Regulatory inaction: implications for Indigenous interests

 

We must not make a scarecrow of the law,

Setting it up to fear the birds of prey,

And let it keep one shape till custom make it

Their perch and not their terror.

Measure for Measure Act two, Scene one.

 

A pervasive issue across the Indigenous policy domain is the absence of effective ― or in many cases any — regulation of both private and public sector activities impacting Indigenous citizens.

Conceptual scene setting

This is a much wider issue than just the impacts on Indigenous communities, organisations and citizens, but there are some factors that make it a more serious issue for these Indigenous interests.

First, the poor effectiveness of regulation across mainstream domains is the result of sustained lobbying and advocacy (much of it behind closed doors) by interest groups with a vested interest in loose or non-existent regulation.

To cite just a few examples, sub-standard regulation has received extensive media coverage in the past decade in the banking, financial services, aged care, disability services, out of home care, funeral insurance, alcohol retail, food labelling and gambling industries to mention only those areas that immediately come to mind. There are two elements involved in considering this issue: one is the adequacy of the regulatory oversight of existing regulations; the second is the degree to which the existing regulations are adequate or alternatively not required. Both elements play into the issue of regulatory failure.

In many of these cases of regulatory failure, the persistence of poor social or economic outcomes has led to the commissioning of one or more national or state level reviews, coronial inquiries, or royal commissions. It is rare for the results of such reviews and inquiries to be implemented wholeheartedly and quickly; the normal response of governments is to initiate further consultations or reviews which slow the impetus for reform and are then the subject of further lobbying and pressure from the interest groups with most to lose from substantive reform. In my observation, governments rarely do more than resort to minimal reforms, while leaving the industry interests that would be impacted by substantive reform substantially unaffected. The status quo ante is usually maintained and indeed often reinforced.

The reason these mainstream regulatory failures are more serious for Indigenous interests is that Aboriginal and Torres Strait Islander citizens are more likely to be economically and socially disadvantaged and are thus more vulnerable and at greater risk of being adversely impacted by mainstream commercial activities that avoid proactive regulatory oversight.

Second, Indigenous interests are not (yet?) as well organised as the industry-based interest groups to exert countervailing advocacy pressure, particularly on mainstream policy issues which are nevertheless crucial elements in their social and economic lives.

Third, the cultural and ideological narratives that are ubiquitous across the Indigenous community (e.g. the importance of self-determination, or community control in service provision), and which are crucial elements in building and maintaining notions of Indigenous identity and culture have unintended negative side-effects insofar as they shift the focus of Indigenous organisations and even peak advocacy organisations away from mainstream issues and towards Indigenous specific issues.

Fourth, the reality is that the regulation of many mainstream issues falls to the states and territories, and this means that the challenge of monitoring regulatory failures, proposing solutions, pressuring governments to pursue reform and devising policy solutions spans not just one national policy domain, but an additional eight state and territory policy jurisdictions. The result is that effective monitoring requires the creation of multiple state and territory based Indigenous advocacy organisations with the capacity to follow an expansive portfolio of public and private sector activities within their sectoral remit.  

Of course, regulatory failure is not just an issue in the mainstream. It is endemic in the Indigenous specific policy domain, and in many instances, because of the nature of the composition of the Indigenous policy domain, the activities that are in effect under-regulated are operated by Indigenous controlled corporations serving their Indigenous constituencies. There are at least three factors that contribute to sub-optimal regulation across the indigenous policy domain. First, governments who are loathe to regulate robustly in the mainstream do not wish to regulate to a higher standard in the Indigenous policy domain. Second, government regulators do not wish to be perceived as racist, or to be compromising Indigenous self-determination. And third, increasingly, regulators in the Indigenous policy domain report to Indigenous ministers, or are staffed by Indigenous bureaucrats, who may be reluctant to robustly address governance and service failures by Indigenous controlled entities.

Regulatory failure (or even regulatory weakness) whether in the mainstream or the Indigenous domain is not in the public interest. It disadvantages consumers in private sector markets and contexts, and service delivery constituencies in public sector contexts. Once embedded, it creates the preconditions for future sub-optimal performance with concomitant adverse impacts on intended beneficiaries. It is under-reported by the media with most publicity focussed on the deficiencies of organisations or individuals, and not on the absence or systemic weakness of the regulatory oversight that might have prevented the fraud or corruption or service mismanagement that attracted the media attention. A key reason for under-reporting is that regulatory failure is invariably systemic in its impacts, and it extends beyond the time horizon of most journalist and media reporting. Another is that it is not as susceptible to being framed as a simple narrative.

Another reason it is not in the public interest is that regulatory failure is a form of government failure, and in many cases, it is the result (whether intentionally or unintentionally) of implementation failure by governments. It thus contributes to the much more common elements of government dysfunction, at policy, program and even project levels; failures that inevitably contribute to the decreasing levels of trust in government in Australia (link here). While trust in government in Australia is higher that the rest of the world (link here), a trust level of fifty percent is hardly a ringing endorsement.

Regulatory failure is thus simultaneously endemic and invisible; it has multiple causes and is often both complex and systemic in its impact.

Real world examples

To bring this discussion down to tin tacks, I want to briefly point to two separate sets of media reports that recently caught my attention, both of which involve substantial and serious regulatory failure, and both of which have had, and continue to have, a disproportionate adverse impact on Indigenous citizens. The discussion of each of these cases focusses on the high-level regulatory implications, and I do not attempt to summarise or consider every aspect of each case.

