Closing the Gap: rhetoric trumps substance

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

His promises were as he then was, mighty,

But his performance, as he is now, nothing.

Henry VIII, Act 4, scene 2.

 

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

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

 

This text is misleading in two respects.

 

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

 

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

 

Finally, the review notes:

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

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

 

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

 

Implications

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

                                                                ‘In nature’s infinite book of secrecy

A little I can read’

Antony and Cleopatra

Act One, scene 2

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

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

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

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

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

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

OFFICIAL

FOI/NIAA/1920/023/IR

FREEDOM OF INFORMATION ACT 1982

REQUEST BY: Michael Dillon

DECISION BY: Group Manager (name and position redacted)

NOTICE OF INTERNAL REVIEW DECISION

Dear Mr Dillon,

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

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

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

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

Authorised decision-maker

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

Matters Taken Into Account

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

• the FOI request;

• the document relevant to the FOI request;

• your correspondence of 26 September 2019;

• the FOI Act; and

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

Decision

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

Reasons

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

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

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

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

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

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

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

Public interest

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

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

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

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

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

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

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

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

Factors favouring disclosure

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

• promote the objects of the FOI Act;

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

• promote effective oversight of public expenditure.

Public interest factors against disclosure

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

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

• would restrict the candour and utility of future discussions;

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

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

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

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

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

Section 47C of the FOI Act – deliberative processes

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

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

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

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

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

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

Public Interest

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

Factors in favour of disclosure

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

• promote the objects of the FOI Act;

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

• promote effective oversight of public expenditure.

Factors against disclosure

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

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

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

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

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

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

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

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

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