terms of the provision of answers. And he comprehensively failed to adequately explain why it is that he failed to act in accordance with his statutory obligations.

Of course, this is an issue which goes beyond this Minister, and appears to be part of an inexorable slide in the influence of the Parliament vis a vis the Executive. It is time that the Parliament stood up to the Executive, demanded substantive accountability from Ministers. 

In particular, it is to be hoped that the Senate will refuse to accept the self-serving fudge this Minister serves up to them and in turn, to the Australian people.

Are statutory obligations optional for ministers: the Minister for Indigenous Affairs and the Indigenous Land Corporation.

                                                                        The laws are mine, not thine

                                                                        Who can arraign me for’t  ?

                                                                        King Lear, Act 5, 3.                       

Trust in our institutions, including the rule of law, is widely viewed as being in serious decline (link here). The causes are complex, and the implications for democracy and for the integrity of public policy are serious. The Indigenous affairs policy domain is not immune from these wider societal trends and forces.

As a community, we have two broad choices: to bury our heads in the sand, and watch as a slow motion disaster unfolds. Or to seek to engage when we see issues, call them out, and require our public institutions to account for their actions.

At the Senate Estimates Hearing on 26 October 2018, the issue of Minister Scullion’s compliance with his legislative responsibilities under the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) was raised by Labor Senator Keneally (link here; pages 19-20).

Section 192H(4) of the ATSI Act, states:

If an Indigenous Land Corporation Director who holds office on a part-time basis is absent, except on leave granted under section 192C, from 3 consecutive meetings of the Indigenous Land Corporation Board, the Minister must terminate the appointment of the Director.

The ILC Annual Report (link here page 57) had indicated that one Director, Mr Bruce Martin, had missed five consecutive meetings without leave of absence over a period of three months and over the course of the year had missed 8 out of 12 meetings of the Board in all. The discussion in the Estimates Committee was, as is often the case, somewhat confused and at cross-purposes. The Minister, after apologising to Senator Dodson for providing him with unspecified inaccurate information before the hearing, first suggested that the reasons for Mr Martin’s non-attendance related to ‘cultural and business responsibilities’, then shifted to arguing the exigencies of remoteness and communications were the issue. Then he shifted to a slightly different argument:

There was a short period of time in which this individual was unable to attend the meetings. These were not anticipated. At each occasion, some unanticipated things happened…

He went on to state:

It was understood that a leave of absence wasn't granted before the meeting because he wasn't able to communicate that he wasn't going to be there at the meeting. When the extenuating circumstances were provided to the chair, he understood that leave should have been granted should he have known beforehand. In any event, we'll take that on notice.

In response, the following exchange occurred:

Senator Keneally: I want to be clear. My concern is not so much with Mr Martin's actions. It is with the actions of the minister in accordance with the act. As you have flagged, if there are particular challenges of people being able to attend meetings or being supported to do so, could you also provide advice as to what you are doing to address that.

Senator Scullion: I will take that on notice. I appreciate your comments, Senator. This is about me and this is about the board and reporting on the act. I do appreciate that that is what the questions are about. I will provide a comprehensive answer to that on notice.

As of today, the Minister’s promised answer is not on the Senate Estimates Committee website, and is, along with scores of other unanswered questions, listed as overdue. In the light of the information below, it is to be hoped that the Minister’s answer is comprehensive and detailed.

Following the Senate Estimates discussion, a Freedom of Information request was lodged with the ILC for documents related to these issues, and this week a cache of relevant documents was posted on the ILC FOI log (link here). These documents raise numerous issues of concern, not all of which are dealt with here. In particular, they confirm that for an extended period of almost eight months the minister failed to comply with his legislative responsibilities under the ATSI Act. The Minister’s obligation was only resolved when the ILC Board retrospectively granted Director Martin leave of absence on 1 November 2018.The documents also raise an array of serious questions regarding the governance of the ILC.

Like Senator Keneally, I do not wish to raise concerns regarding Mr Martin’s actions, as I do not have adequate information to make an informed assessment. Notwithstanding multiple references to ‘extenuating circumstances’, nowhere do the documents which include formal advice to the ILC Board and to the Minister make clear what exactly those circumstances were.

The following discussion is based on the documents released under FOI. References to item numbers are to documents published on the ILC FOI log.

The released documents outline a rather different sequence of events to the narrative portrayed at the Estimates Committee hearing. Director Martin missed Board meetings #220 on 1 February 2018; #221 on 21 February 2018; #222 on 9 March 2018; #223 on 18 April 2018; and #224 on 11 May 2018.

