Policy neglect and the Indigenous estate

        …policy, that heretic,
Which works on leases of short-number'd hours…

                                                                             Sonnet 124

One of the advantages of spending time on a university campus is the opportunity to attend seminars on interesting topics that are beyond my direct or current work focus and knowledge. In particular, it is almost always the case that while the speaker is focussed on delivering a specific message or insight, invariably I go away stimulated to think about issues and implications that were not necessarily the primary focus of the presentation.

On Wednesday last week, I attended two events: a seminar on Indigenous involvement in carbon farming presented by Rowan Foley, the CEO of the Aboriginal Carbon Foundation (link here), and a panel discussion on the economic issues faced by Indigenous Australians (link here). The panel comprised four ANU academics, Indigenous social scientists Professor Tony Dreise and PhD scholar Bhiamie Williamson, and economists Dr Boyd Hunter and Professor Bruce Chapman.

In thinking about the day afterwards, I was struck by the fact that notwithstanding a wide array of different topics, each of these five experts had given substantial attention to various issues related to the Indigenous estate. I don’t propose to attempt to summarise their presentations. Instead, I will selectively mine them for my own purposes, namely, to point to and emphasise the ongoing, and increasing, policy significance of the Indigenous estate for the nation and the parallel and to date short-sighted policy responses of governments.

Bhiamie Williamson made the point that the Indigenous estate is currently at around 60 percent of the Australian land mass and presented a map downloaded from the National Native Title Tribunal website which showed that taking into account current claims, the Indigenous estate is on track to comprise up to 80 percent of the Australian landmass (although not all of this will be exclusive possession). Here is a link to a selection of such maps. The policy import of these data driven visual tools is indisputable: our institutional and regulatory frameworks for non-urban land ownership have undergone extraordinary change over the past thirty years, and the efficiency and effectiveness of these new frameworks in meeting both Indigenous aspirations and national policy objectives are of crucial and growing significance.

Rowan Foley presented a set of statistics about carbon farming across Australia that included the following points: Indigenous carbon trading comprises around ten percent of the nation’s carbon farming trades, and across the northern savannah, Indigenous carbon farming comprises around 50% of the total activity. The point that came to my mind during Foley’s presentation was that there is a huge potential for growth in Indigenous carbon farming across the Indigenous estate. While he provided no statistics, my own speculative estimate is that less than ten percent of the Indigenous estate is being actively carbon farmed. If I am anywhere near correct, then there is huge potential for productive economic use of the Indigenous estate going begging. The existence of market based financial incentives to landowners is clearly not working. While it is possible that Indigenous landowners may be choosing not to engage in carbon farming (a choice that is theirs to make), it seems more likely that some combination of market and government failure is operating to inhibit what is widely acknowledged to be an economic activity strongly aligned with traditional Indigenous land management practices. This is an issue that policymakers ought to be concerned about.

Turning to the economics panel discussion, Professor Bruce Chapman, best known as a world expert in the theory of income contingent financing, and the architect of the Australian HECS scheme, spoke to the potential to explore a revenue contingent loan scheme across the Indigenous estate targeted at commercial opportunities generally. Coincidentally, he based much of his talk on papers I had co-authored with Jon Altman in 2004/2005. [For those interested, check out Altman & Dillon 2005 ‘Commercial development and natural resource management on the Indigenous estate: a profit related investment proposal’,  Economic Papers 24(3): 249-262. (link here)]. Chapman highlighted both the existence of market failure (including the existence of high transaction costs) and government failure in contributing to sub-optimal economic activity on Indigenous owned land across the nation. While his focus was primarily to encourage a stronger take up by the economics profession in focussing on these issues, the obvious take out from his argument is that policymakers should also be giving these issues greater attention.

Professor Tony Dreise pointed to the implications of the historical and geographic development of the Indigenous estate. In particular, he noted that the majority of Indigenous citizens reside in ‘settled’ south-eastern Australia, yet the lands returned to Indigenous ownership are primarily in remote Australia. This paradox feeds into a host of issues, not least the increasingly strident calls from within the Indigenous community for mainstream institutions to listen and hear their ‘voice’.

Dr Boyd Hunter pointed to the economics literature on institutions and common property resources and explicitly linked these to the institutional arrangements which underpin the Indigenous estate. He was pointing to a longstanding tool box developed by economists for policy and economic analysis with potential applicability to understanding the challenges and opportunities facing both Indigenous land owners and national policy policymakers in relation to the management and protection of the Indigenous estate. While economists do not have all the answers to complex policy challenges, they have a significant contribution to make. Yet, notwithstanding the ubiquity of economists within the higher echelons of the public service and the policy advisory consulting industry, the tools and perspectives identified by Hunter are almost entirely absent from the policy discussions on the Indigenous estate.

That perhaps overlong introduction was aimed at establishing that there are a set of policy challenges to be addressed in relation to the remote land management and the Indigenous estate.

The next step is to quickly review the record of governments and policymakers in documenting and assessing these policy challenges. I don’t propose to get bogged down in too much detail, so it will suffice to point to just two of the major reviews, as well as a very recent OECD publication.

In 2013, then Attorney General Mark Dreyfus QC gave the Australian Law Reform Commission terms of reference (link here) for an inquiry into the Native Title Act, in particular the connection requirements relating to the recognition and scope and of native title rights. One of the matters he explicitly asked them to have regard to was ‘the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians.’ The Commission reported in 2105 (link here). On the web page for the Report, the Commission states:

This Report marks the first major review of the law governing ‘connection’ in native title claims since the introduction of the Native Title Act 1993 (Cth). It also examines authorisation of persons bringing claims and joinder of parties to a native title claim.

ALRC Report 126 makes 30 recommendations for the reform. In formulating these recommendations, the ALRC has had regard to the development of the law, procedure and practice over the 20 years since the Native Title Act was introduced, as well as the significant policy and economic arena in which native title is implemented.

In the four years since the report was handed down, there has been no comprehensive response to the report apart from a single set of amendments designed to facilitate agreement making (for example in relation to the Adani coal mine) by removing a requirement for unanimity in establishing ILUAs. These amendments arose as a result of a Federal Court decision dealing with the Noongar native title agreement across the south west of WA rather than from any consideration of the ALRC report.

