Sunday, 15 December 2019

Our public service, our future….or is it?




               …That we would do
We should do when we would…
Hamlet Act 4, scene 7


The release of the Thodey Review of the Australian Public Service, Our Public Service, Our Future, (link here) on a Friday 12 days before Christmas is not designed to attract sustained attention to the important issues dealt with. The Prime Minister’s media release (link here) indicates that ‘The Government agrees with the majority of the independent panel’s recommendations and I have asked the heads of the public service to take these forward’. The Government’s response, Delivering for All Australians, addresses each recommendation (link here).

This post presents a provisional reaction to the key recommendations of the Review that relate to Indigenous Australians and then comments on the Government’s formal response. For ease of reference, I have set out relevant extracts of the Review recommendations and the Government’s response at the end of this post.

While there is a temptation to focus solely on the Government’s response, it seems to me that it is important to give serious consideration to the Review itself. These types of documents potentially have long half-lives, and in the long term are potentially influential for good or bad.

First some contextual issues. My initial response is that the Report’s recommendations are well meaning, worthwhile, but ultimately underwhelming. While there are numerous references within Thodey’s report to the 1976 Royal Commission on Australian Government Administration (the ‘Coombs Royal Commission’), even a quick comparison of the two documents makes clear that the Coombs’ report was much more thorough, comprehensive, deeply argued and ultimately persuasive. This is even more particularly the case in relation to Indigenous policy issues.

The Thodey Report correctly concludes that implementation processes will be crucial if the Report is to have an impact. Yet in too many instances, it seems that the Review Panel have failed to understand the inherent complexity of what they are recommending, and thus left us with ‘feel good’ recommendations that if implemented, would ultimately fail.

The Government’s response in relation to the relevant recommendations discussed in this post is desultory and vague. While they claim to have endorsed a majority of the Review recommendations, it is clear that any recommendation for substantive change or that might threaten the status quo has been rejected or downplayed. This is consistent with the current playbook on virtually all policy: ramp up the rhetoric, create the appearance of some action somewhere (to avoid accusations of inaction), and continue business as usual. See below.

While virtually all activities of the Australian Public Service (APS) indirectly affect First Nations citizens, the Thodey Report’s chapter four is of most direct relevance to First Nations citizens. That chapter makes a strong case for stronger partnerships with ‘people [ie citizens generally] and communities… including [emphasis added] place based solutions and working with Aboriginal and Torres Strait Islander peoples’. Thus, recommendation 8 does not mention Indigenous peoples. The core element in recommendation 8 is:

Secretaries Board to develop a Charter of Partnerships to promote an open APS and guide external engagement and collaboration.

The proposed Charter of Partnerships is designed ‘to set clear expectations – for Government, the APS, and the community – on how the APS will work with its external partners’. It is to be developed in collaboration with the APS’s partners, including Indigenous peoples (p.119). The Report then makes the point (correctly in my view) that partnerships rely on openness and transparency, and that this ‘will require real cultural change in the APS’ (p.120).

This is sensible and I support it. The overarching analytic framework is one of dealing with all communities and people, particularly disadvantaged citizens, and including Indigenous communities within this framework. A strong case can be made for such a framework (as opposed to a stand-alone Indigenous specific framework), although there is no discussion of the alternatives to the frame adopted by the Report. The ‘mainstream’ framework is just adopted.

The Report also recommends that the Government commission a review of privacy, FOI and record –keeping that accepts without question arguments from within the bureaucracy regarding the importance of protecting records of deliberative processes. The review panel fails to address at all the counter view that blanket protections of advice to government can also hide both poor quality advice from bureaucrats and allow governments to blame bureaucrats for decisions that are taken for political reasons. There is a case for a much more nuanced approach to this issue if we believe ‘open government’ and trust in government is important.

The Government response to recommendation 8, labelled misleadingly as ‘agreed in part’ is essentially to reject it, and maintain the status quo. In rejecting the proposed Charter of Partnerships framework, the suggestions for external involvement of the community (including First Nations interests) in developing the proposed Charter is ignored, as is the suggestion that an accountability framework be developed to ensure the Charter is implemented effectively. The suggestion of a review of the privacy and FOI legislation is just rejected outright.

