There is a history in all
men's lives,
Figuring the nature of the
times deceased,
The which observed, a man may
prophesy,
With a near aim, of the main
chance of things
As yet not come to life…
2
Henry IV, Act 3 scene 1
In February 2023, the Joint Standing Committee on
Aboriginal and Torres Strait Islander Affairs, Chaired by Labor Senator Patrick
Dodson, issued the report on its Inquiry into community safety support
services and job opportunities in the Northern Territory (link
here). The terms of reference
provided by the Senate in establishing the Inquiry focussed on three broad
issues: the remote alcohol policy regime in the NT leading up to and after the
sunsetting of the Stronger Futures legislation in June 2022 and its impact on
alcohol regulation; remote employment issues; and justice reinvestment policy
issues. This post limits itself to the first of these three topics.
Senator Dodson’s Foreword to the Committee Report is both a
robust critique of past governments and their policies and a succinct high
level summary of the Report’s argument. It is worth reading in full. Here is an
extract:
… over the past 15 years, [Aboriginal
communities in the NT’s] right to self-determination has been deliberately
denied by governments of all stripes. The Northern Territory National Emergency
Response and the Stronger Futures in the Northern Territory Acts were both
legislative means of structurally disempowering remote Aboriginal communities
in the NT. Through these policy regimes, governments have destabilised,
disempowered, and disoriented Aboriginal communities. Governments have taken
away community power and instead made them dependent on government for survival
and have done so with little to no accountability. These actions occurred under
the guise of a failure for Aboriginal communities to run their own affairs and
to make decisions about what is best for their community.… In order to truly
enable community-led solutions, governments need to transfer power and
resources to communities. This requires investment based on outcomes, rather
than outputs; ensuring data is available at the local level; and listening and
acting on what communities say will work best.
This argument represents a rhetorical narrative that
resonates powerfully with many Indigenous people because it reflects their
lived experience of Australia’s history, yet for reasons I set out below it
simultaneously serves to gloss over and to some extent erase the complex and in
many respects insurmountably difficult issues at the cutting edge of policy
development and implementation.
A case in point is the Committee’s assessment of the Rudd
Labor Government’s Stronger Futures Northern Territory (SFNT) legislation,
effectively equating it with the Howard Government’s NTNER legislation. This
conflation is facilitated by the fact that Labor while in Opposition voted to
support the NTNER to avoid making allegations of Indigenous child abuse in
remote communities an election issue, and when in Government continued to
support some key elements of the NTNER, most notably compulsory income
management of welfare benefits. However policy, and more importantly it
tangible impact, is about more than the political ‘vibe’. With policy, the
devils (or the angels) are in the detail.
The Committee Report usefully summarises both the NTNER
legislation (paras. 1.12 to 1.22) and the Stronger Futures (SFNT) legislation
(paras. 1.23 to 1.39). In contrast to the NTNER, SFNT removed most of the
punitive elements of the previous package, did not involve the Australian
Defence Force, allocated significant funding (listed in para. 1.27) totalling
$3.4 billion over ten years, and reinstated the application of the Racial
Discrimination Act which had been set aside by the NTNER legislation. The
Committee preferred to give little weight to these differences, and in it’s
comment after assessing these initiatives, it expressed its concurrence with
Senator Dodson’s conclusion in the Foreword:
The
Committee considers that the NTNER and Stronger Futures legislative packages
systemically disempowered communities—in their delivery, implementation and
transition—causing immense trauma that now requires concerted effort by all
levels of government to enable and invest in the re-empowerment of these
communities.
To be clear, I do not dispute that finding in relation to
the NTNER, and agree that remote NT Indigenous communities have faced and
continue to face immense trauma and systemic disempowerment. However, policy
solutions (as opposed to political solutions) require rigorous analysis. We
should not confuse political advocacy and rhetoric with policy analysis. In
particular, I would argue that the sources of these ongoing challenges are
not rooted solely in past actions by governments, but are built into the very
fibre of the contemporary actions of governments.
