Remote crisis: déjà vu all over again and again and again and again …

Confusion now hath made his masterpiece!

Macbeth, Act two, Scene three

I sat down to write a post that considered the recent media stories regarding the ongoing crime wave in the NT, NAPLAN, Closing the Gap, the extraordinary Indigenous unemployment levels in remote Australia and the ongoing and worsening incarceration crisis in the NT including the hyper-punitive response of the current NT Government. Then I realised that in doing so without the necessary contextualisation, I would be entering the perpetual motion machine that controls and shapes our media cycle and ensures that we never stop and ask how did we get here? I haven’t done the detailed research to write such a post, but my intuition told me that it was more important just now to remind readers of the underlying dynamics and forces which are shaping the outcomes that feed into daily life in remote communities, major towns like Katherine and Tennant Creek, and our daily media diet in south eastern Australia.

One way to do this is to list and link to the previous posts I have written on the theme of remote crisis. Below I list most (but perhaps not all) of the posts I have written on this topic since January 2022. I could have gone back further, but there is already more than enough material to digest. For each post, I have selected a short excerpt which illustrates some of the issues in play. The excerpts do not necessarily encompass the major argument of each post, and are not always the key point, but they do make in my view a contribution to providing the context that assists interested readers in forming a judgment of the underlying issues and causes in play when we read about the latest outrage or tragedy. I have left text bolded where I bolded it in the original post. I do recommend readers dip into at least some of these posts.

 

1.    Energy insecurity in remote Australia 13 January 2022 (link here)

The abstract of a recent academic article states:

Indigenous communities in remote Australia face dangerous temperature extremes. These extremes are associated with increased risk of mortality and ill health. For many households, temperature extremes increase both their reliance on those services that energy provides, and the risk of those services being disconnected. Poor quality housing, low incomes, poor health and energy insecurity associated with prepayment all exacerbate the risk of temperature-related harm … We find that nearly all households (91%) experienced a disconnection from electricity during the 2018–2019 financial year. Almost three quarters of households (74%) were disconnected more than ten times. … A broad suite of interrelated policy responses is required to reduce the frequency, duration and negative effects of disconnection from electricity for remote-living Indigenous residents.

 

2.    See How We Roll 24 January 2022 (link here):

It strikes me that this is, more than any other I have come across recently, an important book for policymakers engaged in shaping policy in the Indigenous domain. It shatters preconceptions regarding the distinction between remote and urban contexts, and makes clear the parallels between disadvantaged Indigenous people and other disadvantaged citizens. Most importantly, it should make policymakers question their assumptions and preconceptions regarding Indigenous life choices, and the potential for policy instruments and measures of various kinds to articulate or engage with the altogether different world views and approaches to living of many Indigenous people.

 

3.    The ongoing social and governance catastrophe in remote Australia 8 May 2022 (link here):

In October 2009, Nicolas Rothwell, writing in The Australian, published a scathing analysis under the title ’The failed state’… Rothwell’s opening sentence sums up his argument: ‘The Northern Territory is a lost cause’. He goes on:

There is, though, a failed state in our midst. That state is not Aboriginal north Australia, where the social fabric is in shreds and tatters. No: it is the jurisdiction largely responsible for entrenching this degree of Indigenous disadvantage: the modern-seeming, self-governing Northern Territory.

I quoted these observations in an earlier post in August 2016 (link here)… I would add however that the responsibility for entrenching Indigenous disadvantage is shared with the Commonwealth.

 

4.    Systemic myopia: Public investment challenges in remote Australia.19 December 2022 (link here):

To sum up, over the past two decades at least, public funding in core capital investments related to essential services, social housing, and community infrastructure has been severely deficient. This has undoubtedly reduced the levels of recurrent funding by governments in remote settings, and also limited the opportunities for local employment, and stronger economic development and progress. It is undoubtedly one of the key contributors to limiting the opportunities available to the rapidly growing youth cohort within communities. While reversing the sustained under-investment is not sufficient to address all the challenges facing residents of remote communities, it is a necessary element in any viable transition to a more stable future for remote communities. The onset of climate change is making addressing these challenges even more urgent.

 

5.    Cataclysm and Crisis 10 December 2022 (link here):

The inability of governments to envisage, understand and put in place effective strategies to address the multiple facets of the economic and social cataclysm facing remote communities amounts to a massive and fundamental failure. This failure is in and of itself a crisis; a crisis of governance capability, a crisis of will power, and ultimately a crisis of government legitimacy.

 

6.    Alice Springs crisis: observations on remote policy. 25 January 2023 (link here):

The Alice Springs hospital has 16 beds in its Intensive Care Unit. Minister Burney mentioned that she was shocked to learn that last night, 14 of those beds were taken by women who had been the victims of violent assaults. This window into the lived experience of too many remote women and their families is more than a warning of the seriousness of the rolling crisis across remote Australia. It is more than a prompt for governments to take action. It is more than an indictment on the quality and legitimacy of our systems of governance across northern Australia. It is damning evidence of the complicity and responsibility for these outcomes of those Australians (myself included) who take an interest in public policy. 

 

7.    The ongoing remote housing debacle 5 March 2023 (link here).  

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.

 

8.    The structural underpinnings of the tragedy in Yuendumu 10 March 2023 (link here):

Yes, at the micro level, individuals on both sides of the cultural divide, Indigenous and non-Indigenous, have and had agency. But they were and are operating within an overarching set of institutional structures which have been in place for decades and were either explicitly designed to constrain and control Aboriginal people’s lives, or reflect longstanding and entrenched structures of underfunding that were oblivious to, and independent of the level of need. If we wish to prevent further micro level tragedies, we as a nation must move beyond allocating blame or responsibility at the micro level and also address the macro level issues. Micro and macro are both part of a single social system, one that is responsible for both extensive social and cultural harm, and ongoing mainstream governance failure.