The chapter then moves onto a discussion of ‘Solutions with communities’ where it argues for and recommends ‘that the APS develops, for Government consideration, a whole of government policy framework for place based investment’ (p.126). Again, this is a mainstream recommendation, targeted at disadvantaged communities generally and not just Indigenous communities. Of course, given the over-representation of Indigenous communities (especially in regional and remote areas) amongst the most deeply disadvantaged Australians, this discussion is highly relevant to First Australians.

While the review panel recognises that it would be ‘a considerable change to the status quo’, its level of analysis around the potential implementation challenges is quite shallow. It does suggest a progressive rollout, which begs the question, what about those communities that are not being included. It also tentatively proposes ‘shared accountability between ministers for placed base approaches’ (p126) which in my experience is a recipe for non-accountability and non-delivery. The review panel also correctly notes that:

If Australian Government and state and territory agencies work in isolation on place-based approaches, communities will continue to receive fragmented support and governments will continue to duplicate effort and resourcing [emphasis added].

Recommendation 9 recommends that the Government commit to establishing a place based investment framework to address intergenerational and multi-dimensional disadvantage. In my view, the recommendation is conceptually correct, but as framed in the Report (see full recommendation below) suffers from at least two fundamental flaws. First, a progressive roll out leaves inequity and deep disadvantage unaddressed in those communities that miss out.

Second, it fails to acknowledge or analyse the fundamental budget management reality that place-based approaches are fundamentally at odds with portfolio-based appropriations. Ever since ATSIC and its regional councils, the Department of Finance has resisted all approaches to move to pooled place-based appropriations. The problem is exacerbated when state and local government jurisdictions are brought into the equation (as they must if it is to work).

I am a supporter of place-based approaches. In my experience, they can be implemented and made to work by engaged and energetic bureaucratic entrepreneurs operating with ministerial support. But eventually, either the bureaucratic entrepreneur or the Minister changes and the place based arrangements default to the status quo ante. The Review should have – but hasn’t - engaged with these issues which require legislative or institutional buttressing if they are going to work. In short, the odds of this recommendation being implemented (despite its inherent merits) are very low. Of course, there should be more emphasis on local engagement and community involvement, but governments must be careful not to raise expectations beyond what they can deliver and sustain.

The Government response to recommendation 9 is again labelled ‘agreed in part’ whereas the substantive response is to ignore the Review recommendation and indicate that the hard working Secretaries Board will tweak current approaches and undertake a ‘cross-portfolio analysis on lessons learned and success factors for place-based approaches, including opportunities to expand this work.’ There is no time frame for this work to be undertaken, and no guarantee that it will be published.

Having made the case for stronger more robust partnership framework, and a place based investment framework, only then does the review panel address Indigenous Australians.

‘Solutions with Aboriginal and Torres Strait Islander peoples’ (p.129)

This section builds on the previous sections on the proposed Charter of Partnerships and a framework for place-based investment. The text and analysis is carefully crafted to hit the key issues of concern to the majority of Indigenous citizens, and on a first read, the review panel appear to have made a strong case for substantive partnership with Indigenous Australians. An aspiration I share.

However on closer reading, the text is subtly qualified and caveated such as to undermine the likelihood that real change will ensue. Let me start with the core elements of Recommendation 10 that is titled Work in genuine partnership with Aboriginal and Torres Strait Islander peoples. I have added the underlining for emphasis:

• Government and APS to recognise the importance of Aboriginal and Torres Strait Islander peoples making decisions on matters affecting their lives and communities, and support their full participation in the social and economic life of Australia.

• National Indigenous Australians Agency and PM&C to lead the APS’s application of the framework for place-based investment and the Charter of Partnerships in working with Aboriginal and Torres Strait Islander peoples, including to:
promote joint decision-making with communities on design and implementation of policies and services
 adopt flexible funding arrangements that cater for different opportunities and needs across communities, and
delegate authority for investment decisions to regionally-based APS employees.