On 9 May 2025, the AFR ran an investigative report headlined How a Sydney billionaire became the pokies king of Alice Springs (link here). This was followed up on 23 May 2025 by a report (link here) based on an interview with former NT Chief Minister (and longstanding backroom political operative) Shane Stone. Headlined Former NT chief’s pokies regret: ‘I wish we never had them’. Taken together, these articles point to extraordinary levels of on-site gambling in the NT’s casinos and other premises, extremely high rates of Aboriginal participation in gambling at these venues, low to non-existent levels of regulation of the use of gambling machines, high levels of revenue to the NT Government and extraordinary levels of influence by gambling industry interests over the NT Government (whichever party is in power),  and non-existent levels of accountability and responsiveness of elected governments for the community harm flowing from widespread gambling addiction. According to the AFR, the NT has the highest per capita expenditure on gambling of any jurisdiction in the nation, and the highest per capita government revenue from gambling:

The Northern Territory is the state with the least scrutiny, the loosest probity and the lowest taxes… “I would argue that the regulators, particularly in the Northern Territory, are not active participants in the regulatory process,” gambling expert Charles Livingstone says. “By and large, it’s left up to the venues to regulate themselves, which is entirely like the fox looking after the hen house.”

The AFR report spends considerable time explaining how little oversight is applied by ASIC to the owners of the major gambling venues in the NT and contrasting the numerous community activists calling for gambling reform with the slow and in-camera legal processes applied to any challenges to even the most minimal expansion of access to gambling in Territory towns. Increasingly, community activists are calling for national intervention.

Shane Stone’s statements to the AFR are simultaneously an apparent mea culpa and change of heart (“If I’d had the courage of my convictions, I would have wound back the [poker machine] numbers, but I didn’t do that,”) and a nuanced and politically astute nudge of the political discussion towards subsidiary issues such as limiting access to cash within gambling premises while making a strident argument against national intervention and in favour of state and territory led reform processes. Yet the states and territories are both part of the problem and less visible to the national constituency necessary to drive national reform. At the risk of being accused of extreme cynicism, I am left wondering whether the former Chief Minister is yet to find the courage his convictions require. The AFR sought and obtained comment from current federal ministers with gambling related responsibilities. Compared to the mountain of regulatory reform required in the NT and beyond, their comments amount to a hill of beans. I recommend interested readers take a close look at both articles.

The bottom line is that mainstream and national regulatory disinterest and failure in relation to on-site gambling has had, and continues to have, seriously adverse impacts on vulnerable Aboriginal citizens in the NT. This impact is not felt just by those who gamble, but by their families and intimate partners. Recent ANU research (link here) suggests that between 5 to 8 percent of the national mainstream population is adversely affected by gambling. Those most at risk are low income and economically disadvantaged. These figures are likely to be higher for Aboriginal residents in the NT.

The second case worth mentioning was published on the front page of the Sydney Morning Herald on 24 May 2025 and in The Age (link here $) under the headline ‘Health bosses rack up $400, 000 travel bill’. The report deals with what appears to be endemic and enduring dysfunction within a major community controlled Aboriginal medical service, CTG Aboriginal Health Services, operating across at least three major western NSW towns and providing a wide range of medical services. CTG’s funding last year exceeded $11m and was sourced from the Commonwealth, the NSW Government, and Medicare rebates according to its annual report (link here). The headline focusses on what numerous complaints allege is unwarranted travel by senior executives while financial constraints limit the provision of health services to its constituency. There is no allegation of fraud, but it is clear that there are serious internal management issues not to mention an extraordinary lack of judgment by the organisation’s leadership. The article cites numerous sources alleging that the provision of health services to Indigenous residents across a large part of western NSW have suffered. Notwithstanding its ongoing funding, its annual report provides no information on its incorporation status, no financial report, and no information on its governance processes including how its Board is appointed and the extent to which it represents the wider Indigenous community across its geographic span.

These shortcomings reflect poor governance practices and, in my view, do not meet the requisite levels of downward accountability to the community let alone upward accountability to the funding agencies and taxpayers generally. It is easy to criticise the organisation, and on the facts described in the SMH article, such criticisms appear warranted. Yet in my view, these shortcomings reflect a deeper level of regulatory failure by the relevant areas within the Commonwealth Department of Health, Disability and Ageing and the NSW Government.

The standard of public accountability provided in CTG’s annual report in my view is far below what a funding body should expect in exchange for its continued funding. There is also a suggestion in the SMH report that the ongoing dysfunction has been going on for some years without being resolved. This raises the further question: if the regulation of this organisation is so lacking, then what is the quality of regulation over other similar organisations? How widespread is this regulatory failure which allows internal management dysfunction to endure for extended periods in key health services delivery organisations utilising government funds, and which adversely impacts the most disadvantaged Australians.

Again, the bottom line is that poor upward and downward accountability for key health services in one of our largest states and across an expansive area of regional communities appears to be tolerated and is likely the default modus operandi for regulatory oversight. This poor regulatory performance is a key driver of sub-optimal management performance by outsourced organisations delivering taxpayer funded programs and leaves the most vulnerable and disadvantaged citizens to ultimately pay the cost.

Conclusion

Mainstream regulatory failures in gambling, and the Indigenous specific regulatory failures in health services are contributors to the systemic drivers of deep-seated disadvantage. To the extent that these regulatory failures are widespread, and the default assumption must be that they are, then they work against closing the gap. It is worth emphasising this point: regulatory failure, which is a matter of technical capability for government, is conceptually a prime contributor to any effort address disadvantage. To the extent that the regulatory failure spans multiple sectors, or even spans the entire breadth of government responsibilities, the prospects of removing Indigenous disadvantage would be fatally undermined.

Closing the Gap (however you wish to frame it, and whatever targets you decide to use) is built upon a near ubiquitous implicit assumption that governments know what they are doing, are focussed on the public interest (and not private interests), and partner with or contract with entities that are fit for purpose. In turn, these assumptions (which take on the form of an ideologically based view of how our democratic system works), are based on a precondition of the effective regulation of entities operating within our economic and social realms to ensure that they are acting consistently with the public interest. If they are not acting in the public interest, then our political system is not fit for purpose.