On 17 March, the ILC CEO advised the Chair that Director Martin had missed three consecutive meetings [item 14]. On 18 April, the ILC Board removed Director Martin as Chair/Director of AIA, an ILC subsidiary (a remunerated position) [item 13]. On 23 April, the Chair wrote to Director Martin giving him the option of resigning to ‘avoid the Minister actually taking the step of terminating your appointment’ [item 16]. The Chair received no response.

On 4 May 2018, (seven weeks after Director Martin missed his third consecutive meeting), the Chair wrote to Minister Scullion indicating that Director Martin had been absent from three consecutive Board meetings without written leave of absence and noting ‘his appointment should now be terminated’ [item 19]. This letter was misleading in that it only mentioned three meetings whereas Martin had now missed four consecutive meetings. The letter also listed the first, second and fourth meetings (#220, #221, and #223), but referred to them as consecutive meetings.

There was no formal response from the Minister to this advice.

On 3 July 2018, unbeknown to other ILC Board members and ILC management [item 40; item 58], the ILC Chair wrote again to the Minister, but abruptly reversing his position in relation to Director Martin [item 21]. He wrote inter alia:

I wrote to you on 04 May 2018 requesting the termination of ILC Director Bruce Martin, who was absent from three consecutive Board meetings without leave granted. With consideration for the Board achieving the best possible outcomes going forward, I would like to rescind this request and I seek to retain Director Martin as a part-time Director.

As discussed when we met in Adelaide on 14 June 2018, the personal extenuating factors which led to the absence of Director Martin now allow him to return to his position and carry our his full duties on the Board…

This letter reeks of a political stitch up. It continues to refer to three missed meetings whereas by this point, Martin had missed five consecutive meetings. Its tone is one of a request from the chair of a statutory corporation for a discretionary decision from a minister, rather than reflecting the mandatory obligation on the minister. Most revealing of all is the reference to the meeting of 14 June between the Minister and the Chair where the issue was discussed. There are two possibilities.

The less likely possibility is that the Chair unilaterally, and without consultation with his Board, changed his mind. There is nothing in the documentary record which provides any rationale for such a change of mind. If this scenario was the case, the Chair could and should have convened a Board meeting and argued for a Board decision to grant Director Martin retrospective leave of absence for his missed meetings, and then advised the (very tardy – two months tardy!) Minister that termination was no longer appropriate. Instead, he secretly wrote to the Minister, and sought to have the termination process stopped. The Minister’s response (see below) acknowledging the requirements of section 192H(4) of the ATSI Act, and seeking confirmation that leave of absence had been granted, and the Chair’s further letter to the Minister were also withheld from the Board and management.

The more likely scenario, however, is that the Minister, acting either on his own, or in response to a communication from Director Martin (who the Government had previously appointed to the Prime Minister’s Advisory Council), sought to avoid terminating Director Martin as was required by section 192H(4) and instead arranged with the Chair for the provision to Director Martin of retrospective leave of absence and a letter rescinding his earlier notification of missed meetings to provide cover for the minister’s non-decision. This scenario is supported by the obsequious tone of the Chair’s 3 July letter which resorts to banality (‘I seek to retain Director Martin as a key Indigenous refreshed participant for the future success of the Board…’) and the weight put on the 14 June meeting with the Minister. Moreover, the obsequious tone continues in the subsequent 31 August letter (see below) which thanks the Minister for the opportunity to retain Mr Martin as an ILC Director, and which includes a further paragraph which only now relays a firsthand discussion between the Chair and Director Martin, and which contrasts with the vague wording of the 3 July letter which links the resolution of the ‘extenuating circumstances’ to the discussion on 14 June, and not to any firsthand discussion between the Chair and Director Martin.

Either scenario is problematic. If it was the first scenario, the Minister was misled as to the number and the dates of the relevant meetings, and the ILC Board was kept out of the loop. Hardly good governance. If it was the second, the Minister was effectively engaged in a collusive process explicitly designed to subvert his clear statutory obligation to terminate Director Martin.

On 20 August, the Minister wrote to the ILC Chair [item 25], ignoring the letter of 4 May:

Thank you for your letter of 3 July 2018 about Mr Bruce Martin continuing as a Director of the Indigenous Land Corporation.

I note your advice that Mr Martin was absent from three consecutive Board meetings due to extenuating personal factors and that he is now able to carry out his full duties as a Director. I would appreciate clarification in writing form you confirming if Mr Martin has been granted leave of absence for the period he was away due to extenuating personal circumstances. [The letter went on to mention the Board’s powers to grant leave of absence and the requirement to terminate a Director who is absent from three consecutive meetings without approved leave of absence].