A second major initiative emerged from COAG when on 10 October 2014, First Ministers initiated ‘an urgent investigation into Indigenous land administration and use’ involving a high profile Expert Panel of Indigenous leaders and a working group of state and federal bureaucrats (Senior Officers Working Group report 2015; link here). The Working Group recommendations were considered by COAG on 11 December 2015.

In my blog post assessing the COAG outcomes dated 15 December 2015 titled ‘COAG and Indigenous Affairs policy’ (link here), I commented, inter alia:

To cut to the chase, the actual outcome agreed by First Ministers amounts to a classic cop out. They announced:

To better enable Indigenous land owners and native title holders to use rights in land for economic development, jurisdictions will implement the recommendations of this report subject to their unique circumstances and resource constraints.

The announcement is drafted to sound positive and to suggest support for Indigenous economic development, but involves absolutely no commitment, no timeframes for action, and provides no information on the part of the states, the territories nor the Commonwealth as to actual intentions.

It is worth noting that many of the report’s recommendations relate to the Native Title Act which could be unilaterally advanced by the Commonwealth given that it is Commonwealth legislation.

In both cases, despite initiating high profile reviews, governments have failed to follow through, and thus have failed to substantively respond to the recommendations and implement change.

Recently, the OECD published a report titled Linking Indigenous Communities with Regional Development (link here). The report adopts a comparative perspective and includes a series of direct and sensible recommendations. As the Executive Summary notes, inter alia:

Vibrant Indigenous economies are achievable through leadership and innovation of Indigenous communities with governments supporting them to deliver on their objectives for development. Activating these opportunities depends on four interconnected elements: (i) good data; (ii) enabling policies for entrepreneurship; (iii) instruments to mobilise land for development; and (iv) effective and inclusive governance.

Given the record of (non)reform in relation to the Indigenous estate over the past decade, the likelihood that the current Morrison Government will seek to substantively and comprehensively advance such a policy agenda (notwithstanding its potential economic and social benefits for both Indigenous interests and the wider community) appears slim.

As I have reflected about this pessimistic outlook, it has occurred to me that there are at least two significant structural impediments working against positive and constructive reform in relation to the Indigenous estate.

Both are functions of the way policy issues are framed and thus dealt with.

The first impediment is the locus of policy responsibility for the Indigenous estate within the Commonwealth Government. The administration of the Native Title Act is allocated to the Attorney Generals portfolio, presumably on the assumption that the financial and legal risks arising from native title litigation outweigh the benefits flowing from having the new National Indigenous Australians Agency (NIAA) take policy responsibility. The NIAA does have policy responsibility for the Northern Territory Land Rights legislation, plus a number of more minor pieces of land related legislation. My own view, for what it is worth, is that there are substantial potential benefits from having the NIAA and its new Minister Ken Wyatt take responsibility for Native Title, and indeed, considerable risks in allowing narrow legal perspectives to dominate the policy reform agenda.

The second impediment to better policy may well be that the issue is usually framed as a primarily Indigenous related issue. While the land owners of the Indigenous estate are primarily Indigenous (though in the case of non-exclusive native title, non-Indigenous owners are involved too), the policy and regulatory challenges facing governments might better be framed as being about the stewardship and management of remote and regional Australia, with Indigenous landowners being the predominant but not the only stakeholder interest.

For example, one of the consequences of the success of native title claims over the past thirty years has been a transfer of both land assets from the Crown to Indigenous ownership, but it has also involved the transfer of contingent liabilities from the Crown to Indigenous land owners in the form of legal obligations to control weeds and feral pests, and to manage land responsibly so as to minimise costs on neighbours, and so on. Yet the Commonwealth has allocated only pathetically paltry funding to PBCs which administer native title lands. Whether the more generous funding provided by the NIAA for ranger groups across the Indigenous estate is adequate is not clear to me.

The Commonwealth Government has an overarching regulatory responsibility for each and every policy domain, and in particular for managing and addressing potential risks. The bottom line is that in an era of increasing global warming, the potential for sub-optimal levels of environmental, economic and social land management across remote and regional Australia is a national policy risk that spans a number of Commonwealth portfolios as well as key state and territory portfolios. The low levels of economic activity on the Indigenous estate is arguably a contributor to the deep-seated inattention of governments and policymakers to the broader national land management risks

I have previously written a number of blog posts about the policy challenges for the Indigenous Estate. I mention three of the more important here:

·       ‘Transforming Rangeland Policies: Indigenous opportunities’ dated 15 December 2015 (link here);

·       ‘Native Title Amendment Bill: update and some more generic commentary’ dated 20 March 2017 (link here);

·       ‘Policy issues arising from communal and inalienable land tenure’ dated 23 March 2017 (link here);

Re-reading these posts, I am struck both by the policy complexity involved, and the paucity of informed and constructive policy dialogue and discussion in the media and the public domain regarding these issues. Perhaps as a consequence, the overarching message from any attempt to comprehensively assess the state of play in relation to these areas of public policy is one of deep-seated policy inertia. Upon detailed examination, in relation to policy for the Indigenous estate, all roads lead not to a lack of policy proposals or innovation, nor to an absence of policy ideas. Instead, all roads lead to a fundamental lack of political will by policymakers.

Time to ‘get real’ about progress in Indigenous affairs?

On 12 July 2019, The Australian ran two Indigenous related stories on its front page. The most prominent related to the proposal for an Indigenous Voice in the Constitution. The lesser story, which has entirely disappeared from view in the week since, derived from comments made to The Australian by the new Minister for Indigenous Australians, Ken Wyatt, and was headlined: ‘Wyatt’s challenge to ‘disconnected’ urban activists’, and the full story on page 6 was headed: ‘Get real, Wyatt tells urban indigenous’. This story (link here behind paywall) is the subject of this post.