 

9.    Dodge dip and dive: eight ‘data points’ on remote policy 1 May 2023 (link here):

What is clear however is that given the synergistic interactions of multiple policy domains, the current model of policy design and implementation has not worked. This raises the potentially unsettling prospect that, at a fundamental systemic level, governments and policymakers are not incentivised to take the policy decisions that are required to make a substantive difference to the policy challenges that exist. Instead they are incentivised to manage difficult issues, oil squeaky wheels, and engage in a performative ritual designed merely to persuade an electorally significant non-Indigenous constituency (and a less electorally significant, but more animated, Indigenous constituency) that they are doing what is required to address the policy challenges that surface periodically in the public consciousness.

A recent review of a book on Boris Johnson (link here) described his motto for governing as ‘dodge, duck, dip, dive and dodge’. As it turns out, this is an extraordinarily apt description of the systemic approach of Australian governments to remote policy challenges.

 

10. The remote community education scandal in the NT 24 September 2023 (link here):

It is time that the Commonwealth accepted that the NT Government is incapable of delivering remote education in a manner consistent with the public and national interest, and in such a way that it actually delivers outcomes. These poor outcomes are feeding directly into the social dysfunction that is endemic in parts of remote Australia, and which I have previously argued is a slow burn catastrophe (link here).

 

11. Looking ahead: the architecture of Indigenous policy in 2050 1 March 2024 (link here)

My advice to First Nations and progressive mainstream interests, and in particular their peak advocacy groups, would be to invest as much as possible in building their capabilities to advocate for Indigenous interests, to focus squarely on the absolute deficits in remote policy outcomes, including education, employment, housing and essential infrastructure, and to pursue a strategy of simultaneously protecting the institutional frameworks that presently exist, while pursing incremental change across the breadth of the public sector. In particular, Indigenous advocacy interests should explore avenues to gain much greater independence from Government funding as it comes with a hidden cost; the silence it implicitly requires reduces the necessary pressure on governments to fix the extraordinary policy problems that exist across the board, and the social and economic catastrophe that exists in remote Australia.

 

12. The ongoing attendance crisis in remote schools 10 September 2024 (link here):

In relation to remote attendance, there is a need for the Commonwealth to step up and acknowledge it for the national crisis it is…. The Commonwealth should work with the states cooperatively on these issues, but devise incentive-based payments to the states and territories rather than indulging in the politically driven negotiation that currently predominate. Robust support to Indigenous community leaders aimed at encouraging and assisting them to raise expectations of parental involvement within their communities are essential. But so too are getting financial resource allocations for schools better targeted, and if necessary increased. Rewarding effective teachers much better and ensuring that the curriculum is focussed on the needs of the least capable cohort of students are both — to use a colloquial expression — ‘no brainers’. This suggests that the adoption of curriculum methodologies (such as Direct Learning) that do not allow any student to fall behind must be a priority.

 

13. Infrastructure shortfalls in Alices Springs town camps 24 December 2024 (link here).

What is particularly clear from the Guide is how exclusionary institutional complacency emerges in myriad instances of quite prosaic neglect: the absence of footpaths, of surveyed lots, of safe play grounds for children, of street signs, of shade and community shelters; in short, this neglect reflects the longstanding and widespread refusal of mainstream institutions such a local governments to see their roles as universal rather than sectional. The details vary from jurisdiction to jurisdiction, but the impacts are longstanding and have a certain consistency….

The authors and publishers of the Guide to Housing and Infrastructure Standards in Town Camps have made an extraordinarily significant contribution to laying the groundwork for better advocacy for remote Indigenous communities on essential services reform both in Alice Springs, but importantly across northern Australia. They deserve wider recognition and indeed acclamation. What is also clear is that without the efforts of Tangentyere and its community leadership over almost 50 years, the progress made to date on the town camps would not have been possible. Their historically significant work is not yet complete; I only hope that it will not be another fifty years before Aboriginal people in town camps in Alice Springs and beyond are included as fully entitled citizens in the provision of essential services.

 

14. Indigenous hyper-incarceration: a remote problem? 24 January 2025 (link here):

One data point quoted stood out:

As of January, the Northern Territory hit a grim milestone. More than 1% of the territory’s total population is now incarcerated in adult prison.

….

It is the case that the process of colonisation turned the world upside down for Indigenous people across the nation, and the people of remote Australia are generations closer to that social cataclysm.

Mainstream Australia cannot undo those social processes, and the world has moved on for all Australians. However, given the clear evidence of deep dysfunction arising from those social processes that were neither chosen nor desired by Indigenous people, and the impacts those changes inevitably imposed and continues to impose, the nation and its policy elites must be prepared to consider policy options that turn established modes of policy formulation upside down. Not to do so would amount to an extraordinary admission of national policy failure. Indigenous incarceration is just one of the impacts that arise from widespread social and economic dysfunction across remote Australia and woven through pockets of urban and regional Australia.

 

15. Misdirected focus: the case for institutional policy reforms to alcohol supply 18 March 2025 (link here):

The subliminal message from the NIAA then is don’t look to the Commonwealth to drive institutional policy reform, its someone else’s responsibility. See this page on their website too (link here). For what it’s worth, I just don’t buy that argument.

The appendix to the NIAA submission ( #140 at this link) which I strongly recommend readers seek out and read very usefully provides a comprehensive and powerful snapshot of the impacts of alcohol on various sectors. Here are a few data points I have cherry picked from the NIAA submission appendix:

… First Nations people were 4.2 times as likely to die from alcohol-related causes as non-Indigenous Australians. They were also 3.8 times as likely to die from alcoholic liver disease, and 4.7 times as likely to die from mental and behavioural disorders due to alcohol use….