The first paragraph is easy to support, but almost impossible to disprove in terms of its implementation. It involves no substantive policy change, and is arguably (at least formally) existing government policy. A cynic might say it is motherhood.

The second paragraph recommends the adoption (or actually the promotion) of joint decision making, commonly referred to as ‘co-design’. However, either deliberately or by oversight, it is framed solely as one part of place-based frameworks, rather than in terms of joint decision-making in relation to national level policies and programs. I support greater use of co-design at all levels of the policy making process, however there are limits to its application, and these require a process of open discussion if they are to be accepted by the community. There are also complex issues related to the operation and interaction of mainstream programs with Indigenous communities that again require open discussion and explanation if Indigenous expectations are not to be raised and then dashed. The review in my view could have done better in elaborating these potential complexities and risks.

The recommendation regarding flexible funding arrangements is quite vague, but to the extent it refers to pooled funding, it suffers from the flaws identified above in relation to place based investment frameworks. The Minister has made funding decisions in Indigenous affairs (particularly in the Indigenous Advancement Strategy) in secret for the past five years, with extremely limited delegations to officials. The ANAO has been very critical (link here). The recommendation for greater delegation thus seems unlikely to be accepted, at least in the short term, though I would love to be proved wrong on this.

The review also discussed the merits of strengthening parliamentary oversight, including the possibility that Indigenous community representatives might participate in some way. The review panel’s recommendation was merely that the Parliament consider establishing a Senate or Joint Committee on Indigenous Affairs to oversee Australian Government expenditure and policies relevant to Aboriginal and Torres Strait Islander peoples. Nevertheless, the fact that this issue has been raised in the review points to an emerging view that the current oversight arrangements are not working as effectively as they might. This is a complex issue that required more nuanced discussion that space permits here, but is an issue that I predict will continue to gain profile and salience.

Finally, there is a significant fudge by the review panel in this chapter, and perhaps elsewhere, which derives from its propensity to talk as if the APS makes most decisions and sets directions, something that is just not the case. Thus for example, the panel states:

The ANZSOG First Peoples Team labelled the relationship between the APS and Aboriginal and Torres Strait Islander peoples as ‘fraught and lacking in trust’. This is a damning assessment of years of focus on gaps and problems, not on strengths and assets. Too often, this approach has seen the APS do things to, not with, Aboriginal and Torres Strait Islander communities, and substantially fail to improve social and economic outcomes [emphasis added; footnote deleted].

This sort of analysis by explicitly focussing on the APS implicitly assumes that governments and ministers are not responsible for policy decisions and directions, and the design and funding levels of programs, and in particular, for setting constraints and parameters that public servants must apply (either formally or informally). The complexity of this relationship and the propensity of politicians to play politics is a core reason for the majority of the trust issues that exist between Indigenous citizens and government. It is of concern that the review panel have not addressed this issue head on here (and I suspect anywhere in their report). The resort to denigrating a ‘focus on gaps and problems’ misconstrues the concerns of Indigenous peoples about deficit discourse. Again, I think the Australian public deserved better from the high-level review team. Instead, there appears to have been resort to ideological fudging dressed up as support for Indigenous culture.

The Government response to recommendation 10 is again ‘agreed in part’ and seeks to deflect the review panel recommendation in three ways. First, by asserting in the first two sentences that the Government is already working with First Nations peoples; second by referring to the recent partnership agreement between the National Coalition of Indigenous Peaks and COAG which is focussed on refreshing the Closing the Gap framework, and third by claiming that:

The Government is committed to improving local and regional decision-making and considering options for a national Voice, and has commenced a process to co-design models and options for this.

Each of these three claims are factually true, but open to question in terms of the parameters that are implicitly or explicitly placed around the various processes. While each of the three claims is positive on its face, it is the quality of the substantive interactions that will determines its ultimate impact. The absence of any commitment to underlying transparency in relation to these processes (for an example see the link here) and much else that the Government is doing in the Indigenous policy domain, facilitates the potential ‘management’ of each of these processes in ways which do not allow for real partnership relationships to emerge. For example, how does the selection and appointment by government of representatives on a committee to develop the national voice (link here) amount to ‘co-design’?