The story is interesting for a range of reasons: it reflects the reality that there is a large and growing divergence between the economic and social status of remote and non-remote Indigenous citizens, with remote citizens being amongst the most economically and socially disadvantaged Australians, whereas non-remote Indigenous citizens, while clearly disadvantaged, are much better positioned. The reasons are complex. They include the demographic trends which involve an ongoing and significant increase in the population of non-remote Indigenous citizens (driven in large measure by increases in the numbers of citizens self-identifying as Indigenous citizens); the greater access to a wide array of mainstream services in non-remote Australia; and the less effective delivery of core services and programs in remote Australia.

The story is also interesting because it reports on the breach of an implicit and widely accepted taboo against undermining the ideological unity of fundamental Indigenous interests and aspirations (notwithstanding the widespread recognition that within the Indigenous community there are substantive linguistic, cultural and social differences). The fact that the new Minister made these comments in a highly public forum makes it even more intriguing. And of course, the fact that the Minister’s comments appear to have been met with universal silence from non-remote Indigenous commentators and leaders makes it triply intriguing (I should qualify this last assertion my admitting that as I am not on social media, I may have missed some reactions).

So why did the newly minted Cabinet Minister decide to open up a new front in the Indigenous policy space, one that he had not mentioned the day before in his major speech to the National Press Club? To seek an answer, we have to take a few steps back.

On 10 July 2019, Minister Wyatt fronted the National Press Club for his first major address since his appointment (link here). The speech was notable mainly for the hares which were set running on constitutional recognition and the proposals in the Uluru Statement for a Voice to Parliament.

The Minister began his speech with the following statements:

The concept of the voice in the Uluru Statement from the Heart is not just a singular voice, and what I perceive it is - it is a cry to all tiers of Government to stop and listen to the voices of Indigenous Australians at all levels.

The voice is multilayered and includes voices of individuals, families, communities and Indigenous organisations who want to be heard by those who make the decisions that impact on their lives of Indigenous Australians at all levels…

…All they want is for governments to hear their issues, stories and their matters associated with their land, their history. They're asking the three tiers of government to stop and take the time to listen to their voices.

The development of a local, regional and national voice will be achieved…

It is my intention to work with state and territory ministers to develop an approach underpinned with existing jurisdictional organisations and advisory structures that they have established to advise state and territory governments…

…I'll turn to the matters of Treaty and constitutional recognition later.

Much later in the speech, he returned to the issue of constitutional recognition, stating inter alia:

Constitutional recognition - as I mentioned earlier, I will develop and forward a consensus option for constitutional recognition to put to a referendum during the current parliamentary term. …

…I do not want to proceed if we are not going to be successful. I have commenced the process of engaging and seeking the counsel of Indigenous leaders on the best way forward.

We need to design the right model to progress to a point of which the majority of Australians, the majority of states and territories and Indigenous Australians support the model so that it is successful.

The Morrison Government is committed to recognising Indigenous Australians in the constitution and working to achieve this through a process of true co-design. Constitutional recognition is too important…

…I plan to establish a working group of Parliamentary colleagues of all political persuasions to assist me in considering the role of engaging on many levels to bring forward a community model.

The Shadow Minister for Aboriginal Affairs, Linda Burney, will be integral to that process.

The constitutional recognition work is unfinished. It will take time. It will need to be measured… [some less relevant text has been omitted from these quotes]. 

In retrospect, (and notwithstanding the rhetoric about co-design) it is clear that the Minister was drawing a distinction between the proposal for a Voice to Parliament and the proposal for constitutional recognition. However this nuance was not picked up by the media covering his speech (see for example this report from the ABC which reported that the Prime Minister had indicated a week earlier that he was prepared to work with Labor on implementing the Voice proposal).

The following day, Thursday 11 July, the Australian Financial Review ran a story that effectively obliterated the Minister’s distinction and which was prominently headlined ‘Indigenous referendum in three years’ (link not available). Other media commentators similarly, and understandably, missed the distinction (see for example Eddie Synot in The Conversation link here). While the Minister was making a clear distinction between the Voice and constitutional recognition, it is apparent that he was also intent on maintaining a high degree of ambiguity. Unfortunately, this latter aim backfired spectacularly.

On Friday 12 July, The Australian’s front page headline was “PM to veto ‘voice’ in the Constitution’ (link here; see also this link). The story underneath stated ‘that Minister Wyatt had declared in his speech that ‘the government would consider creating a voice to parliament through legislation and left the door open to enshrining it in the Constitution’. The story went on to state ‘senior government sources [ie the Prime Minister’s Office] said yesterday Mr Morrison would not support a constitutionally enshrined Indigenous advisory body’.

This was the very same day that the Minister made his comments regarding ‘disconnected’ urban Indigenous leaders.

It seems to me that there are at least three potential explanations for the Minister’s uncharacteristic and arguably unwise public bluntness directed at his own natural constituency. After all, one of the universal descriptions of him (a perspective that I share) is that he is a thoroughly decent bloke not prone to giving offence.

The first possible explanation is that the Minister is aware of particular Indigenous leaders who are abusing their positions of leadership and failing to represent their broader constituency. According to the article, he did claim to have spoken to some leaders ‘about their connections to the people they represented’. While such unrepresentative leaders may exist, one wonders whether taking this issue into the public domain without sustained backup such as including it in his speech, issuing a media statement, and outlining a strategy to improve governance capabilities, would have much influence on such recalcitrants.

The second possible explanation is that he was in fact sending a coded message to his Cabinet colleagues that he was prepared to be tough on the Indigenous community where necessary, and / or that there are very high levels of need in remote Australia which will need greater investment. Of course, as a former Minister (for Aged Care) in the Government, he will be highly conscious of the Government’s record to date in cutting expenditure outlays in the Indigenous policy sector. See for example the discussion on expenditure in the Parliamentary Library’s recent Briefing Book publication, and in particular the commentary on cessation of National Partnership Agreements (link here). I note in passing that this publication does not include mention of the significant cuts to the National Partnership on Remote Housing (previously discussed in this blog here and here as well as here). The Minister is too experienced not to understand the dire needs across remote Australia, and may well be laying the groundwork for some greater investment in remote communities, perhaps at the expense of non-remote expenditure.

