The High Court opens the door on the inexcusable dereliction of remote housing policy

Make the doors upon a woman's wit, and it will out at the casement; shut that, and 'twill out at the key-hole; stop that, 'twill fly with the smoke out at the chimney.

As You Like It, Act Four, scene one.

 

The recently decided High Court case of Young v Chief Executive Officer (Housing) [2023] HCA 31 (link here) turned on some relatively technical issues related to the interpretation of the compensation issues in NT statute law. There have been several media reports (link here and link here) making the point that this case has implications for tenants more broadly, representing an expansion of the onus on landlords. I don’t propose to attempt to summarise, nor discuss, those compensation issues. Instead I wish to point out some of the factual background to this litigation, and the policy implications. While this litigation related to the circumstances faced by one tenant, there are over 5000 houses managed by the CEO Housing in the NT, all of whom are subject to the same maintenance regime and levels of attention (or inattention as the case may be) as those that led to this litigation.

 

This extract from the Judgement of Gordon J and Edelman J is a good place to begin:

41 The premises leased to Ms Young were alleged to be defective in numerous respects . One respect was that for several years from the time that her tenancy commenced, the Chief Executive Officer (Housing) had failed to provide Ms Young with a back door. The absence of a back door was a significant impairment of security in circumstances where, as Ms Young described, roaming wild horses may have bent a fence around the property, and where a snake may have entered the house through a gap that was left between the door and the doorframe following the eventual installation of a back door by the Chief Executive Officer (Housing) . Ms Young was "an elderly woman who was left vulnerable to proven animal intruders and potentially human intruders" .

42 On 22 January 2016, a solicitor acting for Ms Young wrote to the Chief Executive Officer (Housing) saying that there had been no back door on the premises and that, although a mesh-steel door had been installed by Ms Young, a new door was required. More than six weeks later, in late March 2016, the Chief Executive Officer (Housing) installed a new back door .

43 In the Tribunal, Ms Young sought orders for repairs to be made to the premises, as well as a payment of compensation under s 122(1) of the Residential Tenancies Act. The Chief Executive Officer (Housing) was ordered to: refund rent of $4,735.80 for 540 days during which the premises were uninhabitable due to the lack of an air-conditioner; pay $4,000 in damages for distress arising from the associated physical inconvenience from the lack of an air-conditioner; and pay $200 in damages for the breach of its duty to repair Ms Young's stove for a period of 170 days . None of these matters was an issue on appeal to this Court. The relevant issue concerned the Tribunal's decision in relation to the failure by the Chief Executive Officer (Housing) to install a back door.

 

In The Saturday Paper, Rick Morton does an excellent job of contextualising and illustrating the bureaucratic nightmare for Ms Young that ultimately led to the High Court decision (link here). Here is an extract where Morton recounts evidence from 2019 at an earlier stage of the litigation:

Ms Young, who testified through a translator, showed that a shower and drain had been leaking for 2117 days, and that she had no back door for 2090 days and a toilet that flushed poorly and failed to clear waste for 534 days. In a community where animals roamed freely, including wild horses, the perimeter fence was bent all the way to the ground for 2328 days. Ms Young, who was in her late 70s when she brought the case, had no air-conditioner for 2121 days. Mr Conway had a home infested with insects for 1035 days and, on account of leaking water, slept in the kitchen for 1989 nights.

 

In his article Morton mentions another significant judicial win for Indigenous tenants in the NT (and potentially elsewhere):

Just weeks ago, Kelly [the solicitor for the applicants in the Yong case] had another win against the same government landlord operating the same sublet lease from the Commonwealth. The Northern Territory Supreme Court overturned a tribunal decision that found the residents of Laramba, west of Alice Springs, were not owed safe drinking water by their housing provider. Drinking water in the town contains uranium levels three times higher than the maximum for safe consumption.

 

The decision in this case has not yet been published on the NT Supreme Court web page. It does seem that there has been some action on Laramba’s water supply with the opening of a new water treatment plant in April this year (link here). Nevertheless, provision of safe water, power and sewerage remains a challenge across much of the NT (and probably also in other jurisdictions). This is particularly the case given the accelerating impacts of climate change on remote communities (link here and link here). Despite its inclusion as target #9B under the National Agreement on Closing the Gap, we don’t have good information on the status of infrastructure delivery in remote Australia (link here). In 2006 the national Community Housing and Infrastructure Needs Survey was discontinued, removing the only national and objective assessment of infrastructure shortfalls in remote communities [h/t Jon Altman]. Hopefully, with the addition of target #9B, the current federal Labor Government will do something about re-establishing the CHINS.