On 31 August 2018, the ILC Chair replied [item 26], continuing to refer misleadingly to the three meetings, and confusing the dates (again), and stated:

I write to confirm to you, that I have written to Mr Martin, on behalf of the ILC Board, to grant him leave of absence from these Board meetings, due to extenuating personal circumstances.

On the same date, the Chair wrote to Director Martin [item 27] purporting to grant leave for the three missed meetings. Again, these letters were drafted and sent without input from ILC management. Nor was there consultation with, or provision of copies to the ILC Board.  

Following the discussion in Estimates, and an article in The Mandarin (link here), a flurry of activity broke out within ILC and PMC management. A subsidiary issue, which I have not focused on, related to the ILC Annual Report, and its accuracy. During this process, it became apparent to ILC management, following queries from PMC officers, that the Chair did not have a delegation from the Board to unilaterally grant retrospective leave of absence to Directors who did not notify him in advance [item 48]. The consequence was that the Chair’s letter of 31 August to Director Martin purporting to grant leave of absence was beyond power, and consequently the Chair’s ‘confirmation’ to the Minister that leave of absence had been granted was substantively incorrect. It was then decided to convene a Board meeting to formally grant Director Martin retrospective leave of absence, to address the uncertainties around the Annual Report, and in particular to fix the defective efforts by the Chair to grant leave of absence. The final Board paper [item 65] hedges around the defective attempt by the Chair to grant retrospective leave of absence to Director Martin, and somewhat disingenuously references a Board meeting in February 2018 where an in camera session discussed Director Martin’s poor attendance, but no outcomes were recorded. The Board paper goes on to state:

Considering the scrutiny that this has already attracted from the Senate Standing Committee [sic], it is prudent for the ILC to take a very conservative approach to the issue and obtain a clearly recorded Board decision to retrospectively approve Director Martin’s absences from the meetings.

The problem with this too clever by half formulation is that there is absolutely no evidence that the Board delegated to the Chair the power to grant leave of absence during the in camera session, and nor does it square with the Chair’s 4 May letter to the minister advising him to terminate Director Martin.

The Board paper recommended that the Board:

Retrospectively approve Director Martin’s absence from ILC Board meetings 220, 221 and 223 dated 1 February, 21 February and 18 April 2018.

The Board paper also dealt with the Annual report issue by proposing the insertion of a footnote into the 2017/18 Annual Report on the ILC website clarifying the situation. The footnote will state:

The ILC Board approved leave of absence for Director Martin (meetings 220, 221 and 223) in the 2018/19 financial year. Retrospective leave of absence was granted pursuant to s192C of the ATSI Act.

There are a range of issues with the Board Paper and the recommendations.

Nowhere does the Board paper deal with or bring to Directors’ attention the fact that the Minister was misled in various respects by the Chair’s secret correspondence, and nor does it propose any action to address or remedy that. The proposal to grant leave of absence for only three non-consecutive meetings (which reflect the original error in the Chair’s correspondence and which were then listed in the Minister’s reply does not align in any logical way with the ostensible reason for granting Director Martin the retrospective leave of absence, namely the so called ‘extenuating circumstances’. It is as if ILC management (perhaps under the direction of the Chair) are focussed solely on relieving the Minister of his statutory obligation rather than addressing Director Martin’s ‘exceptional circumstances’ (whatever they were). 

The issue with the recommendation in relation to the Annual Report is that it ignores the fact that Annual Reports are provided to the Minister for tabling in Parliament, and this has already occurred. Any change to the Annual Report (even to add a footnote) should therefore mean that the revised document is tabled in Parliament. As of today, the Annual Report does not appear to have had a footnote added to the relevant table.

The Board meeting on Thursday 1 November 2018 approved both recommendations [item 70]. The various versions of the draft minutes are edifying to read, and include a number of rather self-absorbed statements by the Board, and an apparent complete absence of appreciation that the Board has a responsibility to account for its actions. In an email from one Board member who could not attend the meeting and which was circulated to five Board members [item 58], he listed the various instances where the Chair had acted unilaterally without Board involvement, but makes no criticism of the Chair, and suggests no remedial actions. Nor do the draft minutes indicate that Board members expressed any concern at the actions of the Chair. Indeed, the response of the Board, presumably influenced by the views of the Chair, was to suggest that the Chair should have greater power to act unilaterally. One paragraph states:

The lesson learnt from this are that the 2013 resolution [on delegations relating to leave of absence] need to be changed to give greater flexibility to the Chair to deal with exceptional circumstances…

This led to two actions being identified: one to provide the Chair with greater flexibility to approve retrospective leave of absence; another to seek an amendment to the legislation to give the Minister ‘flexibility to decide not to terminate the appointment of an ILC Director if they have missed three consecutive meetings without leave in exceptional circumstances’, notwithstanding that the Minster had explicitly rejected this in his comments to the Senate Estimates Committee. It seems clear that the Board’s underlying focus was squarely on addressing the problem facing the Minister and not substantively on the issue of providing retrospective leave of absence to Director Martin on its merits.