The dilemma faced by the Joint Standing Committee was that
having concluded that the SFNT legislation ‘systematically disempowered’
communities, it leaves very little room for accepting that the SFNT approach to
alcohol regulation was and remains, at least in the short/medium term, the best
approach to addressing the significant and arguably widening impacts of alcohol
abuse within remote communities.
In chapter two, the Committee makes what appears to me to
be a cursory assessment of the processes leading up to the sunsetting of the
alcohol provisions, and the introduction of the NT Government’s ‘opt-out’
mechanism. This allowed affected communities to seek to opt-out of arrangements
that had lifted the previous SFNT restrictions. The Committee’s conclusion in
effect was that there was a failure of consultation and bureaucratic
preparation for the transition from SFNT to largely unrestricted access. My own
reading of the process is that both the former LNP Government and the NT Labor Government
achieved exactly the outcome that they intended, and the incoming Labor
Government in Canberra were not prepared to challenge the NT Labor Government over
this issue. In doing so, they grossly under-estimated the consequential political
impacts in Central Australia that exploded into national prominence in early
2023, and more egregiously, ignored the impact of the NTG policy on the lives
of thousands of Aboriginal women and children.
In para 1.6, the Committee notes that the chaos in Central Australia
led to policy changes that post-dated much of the evidence they received. These
changes are assessed in chapter three of the Committee Report.
The first sections of chapter three provide a useful
summary of the operations of alcohol controls in remote NT communities over the
past two decades. From paras 3.32 to 3.69, the Committee examines issues of
alcohol related harm following upon the sunsetting of the SFNT legislation, and
the joint Government response in early 2023 to the chaos on the streets of
Alice Springs. At para. 3.29, the Committee noted that only one Alcohol
Management Plan (AMP) was approved under the SFNT over its ten year life and
that a number of communities prepared AMPs but had them rejected. The Committee
could have done much more to unpack this issue and provides no detailed data or
information. My own understanding is that in the early years of the SFNT
legislation, a number of AMPs were prepared, but were sent back for revision as
they were effectively attempts to remove all restrictions on access to alcohol
and gave inadequate attention to the risks to families and children. After the
change of Government, there appeared to be an unannounced policy moratorium on considering AMPs. In effect, this involved a
return to the NTNER regime of absolute restrictions, albeit effected via
administrative fiat. Had such a policy been announced, it would likely have
been struck down by the courts.
In relation to the operation of the SFNT alcohol regime,
the Committee’s comment on the evidence it heard strikes me as particularly
tendentious and unpersuasive. It argues that the SFNT legislation ‘focused only on reducing supply and did not
sufficiently support people at risk of alcohol abuse or of experiencing or
causing harm.’ (para. 3.62). This ignores the significant funding under the
SFNT across all sectors, much directed to community controlled organisations,
as well as the mechanism in the legislation for AMPs which could have included
specific requests for such harm reduction support.
In para 3.63, the Committee notes:
The
NT Government’s decision to adopt an opt-in approach for maintaining alcohol
restrictions was ineffective at minimising harm from the relaxing of alcohol
restrictions. While the government intended to address the racist legacy of the
Intervention, it is the Committee’s view that this decision was made without
meaningfully consulting widely across affected communities.
The first sentence of the Committee’s comment is
undoubtedly correct. However, as a reasonably close observer of these events, I
do not accept that the motivation of the NTG was to ‘address the racist legacy
of the intervention’. It was certainly the rhetorical rationale adopted by the
NTG, but this rationale was and is fundamentally flawed as it fails to
acknowledge the provision in the Racial Discrimination Act (RDA) for special
measures, a core element of the legislative mechanism established by the RDA (link
here), and one which the NTG’s legal advisers undoubtedly would have
brought to Ministers’ attention if they had been asked.