The key to ensuring that private sector entities (operating behind a corporate veil designed to protect individuals against commercial losses and to encourage the risk taking that market economies rely upon) and public funded entities engaged to deliver outsourced government services are acting in the public interest is to focus on the quality of regulation of their activities. To the extent that regulatory oversight is defective, deficient or non-existent, the public interest will suffer, and in the real world, the victims will likely be disproportionately found amongst the disadvantaged whether in mainstream or Indigenous specific contexts.

Where regulatory failure is endemic, there is no easy fix. Governments will not pull themselves off the ground by their shoelaces. Those who are committed to seeing the public interest protected must find ways to exert strategic political influence, and to pursue, piece by piece, step by step, greater transparency by governments of their use of taxpayer resources and greater public dialogue encompassing the systemic issues that operate to undermine the public interest.

For Indigenous interests, and in particular the Indigenous leadership, there will be considerable benefits in pursuing strategies that build their organisational capabilities to monitor and exert persuasive influence on policy. Risks include the likelihood that governments or other interest groups will seek to co-opt Indigenous advocacy, and that internal dissension and external criticism will undermine the persuasiveness of Indigenous advocacy. The development of internal organisational processes and mechanisms that are both upwardly and downwardly accountable and as transparent as possible will serve to minimise such risks.  

 

27 May 2025

Yunupingu v Commonwealth: an important native title decision

 

A sceptre snatched with an unruly hand

Must be as boisterously maintained as gained

King John, Act 3, scene 3.

 

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75, Judgment of: Mortimer CJ, Moshinsky And Banks-Smith JJ. Date of judgment: 22 May 2023 (link here).

 

Today’s Federal Court Decision is momentous insofar as it decides that the native title holders of the Gove Peninsula will be entitled to compensation for any native title mineral rights they held prior to the grant of mineral leases, pastoral leases and a mission lease. This arises form the Court’s finding (against the arguments of the Commonwealth) that any native title mineral rights which existed (and which are yet to be determined) were not extinguished by the grants of pastoral leases and mineral leases over the relevant land on the Gove Peninsula, and that the requirement for the Commonwealth to pay just terms compensation for such extinguished native title rights continues in the Northern Territory.

 

The judgement, reflecting the arguments put by the parties, is highly technical and complex, particularly for non-lawyers such as myself. I don’t propose to attempt a detailed summary, nor a discussion of the legal implications of the judgment itself. I am sure that there will be a number of detailed summaries published over the coming weeks. I have included at the end of this post an appendix which sets out the Federal Court’s own high level summary of the case for those interested. 

It is as yet unclear whether this decision will be appealed to the High Court.

There was however one paragraph in the judgment that caught my attention, not for its legal import in relation to Gove, but because it plays into the particular policy responsibilities of the Commonwealth in relation to the Territories, and in particular the Northern Territory, both generally, but for present purposes for Indigenous policy.

 

Paragraph 471 states (emphasis added) :

471. Further, we do not accept the Commonwealth’s contention that when it exercised sovereign power in the Northern Territory it did so not as a national government in a federal system; rather it was “essentially performing the role of a State (as is illustrated by the fact that, in the case of the Northern Territory, the Commonwealth “stepped into the shoes” of the South Australian government)”. The NT Administration Act was an exercise of power under s 122 of the Constitution. It was subject to s 51(xxxi). There is a clear distinction between the kind of legislative power exercised over the Northern Territory as between the Commonwealth and South Australia.

 

It strikes me that the Commonwealth has over the last decade increasingly sought to position itself on Indigenous policy issues as of equivalent status as the states (and territories) in an effort to shift policy responsibility to the states and territories across the board. The issue that came before the Court is just one example of this. Another is the way in which the Commonwealth has been administering the National Agreement on Closing the Gap, and in particular, its passive approach to the quality of compliance by the states on issues such as the quality of implementation plans required under that National Agreement.

 

The fact that the Federal Court has called the Commonwealth out on the particular issues raised in this litigation is important, but should serve as an impetus for the Commonwealth to take stock and reconsider its wider positioning across the Indigenous policy domain. Afterall, the 1967 Referendum, passed with the support of over 90 percent of voters, gave the Commonwealth powers to legislate in relation to Aboriginal affairs for a reason.

 

Appendix

The Catchwords (or high level summary of the issues and decisions) to this judgment are set out by the Federal Court as follows (emphasis added):

NATIVE TITLE – claim for compensation under Native Title Act 1993 (Cth) (NTA) – where the applicant, on behalf of the Gumatj Clan or Estate Group, contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Northern Territory which, if valid, would have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights, and would have extinguished those non-exclusive native title rights at common law – where the applicant contends that the grants or acts purported to effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that they did not provide just terms within the meaning of that provision – where the applicant contends that, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) – where the applicant contends that each of the grants or acts falls within the definition of a “past act” in the NTA – where the applicant contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property – where the Commonwealth contended that the applicant’s claim should fail on a number of bases – where separate questions considered and determined by a Full Court in the exercise of the Court’s original jurisdiction.

 

NATIVE TITLE – extinguishment – pastoral leases granted between 1886 and 1903 – reservations of minerals – where the Commonwealth contended that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established) – held: any native title mineral rights not extinguished

 

NATIVE TITLE – extinguishment – Mission Lease granted in 1938 – where the Commonwealth contended that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted – where the Commonwealth contended that the legislative instrument provided for the grant of a common law lease and thus the lease conferred exclusive possession on the lessee – where the Commonwealth contended in the alternative that the Mission Lease was a statutory lease that granted rights that were inconsistent with the claimed non-exclusive native title rights – held: the Mission Lease did not extinguish or purport to extinguish the claimants’ claimed non-exclusive native title rights

 

CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the just terms requirement contained in s 51(xxxi) does not apply to laws enacted pursuant to s 122 of the Constitution – where the Commonwealth submitted that Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564 is the binding authority on this question – where the Commonwealth submitted that Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 did not overrule Teori Tau – held: Wurridjal did overrule Teori Tau and the just terms requirement contained in s 51(xxxi) does apply to laws enacted pursuant to s 122

 

CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the relevant grants and acts were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land – held: native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi) – held: a grant or act that extinguishes native title rights and interests is capable of amounting to an acquisition of property within the meaning of s 51(xxxi)

 

 

 

 

 

Alcohol policy reform in remote Australia: a potential roadmap

                Th’ abuse of greatness is when it disjoins remorse from power.