To an outside observer, this seems extraordinary, and raises substantial questions regarding the underlying purpose of the Board’s decision making and its capability to adequately fulfill its statutory responsibilities.

To sum up, what are the implications of this sorry tale.

In relation to the Minister, the documents demonstrate that he comprehensively failed to meet his statutory obligation to terminate Director Martin. Director Martin missed his third consecutive meeting on 9 March 2018. The Minister was only advised formally on 4 May 2018. Effective retrospective leave of absence was only granted on 1 November 2018, almost 8 months later. During this whole period, the Minister took no action to fulfill his statutory responsibilities, and relied for only part of that period on the inaccurate information provided by the ILC Chair that leave of absence had been retrospectively granted as of 31 August. Second, there is strong circumstantial evidence that the Minister actively sought to engineer a situation which would allow him to avoid terminating Director Martin, as he was legally obliged to do. The secrecy surrounding the outcomes of the meeting of 14 June, his reluctance to advise the Senate that he had sought and received confirmation of the (ineffective) retrospective granting of leave of absence, his mysterious inaccurate advice to Senator Dodson prior to Senate Estimates (for which he apologised in the transcript) and his shifting explanations of the ‘exceptional circumstances’ all point to an effort to hide or disguise his involvement in this process.

In relation to the Chair and Directors of the ILC, the documents demonstrate deep-seated governance issues within the ILC. In particular, the failure to inform the Minister in a timely way in relation to Director Martin’s three consecutive absences, and the repeated failure to accurately inform the Minister, arguably in contravention of their responsibilities under section 19 of the PGPA Act 2013, as those absences accumulated. The Chair’s preparedness to act unilaterally without informing his co-Directors and management, contributed to the provision of misleading advice, which taints the reputations of all Board members.

In particular, the Chair’s secret 180 degree turn following his meeting with the Minister raises the possibility that there was some ulterior motivation involved. If such an ulterior motivation came from the Minister, the Chair’s actions in facilitating it would effectively involve the ILC in assisting the Minister in avoiding his statutory obligations. Such assistance would amount to an improper purpose, and would fundamentally infect the granting of the retrospective leave of absence on 1 November. 

In these circumstances, the apparent failure of Board members to hold the Chair to account is deeply problematic, and reflects a fundamental absence of core corporate governance capabilities. While the reticence to take action probably reflects their perception that a strong relationship exists between the Minister and the Chair, it clearly opens up the possibility of poor governance, and as in this case outcomes, which are not consistent with the expectations of the Parliament as reflected in the ATSI legislation. In a worst case circumstance, a mode of operation where the Chair operates without effective Board oversight increases substantially the potential risks of fraud or corruption. It seems highly unlikely that the ILC’s risk management plans and fraud control frameworks (as outlined on page 61 of the most recent Annual Report link here) canvass these types of risks.

Of course, the Minister appoints the Chair and the directors, and has legislated powers to oversight (but not interfere) in the operations of what is an independent statutory corporation. While the Chair and Directors may be primarily responsible for poor governance outcomes within the ILC, the Minister cannot evade responsibility either, particularly insofar as he appoints the Chair and has various regulatory oversight powers.

I began this post by pointing the loss of trust in our institutions. Citizens are normally expected to comply with the laws of the land. When a Minister of the Crown who is responsible for the operation of a particular law fails to comply with a clear statutory obligation in that law, loss of trust is magnified. And if a Minister actively seeks to influence a theoretically independent statutory corporation to retrospectively remove the conditions that require the Minister’s statutory compliance, and is not required to explain his actions, then loss of institutional trust will be even greater.

While the circumstances outlined above may appear to be quite narrow and technical, they provide a window into the mode of operation of the current Minister for Indigenous Affairs in relation to the portfolio bodies for which he is responsible. They also point to the risks which emanate from excessive politicisation of Boards of statutory entities, and the shallow regulatory oversight applied to Commonwealth statutory corporations. The issues involved are hugely significant particularly for the potential beneficiaries of the statutory bodies. In the ILC’s case, it has a highly important compensatory role emanating from the recognition that the recognition by the Parliament that the Mabo High Court decision would not address the needs of those Indigenous citizens whose native title rights had been extinguished by the Crown without compensation.