Even if we accept that the stated rationale was in fact genuine,
what does that say about the NT Government’s concern regarding the potential impact
of alcohol on Aboriginal families, and the quality of life now and into the
future for countless women and children? I refer readers to the earlier posts
on this blog related to alcohol for more detailed critique of the NTG model (link
here for a list).
In para 3.66, the Committee finally reaches the nub of
the policy issue (an issue that has received virtually no attention in the
media):
It
is clear to the Committee that the NT Government has sufficient legislative
means to manage alcohol-related harm within its jurisdiction where there is the
will to do so. This has been demonstrated by its recent legislative amendments
to the Liquor Act 2019 (NT). It is the view of the Committee that this is the
appropriate role of the NT Government (informed by the views of community), rather
than the Commonwealth.
This is the key conclusion, because it is the Committee’s
rationale for ongoing Commonwealth inaction. While $300m in funding appears
substantial, it is not ongoing, and will disappear like a shower of rain into
the desert dust. It is not action to address the issues, but funding to manage
the media fallout. The Commonwealth’s inaction ignores what appears to be a
deliberately misleading narrative seeking to justify the NTG opt in model by alleging
the SFNT alcohol regulation model was racist and discriminatory. It represents inaction
in the face of a policy approach designed around making the abolition of
alcohol restrictions the default; a model which would also have made the
reimposition of restrictions challenging to both implement and to sustain. And
finally it represents inaction in the face of clear evidence regarding the
impact of shifting to an opt-in model. While the NTG have now shifted to an opt-out
model as applied under SFNT, there is no guarantee that it will be managed
effectively to ensure alcohol induced harm is minimised.
The Commonwealth’s current position amounts to placing
enormous trust in an NT Government that has shown it was prepared to place the
lives of Aboriginal women and children in particular at risk for what appears
to be base political advantage.
To take just one data point, alcohol related domestic
violence assault offences spiked in Alice Springs, Katherine, and outside major
centres in the 12 months to March 2023 (link
here). The only location where there was a decline in these offences was in
Darwin. Across the NT, there were almost 1000 extra reported assault offences
over the year coinciding with the nine months of reduced restrictions. With the
majority of NT electorates in the Darwin region, it is not difficult to develop
a hypothesis for why the NT Government may have been intent on removing alcohol
restrictions in the bush. In the light of the issues outlined above, the
unqualified confidence of the Committee (set out in para. 3.66) in the capacity
and political willingness of the NTG to manage alcohol related harm astounds
me.
Paras. 3.67 and 3.68 lay out two formal recommendations
to the NTG related to the facilitation of community alcohol plans. These are
discussed further below.
In paras. 3.69 to3.94, the Committee addresses the issue of
community safety. In para. 3.69, the
Committee acknowledges the existence of anti-social behaviour following the
sunset of the SFNT, and notes:
When
witnesses discussed these behaviours, they were almost always directly linked
to the poor social and economic factors people were facing.
I may be over-reading this, but in my experience, these
behaviours are almost always directly linked to the abuse of alcohol or drugs,
and only indirectly liked to social disadvantage. Yes, structural factors are
important — but if the Committee really believed this, why not recommend
actions and funding to address these structural factors. It is as if the
Committee does not wish to acknowledge the role of alcohol in harming
Aboriginal Territorians. At para. 3.82, the Committee returns to blaming past
policies, and extraordinarily to my mind states:
The
application of special measures under the Racial Discrimination Act 1975 (Cth)
has had little benefit in creating equality for these children.
The implication of this statement is to undermine the
rationale for a significant swathe of Commonwealth policy measures from Indigenous
language support to the Native Title Act. Even if it is argued that it is
contextually constrained, it opens the door to future downgrading of special
measures, and strikes me as an own goal. The Committee’s comment on community
safety (paras. 3.92 to 3.94) ignores the role of alcohol, fails to mention the
deep disadvantage arising from the social determinants of poor health,
including the shortfalls in basic housing (a matter picked up by Senator Thorpe
in her addendum to the report), and instead focusses solely on
intergenerational trauma and the need for early intervention. Both these issues
should be priorities, but on their own they will provide no short term relief
to the ongoing harm caused to both Indigenous people and the wider
non-Indigenous community in the NT.