AOD are involved in more than half of all police-reported family and domestic violence incidents in Australia, and are likely to be involved in a substantially greater proportion of all family and domestic violence…. For homicides in the period from 1989–90 to 2016–17, 72% of First Nations offenders were under the influence of alcohol at the time of the incident, as were 71% of First Nations victims…

If Australia was serious about reducing Indigenous incarceration,…  reducing family violence within Indigenous contexts, … improving Indigenous health status, … [and] improving socio-economic status within the Indigenous community, we would implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

If Australia was serious about closing the gap, the Commonwealth would step up and lead, and one of its first steps would be to implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

Unfortunately, it is quite clear from a close reading of this report that neither the Government nor the Opposition are serious about any of these issues.

 

16. The Domestic and Family Violence crisis in the NT: a symptom of wider chaos 29 April 2025 (link here):

The Northern Territory is in a state of perpetual governance crisis, where underfunded schools are no longer fit for purpose, jobs are not within reach of young Aboriginal kids, alcohol and drug abuse is rife, as is domestic and family violence, and where violence and mayhem are increasingly spilling into the major towns and cities….

The problems in the NT have been decades in the making and have their roots in the failures of governments at all levels to adequately support the maintenance of a viable social and economic institutional infrastructure in remote communities. Reversing this longstanding policy neglect is not susceptible to some quick fix. In recent years however the systemic dysfunction in remote communities that governments have been prepared to tolerate for decades because they were metaphorically ‘out of sight’ has begun to colonise mainstream Territory cities and towns….

One way or another, remote Australia requires more serious policy attention (as opposed to political froth) from national policymakers. A good first step would be to progressively and incrementally strengthen controls across the board (ie mainstream and Indigenous) over the availability and price of alcohol. But much more than this will be needed to reverse the progressive decline in governance and its silent handmaiden, economic security, that is currently underway and gathering momentum. The alternative to serious reform is progressive decline into systemic chaos not just in remote communities, but across the NT and potentially elsewhere in remote Australia. Unfortunately, it seems things will have to get much worse before the political willpower to reform will emerge either in Canberra or Darwin.

 

1 August 2025

 

The Domestic and Family Violence crisis in the NT: a symptom of wider chaos

 

Confusion now hath made his masterpiece!

Macbeth, Act two, Scene three

Australia’s National Research Organisation for Women’s Safety (ANROWS), a research organisation established by Australian governments, recently published an evaluation report (link here) commissioned (and presumably funded) by the Northern Territory Department of Children and Families into the Territory’s Men’s Behaviour Change Programs (MBCPs). These programs (which to be clear seek to address important issues of individual responsibility) are aimed at reducing the levels of Domestic and Family Violence in some, but not all, regions in the NT. The evaluation focussed on the two MBPCs operating in the NT (link here), one in Darwin and Wadeye run by Catholic Care NT, and the other operating in the Alice Springs Town Camps run by Tangentyere Council. The evaluation was process focussed rather than outcome focussed, and while its recommendations are sensible and, in many respects, predictable, the evaluation was clearly limited in its focus. In setting the scene, the report identifies the broader significance of domestic and family violence (DVF) in the NT (page 18):

The NT arguably faces the greatest challenge of all Australian jurisdictions in addressing domestic and family violence. The rates of DFV in the NT are far higher than any other jurisdiction in the country, with particularly severe consequences for victims and survivors. In 2023, rates of DFV-related assault were almost 6 times that of all other jurisdictions where data is recorded, and 3.5 times the national average. The rate of DFV-related homicide was 4 times that of all other jurisdictions, and 3 times the national average. 2 in 3 (67%) assaults recorded in the NT were related to DFV and over half (55%) of homicides recorded in the NT were DFV related in 2023 [footnotes removed].

The report goes on to state:

While DFV affects people across population groups in the NT, Aboriginal women are disproportionately affected, being over 8 times more likely to be assaulted than nonIndigenous women or men. Aboriginal women in the NT are killed by intimate partners at almost 13 times the rate of non-Indigenous women and men. Over the 20-year period between 2000 and 2021, 70 per cent of intimate partner perpetrated assault deaths in the NT were perpetrated against Aboriginal women…  It is important to emphasise that while DFV is experienced mostly by Aboriginal women in the NT, DFV is perpetrated by both Indigenous and non-Indigenous men [footnotes removed].

The report proceeds to cite research identifying the ongoing impacts of colonialism, the impact of the 2007 NT Emergency Response, and the pervasive impacts of racism as significant contributors to the existence of DFV. While these are undoubtedly ongoing factors in shaping Aboriginal people’s life opportunities, I consider that their significance in driving DFV rates in the NT is both overstated and without rigorous empirical proof. More significant are the wider systemic issues identified in the report on page 19 under the heading Contextual realities of the NT. Unfortunately, the report frames these factors as downstream factors which compound the impact of DFV rather than as drivers or causes of DFV:

The experiences and use of DFV in the NT are compounded by contextual realities that make addressing this violence particularly complex. … alongside structural and system racism, Aboriginal communities in the NT are also disproportionately affected by factors such as poverty, homelessness, inadequate housing, housing insecurity and overcrowding, physical and mental health issues, alcohol and drug use, high rates of unemployment, and socio-economic disadvantage [footnotes removed].

The effect of this framing in the evaluation is to shift attention away from focussing on causation, and towards a focus on remediation. Of course, this ultimately flows through into the framing of the internal and external policy debate. The result is that while the ANROWS report mentions systemic issues, it simultaneously downgrades those that are susceptible to policy action to a category of ancillary or downstream issues that are just unfortunate ‘contextual realities’. The systemic issues that are identified (colonisation; the NT intervention; ongoing racism) are not susceptible to reversal through policy reform. The result in my view is that notwithstanding the reports undoubted merits as a process evaluation, it is simultaneously a contributor (perhaps unintentionally) to the systemic blindness which facilitates the ability of policymakers to avoid dealing with the real issues of causation in relation to domestic and family violence in the NT.