Indigenous citizens deserve an ILC which is operating according to the highest standards of corporate governance and without inappropriate interference by ministers.

Ministers need to accept that Australian laws ‘are thine, not mine’. If Ministers are not prepared to accept that they too are bound by the laws of the land, they do not deserve to remain in their privileged positions.

Declaration of interest: I was formerly the Chief Executive Officer of the ILC from 2013 to 2015

Swirling bulldust: recent developments in the remote housing fiasco

Or, if there were a sympathy in choice, War, death, or sickness did lay siege to it, Making it momentary as a sound, Swift as a shadow, short as any dream; Brief as the lightning in the collied night, That, in a spleen, unfolds both heaven and earth, And ere a man hath power to say ‘Behold!’ The jaws of darkness do devour it up: So quick bright things come to confusion.

A Midsummer Night’s Dream, Act One

On 19 June 2018, The Brisbane Times reported (link here) that

Mayors from across Australia have taken the Turnbull government to task for failing to stump up cash for housing in remote Indigenous communities.

…"Refusal to provide funding will have catastrophic impacts on the social, educational and health outcomes including increased mental health and family violence in these communities."

Mr Lacey said about 10 per cent of Palm Island residents were on the waitlist for a home. "There's overcrowding, you don't need to be Einstein to work it all out," he said.

Mr Lacey said funding provided by the Queensland and federal governments over the past decade fell short of the demands of a growing population.

On 9 August 2018 the ABC News ran a report by Felicity James: ‘Arnhem Land community awaits housing rebuild three years after Cyclone Lam destruction,’ (link here ).

On 25 August, the ABC News in WA ran a story “WA remote families left in limbo as Ministers trade insults over housing cash’ (link here). That report quoted Federal Indigenous Affairs Minster Scullion as stating:

The only thing affecting progress on reaching a deal in Western Australia is Peter Tinley’s racist approach to Aboriginal people and his willingness to play petty politics with their homes and their lives.

On 29 August in Perth Bill Shorten and Mark McGowan fronted the media in Perth (link here). The following exchange took place:

JOURNALIST: Thank you. If I could just ask do you think that Tony Abbott is the right man for the Indigenous envoy role?

SHORTEN: I think I will rely on Western Australia's Senator Pat Dodson and quote him, or requote him. He said First Australians have asked for a voice and they got Tony Abbott; a clear disappointment. 

Listen, he is clearly interested in Indigenous affairs but while he and Mr Turnbull were in power there were a lot of cuts to services. I think if he is going to be a fair dinkum envoy for Indigenous Australia go and convince Mr Morrison, who was the Treasurer who wouldn't properly fund remote housing, I think Mr Morrison and Mr Abbott, if they want a reset on treating First Australians with some degree of decency, Mr Abbott and Mr Morrison need to reverse their cuts to remote housing (emphasis added).

On 30 August, Perth Now ran a story headed ‘Remote housing feud descends to insults’ (link here).  

It is worth reading both the ABC and Perth News reports in full.

So what are the facts?

The Commonwealth spent $540m over each of the past ten years in supporting the construction and upgrades of remote housing, primarily in WA, NT, SA and Queensland. This was delivered through the ten year National Partnership on Remote Indigenous Housing established in 2008, and which ended in June 2018. The Government delayed announcing its intentions in relation to the renewal of the National Partnership until December 2017, when departmental officials informed the states that the National Partnership would not be renewed, and instead, transitional bilateral funding agreements would be negotiated which would require matching state contributions.

My February 2018 Inside Story article “Tactics versus strategy in Indigenous housing (link here) lays out the extent of housing need in remote Australia, the rationale for continuing Commonwealth involvement and investment, and explores the scope for new innovative approaches to addressing the quite huge needs which exist and are getting larger.

Minister Scullion denied that the Commonwealth was walking away from remote housing, but the figures speak for themselves. In the NT, where the incoming Labor Government has already committed to a ten year billion dollar investment in remote housing before its election in 2017, the Commonwealth agreed to provide $110m over five years. In WA, the Commonwealth is offering $60m over three years. In SA and Qld, consistent with the deliberate lack of transparency from the Commonwealth, we do not know what is being offered, and if it has been finalised. But is seems highly unlikely that it exceeds the funding made available to the NT which comprises around half the remote hosing need. On this basis, the Commonwealth appears to have made cuts in excess of $250m per annum to its longstanding contribution to remote housing, savings which will rise in quantum over time. If we look forward ten years, thus comparing a renewal of NPARIH with actual funding commitments made for 2019-2018, the Governments decision appears to involve cuts of around $4bn over the ten year forward estimates.