The Commonwealth Government response to
the Committee report (link
here) was released last week. In the introduction, the response notes that
the Commonwealth (not the NTG!) has announced investments totalling almost
$300m in community safety in the NT since the beginning of this year. The
response deals with all nine Committee recommendations, the first three of
which relate to alcohol policy and the sunsetting of the SFNT legislation.
As is de rigeur
for such responses, the response lists each recommendation, and provides a
summary response, and then provides a short narrative in relation to each. There
are a couple of revealing statements included. For example, in relation to recommendation one, the response
asserts that NIAA worked with the NT Government over a period of 18 months
leading up the sunset, thus adding weight to my assertion above that the
outcome achieved was not a mistake.
A second revelation, in the discussion on recommendation two, is that the
Commonwealth is providing $14m over two years to assist in the development of
community alcohol plans and other support services and a public health campaign,
notwithstanding the summary response that the recommendation to the NTG for
resources to facilitate this was ‘a recommendation for the NT Government’, and notwithstanding
the Committee’s conclusion that the NTG has the legislative means and the
political will to manage alcohol related harm in its jurisdiction.
The response notes that ‘Independent consultants will be
funded to assist in the development of community alcohol plans’. The use of
consultants appears to me to be exactly the wrong approach, as it ensures that
the work of developing alcohol management plans is undertaken by individuals
without any pre-existing or ongoing relationship with the communities affected,
and ensures that once it is completed, there is no corporate knowledge retained
either by the community nor NIAA. If the Commonwealth is serious about
addressing the challenges of remote Australia, a major priority in my view must
be to begin to rebuild a cadre of staff either within NIAA, or perhaps within
and employed by communities, with the skills and remit to facilitate engagement
with governments.
The larger problem with this Government response however is
that the import of this Committee Report is not to be found in the
recommendations, but elsewhere in the swirling narrative which (sometimes
explicitly):
· avoids
the difficult policy issues around alcohol availability and regulation;
· downplays
the role of the Commonwealth Government vis a vis the NTG in the face of an
extraordinary and ongoing policy failure in the NT;
· ignores
the possibility that special interests associated with the alcohol industry
play an outsized role in determining regulatory policy in relation to alcohol
in the NT; and
· unsuccessfully
seeks to deal with the paradox that the SFNT legislation is simultaneously
argued to be retrograde to Indigenous interests yet the evidence following
its sunset indicates it was essential to maintaining social stability and
reducing social and community harm.
In particular, where is the Commonwealth Government’s
appreciation of the overwhelmingly negative impacts of alcohol (and other drug)
abuse on Aboriginal communities, and particular Aboriginal women and children.
Ignoring supply issues — and the even more insidious influence of the alcohol
industry on governments — by seeking to shift blame to an alleged historical
lack of focus on alcohol demand issues and alcohol harm reduction measures just
does not cut it.
Perhaps it is time to give some attention to, and reinforce
the relevance of, the 1967 referendum. The referendum that reversed the
provision that stated that the Commonwealth could legislate in relation to the
people of any race except the Aboriginal race. The referendum that underpins
the existence of the Minister for Indigenous Australians and her portfolio, and
that facilitates the existence of the Native Title Act and much other
Indigenous legislation. The referendum that signalled that the Australian
people overwhelmingly expected the Commonwealth Government to do what was
necessary to address Indigenous disadvantage.
Disclosure: I was employed on the staff of the Minister
for Families, Housing, Community Services and Indigenous affairs from 2008 to
2011 when the Stronger Futures legislation was being developed.
11 July 2023