               Julius Caesar Act 2, scene 1

 

The harm from misuse of alcohol is a national problem, affecting Indigenous and non-Indigenous segments of the Australian community alike. Neither is it subject to geographic limits. Accordingly, there is a strong case for appropriate national policies balancing regulation against  the social, economic, and even cultural benefits arising from alcohol consumption.

 

Nevertheless, a strong case can be made for giving greater weight to the addressing the costs (broadly defined) of alcohol misuse in remote regions, and in particular the costs on remote Indigenous communities. The case for such a regulatory policy focus is based on the extremely high levels of disadvantage across a wide array of social indicators, including many of the social determinants of health, in these remote populations. Moreover, alcohol harm coexists with extremely high rates of disease, self harm, mental illness, suicide, domestic violence, homicide, poor education outcomes, low employment outcomes amongst remote Indigenous communities. Without seeking to demonstrate a direction of causality, there are strong intuitive grounds for assuming that causality may indeed operate in both directions. For example, alcohol misuse will within a household will impact children’s schooling, and poor education will limit opportunities, leading to behavioural issues that individuals seek to ameliorate with alcohol.

 

I don’t propose to elaborate further in this post on the evidence of adverse social and health outcomes of alcohol misuse within Indigenous communities. I refer interested readers to an excellent review of these issues by Dennis Gray et.al. from 2018 titled ‘Review of the harmful use of alcohol among Aboriginal and Torres Strait Islander people’, published in the Australian Indigenous HealthInfoNet (link here).

 

I have previously (in 2016, and 2021) written about the issues relating to the regulation of alcohol consumption in the NT (link here and link here) and more generally in 2017 (link here). These posts individually and together provide good background on the policy issues around alcohol in remote communities. In this post, I seek to argue that the problems of the NT in relation to the regulation of alcohol consumption are in fact also present in other jurisdictions with remote Indigenous populations (particularly WA), are deeper than commonly understood, and more damaging to the social fabric of remote Australia, particularly its Indigenous communities.

 

Western Australian developments

 

In WA, there is currently underway an inquiry by the Director of Liquor Licencing into Kimberley and Pilbara packaged liquor availability (link here). The following material is extracted (but is not a direct quotation) from the link just cited on the Department’s website.

 

In July 2020 the then Director of Liquor Licensing commenced two separate Inquiries — under section 64 of the Liquor Control Act 1988 — into whether restrictions should be imposed on availability of packaged liquor in nine major towns and surrounding communities across the Pilbara and the Kimberley. The list appears to not cover some major towns such as Port Hedland and South Hedland.

 

The Inquiries followed reports received from the then Police Commissioner highlighting negative impacts of alcohol in the Pilbara and Kimberley, such as crime and anti-social behaviour. Some thirty submissions have been received from “health care and social services providers, local government authorities and academics about reducing the risk of alcohol related harm.”

 

A decision to extend the date for retailers to make submission has recently been announced.

Extra time has been granted for licensees in 9 Pilbara and Kimberley towns to have a say on whether packaged liquor sales should be restricted in those communities of Western Australia.

WA’s Director of Liquor Licensing Lanie Chopping has extended the deadline for industry submissions until 1 September 2022. This is in response to requests from stakeholders, and to allow more time for careful consideration of complex issues around alcohol-related harm and packaged liquor sales.

The consultation process had previously been extended from 30 November 2021 to 1 July 2022 taking into consideration disruptions due to the pandemic and emergency management powers.

 

A section headed Next Steps provides some contextual information on the slow progress of the review:

Lanie Chopping, Director of Liquor Licensing for WA (and also the Director General, Department of Local Government, Sport and Cultural Industries) said:

“My Inquiries into whether to restrict packaged liquor sales in the Kimberley and Pilbara are still very much underway and as such I’ve extended the deadline for submissions by alcohol retailers.

“A number of things have changed since these Inquiries began, including the trial of new measures, like the Banned Drinkers Register, and sly-grogging prevention strategy and state of emergency liquor restrictions.

“Our consultation process is under review and development, and we are looking at ways to be more transparent about feedback received and how decisions are made. Updates are being made to our website to convey information currently available.” 

 

So what are we to make of all this?

 

The ongoing attention and activity by the West Australian Government, albeit often framed around issues of youth crime and and antisocial behaviour, suggests the existence of significant issues both amongst drinkers and their families, and also of significant spillover consequences for businesses and the non-drinking community.

 

Concurrently, the Commonwealth has recently introduced legislation to remove the previous Government’s Cashless Debit Card (CDC) (link here), a geographically focussed policy  which had been justified at least in part on the basis of reducing alcohol harm. Evaluations of the program produced mixed findings in relation to alcohol (link here and link here). Whatever its other policy merits and defects, the WA focus on further regulatory change suggests that the CDC program’s operation in the East Kimberley since 2017 has not made earth shattering breakthroughs in reducing alcohol harm.

 

I propose to focus on two major points. The first points to the sensitivity of government in relation to the influence of the alcohol industry. The second relates to issues of regulatory independence and transparency. These issues may not be entirely independent of each other.

 

The influence of alcohol interests

A recent article in the National Indigenous Times (link here) mentions that the WA Police Commissioner has made some rather equivocal comments on the issue of controls on the sale of alcohol:

 Earlier this week new West Australian police commissioner Col Blanch said he would support a ban on takeaway alcohol apart from light beer in the Pilbara and Kimberley if it is deemed to be the most effective option for reducing alcohol-related harm.