In the light of funding cuts of this magnitude directed at the most disadvantaged citizens in the nation, the tactics of Minister Scullion in resorting to personal abuse and allegations of racism directed at his political opponents should be seen for what it is: a hypocritical attempt to divert attention from the Commonwealth’s unilateral funding cuts and to reframe the issue as just another fight between the federal government and the states over funding. The reality is that the Commonwealth took the decision to cut remote funding because they wished to minimise the apparent size of the deficit over the coming decade in their perpetual quest to portray themselves as competent economic managers. The remote housing funding was an easy target, because it is channelled through the states, there is no national peak body for indigenous housing, and Indigenous voices which do speak out are rarely taken seriously in the broader electorate. In short, the Government did it because it could.

The costs will be borne primarily by remote Indigenous citizens. Women and children will be particularly vulnerable. The impacts will include poor health, domestic violence, poor educational outcomes, mental health issues, suicide, alcohol and drug abuse, to name but a few.

In all these circumstances the preparedness of Minister Scullion to allege racism on the part of Western Australian Ministers Wyatt (links here and here) and Tinley are irredeemable.

The comments by Bill Shorten are the clearest signal yet that an incoming Federal Labor Government will reverse the LNP cuts to remote housing if they are returned to office. The arguments in favour of doing so are incontrovertible, both in terms of addressing deep disadvantage in the Australian community, but also in terms of minimising future social costs on remote citizens and economic costs on taxpayers.

Of course, there is a significant difference between calling on the Government to reverse a cut, and committing to reverse the cut if and when you are returned to the government benches.

Let’s hope that Labor understands that addressing remote housing is not just an opportunity to criticize the Government in the lead up to the next election, but will be an imperative if they are returned to Government and wish to make any inroads in reducing the increasing levels of social and economic dysfunction across remote Australia over the coming decade. The surest way to signal that they do understand this would be to make an unequivocal commitment to reversing the current Government’s cuts to remote housing in full.

Politics Trumps Policy: Minister Scullion’s response to the Bindunbur native title determination

One of the drivers of the growing loss of community trust in our political leaders is the incessant focus on politics over policy. There is no doubt that the responsibility for this lies beyond our politicians, as large elements of the community itself prefer simplistic narratives built around polarised versions of reality. Nevertheless, our very best political leaders resist the temptation to reinforce the demand for simplistic nostrums. They seek to provide more nuanced explanations which explore the complex causes of problems and outline the value judgments which underlie the trade-offs and compromises which invariably shape effective policy.

In policy domains such as Indigenous affairs where poor policy performance leads to constrained and shortened life-opportunities of many Indigenous citizens, the responsibility of ministers and governments (and indeed opposition parties) to focus on understanding and explaining policy in accurate and factually correct terms is heightened. Indeed, the current Government has implicitly acknowledged this in its decision to allocate $40m to improve the evaluation of programs and in the focus emerging out of the closing the gap refresh process on improving the data available to regional communities.

Consequently, the decision of the Minister for Indigenous Affairs to issue a media release on 2 May which was laced with factually inaccurate political and ideological invective appears inexplicable and indeed indefensible. Here is the background.

The Federal Court recently finalised the terms of a native title determination over 12,000 sq kms on the Dampier Peninsula in the case of Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367. (link here)

This follows an earlier Decision in November 2017 by Justice North in the same claim involving three claimant groups, the Bindunbur, Jabirr Jabirr and Goolarabooloo claimants which found that the first two groups held native title over the middle Dampier Peninsula, but not the Goolarabooloo claimants. Here is a link to the Kimberley Land Council (KLC) media release following that earlier decision (link here). Here is the KLC media release issued following the 2 May Determination (link here).

Following the recent decision finalising the case, the WA Treasurer, Energy Minister and Aboriginal Affairs Minister, Ben Wyatt issued a media release on 2 May (link here). Minister Wyatt commented responsibly and perhaps somewhat prosaically:

I congratulate the Bindunbur and Jabirr Jabirr people on their achievement… 

This determination means that the certainty of native title rights in the whole of the Dampier Peninsula will assist the economic development future of this region. This decision will provide an environment for sound investment and help the local economy in areas such as ecotourism and aquaculture.

In contrast, Federal Minister for Indigenous Affairs Nigel Scullion along with the Member for Durack, Melissa Price MP (link here), issued a more provocative and tendentious media release (link here), which resorted to personal abuse, xenophobia, and the reinvention of history, and used the native title holders’ celebration of the Federal Court determination as a platform to gratuitously slam all ‘inner city greenies’ and ‘green-left activists’ as being opposed to Indigenous aspirations to develop their own lands.