A third possible explanation is that the Minister may have feared that the media would interpret the Prime Minister’s intervention as constituting an implied criticism or an undermining of his authority just weeks into his tenure. Or he may have feared that a consensus would emerge amongst stakeholders that he was irrelevant to the underlying decision-making on the Voice proposal. Some tough talking might have been seen as one way to diffuse any such criticism. In the event, it seems that neither of these eventualities occurred, and the Minister appears to continue to enjoy a honeymoon that insulates him from receiving realistic feedback. Nevertheless, the synchronicity of the two stories suggests that there was likely some linkage.

I don’t propose to attempt to choose between these potential explanations; I am happy for readers to make their own minds up. What is apparent however is the extent to which a complex web of political considerations (and players) infuse and shape what are ostensibly neutral policy pronouncements in the Indigenous Australians portfolio.  

Conclusion

There are clearly substantial opportunities for both the nation as a whole, and the Government, in having a respected Indigenous person such as Ken Wyatt in charge of the portfolio. This opportunity is magnified by the fact that the Opposition has two Indigenous shadow ministers in Linda Burney and Patrick Dodson. However, there are also considerable risks, for the nation and for Ken Wyatt himself, that the Government will see the appointment of an Indigenous person as minister as a ticket of leave not to expand the policy envelope, but to continue ‘business as usual’ and perhaps to make further expenditure cuts to Indigenous programs. I hope that this rather cynical interpretation is not the case, but one would have to be naïve to believe that it is not one potential outcome.

Only time will tell whether the opportunities or the risks eventuate. In the meantime, to maximise Minister Wyatt’s leverage and influence within the government and thus his eventual success in the portfolio it will be imperative that he is publicly pushed by key Indigenous peak bodies and by the media and the community at large to deliver tangible policy and program outcomes for Indigenous citizens. In particular, the needs and aspirations of remote Indigenous communities, who comprise the most disadvantaged citizens in the nation, require ongoing advocacy and policy attention. The Minister was absolutely correct in pointing to the importance of policy focussing on remote opportunities and disadvantage.

Also implicit in the Ministers comments is the reality that individual Ministers have finite levels of influence, and power. They rely on the community at large to signal to the Government when policies are inadequate or not hitting the mark. Without this pressure, Governments will take the path of least resistance. In the Indigenous policy space, the political influence of the Indigenous community is severely circumscribed by its low population base. In remote Australia, Indigenous political influence approaches zero (and this is the challenge to which the Minister appeared to be pointing).

The larger issue, not addressed by the Minister, is how to engage the wider community in supporting better policy responses by governments in the Indigenous policy domain. Without a broader support base, Indigenous interests will continue to be marginalised by the Australian political system. All of us, whether Indigenous or not, have a role in keeping the Government up to the mark in advancing good policy for the Indigenous Australians portfolio.

Marshmallow and fudge: evaluation and the Indigenous policy domain

I want to cover three issues in this post. First, provide a very brief and selective account of the history of evaluation in relation to Commonwealth policies and programs. Second, to unpick some of the issues raised in the recent ANAO performance audit on ‘Evaluating Aboriginal and Torres Strait Islander Programs’ (link here). Third, to make some preliminary or provisional comments in relation to the Productivity Commission’s project to develop a whole of government Evaluation Strategy (link here). Paragraph numbers in square brackets refer to the ANAO report.

The Indigenous policy domain has a long history of concerns over accountability, waste and effectiveness that reaches back to the very beginnings of the Commonwealth’s decision to take on an active role in Indigenous affairs in the late 1960s. This in turn led to periodic bouts of intense media and political scrutiny into the propriety and effectiveness of public funding for Indigenous affairs. For example, a series of dramatic allegations (never confirmed) were aired in the Senate in 1988 alleging the existence of a ‘black mafia’ which in turn led to a Special Audit Reports into the Department of Aboriginal Affairs and the Aboriginal Development Commission by the Auditor General in March and October 1989. In turn, a desire to pre-empt and counter this sort of political pressure led to the establishment within the ATSIC legislation of the Office of Evaluation and Audit (OEA) headed by a ministerially appointed Director to oversight ATSIC’s programs and report to both the Commission and the Minister. After the abolition of ATSIC, OEA was shifted to, and eventually subsumed within, the ANAO.

The establishment of OEA broadly coincided with the adoption of program performance budgeting by the Commonwealth, which in turn led to an increased focus on performance monitoring and evaluation across the public sector. Since the abolition of ATSIC around 2005, the Indigenous Affairs portfolio has lodged in a number of key portfolios (DIMIA; FACS; FaHCSIA) each with their own program management and evaluation cultures, before finally coming to rest in the Prime Minster & Cabinet portfolio since 2013.

While it is arguable that more onerous standards of accountability have been applied to Indigenous programs over the past 30 years, it is certainly the case that concepts such as accountability, value for money, efficiency and effectiveness have been ongoing benchmarks (if only internally to government) in the administration of Indigenous affairs programs and policies. It is however almost 15 years since the last major accountability controversy in the Indigenous affairs portfolio which related to the activities of a number of senior ATSIC leaders, and which created the opportunity for ATSIC to be abolished by the Howard Government. For those interested in this history, I refer you to pages 27 – 30 in the recent CAEPR Policy Insights paper I co-authored with Neil Westbury (link here).Consequently, it is not surprising that the substantive (as opposed to rhetorical ) focus on accountability has diminished over time. In turn, the impetus for effective and substantive evaluation has diminished, even as the prevalence of rhetoric advocating greater use of evaluation has increased.

At the rhetorical level, there have been numerous reports and speeches by public sector leaders advocating greater use of evaluation as the solution to ongoing policy failure in Indigenous affairs. Thus in 2009, the Department of Finance and Deregulation’s Strategic Review of Indigenous Expenditure ‘stressed the need for a more rigorous approach to program evaluation at a whole of government level’ [para 1.4, p14].

In August 2016, in the Dungala Kaiela Oration, the Secretary of PMC, Martin Parkinson (link here and link here)  argued

A high proportion of what we fund has, at best, a weak evidence base of how it affects Indigenous peoples. We must gather evidence which shows we are improving the lives of Indigenous Australians. And if that evidence tells us otherwise, we must change our approach.