The NT Government’s Families Department website has some very useful information and data on the levels of DFV across the NT (link here) and I particularly recommend interested readers look at the DFV mapping report (link here) which provides a comprehensive analysis of the prevalence rates in the Northern Territory, and purports to identify gaps, opportunities and proposals for reform. Pages 145-147 list a series of potential initiatives under the heading ‘Systemic Reform and enablers opportunities’. Unfortunately, like the ANROWS evaluation, there is no mention of alcohol as a driver of Domestic and Family Violence. Readers are effectively misdirected away from the structural reform and into a labyrinth of myriad potential and desirable administrative changes.

In November last year, I published a post with the title Justice Reinvestment: divert and distract (link here) where I stated:

Importantly, while the costs of Indigenous hyper-incarceration are overwhelmingly borne by First Nations individuals, families and communities, there are wider societal costs that provide a potential platform for future advocacy. I am not referring to the financial costs of our prisons, substantial as they are, but to the less tangible costs that degrade the moral and ethical foundations of our society. How can informed citizens live in a society where the preconditions for social dysfunction have been allowed to develop, largely through neglect rather than deliberate intent, to the point where in some parts of the nation, domestic violence is endemic, employment opportunities are minimal, (government owned) housing is in extraordinary states of overcrowding and disrepair, and where young people are less literate and numerate than their parents. As the NT Coroner Elizabeth Armitage noted in her concluding comments to the recently released Inquest into the deaths of four Indigenous women (link here), ‘94% of the very youngest children in detention (10-13 year olds) have been exposed to family violence’.

In March this year, in a post titled Misdirected focus: the case for institutional policy reforms to alcohol supply (link here) I quoted an NIAA submission to a Parliamentary Committee Inquiry which stated inter alia:

AOD [alcohol and other drugs] are involved in more than half of all police-reported family and domestic violence incidents in Australia, and are likely to be involved in a substantially greater proportion of all family and domestic violence…. For homicides in the period from 1989–90 to 2016–17, 72% of First Nations offenders were under the influence of alcohol at the time of the incident, as were 71% of First Nations victims…

In the conclusion to that post, I wrote inter alia:

If Australia was serious about reducing family violence within Indigenous contexts, we would implement significant policy reforms in relation to alcohol advertising, taxation and retail availability.

A commentator wrote in response:

… your conclusion says it all, really. The work has all been done by WHO [World Health Organisation], which over time has refined and distilled its best practice advice based on solid research gathered by its expert committees over decades. And if you had to choose the three items with the best evidence attaching to them, it is those three you mention: dealing with alcohol advertising; taxation; and seriously attacking the easy and cheap retail availability of alcohol. 

Concluding comment

The tragedy of our nation’s continued propensity to avoid facing up to the issues that are causing immense harm and damage to the life opportunities of tens of thousands of Aboriginal and Torres Strait Islander people across remote Australia (and beyond) is approaching the point where it will spiral out of control and adversely impact mainstream institutions.

The Northern Territory is in a state of perpetual governance crisis, where underfunded schools are no longer fit for purpose, jobs are not within reach of young Aboriginal kids, alcohol and drug abuse is rife, as is domestic and family violence, and where violence and mayhem are increasingly spilling into the major towns and cities. Recently, the organisation representing the traditional owners of the Darwin region called on the four land councils to take some responsibility for the mayhem arising from the misbehaviour of out of town visitors (link here).

The reaction and knee-jerk responses of politicians and the wider Territory community is to blame the victim and seek ever increasing punitive laws and actions by governments. Last week, the Chief Minister announced she would recall Parliament (scheduled to sit tomorrow) specifically to rush through stronger bail laws following the murder of a storekeeper by a young Aboriginal man with a lengthy criminal justice record. On Saturday, the Weekend Australian (26-27 April 2025) published an article by Liam Mendes headlined ‘Same old story in red-flag Territory’ ($ link here $) which recounted numerous instances of shocking and appalling violence perpetrated against innocent citizens by young offenders. The article noted that ‘Territorians have been here before’ recounting how the CLP Government had come to office promising to get ‘tough on crime’, but that the community were increasingly sceptical: ‘The Chief Minister’s declaration …that “nothing is off the table” meant very little to exasperated residents’. Mendes concluded by noting ‘It is clear that the Territory’s justice system is broken. The answer isn’t to lock every defendant into overcrowded, overrun, disgusting watch houses.’ The author is right of course, although his concluding comment that the Government should have acted sooner is arguably misguided insofar as it implies that there are (unspecified) short term solutions.

The problems in the NT have been decades in the making and have their roots in the failures of governments at all levels to adequately support the maintenance of a viable social and economic institutional infrastructure in remote communities. Reversing this longstanding policy neglect is not susceptible to some quick fix. In recent years however the systemic dysfunction in remote communities that governments have been prepared to tolerate for decades because they were metaphorically ‘out of sight’ has begun to colonise mainstream Territory cities and towns.

Simultaneously, quite apart from the justice system challenges, and the associated issues related to Indigenous disadvantage, the quality of governance and public administration within the NT Government more generally has reached a tipping point and is now in a state of rolling crisis. Over the past year major governance failures have emerged in the Police, in the Anti-Corruption Commission, in the Chief Minister’s Department, and in the high-profile Waterfront Corporation. The senior levels of the NT bureaucracy appear to have been seriously compromised without apparent accountability. The concept of ministerial responsibility appears to have been consigned to the deeper depths of Darwin Harbour. The NT Independent recently published an editorial headlined CLP Government’s cover-up of misconduct at Waterfront part of wider dysfunction in the Territory (link here).