I will let the Minister speak for himself:

The Minister for Indigenous Affairs, Nigel Scullion, congratulated the Nyul Nyul, Nimanburr, Jabirr Jabirr and Ngumbarl peoples on their success and for achieving legal acknowledgment of what they have always known - that they are the true and genuine traditional owners of the Middle Dampier Peninsula.

“This determination is a triumph of rational, fact-based legal processes over hysterical and patently false cultural and economic vandalism driven by interstate, inner-city extremists,” Minister Scullion said.

The native title determination includes James Price Point, which could have been home to a major economic development project with Woodside Energy which it is reported would have generated $1.5 billion for local Aboriginal communities.

“Unfortunately, the real traditional owners who have been recognised today were not listened to by the green left activists who blocked their aspirations for the development of their land and forced the major commercial project to be abandoned. 

“It is abhorrent that green-left activists like Missy Higgins and John Butler took advantage of Aboriginal people and tried to create uncertainty about their native title rights to push their own politically motivated agenda. 

"The sanctimonious self-righteous campaign we saw by these FIFO celebrity activists would have been a laughing matter if their blatant hypocrisy hadn't resulted in keeping the poorest of our fellow citizens in poverty.

"I hope Missy Higgins and John Butler and their foreign funded backers will now apologise to the real traditional owners and indeed to all Aboriginal and Torres Strait Islanders for so blatantly misappropriating Indigenous culture to suit their own political purposes. 

“What do inner city greenies have against Aboriginal people who want to pursue their own aspirations for development, just like any other Australian?

“From today, the real traditional owners have control of their land – free of influence from green left activists – and I look forward to working with them to ensure they can take charge of their future. “

Justice North of the Federal Court  in his November 2017 decision (link here) had this to say regarding the James Price Point matters:

1.3.6    The James Price Point Gas Hub dispute

215    A final matter of historical context relevant to the present proceeding is the dispute over a proposal by Woodside Energy to build a natural gas hub at James Price Point, within the Jabirr Jabirr and Goolarabooloo application areas. The following summary of the dispute is adapted from a timeline published by the Australian Broadcasting Corporation: “Gas hub: Controversy in the Kimberley”, 12 April 2013,5:28pm, http://www.abc.net.au/news/2013-04-12/browse-lng-timeline/4625232.

216    In February 2008, the Commonwealth and the State of Western Australia signed a strategic assessment agreement to assess locations for a natural gas processing facility for the Browse Basin off the Kimberley coast. On 15 April 2009, it was reported that “traditional owners”, through the Kimberley Land Council, had agreed in principle to a deal with the State of Western Australia and Woodside Energy to allow the construction of a gas processing hub. Then, on 22 December 2009, it was reported that another group of “traditional owners” were opposed to the development. It was then reported that native title claimants willing to sign a deal for the construction of the gas hub were unable to do so because Mr J Roe, the grandson of Mr P Roe, who opposed the deal, was one of the named persons comprising the applicant in an extant native title application in the area, being the Goolarabooloo and Jabirr Jabirr claim (GJJ claim) WAD 6002 of 1998.

217    On 15 February 2011, Ms Rita Augustine, Mr Anthony Watson and Mr Ignatius Paddy on behalf of the Goolarabooloo and Jabirr Jabirr People replaced Mr J Roe and Cyril Shaw as the persons comprising the applicant in the GJJ claim: Roe v State of Western Australia (No 2) [2011] FCA 102. The new persons comprising the applicant were reported to be in favour of the gas hub project.

218    On 6 December 2011, the Supreme Court of Western Australia upheld a claim brought by Neil Patrick McKenzie, a Jabirr Jabirr man, and Goolarabooloo witness Mr Phillip Roe that three notices of intention issued by the Minister for Lands for the compulsory acquisition of land for the gas hub project were invalid: McKenzie v Minister for Lands [2011] WASC 335.

219    On 12 April 2013, the applicant in the GJJ claim was given leave to discontinue their claim: Rita Augustine v State of Western Australia [2013] FCA 338. On the same day, Woodside Energy announced that it would abandon the gas hub project because it did not meet its commercial requirements. (emphasis added).

Key points to note here are that the Federal Court makes no mention of the role of the environmental movement in relation to the decision of Woodside to abandon the gas hub project, and indeed implicitly endorses commercial factors as the reason for the Woodside decision.

This rationale is supported by contemporary media coverage. To take just one example, see this Perth Now article from April 2013 (link here).

[Addendum added 6 May 2018: here is a link to Woodside's 12 April 2013 announcement in relation to the James Price Point development. It confirms the commercial rationale for the decision.]