In December 2016 in a speech titled ‘Public policy and whats missing in action?’ (link here), the Deputy Chair of the Productivity Commission, Karen Chester, argued that:

While there is extensive reporting on the extent of Indigenous disadvantage, there is a lack of evidence about what works (and what does not) in bridging outcome gaps. And while evaluating the impacts of policies on Indigenous outcomes can be challenging, the challenges should not be seen as insurmountable….Stop looking for silver bullets and policy sound bites. And just get back to the dirt under the fingernail work of building evidence-based policy and building a much stronger evaluation culture (we need to know more about what works and why).

These views, which have an attractive internal logic, implicitly assume that Government programs have straightforward objectives and that if only we find appropriate or effective policy incentives, Indigenous behaviours will change in ways which lead to improved socio-economic outcomes. Both these assumptions are problematic in cross cultural contexts  and certainly not necessarily the case in the context of the Indigenous domain. Moreover, even if policies were technically able to improve outcomes, robust policy evaluations inevitably come into conflict with the deep-seated political imperatives to frame policies and programs to advance political objectives and also to avoid any admission of failure that might create political embarrassment for Ministers or the Government.

Thus notwithstanding the continuous stream of pro-evaluation rhetoric from public service leaders, the recent ANAO performance audit ‘Evaluating Aboriginal and Torres Strait Islander Programs’ outlines a sorry history of desultory performance by the Department of Prime Minister and Cabinet (DPMC) and its Indigenous Affairs Group (IAG). These results appear to derive from policymakers prioritisation of the perception of action over substantive action. Below, I selectively point to a number of issues raised by the ANAO audit which reinforce this conclusion. I recommend those interested read the whole report (link here).

The ANAO performance audit

The ANAO performance audit was aimed not at assessing the effectiveness of DPMC’s evaluations, but at assessing the effectiveness of the design and implementation of the department’s evaluation framework for the IAS [para. 6]. This more limited objective was arguably a mistake, since even a wholly effective design and implementation of the framework is merely a necessary but not sufficient prerequisite for successful evaluation of the IAS. Nevertheless, the audit does uncover and reveal a wide range of useful information about the DPMC approach and commitment to comprehensive evaluation of not only the IAS (Its most significant program) but to Indigenous related policies and programs more generally.

In chapter one, the ANAO outlined the background to the audit. In 2017, the ANAO performance audit of the Indigenous Advancement Strategy (IAS) (the largest program in the Indigenous affairs portfolio comprising five program streams and $4.8bn over four years) ‘found the Department did not effectively implement the strategy’ [Para 1.9]. See my previous blog post on the IAS audit (link here). In response, in February 2017 the then Minister announced funding of $40m over four years to strengthen IAS evaluation in the portfolio [para 1.10]. In February 2018, the Department released an IAS Evaluation Framework [para.1.12]. IAG program areas are responsible for conducting the majority of program evaluations under the framework.

In chapter two, the performance audit outlines significant delays in establishing the evaluation framework for the IAS, extending from March 2014 through to February 2018 [Figure 2.1, para 2.1]. The ANAO note that the IAS evaluation framework does not include references to the Government’s higher level objectives including the Closing the Gap framework [paras 2.26, 2.29]. The ANAO also note that the IAS evaluation framework ‘is intended to align with the wider role of the Productivity Commission in overseeing the development and implementation of a whole of government evaluation strategy of policies and programs that effect [sic] Indigenous Australians’. However because of delays in passing legislation and appointing a Commissioner, the Productivity Commission did not begin work until April 2019 and it won’t be complete until July 2020 [para. 2.31].

In chapter three, the ANAO assess implementation and management fo the IAS Framework. The ANAO note that the framework includes various commitments for activities designed to strengthen evaluation quality, but without any timeframes specified for implementation [para.3.3].The ANAO concluded that the performance targets for the IAS evaluation framework were focussed on the delivery of short term outputs (ie not longer term outcomes). The audit’s first recommendation [para 3.12] was that the Department ensure its performance information for evaluations are supported by a reliable methodology for measuring longer term outcomes. The audit’s second recommendation is largely process related [para 3.22]. The rest of the chapter is concerned with management oversight arrangements for evaluations. In a surprising and rather damning assessment, the ANAO found that there was limited evidence that the IAG Executive Board were involved in the oversight of the evaluation activities [para.3.31]. The Indigenous Evaluation Committee (which included some external members) raised concerns in late 2018 that a number of completed evaluations had not been published [para. 3.33]. The ANAO also noted delays in the Department developing effective mechanisms to track evaluation recommendations and management responses [paras.3.36-3.40].

In chapter four, which considers the application of the framework, the ANAO conclude that ‘As the department is still developing procedures to support the application of the IAS evaluation framework, it is too early to assess whether evaluations are being conducted in accordance with the framework’ [Box, page 37]. After assessing the Department’s processes for prioritising and selecting areas for evaluation, the ANAO recommended that the department ‘formalise its evaluation prioritisation process by developing structured criteria for assessing significance, contribution and risk and conducting a strategic analysis of gaps in evaluation coverage’ [para 4.10]. While the Department indicated it agreed with the recommendation, its response is so heavily caveated as to be meaningless. Moreover, it made no reference or commitment to undertaking a strategic gaps analysis as explicitly recommended [para 4.11].

Chapter four also included discussion of the desirability of independence within evaluation teams [paras 4.25 to 4.28]. The discussion is extraordinarily hedged and timid, and failed to make a substantive assessment of the actual independence of the evaluations undertaken. There is also a discussion of the issue of publication of completed evaluations and management responses [paras 4.37 to 4.41. See also appendix 4]. Of 35 evaluations on the Department’s 2018-19 workplan, 15 had not commenced. Of the remaining 20, 8 had been published and 12 withheld from publication. The ANAO discuss the reasons for non-publication. In at least four cases (involving very significant and sensitive program evaluations) the Department was waiting to brief the Minister or awaiting his noting of a brief [para 4.38; appendix 4]. In plain language, the Minister was preventing timely publication of the evaluations.