 

Without wishing to take issue with Morton’s overarching thesis, I do wish to outline an alternative and in my view more accurate analysis of the political and bureaucratic history that has contributed to the current deep seated crisis in remote housing provision, and the concomitant demographic implications which in turn are contributing to (but are not necessarily the major cause for) the substantial challenges in the NT’s major cities and towns related to homelessness, public drunkenness, and the appropriateness of police and private security firms responses (link here). While these issues are perhaps most visible to the national gaze in the NT, similar issues exist in other jurisdictions with remote communities. My interpretation is important because it plays into the policy solutions that are required.

 

I disagree with Morton in relation to his rolling up of remote housing issues (and the related 2008 NT local Government reforms) into the Howard Government Intervention. The two processes largely overlapped but were and remain conceptually separate. It is undoubtedly the case that in the minds of many Aboriginal residents of the NT, the two are conjoined. The motivation for the intervention was primarily to create an electoral distraction, which conveniently involved a subliminal dog whistle to the far right built around inflaming debate around allegations of child abuse and blaming Aboriginal people and communities for the dysfunction and disadvantage they suffered. It was deliberately punitive and sought to wedge the then Labor Opposition in the leadup to an election. Labor pragmatically went along with the associated legislation, including provisions that removed the application of the Racial Discrimination Act. As an aside, it is worth noting that there is no constitutional restraint on a future government acting similarly. The case for substantive constitutional reform is far from resolved, notwithstanding that it will be a generation before momentum to do so and the political will to do so might be tested.

 

Following the 2007 election, Labor was hamstrung by its lack of numbers in the Senate and so could not repeal the most egregious elements of the Intervention legislation. Instead, it sought to ameliorate the impact of its previous pragmatism by investing very considerable amounts of funding in its Stronger Futures policy (link here). Labor also pursued a range of national partnerships focussed on disadvantage in remote regions nationally, the major one being the National Partnership on Remote Indigenous Housing (NPARIH) which allocated $5.5 billion over ten years.

 

In relation to housing, Morton argues that it was the shift of responsibility for managing community housing that is at the root of the problem. He writes, quoting Ms Young’s niece:

“In this community we used to have our own – we called it the Progress Housing Association – that used to be owned and controlled within the community, by community people working together. “And now as soon as the [Northern Territory] Intervention came out, that was the one that wiped everything out.”

Following the NT Intervention, led by former prime minister John Howard and extended by his successor Kevin Rudd, the right to manage community housing was taken from residents, with an emergency lease handed to the NT government. Later, the Commonwealth convinced residents to sign over the housing stock on a 40-year lease to the federal government in exchange for maintenance and funding for repairs. They offered no alternative. As soon as the lease was signed, the Commonwealth sublet the entire arrangement to the NT government, which has had responsibility ever since.

 

In 2017, I published a post (link here) where I discussed these issues, and argued that the changes in responsibility were required because previously governments had not been prepared to provide adequate funding. Leasehold tenure was required to ensure that Governments had a legal responsibility to meet the needs of tenants. Previously, that responsibility was held by land trusts on Aboriginal land (this is still the case) and Indigenous community housing organisations (ICHOs) within communities, but tenants (and Indigenous controlled legal services) were never prepared to initiate litigation against Indigenous landlords. In that post, which was critiquing a supposedly independent review of NPARIH, I wrote (inter alia):

 

Fourth, property and tenancy management (PTM) is given a lot of attention in the report, again with virtually no data presented to back up the points made. The suggestion in section 5.1.1 that PTM was ‘sidelined’ in the early delivery of the program is mere assertion and in my view is just wrong. It ignores the fact that before the program existed, there was virtually no funding and no focus on PTM by ICHOs. The shift of responsibility to state housing authorities under the program, and the requirement for 40 year leases to underpin all investment, meant that the states were for the first time responsible for tenancy management as part of their landlord responsibilities. This was a key objective of the program, and so to argue that it was ‘sidelined’ is tendentious. The NPARIH Review of Progress (2008-2013) released in 2013 (link here) reached a different conclusion, noting that:

There has been considerable progress with property and tenancy management implementation overall, but key elements such as reformed rent setting and tenant support services have not kept pace with capital works delivery in all jurisdictions. (p.11).

Moreover, there is absolutely no mention of the current [ie LNP] Government’s decision in 2015 to cut $95m from the forward estimates for PTM (refer to para 2.15 and footnotes 28 and 29 in the recent ANAO report on the Community Development Program for the rationale for this cut; …. nor any analysis of the performance of the new Community Development Program in delivering housing repair and/or tenancy management services which was the rationale given by the Minister in Estimates in 2015 when he was queried on the cuts.