The prospect of any government in the NT pursuing the public interest on any significant issue in the near term is, in my view, a chimera. To take the crucial issue of alcohol, both Labor and CLP Government in the NT have consistently been prepared to prioritise the interests of the alcohol industry over the public interest (link here and link here). The risk is that the Territory’s diseased culture of governance has also infected the Commonwealth’s administration of Indigenous affairs. Three of the last five Ministers or Assistant Ministers have been from the NT, and the current Shadow Minister is also from the NT. In these circumstances, it is difficult to see the Commonwealth holding the NT to account on Indigenous policy issues going forward (not least because it has failed to do so to date).

One way or another, remote Australia requires more serious policy attention (as opposed to political froth) from national policymakers. A good first step would be to progressively and incrementally strengthen controls across the board (ie mainstream and Indigenous) over the availability and price of alcohol. But much more than this will be needed to reverse the progressive decline in governance and its silent handmaiden, economic security, that is currently underway and gathering momentum. The alternative to serious reform is progressive decline into systemic chaos not just in remote communities, but across the NT and potentially elsewhere in remote Australia. Unfortunately, it seems things will have to get much worse before the political willpower to reform will emerge either in Canberra or Darwin.

 

29 April 2025

The Anandilyakwa Royalties Aboriginal Corporation: micro accountabilities; macro policy implications

                                                Each part depriv’d of supple government

Shall stiff and stark and cold appear, like death.

Romeo & Juliet, Act four, Scene one.

 

In a recent post (link here), I wrote about the relationship between the Anindilyakwa Land Council (ALC), the Anindilyakwa Mining Trust (AMT) and the Anandilyakwa Royalties Aboriginal Corporation (ARAC). That post argued, inter alia that the rules governing the board composition of these three entities, and the direction of funding flows under the ALRA framework, operated to ensure that the ALC exercises very strong influence amounting to effective control over both the AMT and ARAC.

In this post I seek to extend that analysis by taking a closer look at ARAC, although the full story of its operations on Groote Eylandt in relation to the direction of royalty distributions towards particular retail outlets, and in relation to its support for the proposed Winchelsea mine, are yet to be revealed.

ARAC’s financial culture

The analysis here is based in part on the provision of access to ARAC’s financial reports for the years 2017 to 2021 by ORIC following a request from me. These reports are yet to be placed on the ORIC website.

Each of the six ARAC financial reports from 2017 to 2022 inclusive include a statement, signed by two Directors and resolved by the Board, outlining the corporation’s purpose as follows:

The Corporation's operations purpose [in its first year] has been, to hold assets and manage statutory royalty equivalents and negotiated royalties in such manners as determined by the Anindilyakwa Land Council, consistent with its goals for effective, responsible and sustainable use of such royalty flows [emphasis added].

This statement appears to make plain that the ALC exercises direct control over the operations of ARAC. While there is no explicit provision of the ALRA that precludes a land council from exercising effective control of a corporation, the requirement in section 35(2) of the ALRA for a land council to disburse section 64(3) funds to a CATSI corporation clearly intends that land councils should not be exercising direct control over the distribution of these funds. Section 23AA (5) which deals with how land council functions are to be performed (in short, fairly!) is also relevant.

The 2023 ARAC financial report included an amended statement that made no mention of the ALC’s role in determining ARAC priorities. This report follows the publication of the ANAO audit of the ALC which identified the influence of the ALC, and its CEO, over related corporate entities.

The extent and specific consequences of the ALC control are impossible to determine without access to ARAC’s financial accounts and board minutes. This is why I have argued, including directly to the former Minister, for a forensic audit of the ALC and its network to be undertaken, a step the Government appears not to have taken to date. But some examples of the consequences of that control can be identified, and are discussed below.

In the ARAC financial reports for FY2017, FY2018 and FY2019, a distinction is made between actual and notional s.64(3) income. While not explained in the FY2017 report, the FY2018 report, which identifies $5.8m in notional s.64(3) distributions, includes an explanation:

The distribution of 5,800,000 from ALC as Royalty distribution to TO’s was not shown in ARAC’s bank account because the transfer was made from the ALC NAB Royalty Trust to ALC’s Royalty bank account.

Prima facie, this is a direct breach of section 35 by the ALC. Of course, to the extent that the ALC determines the end use of the actual s.64(3) payments, they achieve the same outcome as the ‘notional’ payments that prima facie breach section 35. The reason we can draw such a conclusion is that such payments deprive TO’s of actual agency while extolling their ostensible involvement.  

Once the degree of ALC control is apparent, other expenditures in the financial reports begin to look intriguing at best, and ominous at worst. I mentioned the issue of the use of ARAC to subsidise ALC employment costs in my previous post, so will not go over that ground again, apart form noting that it appears irregular at best and a breach of the legislation at worst.

However, it is worth focussing on ARAC’s use of consultants. Section 37(8) of ALRA requires a land council to list the consultants it uses in the exercise of its functions and the amounts paid. The ARAC financial reports from 2017 to 2023 identify consultancy expenditures totalling in excess of $12m. To the extent that these represent ALC priorities and not TO priorities, accountability related to the consultants and their payments are obscured, and should be listed. Indeed, it might be argued that they represent a breach of s.37(8) by the ALC.

Finally, in my previous post I noted that the payment of $41m from the AMT to ARAC did not appear to be accounted for in the ARAC 2022 financial statements. With the availability of the previous year’s reports, it was possible to track the recording of an amount of $39,147,311 as an ‘AMT infrastructure debtor’ in the ARAC 2020 and 2021 financial reports. In 2022, the year that the AMT paid ARAC $41,324,957, there was no record in ARAC’s Financial statements of any such grant being received. However, there was a line item now called Payment in Advance (whereas it was previously termed AMT Infrastructure Debtor) which showed an outstanding debt of $39,147,311 in the previous year, but nil in the current 2022 FY. Rather than resolving the problem, this treatment of the outstanding commitment, whether intentional or not, obscures the recipient of the payment while acknowledging that the commitment no longer applies. [The discrepancy between the amount of $39m and $41m appears to be related to differing CPI treatments of the original commitment by the AMT and the ALC].