I found this performance audit disappointing for two reasons. First, it was clear from the inexorable delays and bureaucratic fudging – much focussed merely on the development of an evaluation framework against which actual evaluations might be assessed – that the Department (and the Minister – see para 2.7) were not prioritising evaluation activities. Primary responsibility rests with senior management, as there are indications throughout the audit that middle level officers were seeking to advance the agenda, but kept hitting blockages above. If one assumes that the senior management of the DPMC are competent (Which I do), then it is difficult to explain the disjunction between the rhetoric of the Secretary in 2016 and the appalling delays in making substantive progress between 2014 and 2019 as anything but a process of bureaucratic game playing. In particular, the bureaucratic imperative appears to be to contrive circumstances where the department is always appearing to be moving forward, but never reaches a destination.

The second reason the audit is disappointing is that the ANAO itself appears to have gone soft. It describes the audit as a performance audit, but it fails to robustly assess poor performance. Its focus on the framework rather than evaluations themselves is highly process oriented. There are only three recommendations, all of which are process related; this is a major flaw in the performance audit as it effectively leaves the DPMC off the hook notwithstanding the documented lack of substantive commitment to progressing an effective and substantive evaluation agenda. The discussion on independence of evaluations has all the robustness of a marshmallow. The discussion on publication and management responses is slightly better, more akin to fudge. Where are the robust recommendations on publishing evaluations undertaken with taxpayers’ funds, and ensuring that evaluations are not subject to being diluted through political interference, second-guessing, concern about vested interests and the like. We are told in para 3.10 of an instance where the Department agreed to an internal audit recommendation designed to strengthen evaluation activity, but then did not implement the recommendation. Given this behaviour, how are we believe that the Department will take any of the recommendations or less formal suggestions included in this report seriously?

Our scepticism is reinforced by the fact that notwithstanding the consistent rhetoric about the merits of evaluation of Indigenous programs for over a decade, the senior management of the nation’s premier department of state has been shown to be incapable of implementing an effective evaluation program. How are we to respond to the disjunction between the ANAO conclusion [in para.10]: ‘The department’s implementation and management of the IAS evaluation framework is partially effective’ (a generous finding given the actual content of the audit report and the limited results to date) and the Secretary’s letter in response in Appendix 1 which fails to acknowledge or address in any way the negative content of the audit. This deliberate blindness ought to be a matter of concern to the Minister, to the Government, and to First Nations peoples.

The Productivity Commission Indigenous Evaluation Project

In April 2019, the Treasurer requested the Productivity Commission (PC) to ‘develop a whole of Government Evaluation Strategy for policies and programs affecting Indigenous Australians’. The scope of the strategy includes a principles based framework for the evaluation of policies and programs affecting Indigenous Australians, identification of priorities for evaluation, and a description of the Productivity Commission’s approach for reviewing agencies conduct of evaluations against the strategy. The Treasurer’s Letter of Direction plus a recently released Issues Paper are available on the Productivity Commission’s website (link here).

The Issues Paper appears comprehensive and well structured. I don’t propose to summarise or discuss it at this point in time.

There are however a number of interesting issues embedded in the these developments. These include:

·         While the PC undoubtedly has substantial evaluation expertise, it is unclear how its proposed role in monitoring the effectiveness of programs will relate to the virtually identical role recently allocated to the new NIAA (see my previous post link here);

·         It is unclear whether the Treasurer was requesting advice (which is allowed under the PC’s legislation) or directing the PC to undertake an executive action (which does not appear to be within its statutory remit). To the extent that it is the latter, there are potential conflict of interest issues in the PC subsequently assessing and evaluation agency programs and policies utilising an evaluation framework it has developed and signed off on without any external approval;

·         It is also unclear what this new whole of government evaluation strategy/framework will mean for existing evaluation frameworks within agencies (including DPMC). There appears to be scope for substantial duplication, and there is also the risk or likelihood that the DPMC evaluation framework for the IAS, which took for excruciatingly slow years to be developed, and was audited by the ANAO at a cost of $335k, will be set aside in favour of the new whole of government evaluation framework to be promulgated in 2020;

·         Finally, there is a larger risk embedded in the establishment of an Indigenous Commissioner within the PC with a substantial role in oversighting the evaluation efforts of Commonwealth agencies related to Indigenous peoples. This larger risk is that the PC will feel disinclined in its mainstream inquiries and review to seriously consider policy issues related to the impact of mainstream programs on Indigenous peoples.

While the involvement of the Productivity Commission in Indigenous evaluation is in my view very positive, it is not without risk and challenges. To date, there has been virtually no public discussion of the benefits, risks, and challenges of the expanded role for the Productivity Commission in the Indigenous policy domain. For example, the proposed new arrangements do not fundamentally address the lack of independence inherent in program and policy agencies commissioning evaluations. The Commission’s current project is constrained by the remit contained in the Treasurer’s direction. There is a case for a broader assessment of the structure of evaluation in the Indigenous policy domain (and probably beyond). For example, there appears to be a strong case for the re-establishment of an independent statutory agency dedicated to undertaking key Indigenous evaluations such as previously existed with OEA.

In conclusion, the Government’s decision to bring the Productivity Commission into the policy and program evaluation space is welcome. It raises a number of issues, risks and challenges, including potential overlaps with the newly promulgated role of the National Indigenous Australians Agency. While a PC oversight role is welcome, it may not go far enough towards ensuring evaluations are consistently independent and free from political and other bias.

In relation to the DPMC (and from 1 July 2019 the NIAA), the ANAO ought to have recommended a major upgrade to the resourcing and management commitment to evaluation of policies and programs. There appears to have been a significant capability deficit in relation to building a robust and independent culture of evaluation. This will need to be a significant focus of the Minister and NIAA senior management going forward.

In relation to the ANAO, it seems to me it is time for an independent evaluation of the ANAO’s performance audit capabilities and performance. Perhaps that is something the Productivity Commission might take on as part of its priority setting for the new Indigenous Evaluation Strategy! After all, mainstream programs are increasingly impacting on First Nations, and the effectiveness of those programs and their oversight arrangements is a matter highly relevant to vulnerable people, including First Nations.