Moreover, the Government’s decision to not proceed with an accountable Charter of Partnerships framework, nor a commitment to a place based investment framework, removes the foundation that the review panel’s recommendation 10 was built on. The bland assertions by the Government along the line that everything is fine and we are already doing working in partnership must be taken with a grain of salt. Moreover, it must be remembered that while the Closing the Gap refresh and National Voice issues are important, there is much else occurring in the Indigenous policy domain. Where are the co-design processes in these areas?

Finally in relation to recommendation 10, and perhaps predictably, the Government response made clear that they see no need to change or strengthen current parliamentary oversight of Indigenous policy and programs.

This response by government, and indeed the totality of its response to recommendations 8, 9 and 10,  is arguably emblematic of a deep-seated issue in Indigenous affairs. Across Indigenous Australia, there is a widespread view that governments no longer retain their former legitimacy and that their policy and program activities writ large are misdirected at best and punitive at worst. Perhaps cognisant of this widespread lack of trust and legitimacy, the review panel made a relatively low key effort to argue for greater engagement and partnership between government and Indigenous communities. The Government’s response has essentially been to say “nothing to see here, all’s good, no action required’. While I suspect that the Government has never been open to an alternative view, in my view the Thodey led review panel did the nation and Indigenous Australians a disservice by not articulating in more detail and more clearly the issues that confront the APS is developing and implementing policies and programs that impact Indigenous Australians.

Forty three years ago, the Coombs Royal Commission stated:

The realities of power mean that ultimate decisions about them [Indigenous citizens] and the allocation of resources to them will finally be made, in present circumstances, by white decision makers. The Commission is satisfied, however, that unless these decision makers act in accordance with procedures which give Aboriginals a substantive and conscious participation in the processes of decision and, within broad limits, in the decisions themselves, programs will continue to fall short of their objectives, and resistance, hostility and a rejection of responsibility will continue to mark Aboriginal attitudes (para 10.5.6; p.337).

It is time that policy analysts, royal commissioners, evaluators and members of review teams with remits focussed on improving policy and program outcomes related to Indigenous Australians ceased merely reiterating that place based and co-design approaches (to use current terminology) are required, and began to examine why it is that Governments across the political spectrum have been and continue to be so resistant to implementing these policy approaches. Might it be that Coombs was on the money in pointing to ‘the realities of power’?


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Set out below are recommendations 8, 9 and 10 of the Review
Recommendation 8

Harness external perspectives and capability by working openly and meaningfully with people, communities and organisations, under an accountable Charter of Partnerships.
• Secretaries Board to develop a Charter of Partnerships to promote an open APS and guide external engagement and collaboration.
• All agencies to embed Charter expectations into individual and agency head performance management and corporate planning and reporting.
• All agencies to draw on diverse and rich community and partner insights in advice to Government, including in Cabinet and budget processes.
• Government to commission a review of privacy, FOI and record-keeping arrangements to ensure that they are fit for the digital age, by: ِ supporting greater transparency and disclosure, simpler administration and faster decisions, while protecting personal data and other information, and ِ exempting material prepared to inform deliberative processes of government from release under FOI.

Implementation guidance

• Establish a cross-agency team to develop the Charter in collaboration with APS partners, including Aboriginal and Torres Strait Islander peoples.
• Ensure the Charter:
 ِ highlights the value of better external engagement
 ِ guides the APS to work openly and respectfully with partners on policies and programs before and after government decisions
 ِ reflects the importance of seeking diverse external views, and
 ِ sets reciprocal expectations for APS partners — including engaging with honesty and pragmatism.
• Measure APS adherence through partner feedback, annual reports, capability reviews and individual and agency head performance management.
• Consider amending the Public Service Act 1999 to require the APS to develop a Charter of Partnerships


Recommendation 9

Use place-based approaches to address intergenerational and multi-dimensional disadvantage.
• Government to develop a framework for place-based investment, based on:
ِ joint decision-making with communities and other levels of government on designing and implementing policies and services
 ِ flexibility, including through funding arrangements, to cater for the different needs and opportunities in particular communities
ِ use of data to support decision-making and measure progress, and
 ِ clear accountability for outcomes, including shared ministerial accountability where appropriate.
• Government to pilot approach in communities with entrenched disadvantage or complex needs and strong community leadership.
• Agencies to appoint regionally-based SES as APS Community Partners to work with local communities and other jurisdictions, with delegated authority for investment decisions where appropriate.
• Secretaries Board to ensure APS makes place-based data available to help understand local needs and opportunities and measure progress.