ARAC and the Groote Township Lease

There is one further policy issue that in my view requires consideration by the Minister and her agency given the level of influence exercised by the ALC over ARAC (and I suspect various other corporations).

The Chairman’s report in the ALC Annual Report 2022/23 provides the following update:

Another key milestone during the reporting period was the transfer of the Groote Eylandt Township Lease under ALRA S19A from the Commonwealth Executive Director of Township Leasing to the Traditional Owner (TO) led Anindilyakwa Royalties Aboriginal Corporation (ARAC) in October 2022, with the consent of the Minister for Indigenous Australians, the Hon Linda Burney MP.  The Hon Minister Burney attended the significant event held on Groote Eylandt on 14 November 2022, to commemorate the transfer of the Groote Eylandt Township Lease and for the signing of the Health and Wellbeing LDMA Implementation Plan.

The 2022/23 Annual Report of the Office of Township Leasing (OTL) (link here) includes some basic information regarding the transfer.

I have not been able to find a copy of the actual lease documentation for Groote Eylandt nor the sublease, so will confine my comments to matters of principle. In the Minister’s comments celebrating the transfer of the sublease (quoted in the OTL Annual report) she stated:

‘Township leasing in the Northern Territory is an important vehicle that drives Aboriginal decision-making in communities and provides an opportunity for whole-of-community management over economic activity on Aboriginal land. This historic transfer reminds the country of the strength of existing leadership structures in First Nations communities.’

To the extent that the ALC effectively controls ARAC, (and more worryingly, to the extent that a small set of individuals within the ALC dominate its decision-making) then the Minister’s aspiration for whole of community management over land tenure will be thwarted. It is unclear what the impacts might be, and they may well be invisible insofar as over the medium term they may be comprised of lost opportunities more than opportunities taken that fail. My fundamental point however is that given the evidence for substantial effective influence over ARAC by the ALC, and the hands-off regulatory oversight of the NT land councils by Ministers and the NIAA in recent years, there is a strong case for strengthening regulatory engagement between NIAA, ORIC, the OTL and the land councils.

Sum Up

ARAC is a significant element in the broader ALC strategy to shift the allocation of mining payments towards economic development. My previous post and this post provide clear cut evidence that the ALC exercises effective control over ARAC’s operations at least in terms of key financial flows.

These posts have identified several potential breaches of ALRA’s financial provisions, and perhaps more importantly pointed to areas where the implicit assumptions that underpin the current legislative framework applicable to land councils (and perhaps more broadly to native title bodies such as PBCs) are no longer applicable. Standards of governance and accountability oversight across the land rights policy domain, and I suspect more broadly, have in my view significantly declined over recent decades.

My core argument is that the appropriate response to accountability lapses should not be to curtail Indigenous agency. Rather, it is to point to the political reality that self-determination and Indigenous agency will always be threatened by two potential enemies: on one hand by external forces seeking to constrain and ultimately eliminate First Nations’ agency and self-determination; and on the other hand by internal actors (who may be either Indigenous or non-Indigenous, and/or malign or just weak) who seek to pursue individual advantage at the cost of a broader public or community interest. Where shortfalls in internal governance lead to accountability failures, and where the organisations involved are significant and high profile, there is a political risk that antithetical external forces will take advantage and use poor accountability to undo the hard work of those who have built up institutions to expand Indigenous inclusion.

If Indigenous interests wish to strengthen the reforms that have delivered institutional frameworks that recognise Indigenous rights, such as ALRA, the Native Title Act, or agreements such as the National Agreement on Closing the Gap, they must invest advocacy support in sustaining them. The optimal strategy for Indigenous interests is to ensure that significant organisations pay serious attention to the quality of their governance, and advocate for finetuning reforms as required. For governments interested in maintaining stable institutions and broader social cohesion, the optimal strategy is to invest in proactive regulatory engagement.

If the current Commonwealth Government does not get on top of the systemic issues causing significant internal corrosion to the NT land rights system, and particularly to the systems for royalty distribution, then it will leave the way clear for a future Government to potentially take much more drastic action that could weaken Aboriginal rights and diminish the potential for Aboriginal land owners to control their own future.

Ministers (whether state or Commonwealth) with responsibilities in the Indigenous Australians domain who allow governance and accountability standards to decline across their portfolio do their own reputations no favours, and potentially harm rather than enhance the interests of First Nations.

 

3 August 2024

Typographical errors: ANAO audits of the Tiwi and Anindilyakwa Land Councils

 

Here are a few of the unpleasant’st words

That ever blotted paper.

Merchant of Venice Act 3, scene 2.

 

There are four land councils established in the NT under the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA): the Tiwi Land Council (TLC), the Northern Land Council (NLC), the Central Land Council (CLC), and the Anindilyakwa Land Council (ALC).

 

In the last fortnight, the ANAO has published two important audit reports on the smaller two land councils, the TLC (link here) and the ALC (link here). Land Councils are Commonwealth statutory corporations albeit with a range of unique elements relating to the appointment of members, their funding, and their linkages with other Indigenous institutions in the Northern Territory. They are also native title representative bodies under the NTA. Over and above their narrow legislative roles, they have developed into important Indigenous institutions in both the NT and nationally.