 

Rather than blaming the Intervention, or the shift to community leasing as the source of the current neglect, I would point directly at the issue of funding. Chronic under-investment by governments in remote housing has been the fundamental cause of the ongoing disadvantage confronting remote communities and has undoubtedly played a major role in contributing to chronic overcrowding, poor health, poor educational outcomes, drug abuse, domestic violence and other symptoms of fundamental dysfunction. I published an article on this issue in Inside Story some years ago (link here). I am not suggesting that housing is the magic bullet, merely that it is an essential element in addressing the deep-seated disadvantage that disproportionately targets residents of remote communities.

 

One further policy implication that deserves serious consideration by the Commonwealth and the NT Land Councils are the consequences of these decisions for dwellings and other facilities on Aboriginal land leased by traditional owners to Aboriginal and non-Aboriginal tenants.

 

The upside of these recent cases in the NT Supreme Court and the High Court is that it will force governments at both Commonwealth and state levels to reconsider the adequacy of their investment in remote housing, to revisit the split between capital and recurrent expenditures in their social hosing programs, and to think again about the benefits of providing much greater support to innovative community housing models of housing provision and management. The persistence of the late Ms Young, her community, and it must be said, her lawyers, has paid off and has delivered what may well turn out to be the most consequential policy change for remote communities in the last decade.

 

 

Disclosure: I was from 2002 to 2006 the CEO Housing in the NT. From 2008 to 2012, I was an adviser to the commonwealth minister responsible for remote housing programs.

 

7 November 2023

The ongoing remote housing debacle

 

They say this town is full of cozenage:
As nimble jugglers that deceive the eye,
Dark-working sorcerers that change the mind,
Soul-killing witches that deform the body,
Disguised cheaters, prating mountebanks,
And many such-like liberties of sin.

The Comedy of Errors, Act 1, Scene 2.

 

On 28 February, the front page of The Australian published a story and graphic photograph (link here behind paywall and Sky News link here) of a family from Utopia who had been living on a concrete slab fifteen minutes’ walk from the Alice Springs CBD for two years (‘Invisible, yet they live in plain sight’). The Australian also published an editorial (‘It’s time to change the picture’) arguing that what it termed ‘housing failure’ is yet another wake-up call from remote Australia.

 

The news stories quote South Australian Senator Kerryn Liddle raising the plight of the family, mentioning nine children, and asking why no-one has done anything over the past two years. The family had come to Alice Springs to access dialysis treatment for a family member. Graphic proof of the human cost housing crisis not just in Alice Springs, not just in the NT, but across remote Australia.

 

This blog has given the housing crisis in remote Australia significant attention over the past five years (link here and link here and link here and link here and link here and link here and link here and link here and link here) but the issue continues to bedevil the nation. In those posts I have documented how the Rudd Government allocated $5.5bn to the National Partnership Agreement on Remote Housing (NPARIH) in 2008, how the end of program review orchestrated by then Minister Scullion was deeply flawed, and characterised by an inability to come clean about the real agenda, how then Minister Scullion oversaw cuts of a couple of hundred million for Repairs and Maintenance (as it would not adversely impact statistics on new house builds), and eventually allowed NPARIH to lapse across all jurisdictions except the NT where the Commonwealth is the landlord for 5230 housing dwellings across 72 town camps and remote communities (PC 2022:429 link here).

 

I also documented reports by Infrastructure Australia that initially excluded housing as social infrastructure, then included it, and how it was then directed by the former Government to exclude it from their analysis (link here and link here and link here and link here). Those posts also demonstrated that NPARIH had a tangible and positive impact on reducing overcrowding, but that there remained an outstanding need (see below). In a more academic context (link here), I have documented how these changes were part of a deliberate and more comprehensive effort to reduce Commonwealth expenditures on Closing the Gap, and to shift funding and policy responsibility for outcomes to the states and territories. To repeat, my research documented how these strategies were intentional, and have in large measure been successful in shifting funding responsibility (and thus political responsibility) away from the Commonwealth, and to the states and territories.  

 

The effective removal of virtually all funding for remote housing, relying on the fig leaf that mainstream programs will somehow fill the void, will have already ensured declines in the quality and number of housing assets across remote Australia, and concomitant increases in overcrowding. These entirely predictable consequences (and their less predictable ramifications) will continue to play out for at least five years and probably a decade even were governments to initiate a major investment effort today. The likelihood of such a policy reversal occurring seems highly unlikely anytime soon.

 

So what is the current state of play?

 

In this post, I can only address the most salient developments and point to the relevant reports and processes that are influencing current policy developments.