 

The same article mentions that the Premier has stated that he does not support the proposed bans. Responding to a submission by the previous Police Commissioner in January 2020, the Premier argued a ban on takeaway sales would be too far reaching (link here):

"The problem with a blanket alcohol restriction is it impacts those people who do the right thing ... and to a degree, it removes self-determination from people as to what decisions individual communities want to make," Mr McGowan told reporters on Thursday.

"Some communities have made the decision to go dry and I support them in that. "But if you just have a blanket approach, you are going to hurt the tourism industry and we will hurt jobs across the northwest."

 

The article just cited went on to note that full-strength alcohol would still be available at pubs and restaurants under the proposal, and that Mr McGowan has previously suggested he would prefer a banned-drinkers register as a means of tackling alcohol abuse.

 

The article also noted that the previous Police Commissioner had pointed out that a ban on the sale of full-strength takeaway alcohol in the Kimberley town of Fitzroy Crossing, driven by local Aboriginal leaders, had led to fewer hospital presentations and road deaths:

"There's a number of very, very senior Aboriginal leaders who are loudly saying 'we need to interrupt this'," Mr Dawson told Nine Radio.

"How do we provide the best possible care to vulnerable people when there is so much consumption of alcohol? "The volumes that are being sold are astronomical."

 

So on the one hand, we have the Premier, clearly an astute and accomplished politician, arguing against takeaway restrictions, while two Police Commissioners are on the record expressing support for restrictions.

 

Clearly, this is an issue that is crying out for a comprehensive and independent inquiry which documents the extent of alcohol use and misuse, identifies the social and health consequences (and costs), considers the wider ramifications to community welfare, including suicide, education, mental health, domestic and family violence, as well as the costs to tourism and other businesses in regional areas.

Such an Inquiry would then be in a position to suggest policy reforms from a position of robust policy analysis.

 

This raises the question: is the current inquiry by the WA Director of Liquor Licencing up to this task?

 

Regulatory independence and transparency

 

The publicly available details for the inquiries currently underway are to be found on the departmental web site (link here). The terms of reference for the inquiries are not publicly accessible. Nor are details of the process used to invite submissions, nor indeed are the submissions so far received. We might surmise however that the inquiry will be relatively narrow in scope, and at best will limit itself to addressing the matters raised in submissions. The delays to date are explained as arising from the pandemic and the introduction of new policy measures, both plausible explanations. It seems somewhat strange however that the extension of time for submissions is limited to alcohol retailers, on its face, a case of preferencing industry interests over community and service provider interests. A cynic might speculatively surmise that the reason for the extension is to ensure that industry viewpoints are formally on the table for the review to assess and utilise. Of course, the obverse of such an observation would be that industry interests saw no need to make formal submissions, presumably because they utilised other avenues to have their views considered and heard.

 

The Department has explained that the submissions received so far will not be made public for the following reasons:

A lot of these submissions are hard copy documents and some are very lengthy. They also contain personal information that would need to be redacted before being shared. For these reasons we intend to publish a summary of the submissions — for example themes — once all relevant parties have had an opportunity to comment.

 

Apart from its ‘dog ate my homework’ tone, this is far from best practice, and means that the arguments and views that contribute to the Inquiry are never transparently available to the public.

 

The major structural issue with this Inquiry however is the lack of independence. The Director of Liquor Licencing is simultaneously the CEO of the relevant Department. The department has been at pains to make clear that these dual roles exist, and asserts on the relevant website page that Inquiries by the Director of Liquor Licensing are independent of the Minister for Racing, Gaming and Liquor. Nevertheless, this disclosure does not amount to being independent.  Media releases from bodies such as the Liquor Stores Association of WA applauding the Director’s recent appointment as CEO of the Department do not help either (link here).

 

As an aside, it is worth mentioning that the WA legislation is almost bizarre insofar as it provides for a Licencing Commission, but effectively makes it subservient to the instructions and directives of the Director of Liquor Licencing. Thus particularly sensitive matters are not put before the Licencing Commission, but are dealt with by the Director of Liquor Licencing. This reverses normal practice elsewhere where the Commissions are independent, and public servnats are not involved in making licencing related decisions.

 

For all these reasons, the current WA Inquiry is likely to lead to minimal substantive change, more incremental adjustment, more fine tuning, providing the appearance of action while leaving the underlying determinants of the adverse impacts of alcohol misuse in Pilbara and the Kimberley in place. What is needed is some sort of significant circuit breaker, but the likelihood of that arising endogenously within the Western Australian political system seems miniscule.

 

Conclusion

The social harm of alcohol across remote Australia has been apparent for decades. The issues being confronted in the north of WA are paralleled in the Northern Territory. It is clear that the Commonwealth has effectively vacated this policy sector, leaving states and the NT to grapple with addressing the huge levels of social harm and distress that accompanies alcohol misuse.

 

Unfortunately, as I have argued in my previous posts (link here and link here), corporate alcohol interests have a stranglehold or veto over policy initiatives designed to address or mitigate the consequences of alcohol misuse.

 

Notwithstanding the Commonwealth’s reluctance to engage with these issues, the Commonwealth does have a policy responsibility. It is clear that the issues involved are structural and extend beyond any one state or territory. On its own this suggests that Commonwealth action may be necessary.

 

Second, the Commonwealth is picking up a substantial proportion of the costs which flow from alcohol misuse: it is the major funder of the health system, the social security system, and the disability sector which deals with the significant numbers of newborns suffering from foetal alcohol syndrome (FASD). The fact that the states and territories do not pay the full cost of the consequences of their alcohol policies incentivises them to adopt (sub-optimal) policies that shift those costs to the Commonwealth.

 

Third, the Commonwealth has a concurrent constitutional jurisdiction to legislate for Indigenous citizens, and it is Indigenous citizens who are the most vulnerable and worst affected by alcohol misuse in remote Australia. Remind me: what was the point of the 1967 referendum if the Commonwealth just sits on its hands when structural issues imposing lifelong costs and constraints on the life opportunities of countless remote citizens are in play?