Moreover, the Minister’s focus on ‘real’ native title holders has the implicit effect of diminishing or denigrating the actions and motivations of the Goolarabooloo claimants. While their native title claim was not supported by the Court, the judgment’s exhaustive assessment (over 700+ dense paragraphs) of the competing merits of the three groups claims makes it quite clear that there was a legitimate prima facie argument in support of the Goolarabooloo’s claim based on historical residence in the claim area from the 1930s and possible ‘succession’ rights to the relevant country. The Minister’s suggestion that their claim amounted to ‘hysterical and patently false cultural and economic vandalism’ is on any fair reading of the judgement just plain wrong.

Finally, the Minister’s claim that ‘the Government is providing $20.4 million to ensure native title claims deliver economic benefits to Aboriginal and Torres Strait Islander people.’(emphasis added) is just another example of this minister stretching the facts beyond credulity.

The Department of Prime Minister and Cabinet website (link here) states:

In June 2015 the Minister for Indigenous Affairs announced as part of the Northern Australia White Paper process an additional $20.4 million in funding over an initial four years to be targeted at capacity building for Prescribed Bodies Corporate (PBCs). The funding will assist these native title holding corporations to generate economic benefits through the effective and sustainable management of their land. Although the new funding was announced as part of the developing Northern Australia process, it will be available to PBCs throughout Australia.

In other words, there is an average of $5m per annum available until 2019 to the 179 currently registered PBCs across the country (link here). That is on average, there is less than $30k per annum available for each PBC, many covering vast areas of the country with no other sources of financial support. Such limited funding will clearly not ‘ensure native title claims deliver economic benefits’.

Of course, the continued mention of this paltry investment of funding provides rhetorical cover for the Government’s complete failure to drive substantive land reform policy relating to native title since coming to Government. The Government arranged for COAG to endorse the establishment of an Indigenous led review into Indigenous land administration and use, and the Department of Prime Minster and Cabinet website (link here) summarises the recommendations of the review in the following terms:

The COAG Investigation into Indigenous Land Administration and Use recently looked at how governments can better support Indigenous land owners and native title holders to use their land for economic development. It recommended governments focus on:

·         gaining efficiencies and improving effectiveness in the process of recognising rights;

·         supporting bankable interests in land;

·         improving the processes for doing business on Indigenous land and land subject to native title;

·         investing in the building blocks of land administration (e.g. town planning, cadastral surveys and infrastructure); and

·         building capable and accountable land holding and representative bodies.

Unfortunately, the Government has so far failed to progress any substantive legislative and administrative change based on the Review’s recommendations, and the recent Government options paper responding to the Australian Law Reform Commission inquiry into the Native Title Act (link here, here and here) does not propose substantive reforms which will drive greater opportunities for economic development.  In short, the Government is strong on rhetoric and short on action in relation to supporting the economic development of native title and other statutory Indigenous land titles. Little wonder the Minister is focussed on political vindictiveness and not policy aspiration or achievement.

To sum up, Minister Scullion’s extraordinarily gratuitous and ad hominem attack on musicians Missy Higgins and John Butler, his gratuitous slurs on all citizens who may be concerned about the environmental consequences of development, his implied attack on the motives of the unsuccessful Goolarabooloo claimant group in the Bindunbur native title claim, his wilful ignorance of the real reasons for Woodside Energy’s decision to abandon the proposed gas hub at James Point, and his seriously exaggerated claims regarding the Government’s funding of PBCs alongside the Government’s non-existent record in supporting equitable and effective land reform provides a case study in politics trumping policy.

On the basis of this evidence, Minister Scullion’s use of the terms ‘sanctimonious self-righteous[ness]’ and ‘blatant hypocrisy’ appear to have a stronger application to his own media release and his own actions than to the legitimate rights of persons opposed to the gas hub project (whether Indigenous or not) to express their views and to engage in political advocacy in support of those views.

These are not the standards of behaviour that we should expect or tolerate from a Federal Minister of the Crown.

Declaration of Interest:

In relation to the James Price Point gas hub, my personal views were ambivalent: I was sceptical in relation to the net benefits of the project, particularly given the potential environmental downsides and the risks to the tourism potential of the Dampier peninsula but was also cognisant of the potential economic benefits for Indigenous people in the region. My professional involvement (while I was an adviser to then federal Minister Jenny Macklin) involved extensive efforts to ensure that the KLC and Indigenous residents of the region were in a position to negotiate fair and equitable arrangements with both the West Australian State Government and Woodside Energy in the event that the gas hub was to proceed.