 

In August 2022, the Productivity Commission published its Study Report on the mainstream National Housing and Homelessness Agreement (NHHA) (link here). Its headline finding was

The National Housing and Homelessness Agreement — intended to improve access to affordable, safe and sustainable housing — is ineffective. It does not foster collaboration between governments or hold governments to account. It is a funding contract, not a blueprint for reform…

The focus of the next Agreement should be on improving the affordability of the private rental market and the targeting of housing assistance. Improving the capacity of low-income renters to pay for housing and removing constraints on new housing supply are key to making housing more affordable… … State and Territory Governments should commit to firm targets for new housing supply, facilitated by planning reforms and better co-ordination of infrastructure…. The $16 billion governments spend each year on direct housing assistance could achieve more if it was better targeted to people in greatest need...

 

The Study Report includes a chapter which provides a comprehensive overview of the state of Indigenous housing policy nationally, sets out a persuasive case for reform and makes a series of largely sensible recommendations. To highlight just one data point amongst many, the report notes (page 33) that Aboriginal and Torres Strait Islander people, compared with other Australians are 16 times more likely to live in severely overcrowded dwellings. One of the crucial issues with adopting a mainstream approach in remote Australia is that the interplay of Aboriginal tenures and the housing system means that there is very little affordable and private housing provision. Social housing is the predominant mode of housing provision. A further point noted in the Study Report, but perhaps not given adequate emphasis is that housing (and essential services) are crucial social determinants of health, including mental health, and thus play into a much wider policy domain than the mere supply of accommodation (important as that is).

 

The next National Housing Agreement is currently being negotiated between the Commonwealth and the States and territories. Accompanying this are major changes to the mainstream policy architecture including a legislated $10 billion Housing Australia Future Fund (HAFF) designed to assist in financing 30,000 new housing units nationally over five years, a new statutory Housing Supply and Affordability Council, and a new National Housing and Homelessness Plan. When first announced, the Greens criticised the 30, 000 new houses commitment as inadequate (link here). In her media release announcing passage of the HAFF legislation through the lower house, Minister Collins announced that $200m of the investment returns from the Fund would be allocated to repair and maintenance of housing in remote communities (link here). While welcome, it is not clear what the national quantum of necessary maintenance investment is in existing and projected remote community housing stock. It is thus impossible to determine whether this is in fact a significant investment or mere tokenism. In particular, were the Government to provide greater national context this would indicate whether this investment can or will be used to leverage increased investment from the states and territories.

 

The Indigenous Australians Minister has recently released the Commonwealth Closing the Gap Implementation Plan 2023 (link here). It lays out the Commonwealth strategy in relation to Outcome 9a and 9b which relate to reducing overcrowded housing and the provision of essential services in discrete communities. The Implementation Plan lists Minister Julie Collins (whose portfolio is situated within the Treasury portfolio) as responsible for target 9a and Ministers Catherine King (Infrastructure) and Assistant Minister Anthony Chisolm (Regional Development) as responsible for target 9b.

 

Target 9a is specified in the following terms: By 2031, increase the proportion of Aboriginal and Torres Strait Islander people living in appropriately sized (not overcrowded) housing to 88 percent. This is a national target that, in theory, can be fully met without necessarily addressing the deep housing needs across remote Australia. There is thus an imperative for explicit policy focus on allocating resources based on levels of need.

 

The ABS estimates that in 2031, there will be 1.1 million Indigenous Australians. If the target is met but not exceeded, that will leave 12 percent (or 132, 000 people) in overcrowded housing. The highest levels of Indigenous overcrowding are in remote Australia including the NT, the Kimberley and north Queensland.

 

The new target 9b is specified as follows: By 2031, all Aboriginal and Torres Strait Islander households: # within discrete Aboriginal and Torres Strait Islander communities receive essential services that meet or exceed the relevant jurisdictional standard; # in or near to a town receive essential services that meet or exceed the same standard as applies generally within the town (including if the household might be classified for other purposes as a part of a discrete settlement such as a “town camp” or “town based reserve”.) There is considerable devil in the detail of this target, for example, just what are the ‘relevant jurisdictional standards’. I don’t have space to explore these issues here.

 

The Implementation Plan for targets 9a and 9b might best be described as establishing a holding pattern rather than a clear plan for achieving the target. The Plan highlights a small number of funding packages ($200 million from the HAFF; $100 million to the NT Government for homelands housing possibly from the ABA; and $150 million from the National Water Grid Fund for regional and remote water infrastructure projects). The major risk to meeting these two targets is that the sum total of resources from all sources will not be adequate. The Implementation Plan makes no effort to cross-reference or identify the levels of housing and essential services related investment in the remote state and territory jurisdictions, so there is no way that readers of the Plan can make their own assessment of risk related to targets 9a and 9b. Should any readers be inclined to go seeking this information in the state and territory Implementation Plans, they would find that they are for one year only, and comprise a bewildering array of process issues and minor funding commitments, but no accessible information assisting in understanding how the implementation process is progressing.