 

It is clear that the Commonwealth has a potential role in this policy space. What then should it do. There are a myriad of policy options available. They range from across the board reforms affecting all Australian drinkers, to regionally focussed reforms or special measures directed to Indigenous communities. These include, inter alia, the establishment of a unit price on alcohol, the use of the tax system to nudge consumers away from alcohol consumption, the establishment of sustained and well-resourced educational programs designed to change the levels of social acceptance of alcohol misuse across the community, and the use of health warnings similar to those in place for smoking.

 

Given this range of policy choice, the reluctance of the states and territories to initiate major policy reforms, the political sensitivity of driving substantive policy reform, and the complexity of the issues facing remote communities, the momentum for Commonwealth action appears to be absent. In these circumstances, for socially progressive interests concerned at the ongoing social destruction arising form alcohol across remote Australia, the best course of action in my view would be to advocate for a comprehensive and robustly independent policy review focussed particularly on remote Australia, with broad terms of reference and a tight time frame. I can think of no such comprehensive inquiry into these issues in recent times, although the recent Gilbert review into the proposal for a Dan Murphy super store in Darwin (link here) provides an excellent template and model.

 

Of course the Commonwealth too is subject to pressure and co-option by the alcohol industry. An independent review would threaten those interests and would be opposed. Nevertheless, with sustained pressure from an alliance of Indigenous service providers, and mainstream health advocates, and the assistance of the cross bench, the time might arrive where a Government would initiate such an Inquiry.

 

There is a risk is that these issues are seen as abstract policy issues, without relevance to the lives of ordinary citizens or voters. The reality is that the current policy settings are facilitating increased family violence, contributing to youth suicide, fuelling the rise in our prison population, destroying the lives of drinkers, shortening lifespans, and adversely impacting newborns by substantially and permanently constraining their life opportunities. The case for policy reform is overwhelming. How is it that governments wont act?

 

 

 

 

 

 

The ANAO performance audit of the NIAA NT Remote Housing program

 

I can keep honest counsel, ride, run, mar a curious tale in telling it and deliver a plain message bluntly.

King Lear Act One, Scene Four

 

The ANAO and its performance audit function is an extraordinarily valuable resource in providing the community with a level of assurance that government programs and policies are being managed effectively in the public interest. These reports also provide a welcome level of transparency that is in practice unavailable anywhere else, providing a window into the quality of bureaucratic advice and strategic planning that underpins the delivery of government services and programs.   

 

The ANAO’s recent report titled Remote housing the Northern Territory is a case in point (link here). It reports on the five year National Partnership for Remote Housing Northern Territory that provides for $550m in Commonwealth finance for the five years from 2018-19 to 2022-23. Program delivery is by the NT Government (NTG).

 

The performance audit is limited to the NT, because following the expiry of the ten year National Partnership on Remote Indigenous housing in 2018, the Commonwealth withdrew from funding remote housing in all other jurisdictions. The ANAO give a detailed and valuable account of the history of Commonwealth funding of remote housing.

 

The ANAO audit team on this report have done an excellent job in synthesising and compiling an enormous amount of information and data which will be enormously helpful to those interested in understanding what has transpired in relation to remote housing programs over the past 15 years. Unfortunately, in this area of Commonwealth activity, the past decade has been a story of progressive decline and poor management, a narrative that a detailed reading of the report confirms. Yet for reasons I can speculate on, but cannot confirm, a high level reading of the report, focussed on its key findings and recommendations, gives little hint that this is the case.

 

For example, the report states (para. 8):

Improving Indigenous housing in the NT has been a policy priority for successive Australian and NT Governments. By 2022–23 the Australian Government will have invested $2.65 billion over 15 years in remote housing in the NT through successive national partnership agreements.

 

This statement is factually correct, particularly if you give the term ‘policy priority’ a generous and flexible interpretation. Yet if we apply a more penetrating analysis, we can note that the total is in nominal dollars and the real expenditure in the earlier years is somewhat greater. Setting that aside, that ‘priority’ has averaged $177m per annum over the 15 years, whereas the current five year National Partnership provides for $110m per annum from the Commonwealth. The most recent National Partnership involves a nominal reduction in Commonwealth financial commitment of $67m per annum; hardly a reflection of an ongoing policy priority. For a discussion of whether the National Partnership Agreement incentivised a matched commitment from the NTG, see below.

 

The ANAO frames its findings as follows: [emphasis added]:

• The National Indigenous Australians Agency’s (NIAA) administration of funding for remote housing in the NT has been partly effective.
• The development of the National Partnership was partly effective.
• NIAA has been partly effective in assessing the delivery of the program of works under the National Partnership.
• NIAA has been partly effective in ensuring that the National Partnership’s outcomes are being achieved.

 

The ANAO’s formal recommendations align with these findings, albeit with a focus on the development of ‘risk based assurance processes’ in four of the five recommendations (para. 30).

 

The ANAO’s ‘glass half full’ approach is facilitated by two inter-related high level techniques or dispositions, though to be clear, I am not at all sure whether the ANAO sets out to do this deliberately, or whether it is merely a function of an inherently cautious culture.

 

The first is that the report uses excessively neutral language and a passive tone to communicate its findings, particularly in the executive summary sections. The best example is perhaps the way each of the four major findings and some of the supporting findings are framed, utilising the equivocal and indeterminate formulation that NIAA actions were ‘ partly effective’ (see paras. 14 to 17 and paras. 22, 23, 234 and 28). More substantively, in the reports recommendations, there is a subtle choice to focus on non-threatening technical issues such as risk management (important as they are) rather than highlighting management failures or lack of substantive progress.

 

The ANAO approach on communication and presentation in relation to what is a complex program is akin to assessing the operation of a sailing ship, and finding that notwithstanding the disintegrating caulking, the hull was partly effective, the broken compass which was only five degrees out was partly effective, and the damaged rudder is partly effective because it continues to steer the ship, albeit in circles.