A brief comment on the new National Indigenous Australians Agency

O brave new world

That has such people in’t

The Tempest, Act 5, scene 1

On 12 June 2019, the Prime Minister announced that the current Indigenous Affairs Group within the Department of Prime Minister and Cabinet (DPMC) would become a standalone agency within the PMC portfolio from 1 July (link here).

The order establishing the agency as an Executive Agency under the Public Service Act (link here) sets out its functions. I have set out the order in full so as to spell out those functions:

Order to Establish the National Indigenous Australians Agency as an Executive Agency

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 65 of the Public Service Act 1999:

(a)        establish the National Indigenous Australians Agency as an Executive Agency;

(b)        allocate the name National Indigenous Australians Agency to the Executive Agency;

(c)        allocate the name Chief Executive Officer to the Head of the Executive Agency;

(d)       identify the Minister for Indigenous Australians as the Minister responsible for the Executive Agency;

(e)        specify the functions of the National Indigenous Australians Agency be as follows:

                            i.       to lead and coordinate Commonwealth policy development, program design and implementation and service delivery for Aboriginal and Torres Strait Islander people;

                          ii.       to provide advice to the Prime Minister and the Minister for Indigenous Australians on whole-of-government priorities for Aboriginal and Torres Strait Islander people;

                        iii.       to lead and coordinate the development and implementation of Australia’s Closing the Gap targets in partnership with Indigenous Australians;

                        iv.       to lead Commonwealth activities to promote reconciliation;

                          v.       to build and maintain effective partnerships with Aboriginal and Torres Strait Islander people, state and territory governments and other relevant stakeholders to inform whole-of-government priorities for Aboriginal and Torres Strait Islander people, and enable policies, programs and services to be tailored to the unique needs of communities;

                        vi.       to design, consult on and coordinate the delivery of community development employment projects;

                      vii.       to analyse and monitor the effectiveness of programs and services for Aboriginal and Torres Strait Islander people, including programs and services delivered by bodies other than the Agency;

                    viii.       to coordinate Indigenous portfolio agencies and advance a whole-of-government approach to improving the lives of Aboriginal and Torres Strait Islander people; and

                        ix.       to undertake other tasks the Prime Minister and the Minister require from time to time.

This Order will commence on 1 July 2019.

Dated    29th May 2019                            

Andrew Podger, an ex-senior bureaucrat and undoubtedly one of the most experienced and astute observers of the Australian public sector, published a short piece last week on the blog Pearls and Irritations (link here to the full article). He made a number of comments on the changes to government structures following the election including the new Indigenous affairs arrangements. I have set out the relevant comments below. I have not included a number of observations he made about other potential executive agencies which amplify his argument.

New structures

An interesting aspect of how the Second Morrison Government is to work with the public service concerns the new service delivery arrangements the PM mentioned when announcing the ministry last week. The new Administrative Arrangements Order issued on Wednesday clarified that the new arrangements do not involve as radical a restructuring as the initial announcement suggested. Services Australia will not be a new agency but essentially the former Department of Human Services with a new name. But the new National Indigenous Australians Agency seems likely to be an executive agency under the Public Service Act operating within the PM&C portfolio.

There are potential advantages in having service delivery agencies separate from policy departments. This can allow them to focus on their clients, looking mostly ‘downwards and outwards’, while meeting performance targets agreed with portfolio departments and their ministers; those departments would then have primary responsibility for ‘looking upwards’ to serve ministers. Such agencies must work in partnership with the policy departments and be directly accountable to ministers but their main energies can be devoted to the task of efficient and effective service delivery, exercising the authority devolved to them. Properly managed, this can lead to efficiencies,  higher quality services and greater responsiveness to clients…

…I am pleased, however, about the new National Indigenous Australians Agency though there is as yet no clarity about its governance or its relationship with PM&C. Will its minister (Ken Wyatt who is in Cabinet) be advised by the agency or PM&C or both? If, in practice, the agency is the primary adviser of the minister, the advantages of a degree of independence to focus on service delivery may be diluted. Again, this might be avoided if the minister focuses primarily on helping the agency get the resources it needs, helping it foster close relationships with Indigenous communities and giving it real influence over the other arms of government delivering services to Indigenous Australians.

The Governor General’s Order makes clear that the new Agency will advise both the Minister and the Prime Minister on Indigenous issues (though of course this won’t prevent DPMC from independently advising the Prime Minister (and perhaps even the Indigenous Australians Minister) when the need arises.

There are a number of interesting and even intriguing points which emerge from the functions outlined in the Order.

First, the Order gives the Agency formal responsibility across the Commonwealth for the development and implementation of policies and programs related to Indigenous Australians.

Second, the Order gives the Agency the responsibility for monitoring the effectiveness of Indigenous related programs and services across the Commonwealth. Yet the recent ANAO report on evaluation of Indigenous programs by DPMC provides a heavily qualified report card on DPMC’s role in this area in recent years, and the Treasurer recently requested the Productivity Commission to develop an evaluation framework for Indigenous related programs across the Commonwealth. My next blog post will analyse both those initiatives in greater detail; suffice to say here that there appears to be a degree of overlap in responsibilities in this area emerging, and on the evidence in the ANAO report, the new Agency will need to rapidly upgrade its evaluation and monitoring capabilities.

Third, in paragraph (v), the functions explicitly include refence to enabling  ‘policies, programs and services to be tailored to the unique needs of communities’. This is a welcome acknowledgement of both the heterogeneity of First Nations peoples and the risks of insisting that ‘one size fits all’ policies and programs are inevitable or imperative in the Indigenous policy domain.  

Fourth, the reference in paragraph (vi) to ‘design, consult on and coordinate the delivery of community development employment projects’ is a reference to the former CDEP program which was contentiously dismantled and ultimately abolished in 2013. I suspect this is a ‘cut and paste’ error from a previous Administrative Arrangements Order, rather than presaging a return to the former CDEP program. However, the fact that the error made it all the way into the Governor General’s Order provides a window into the coordination challenges facing the new Agency, and perhaps into the degree to which expertise and corporate knowledge has been hollowed out in recent years.