 

For example, the first (undated) NT Closing the Gap Implementation Plan finalised in August 2021 (link here) focusses only on the Priority Reforms, and provides no information on how the NT proposes to meet specific targets. It does mention (p.4) that 61.6% of NT Aboriginal people live in overcrowded housing. The 2021/2022 Closing the Gap Implementation Plan Annual Report (link here) provides more data on households (not individuals) (p.16) which indicates a reduction of 2.3% in remote community public household overcrowding between 2019 and 2022 — from 57% to 54.6%. This data is accompanied by a footnote warning of potential undercounting of occupancy figures. Again, there is no information on how the NT is seeking to reduce overcrowding.

 

The Commonwealth Implementation plan appears to have been developed independently of any hard headed assessment of the adequacy and projected funding from the states and territories, and perhaps more importantly, of the adequacy of the strategies adopted by the states and territories. This reflects and continues the former Government’s approach under the National Agreement on Closing the Gap of positioning the Commonwealth as (a lesser) one among equals, rather than a first among equals, or more appropriately, as the ringmaster oversighting the performance of the state and territory circus. A similar issue applies across the Commonwealth: the Implementation Plan gives primary responsibility to relevant Ministers (often multiple) yet nowhere does it state that the Minister for Indigenous Australians has an overarching remit and the authority to pull together, coordinate and in the ultimate resort to ensure compliance with the various cross agency responsibilities. Without such an explicit and formal remit, the coordination task across the Commonwealth will inevitably slide into a miasma of process.

 

Finally, the Commonwealth Implementation Plan mentions the National Housing and Homelessness Plan, but fails to commit to adopting the Productivity Commission Study Report recommendations (it will merely take them into account), in particular regarding needs based funding allocations. In my view, this is a major gap in the Implementation Plan.

 

So Where to from Here?

 

In 2018, in an article for Inside Story (‘Tactics versus Strategy in Indigenous Housing’) (link here), I identified a remote housing funding shortfall of $9 billion over the decade to 2028 if the then levels of overcrowding were to be effectively addressed. In the event, the Commonwealth walked away from the national remote housing program reducing its outlays to approximately $110 million pa focussed solely on the NT where the Commonwealth has direct landlord responsibilities for 5230 dwellings in town camps and remote communities.

 

Notwithstanding the demonstrable levels of need, the current Commonwealth Government shows no signs of reversing the previous Governments cuts. Not only will this ensure that current levels of deep disadvantage across remote Australia continue for at least a decade, it will constrain improvements in health and social well-being and likely exacerbate existing demographic shifts towards urban centres. While adequate and maintained housing is not the entire solution to the appalling conditions in many remote communities, and needs to be complemented by other infrastructure such as clean water, sewerage, power, it is a prerequisite for sustained improvements in health, employment, education, and for reductions in alcohol and drug abuse and family violence. Unfortunately, our political system is finely attuned to meeting the needs of the best organised interests and the broader electorate, within a zero-sum budgetary envelope. In these circumstances, it is worth considering what options there might be with a more constrained budgetary impact.

 

The following suggestions are high level and thus involve a degree of devil in the detail. Nevertheless, it is incumbent on advocates for improved housing, and indeed the current Government to think more laterally about such options if the option of increased investment is not feasible.

 

First, in my Inside Story article, I canvassed the idea of a Government owned corporation being established (which might joint venture with Indigenous corporations) with access to an effective Commonwealth guarantee and the capacity to borrow funds from private sector sources to build, own and rent out housing in remote communities. Such an initiative would tackle the shortage of housing, and of staff housing, in remote communities (which acts as a disincentive to attract and retain both locally engaged and external staff) and would open up new sources of private-sector capital for investment in remote locations.

 

Second, in a new environment where the majority of housing investment must be sourced from either mainstream Commonwealth programs, and / or state and territory programs, it is incumbent on the Commonwealth to adopt a much more focussed and robust approach to ensuring that these sources of investment are responding to the needs of remote communities. So for example, this would suggest that the Commonwealth Indigenous Affairs portfolio should step up and take a much more active role in encouraging states and territories to maximise their investments in remote housing, and take a much more robust  ‘coordination’ role vis a vis relevant Commonwealth agencies and programs such as the National Housing and Homelessness Agreement, and the operations of the Housing Australia Future Fund. Similarly with the operations of the Infrastructure portfolio. There is a case for looking much more closely at the operations of the North Australia Infrastructure Facility (NAIF), and whether there are any operational changes that might be made to increase investment in one of the major infrastructure assets across northern Australia, the totality of the remote housing and community infrastructure asset base.