 

The second high level reason for the ANAO’s high level anodyne framing is that its analysis is flawed in two respects: it doesn’t adopt a comprehensive or systemic approach to understanding what is occurring with the program, instead satisfying itself with segmented and compartmentalised assessments of different elements, without taking the next step and ‘joining the dots’. It also ignores or fails to grasp a couple of crucial issues that in turn would lead to a much more critical set of conclusions (I address these below). To use the sailing ship metaphor again, the ANAO short-sightedness is akin to failing to recognise that with key elements compromised, the operation of the ship is no longer fit for purpose, even if it continues to stay afloat.

 

To over-emphasise the critique of the ANAO would be a distraction. So I now turn to laying out a number of the ‘submerged’ key points which focus more on the performance of the NIAA based entirely on the information contained in the ANAO report. I won’t begin with a summary of the key information regarding the program as it is laid out in the summary section (paras. 1 to 33) which I recommend readers at least scan. The Commonwealth program is based on NTG implementation of the core elements (capital works, property and tenancy management (PTM) and Indigenous employment, and involves payments to the NTG based on delivery against agreed milestones.

 

The delivery of capital works is not on track

As at 30 September 2021, 39 months (65%) into the 60 month program which ends in June 2023, the Commonwealth program had delivered only 363 out of a projected 1950 bedrooms, or 19% (see para 1.11 and table 1.2). Only 26% of the program funding had been paid to the NTG, including 11% of the capital works funding. The ANAO determines that the NIAA assessment of the NTG’s delivery of the capital works is ‘partly effective’ (para 3.3), but the bottom line is that the NIAA has not delivered adequate progress and is now presumably in panic mode seeking to make up lost ground.

 

Slow delivery of outcomes has an adverse impact on Aboriginal tenants in overcrowded housing. The ANAO states that the ‘NIAA has not managed risks to the delivery of the National Partnership effectively’ (box above para 4.55). The statement is correct, but it evades the more fundamental point: the NIAA has not ensured that the outcomes required are delivered in a timely way. The ANAO Recommendation Five (para 4.68) is framed around risk management when in fact it should be framed around program delivery failure. The ANAO notes that NIAA were aware as early as November 2019 of delays in program roll out (para 4.8) and had expressed concern to the minister in April 2020 that the construction program may not be completed over the duration of the National Partnership (para 4.72). The recommendation that the ANAO should have made, but didn’t, was for the NIAA to urgently implement a strategy to bring the program back on course by June 2023.

 

In this context, the ANAO correctly raises the very real concern that NTG commitments to ensure the targets in the Commonwealth program are delivered will come at the cost of the NTG’s own committed targets (para 4.9). This raises a second key issue: why are there two sets of program targets being delivered simultaneously by the two Governments.

 

The Commonwealth decision to maintain separate program targets

It is not clear why the Commonwealth insisted on a separate program targets to be delivered by the NTG in parallel with its own program targets in its pre-existing program known as Our Community. Our Future. Our Homes (OCOFOH). It is problematic in a number of ways, yet the ANAO makes no adverse comment regarding this decision. Obvious disadvantages include added management complexity, reduced overall transparency, and increased risks of ‘target shifting’ and financial mismanagement. The ANAO uncovered, and notes without adverse comment, that PMC (before NIAA’s establishment) provided what appears to be incorrect and misleading advice to the Minister (see paras 2.10 to 2.12).

 

Part of the reason for two sets of targets may relate to a misleading narrative promulgated by PMC / NIAA in the drafting of the National Partnership and apparently accepted by the ANAO (see para. 1.5) that the NTG was matching the Commonwealth commitments. In fact, the NTG had committed $1.1bn over ten years from 2017-18 before the Commonwealth made its decision to continue funding in the NT (see para 2.33). In turn, this presentational sleight of hand relates to the underlying raison d’etre for the Commonwealth involvement in the NT in a context where it had taken a decision to withdraw from funding remote housing in every other jurisdiction.

 

What was the Commonwealth motivation for continuing a remote housing program in the NT?

The ANAO, somewhat credulously, notes that ‘the objective of the National Partnership is to improve housing conditions and reduce overcrowding in 73 remote communities and 17 town camps’ (para 2). The NIAA response to the performance audit goes further and states that ‘the sole objective of the National Partnership’ is to improve housing conditions and reduce overcrowding’ (Appendix One). The ANAO explains that the Commonwealth’s rationale for continuing the program in the NT while discontinuing its assistance in all other jurisdictions was that it ‘considered that the housing need was significantly higher’ in the NT (para. 1.14).

 

The 2017 Review of NPARIH (the national forerunner of the NT National Partnership) had determined that about half of the outstanding remote housing need to 2028 would be in the NT, but this does not explain why a Government would preference one half of the need over the other half, or one unhoused family in the Northern Territory over an unhoused family in Western Australia.

 

We can probably set aside the possibility that there was any link between the then Minister’s role as a Senator for the NT, and the decision, as he did not contest the 2019 election held two months after the National Partnership was established in March 2019.

 

However, the most substantial incentive for continued Commonwealth funding arose from the fact that the rollout of NPARIH from 2008 was predicated upon the granting of leases to Government to underpin improved tenancy management. In the NT, the Land Councils strongly pushed for the Commonwealth to hold those leases rather than the NTG, and the then Labor Minister agreed. The NT was the only jurisdiction where the Commonwealth holds housing leases directly.

 

The ANAO notes (see paras. 1.20 – 1.24) that the Commonwealth holds some 3500 underlying housing leases in the NT, and thus (in the absence of any subleases arrangements) is effectively the landlord and responsible for property and tenancy management (PTM) for around 59 percent of all remote housing. The LNP Government did not wish to take a direct role in delivering social housing in the NT, and thus needed to negotiate subleases and management responsibilities with the NTG (or some other entity). The objective of the National Partnership is more accurately characterised as the price of persuading the NTG to take on this responsibility. This conclusion is reinforced by the ANAO observation (para 1.24) that the current subleases over the Commonwealth housing leases are due to expire at the same time as the National Partnership, in June 2023.