 

The ANAO notes that the rationale for these audits is provide independent assurance to Parliament that the Land Councils’ governance arrangements are effective in meeting legislative obligations under the ALRA, the Native Title Act 1993 (NTA) and the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The ANAO has indicated that an audit of the CLC will shortly be published and an audit of the NLC is expected to be published in a couple of months.

 

I don’t have the space here to provide a comprehensive summary of each of these reports, and will instead cherry pick a small number of issues that appear to me to have significant governance implications both for the individual land councils and the broader institutional framework they operate under.

 

The ANAO is to be congratulated on the quality and accessibility of its analysis given the innate complexity of these institutions, including their cross cultural responsibilities. Nevertheless, as I have previously noted on this blog, the ANAO has a propensity to cloak its findings in heavily qualified bureaucratic prose and extreme understatement. The result is that an ANAO report reads like a novel written in a foreign language. Those proficient in bureaucratese know exactly what is being said while those unfamiliar with the language (eg in the media and the general public) are left largely untroubled and unaware of the significance of what has been said.

Tiwi Land Council Audit

 

The ANAO headline findings for the TLC were:

The Tiwi Land Council's (TLC) governance arrangements under the ALRA and the PGPA Act are partly effective….The TLC’s arrangements to promote the proper use and management of resources under the PGPA Act are largely inappropriate. (page 5).

 

The ANAO notes that in 2021-22the TLC budget was $4.3m, and it distributed $5.9m in land use payments to Traditional owners (TOs). These are not particularly large amounts, but will add to around $100m over the span of a decade.

 

In para 2.9, the ANAO noted that its analysis of Management Committee and Council meeting minutes identified multiple instances where the Management Committee made decisions without delegation between 2008 and 2020.  

 

A core statutory function of the land councils is to consult Traditional owners and ascertain their consent to proposed activities on their land. The ANAO identified significant shortfalls in the TLC’s approach to exercising this function:

3.64 The ALRA determines that, in carrying out its functions, a Land Council shall have regard to the interests of, and shall consult with, the Traditional Aboriginal Owners of the land in its area and any other Aboriginal people interested in the land. The ALRA further specifies that a Land Council shall not take any action unless it is satisfied that: •the Traditional Owners of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and •any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council…

…3.66 The TLC subcontracts the organisation and conduct of the clan meetings to Tiwi Resources, an Aboriginal corporation owned by the eight clans. The TLC presents at these meetings, however does not take minutes, and does not request the minutes from Tiwi Resources. The TLC was unable to provide information to the ANAO about the discussions or decisions made at clan meetings and cannot demonstrate it has conducted effective clan consultations. 

 

In the summary at the start of Chapter Four, the ANAO note (page 51):

The TLC’s arrangements to promote the proper use and management of resources are largely inappropriate. The TLC’s policy framework and arrangements for risk management, fraud control and managing conflicts of interest are incomplete, not appropriately established, and inconsistently implemented. The TLC’s corporate plan and annual report, including performance statements, are not fully consistent with legislative requirements.

 

Finally, in what I took to be a damning indictment of the level of engagement of the National Indigenous Australians Agency, the ANAO laid out the functions of the NIAA set out in the formal order which established it (see para.2.26), which includes roles ‘to lead and coordinate policy Commonwealth policy development’ and to ‘build and maintain effective partnerships…’, and then noted (in para 2.27) the NIAA’s advice of its perception of its role in relation to the NT Land Councils which adopted a much more passive approach. Then to ram home the point, in para 2.28, the ANAO stated without further comment:

2.28 As part of this audit, the ANAO approached the NIAA regarding a potential recommendation to the NIAA to support the Tiwi Land Council to develop appropriate delegation instruments. The NIAA responded that ‘This is a matter for the Tiwi Land Council’.

 

Anindilyakwa Land Council Audit

The ANAO headline findings for the ALC were:

The ALC’s governance arrangements under the ALRA and PGPA Act are partly effective …. The ALC’s arrangements to promote the proper use and management of resources under the PGPA Act are partly appropriate (page 6).

 

The ANAO notes that in 2021-22 the ALC budget was $7.4m, and it distributed $70.2m in land use payments to traditional owners (TOs). These are substantial amounts appropriated for Aboriginal benefit, and will add to around $770m over the span of a decade.

 

Notwithstanding this rather anodyne description, I was quite astonished to read the detailed analysis contained in the ANAO audit. While the audit focusses on a single organisation, the ALC, it necessarily describes a network of parallel organisations with interlocked directors, and senior staff, and a complex web of financial flows between them. Yet the financial books of the parallel organisations (and their commercial subsidiaries) are beyond the ANAO remit, leaving the readers to ponder the implications of a series of questionable arrangements and decisions taken within the ALC.

 

The high level conclusions of the ANAO are outlined at pages 8 to 10, followed by a series of technical recommendations. The following extracts pick out some of the more salient high level conclusions:

17. …. Key interests held by the CEO and Council members (including the Chair) in corporations that receive funding based on decisions of the Council, are not consistently declared and are ineffectively managed. (See paragraphs 4.19 to 4.51)…

18….The 2021-22 Annual Report was not published as at March 2023. Although the draft 2021–22 Annual Report mostly complies with PGPA Act and Rule and ALRA requirements, it lacks transparency in relation to operations.

19. The Audit Committee does not provide adequate oversight and scrutiny of the ALC’s operations. The Audit Committee is not independent from management and is not effective in the delivery of some of its key mandatory functions under the PGPA Act. It does not appropriately review the ALC’s performance reporting; system of risk oversight and management; and system of internal control. The Audit Committee secretariat is not effective. (See paragraphs 4.64 to 4.85)

 

The issue of conflicts of interest is at the core of this audit. In plain English, a conflict of interest opens the way for those conflicted to accrue inappropriate financial benefits. The ANAO has identified no instances where that has occurred, however its remit is limited to the ALC and it has not examined the financial affairs of the various parallel and subsidiary organisations. Figure 4.1 on page 68 provides a useful summary of the complex relationships involved. The key must read paragraphs are 4.45 to 4.50.