 

Third, it is time the Commonwealth established a truly independent and forward looking review of the remote housing challenge the nation faces. The 2017 NPARIH Review (link here unfortunately without a link to the actual report) was fundamentally flawed (link here), and even so was then ignored. It was backward looking, whereas what is now required is a review that sets out the extent and parameters of the challenge, assesses the likely demographic changes and implications of various scenarios, identifies emerging risks arising from climate change and other societal trends, and examines in detail options for the most effective architecture of the remote housing sector (social housing, community housing, or both?) as well as innovative financing of remote housing. In proposing such a review, I am seeking to focus on the systemic and structural drivers of housing exclusion and disadvantage rather than the lived experience that flows from those systemic constraints. While there is an argument that such an independent review should be given a broader remit, the risk of a deeper crisis in the narrow housing sector emerging in the coming decade are such that I would suggest a narrow focus would be best at this point. That is not to downplay the broader challenges facing remote Australia, though I would argue that they are in most respects amenable to clear sighted policy development by policymakers.

 

Fourth, the poorly conceptualised and drafted Closing the Gap housing and essential services targets 9a and 9b need to be revised to ensure that government focus on closing the full gap, not part of the gap. The Implementation plans that have been adopted to date are next to useless and require a major overhaul. They need to be strategically focussed on the targets identified and list proposed actions. Not data, not miniscule funding grants, not good intentions, not more process. Housing and essential services are tangible and susceptible to clear measurement. Five yearly updates in the census will not cut it. Nor will national data sets that are not broken down at least into urban, regional and remote.

 

In conclusion, the policy choices made over the past five years in relation to remote housing are retrograde and will have very real consequences: for taxpayers, for the population of remote Australia, both Indigenous  and non-Indigenous, and most importantly for the residents of these overcrowded and under-maintained houses across remote Australia. Over fifty percent of those individuals are under 25 and the overcrowding will have lifelong consequences for the opportunities that are within their reach. These issues are just one part of the wider cataclysm (link here) impacting remote Australia. I am certain that within a very few decades, Australians across the political spectrum will pass an extremely negative judgment on these decisions, and the decisionmakers that shaped them.

 

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.

Remote Housing Watershed: rampant political chicanery.

The ten year National Partnership on Remote Indigenous Housing, renamed the National Partnership on Remote Housing has completed its ten year course, and expired on 30 June. I won’t present a barrage of statistics, as my previous posts have done all that (link here and here) but will merely assert that the National Partnership over its ten year life made a substantial difference to the levels of overcrowding, community infrastructure and quality of housing in scores of remote communities and town camps on the edges of major towns across remote Australia.

The Commonwealth has failed to renew the ongoing financial investment directed at improving social housing for the most disadvantaged citizens in the nation. Instead, it decided to cut a deal with the NT Government where it allocated $110m per annum for five years to match the NT Government’s earlier decision to commit a billion dollars over ten years. The Minister has apparently been in negotiations with South Australia, Queensland and the Western Australian Government, but so far no agreements have been announced.

The WA Government has recently mounted a public campaign directed at gaining the Prime Minister’s attention (link here) but the likelihood of a major breakthrough appears low.

The Commonwealth has successfully framed this issue as a fight between the Commonwealth and the States. In its most recent manifestation, Minister Scullion’s reaction has again been to play the man and not the ball (link here) and provide the Western Australian media with a media release directed squarely at WA Treasurer and Minister for Aboriginal Affairs Ben Wyatt and titled ‘Little Wyatt lies on remote Indigenous housing’. Dated 29 June 2018, as of today (2 July, 3.30 pm) it has yet to appear on Minister Scullion’s media release web site. I cannot remember seeing a ministerial media release which included such personal and vitriolic abuse, which literally attempted to belittle the Western Australian Minister and merely succeeded in squandering the little credibility Minister Scullion retains. As a public service, I have transcribed it in full in the previous post (link here).

To his credit, Minister Wyatt has gone public and called out the Minister on his bullying behaviour. See the Guardian article on the issue by Calla Wahlquist (link here).