 

Acknowledging that the Commonwealth had an ulterior motive for its decision to maintain a remote housing program in the NT is important because it explains in large measure the lack of attention to implementation that lies at the heart of the current failure to deliver on outcomes.

 

The Implementation Plan and PTM fiascos

The ANAO report makes clear that the Implementation Plan for the program, negotiated contemporaneously with the program design and negotiation, included numerous gaps and flaws such as reporting period inconsistencies, including in relation to PTM. They go so far as to count them, reporting over 30 inconsistencies, syntax and typographic mistakes,  (para 2.24, and footnote 44).  Recommendation One, which flows from this analysis, states:

2.28    National Indigenous Australians Agency revise the Implementation Plan to support public accountability by providing accurate information on how each party to the National Partnership for Remote Housing Northern Territory will achieve the outcomes and outputs.

 

This is fine and good, but the import of these multiple so-called ‘technical‘ errors (see para 2.29) is twofold: first, it made the key areas of the agreement such as payment schedules unworkable, and second, it demonstrates clearly that senior PMC/NIAA staff did not take the time to read the Implementation Plan. It is as if the roll out of the program wasn’t important; all that mattered was to shift responsibility for the Commonwealth landlord responsibilities to the NTG.

 

Even more surprisingly, PMC/NIAA set the funding amount for PTM in the Partnership Agreement at $35m, but failed to properly advise the Minister. The ANAO notes (para 2.40):

The advice to the minister did not provide a rationale for the decision to set the funding amount for PTM services at $35 million. A December 2018 ministerial brief stated that ‘independent financial modelling’ confirmed the proposed base annual rate to be paid to the NT Government to manage Australian Government leases. However, the ANAO examined the financial modelling and found that the cost of PTM services was estimated at between $53.3 and $76.6 million annually. Australian Government funding to the NT Government for PTM services under NPARIH and NPRH averaged $42 million annually between 2013–14 and 2017–18. [emphasis added]

 

An objective observer can only conclude that PMC/NIAA either misled the Minister, or were complicit in creating a document intended to create a false narrative. Either alternative deserves to be clearly and unequivocally criticised. Yet the ANAO says nothing, and merely reports without comment the PMC/NIAA advice in response (more accurately described as a non-sequitur) that ‘PTM funding for PTM services was constrained by the available total funding envelope of $110m a year’ (para 2.40). Unsurprisingly then, the performance of the NTG’s reported PTM performance has steadily declined between 2019 and 2021, with the NTG meeting all six performance measures in 2019, but only two of the six in 2021 (table 3.2). The ANAO outlines the NIAA assessment process (my two word summary: ‘process oriented’), and reports neutrally that NIAA requested ‘additional information’ where there was a shortfall between PTM results and targets (see table 3.3).

 

Of course, the more fundamental issue here is that the Commonwealth is the underlying owner of the assets, that are scheduled to revert to direct Commonwealth control in 2023. Yet it is deliberately underinvesting in the PTM, which means that the assets degrade faster than they should, will need to be replaced earlier than should, and the tenants (real families with real needs) will continue to live in sub-optimal conditions longer than they should. These are the nuts and bolts of structural racism, laid out in plain view by the ANAO, but not reflected in its findings or recommendations.

 

The ANAO report also documents the role for the land councils in the management of the program (paras. 4.11 to 4.16), albeit within a structure that may not always deliver them timely information (paras 3.8 and 4.16). The ANAO notes that in response to claims from NIAA that the land councils provide a ‘broad assurance’ of the ‘progress and quality of PTM services and capital works’ given their involvement in communities,  the land councils have expressed concerns that they do not have the capacity to collect feedback at a detailed level so as to provide more than a general level of assurance (paras. 3.28; 4.16). It is difficult not to interpret the NIAA claims regarding the land councils as an attempt to shift blame or responsibility.

 

The more fundamental issue for the land councils arising from accepting a role in oversighting the program is that they run the risk of being complicit in ongoing underperformance. The slow progress in delivering housing is one example. The PTM example above is another. Similarly, the lack of progress on the leasing and land servicing reviews included in the National Partnerships original design (see paras. 4.31 to 4.37), and still not completed despite numerous meetings between the two governments and the land councils is a further case in point.

 

The more general point here is that the land councils must invest in developing and sustaining the capability to proactively and substantively participate in the governance of what is an extremely complex program, recognising that they are not the ultimate policymakers (notwithstanding the inevitable government rhetoric on co-participation). They would be wise to always retain the right to advocate publicly on issues of concern. Similarly, they should resist the temptation to support government antipathy to greater program transparency. For Indigenous interests, transparency is a significant ally in ensuring governments operate in the public interest, particularly in contexts that do not always gain consistent attention in public debate. Finally, while the benefits of participation in program governance are huge and not to be ignored, the risks of co-option are also substantial, and require specific and ongoing attention within land councils and other Indigenous stakeholders.

 

Conclusion

The ANAO report on remote housing in the NT is an extraordinary resource for those interested in understanding the current state of remote housing provision. It is also a flawed document. It under-emphasises the levels of serious mismanagement of the program by NIAA; documents, yet downplays, instances where Ministers were misled or badly advised; documents poor program design, and most importantly identifies, but then under-emphasises the extraordinary delays and shortfalls in program delivery and the underinvestment in PTM which protects a Commonwealth asset base and ensures safe housing for tenants.

 

In the world of program delivery, a program delay is a program cut, and there is an in-built incentive for governments to make the initial announcement and then go slow and run the clock down. The losers in this game are Aboriginal and Torres Strait Islander peoples, and in particular the tenants of severely overcrowded housing. The fact that this process can occur in a program providing housing services to one of the most disadvantaged segments within Australian society is extraordinary.

 

The ANAO should sharpen its analytical focus. I assess their report as ‘partly effective’. And NIAA should lift its game. I assess their performance as ‘entirely ineffective’.