 

Some extracts:

4.32 The CEO’s declaration identified an interest arising from the ALC’s employment of his spouse (who was first employed by the ALC in 2014). The ‘notes’ section of the declaration was left blank, and no management plan was included in the register or elsewhere. The CEO had not made a written declaration of the interest prior to 2022...  

4.47 The involvement of the ALC Chair, CEO and CEO’s spouse in organisations that, in 2021–22, received the majority of royalty equivalents and that, in 2020–21 and 2021–22, received the majority of NT Indigenous Economic Stimulus Package funds, creates a risk of conflicted interests….

4.48 In Council funding decisions, the ANAO observed disproportionate benefit to the entities with which the CEO is associated. During the two 2022 Finance Committee meetings (at which the ALC CEO was present), 112 requests for funding valued at $109.1 million were reviewed… In summary, requests submitted by the ALC CEO represented 24 per cent of funding applied for, and 36 per cent of approved funding; and the success rate for requests submitted by the ALC CEO was 99 per cent by value, compared to a success rate for the other applicants of 53 per cent by value. 

4.50 Given the influence of the Chair and CEO over the ALC’s funding and management decisions; the financial benefit that AAAC, GHAC and consequently Winchelsea Mining obtain from the ALC; and the ALC Chair’s, CEO’s and CEO’s spouse’s positions in GHAC and Winchelsea Mining; the risk of conflicts of interest is high. The current management strategies applied to this risk are either insufficient or not implemented. 

 

The ANAO analysis of the ALC Audit Committee is also eye watering. The ANAO identifies that the ‘independent chair’ costs nine times more than other land councils expend on their audit committee chairs (para. 4.73), and is engaged by the parallel organisations that are also effectively controlled by the CEO and ALC Directors.

 

The ANAO identified several significant issues in relation to the independence of the Audit Committee Chair (para. 4.70):

• The Chair of the Audit Committee is the founding director of Enmark Pty Ltd (Enmark). Between 2014–15 and 2021–22 the ALC paid $896,056 in fees to Enmark for services. Between 2017–18 and 2021–22 Enmark was one of the top three consultants by value engaged by the ALC.

• Enmark provides consultancy and other services to several Aboriginal corporations receiving royalty equivalent funding from the ALC. This includes GHAC and AAAC.  The ANAO identified numerous deficiencies in the approach of the Audit Committee to its responsibilities.

 

One further issue that I won’t explore in detail relates to the ALC’s use of royalty payments to third party organisations which were then effectively reallocated to the land council for the payment of salaries (see paras 3.51 and 3.52). The ANAO correctly identifies this mechanism as a potential source of fraud, but fails to note that it effectively undermines one of the Minister’s tools available to ensure the land council is appropriately focussed on its legislated remit. Under the ALRA, the Minister approves the budgets of the land councils, but the ALC has effectively been redirecting royalty equivalent funding away from community benefit and towards its own operations, thus undermining the fiscal constraints that incentivises good priority setting.

 

Finally, the ALC Board and CEO provided a ten page response to the Audit report, which needs to be read in full. The response focusses on the undoubted achievements of the ALC and its associated organisations in a range of areas. It documents a massive increase in staff of the ALC, many from the local communities. It also notes that the former Minister for Indigenous Australians Ken Wyatt was kept fully informed of development on Groote Eylandt, and that the CEO of NIAA has been briefed. It points to the ALC’s involvement with the ANU in documenting the social indicators on Groote; a matter I commented on in an earlier post (link here).

 

Clearly whatever its other deficiencies, the capability of the ALC Board to write entertaining prose far exceeds that of the ANAO. The ALC response provided my favourite line from the whole report in a comment on the ANAO’s conclusions on conflict of interest:

The ALC has effectively managed conflicts of interest in the context of this operating environment and accepts that we have not always properly documented these practices. Therefore, instances of typographical errors have given the auditors a negative overall impression.

 

Conclusion

These two audits raise important issues regarding the quality of governance in two of the four NT land councils. The TLC appears to have taken a series of remedial actions and should hopefully make good progress. The ALC faces more deep-seated issues and notwithstanding its response, I for one am unconvinced that it is yet on the right path.

 

The existence of these issues however is not just an issue for the Land Council directors and management. It seems to me that the relevant Ministers over the past decade have allowed the quality of regulatory oversight of the NT land councils to significantly weaken and in some cases to perhaps disappear. Not only has this laissez faire approach opened up the opportunities for conflicts of interest to emerge (and thus to opportunities for fraud against local communities and the Commonwealth), but it has also undermined the overall effectiveness of the land councils in fulfilling their statutory obligations and remit.

 

To address the issues raised in these audits, it strikes me that there are two essential actions required.

 

First, to provide an assurance to the ordinary members of the Groote community, there appears to be an overwhelming case for an independent forensic investigation into the financial affairs of the ALC, its associated organisations, and its key staff and Directors. It seems to me imperative that Minister Burney should both initiate such an investigation immediately, and initiate a short sharp review of the way in which NIAA oversights portfolio bodies.

 

Second, given that it is now almost fifty years since land councils were established, and that there has been no overarching review for two decades or so, there is a strong case for a high level independent review of the appropriate regulatory framework for the operations of the NT land councils. Such a review should reconsider their statutory remit, their funding arrangements, and importantly, how land councils relate to associated Indigenous entities that have responsibilities for utilising the royalties, royalty equivalents, and other land use payments that accrue to landowners and affected communities. Such a review should not have any overt political agenda apart from considering the best way to meet the future needs and aspirations of Aboriginal landowners and native title holders in the NT into the future.