But turning to Minister Scullion’s media release, it is a long time since I have seen a media release so redolent of flagrant hypocrisy, disingenuousness, and outright policy chicanery. Of course we haven’t seen the relevant correspondence, but according to the West Australians, the Commonwealth ‘offer’ is for $60.9m over three years, down from the $360m it would have received from the Commonwealth had NPARIH been rolled over. Minister Scullion states:

 As I have always said, the Commonwealth remains committed to future investment in remote Indigenous housing,

The pathetic combination of a ‘commitment’ to some unspecified level of future investment is breathtaking in its hypocrisy. Here is a minister who has allowed a $550m per annum ten year program to lapse and replaced it with a $110m per annum commitment for five years in the NT, and ‘ongoing negotiations’ with three other jurisdictions claiming the moral high ground. His rhetoric is disgraceful. As I have previously noted, given that the NT represents about half the outstanding remote housing need, the Commonwealth appears unlikely to offer more than $220m per annum in total, and not for ten years. Such an outcome would represent a $300m per annum cut to the Commonwealth’s remote housing funding.

Minister Scullion’s media release goes on to cite as evidence of Commonwealth effort vis a vis State efforts, the Commonwealth investments over ten years which were committed and allocated by the Rudd / Macklin administration, and which he spent years attacking in Senate Estimates. As I have stated before, the area of social housing is a joint federal/state responsibility, but it is the Commonwealth which is moving to abrogate its responsibility. The comparisons made in the last two paragraphs of Minister Scullion’s media release, where he accuses the WA Government of racism for not using mainstream funds from the Commonwealth and thus not pulling its weight in remote communities ignores two salient facts. The first and most obvious is that the state allocated mainstream funds to urban and regional social housing which itself includes higher than pro rata levels of Indigenous tenants. In a situation where a remote housing program existed, it was not inappropriate for the states to allocate mainstream funding to urban and regional centres.

Second, the largest housing assistance expenditure program in the nation is Rent Assistance. It is administered by the Commonwealth and totals $4.4bn per annum. It assists low income tenants in private rentals and community housing. In remote Australia, this program has very little traction for the simple reason that there is a very limited private rental housing market. The result is that remote Indigenous citizens are effectively excluded form the Commonwealth’s largest housing assistance program. This fact in itself provides a substantive policy rationale for the continuation of the remote housing program by the Commonwealth.

Minister Scullion’s criticism of the State and its Minister is not only unwarranted and thus unfair, but applies to the Commonwealth and arguably to the Minister himself, since notwithstanding much rhetoric, he has made virtually no headway on land reform which would facilitate the expansion of a private ownership and community housing options in remote communities, and thus open up access to the Rent Assistance program. For Minister Scullion to accuse the Western Australian Government of ‘racism at its worst’ is both wrong, and deeply ironic given the actions of the Commonwealth on this issue to date.

Of course what is lacking from the Commonwealth is any considered and cogent explanation for its decisions on remote housing. It has been a rolling maul of delays, misinformation, non-information, promises, threats, and now straight out abuse. Why is it too much to ask that a Commonwealth Minister lay out in a considered and careful manner the basis for the Government’s decisions, and how they see those decisions contributing to closing the gap?

Minister Wyatt’s comments as to the ‘unsuitability’ of Minister Scullion to resolve these issues appear to be well directed. One might even go further and ask whether a person who directs accusations of racism at the WA Government while seeking to explicitly belittle an Indigenous man and political opponent is up to the job of Minister for Indigenous Affairs in the Commonwealth Government.

To sum up, I will merely set down a letter I sent to the Prime Minister earlier today:

Prime Minister

Your Government's decision to substantially cut funding for remote housing following the cessation of NPARIH /NPRH will impact the most disadvantaged citizens in the nation. It will cause ongoing social, economic and health stress for individuals, families including children, and whole communities.

What exacerbates this decision is that your Minister has deliberately set out to obfuscate, to confuse, and to blame rather than set down a set of reasoned and rational explanations for the Government's decision.

I call on you to reverse the Government's decision and reinstate a substantial ten year program to underpin the provision of social housing in remote communities.

sincerely Michael Dillon

I think that says it all. I am not holding my breath for a substantive reply.

Personal Disclosure: I worked as an adviser to Indigenous Affairs Minister Jenny Macklin between 2008 and 2011.

Too little too late: Commonwealth funding announced for NT remote housing

The Treasurer and Minister for Indigenous Affairs have announced that the Commonwealth will provide $110m per annum for five years to the NT partially matching the NT Government’s commitment to spend $1.1bn over the next 10 years. The Government’s media release is here. Here is the ABC news report (link here).

The Government also announced a package of other measures, including unspecified additional funding to funding of public hospitals, just under $100m over five years to extend the National Housing and Homelessness Agreement for five years, and a one off top up of GST revenues to the NT of $259.6m. While the Commonwealth has indicated that the purpose of the one off grant is

To help the Northern Territory Government deliver essential services, including to remote communities, the Turnbull Government will provide financial assistance of $259.6 million

it is not yet clear whether the funding agreement will specify where these funds will be spent, and what proportion will go to remote communities. Of course, because they are topping up the NT share of GST revenues which are entirely fungible, there is no effective mechanism by which the Commonwealth can quarantine these funds to particular purposes.