Additionally, issues that will loom large for the Minister and new Agency include:

·       the future structure and role of the Agency’s regional network;

·       the Agency’s preparedness to use its paragraph (vi) functions to proactively explore greater use of place based programs and service delivery;

·       the Agency’s actual influence within the Commonwealth and its capacity to persuade other Commonwealth departments and agencies to harmonise and coordinate activities which impact on First Nations’ concerns and aspirations;

·       the Minister’s and Agency’s preparedness to engage proactively and forcefully with the states and territories on Indigenous policy issues, and to the extent that they do so, their capacity to influence and persuade; and

·       the preparedness of ERC and the Cabinet to recognise and acknowledge that one of the down sides of being a small stand-alone agency is that there are much more limited opportunities for financial offsets or savings to be found when arguing for new program initiatives (one of the normal budget rules in relation to new policy).

Conclusion

The optimal structure and design of the public sector invariably involves trade-offs and compromise. Notwithstanding the substantial challenges that will face the new Minister and new Agency, on balance, I consider the new structural arrangements to be a positive step. They retain a foothold within the Prime Ministers portfolio and thus at least some scope to exercise whole of government influence, and they set up a structure which at its best will allow the (re)development of greater corporate knowledge, and provide for a degree of policy autonomy especially for the Minister. Risks and challenges abound, but it seems to me that with a new Minister and new structural arrangements, we have at least the opportunity for a new approaches, new priorities and new relationships.

If I had to identify the changes that I am hoping for and see as important for a successful reset of Indigenous policies, it would be a commitment to focus on substance rather than rhetoric, action rather than procrastination, and open communication rather than obfuscation and dissimulation. The new Indigenous portfolio arrangements provide a potential foundation for just such a positive and visionary policy re-set.

New Zealand Public Sector reform: Crown- Māori relations

The New Zealand Government has announced its intention to overhaul the public service legislation. Stephen Easton has a good summary in The Mandarin (link here). The reforms involve five broad reforms: a unified public service, employment and workforce changes, leadership, organisational structures, and strengthening the Crown-Maori relationship. This post deals with this last change: the proposal for a standalone provision in the new public service legislation addressing Maori-Crown relations.

The State Services Minister, Chris Hipkins has released five Cabinet Papers (with minor redactions) which outlie the details of the proposals and some of the options that have not been adopted. The new legislation is yet to be drafted and is expected to be introduced and enacted alter in the year.

In a speech announcing the reform proposals (link here), Minister Hipkins stated:

The Act will include a stand-alone clause that is clear about the expectations of the public service in relation to Te Tiriti o Waitangi/the Treaty of Waitangi. In other words, the Act will recognise the responsibility of the Public Service – including Crown Agents – to support the Crown to fulfil its responsibilities under the Treaty.

This will also mean chief executives have a collective responsibility to develop cultural competence and capability, for supporting Māori leadership within the public service and ensuring the public service engages with and has strong relationships with Māori

The Cabinet Paper dealing with the Crown- Māori relations (link here) is worth reading in full. The substantive recommendations were as follows:

5. agree that the stand-alone clause in the new Public Service Act include Option 2 as described in recommendation 4….

8. agree that, subject to agreement to recommendations 5, the stand-alone clause also clarifies expectations that the New Zealand Public Service is to:

8.1 promote engagement, participation and partnership with Māori including proactive informed and collaborative approaches that are mutually beneficial and strengthen the relationship;

8.2 deliver services and results that are responsive to, accessible to, and work for Māori and whanau to improve results;

8.3 have a workforce that reflects and understands the communities it serves, is valued for its cultural competence, and empowers Māori to succeed as Māori in the public service;

8.4 promote a leadership and culture that encourages cultural competence to delivers with and for Māori and develops and supports Māori in senior leadership and decision-making roles.

9. agree that the Public Service Act include responsibilities on the Public Service Commissioner and chief executives in relation to:

9.1 responsibility for developing the cultural competence and capability of the public service;

9.2 supporting Māori leadership within the public service;

9.3 ensuring the public service has strong relationships with Māori, is responsive to the needs and aspirations of Māori and advances opportunities to work with Māori.

10. agree that there is an expectation on the Public Service Commissioner to hold public service chief executives accountable for enabling the Crown to fulfil its responsibilities to the Māori/Crown relationship and Te Tiriti o Waitangi/The Treaty of Waitangi

Commentary

As I am not an expert in New Zealand public policy, I don’t propose to adopt a robustly critical stance in relation to these proposals. On their face, they appear both sensible and well considered. A comprehensive consultation process outlined in detail in the Cabinet Paper underpins them.

The obvious point to make however is that the reform proposals demonstrate just how far Australia lags New Zealand in addressing relations with First Nations. We have no treaty or treaties, and appear intent on stalling any substantive constitutional reform. In contrast to New Zealand, we appear pathologically resistant to the benefits of open and transparent policy making across the board, but particularly in relation to first Nations Policy matters.

It will be interesting to compare the New Zealand proposals with the recommendations and outcomes of the current review of the APS. My prediction is that the APS review is unlikely to lead to a specific legislative provision relating to relations between the APS and First Nations. Such a legislative provision would not be a panacea, but would make clear that public servants have an obligation to serve the public in all its diversity.

Overcoming Indigenous Exclusion

         we know what we are, but know not what we may be.

      Hamlet Act 4, scene 5

Regular readers of this blog will have noted that I have been somewhat derelict in my duty to deliver regular posts. Part of the reason has been that I have been away overseas for an extended period, and only recently returned. Second, I have been preoccupied with finalising a publication seeking to analyse the drivers of high-level policy failure in the Indigenous domain.

That paper, co-authored with Neil Westbury, and titled ‘Overcoming Indigenous exclusion: very hard, plenty humbug’, has just been published on the CAEPR website (link here).  As the quote above suggests, it both analyses the current state of policy in the Indigenous policy domain, and canvasses future options and opportunities for both policymakers and Indigenous interests.

I now hope to resume more regular posting on this blog.