In relation to the remote housing funding the Commonwealth Ministers stated:

The Turnbull Government and Gunner Government have also reached agreement on remote housing and public hospital funding, providing certainty for essential services in the Territory.

To help address the housing needs of Aboriginal and Torres Strait Islander people in remote communities, the Turnbull Government has committed $550 million for five years to support remote housing in the Territory. This funding will commence in 2018-19 and will be matched by Northern Territory Government contributions, with the Northern Territory Government retaining responsibility for sub-leasing arrangements in these remote communities for the five-year period.

Minister for Indigenous Affairs Nigel Scullion said this new investment will help address severe overcrowding in remote communities.

"This $550 million funding commitment comes on top of the $1.7 billion investment into remote housing in the Territory since 2008.''

"Our focus will be ensuring Aboriginal community control is at the heart of our investment, from decision-making to employment and business procurement to ensure we deliver long term sustainable change in remote communities.''

So what does this mean for remote communities in the NT?

On the positive side of the ledger, the decision will maintain substantial spending on remote housing construction and management, which is unequivocally a good outcome. The Commonwealth investment effectively locks in the NT Government commitment of $110m per year, at least for five years. While it represents a net reduction of $50m per year in Commonwealth funding for remote housing in the NT (which has averaged $170m per year for the last ten years), the combined spend represents a net increase of around $50m in combined NT/Commonwealth expenditure.

On the negative side of the ledger, the arrangements announced today reduce the period of guaranteed funding commitments by half, down for the ten years agreed by COAG in 2008 to five years now. This is short-sighted.

Second, the funding committed by the Commonwealth may not reflect ‘new monies’ because it effectively allows the Commonwealth to avoid having to take over a large (but unspecified) number of housing assets which are on leases which would otherwise revert to the Commonwealth over coming years, and thus represent Commonwealth liabilities. This potential legal liability appears to be a primary driver of this selective investment by the Commonwealth.

Third, the funding announced is for the NT only, which represents roughly half the outstanding remote housing need across the nation. While addressing half is better than none, the situation of remote residents in SA, WA and Qld will only worsen without ongoing investment in remote community housing assets.

Fourth, there are clear indications (link here) that the outstanding need in the NT is both large and growing, and while the new investment will probably prevent the remote housing situation substantively worsening in the NT over the next few years, it will not guarantee any substantive improvements in overcrowding levels and the ongoing state of the housing asset base. This investment thill thus not do much to ‘close the gap’ in overall disadvantage between Indigenous and non-Indigenous Australians.

Finally the five year time frame, and as yet largely unspecified management and decision making arrangements for the Commonwealth funding are potentially problematic. In particular, while the Government asserts its objective is to ‘deliver long term sustainable change in remote communities’, the delay in delivering certainty regarding ongoing funding, the limited five year investment horizon, and the uncertainty over the management arrangements will significantly increase the risk of program failure and/or sub-optimal outcomes going forward.  For example, if future housing allocations are essentially ad hoc and one-off, there will be limited incentives for relevant businesses and community organisations to invest in training apprentices over a sustained period. The Government’s rhetoric is fine, but implementation capability will be crucial to maximising benefits for Indigenous communities and people, and at present there is little information to hand on how the program will be managed to minimise these risks.

If we get up in the grandstand, this funding announcement needs to be welcomed as it provides tangible assurance for NT remote residents that housing conditions will not substantially worsen overall. But it is inadequate to significantly reduce housing disadvantage in the NT, and implicitly provides political cover for the Commonwealth to walk away from remote housing funding in the three states which have substantial remote Indigenous populations.

In my view, the management of the potential renewal of the remote housing strategy has been both disastrous and appalling.  The Government has effectively dismantled a program which was making a huge difference to people’s lives in remote Australia. The announcements today go some small way to backtracking on those mistakes, but will not address the structural challenges which if left unaddressed will lead to major negative consequences for both governments and remote indigenous residents over the coming decade.

I have previously estimated (link here) the funding requirement in this area as approaching $9bn over ten years. Today’s announcement, dealing with a jurisdiction which represents around half the outstanding need, commits just over $1bn in combined NT and Commonwealth funding over five years, or less than 15 percent of this estimated outstanding need over the coming decade.

In these circumstances, the Senate should look to establish a Parliamentary Inquiry into the housing needs of remote Australia over the coming decade.