Implementation guidance

• Build on existing collaborations with communities, governments and other partners in finding tailored solutions to achieve local priorities.
• Include an Aboriginal or Torres Strait Islander community in initial pilot areas.
• Adapt framework in light of results of the trials.
• Consider pooling discretionary grants funding from across portfolios to allocate to community-led initiatives to achieve jointly-agreed objectives.


Recommendation 10

Work in genuine partnership with Aboriginal and Torres Strait Islander peoples.
• Government and APS to recognise the importance of Aboriginal and Torres Strait Islander peoples making decisions on matters affecting their lives and communities, and support their full participation in the social and economic life of Australia.
• National Indigenous Australians Agency and PM&C to lead the APS’s application of the framework for place-based investment and the Charter of Partnerships in working with Aboriginal and Torres Strait Islander peoples, including to:
ِ promote joint decision-making with communities on design and implementation of policies and services ِ adopt flexible funding arrangements that cater for different opportunities and needs across communities, and
 ِ delegate authority for investment decisions to regionally-based APS employees.
• APSC and relevant agencies to work with Aboriginal and Torres Strait Islander employees, the Indigenous SES Network and Secretaries Board to improve recruitment and development of Aboriginal and Torres Strait Islander people in the APS.
• Secretaries Board to ensure cultural competency training remains a core part of APS professional development.
• Parliament to consider establishing a Senate or Joint Committee on Indigenous Affairs to oversee Australian Government expenditure and policies relevant to Aboriginal and Torres Strait Islander peoples.

Implementation guidance

• Secretaries Board to ensure the APS works in effective partnerships with Aboriginal and Torres Strait Islander peoples, including responding to and supporting future changes in Indigenous Affairs.
• Improve recruitment pathways and develop Aboriginal and Torres Strait Islander people for EL and SES levels.
• Provide cultural competency training for all APS employees. All SES officers to complete training by end-2020.



Government Response to recommendations 8, 9 and 10


Recommendation 8: Harness external perspectives and capability by working openly and meaningfully with people, communities and organisations, under an accountable Charter of Partnerships

Agreed in part.

The Government expects the APS to better understand the needs and expectations of all Australians, and to work effectively with them. This is an integral part of good policy, implementation and service-delivery. Rather than agree a new framework like the proposed Charter of Partnerships, the APS will apply the recently-agreed APS Framework for Engagement and Participation to support genuine collaboration with Australians in designing better services and finding solutions to policy problems. Application of this Framework will be monitored through individual and agency-level performance processes. Building on existing tools, the Board will pursue two new initiatives to better understand the needs of Australians – an APS-wide survey of business (to be trialled in 2020 for Government consideration before being rolled-out), and an APS-wide analysis of complaints hotspots. Agencies will use these data and insights to inform its advice to Government. The Government notes the proposal for a new wide-ranging review of privacy, FOI and record-keeping arrangements. The Government’s principal focus is to ensure that agencies effectively implement current requirements, addressing practical problems where required. Any further reform to these arrangements would be considered separately to the Government’s response to the APS Review.


Recommendation 9: Use place-based approaches to address intergenerational and multi-dimensional disadvantage

Agreed in part.
The Government is already pursuing place-based approaches in a number of regions, including in responding to natural disasters (e.g. through the National Drought and North Queensland Flood Response and Recovery Agency) and other initiatives like regional and city deals in places like the Barkly Region, Darwin, Townsville, Western Sydney, Geelong, Launceston, Hobart and Adelaide. Rather than develop a new framework, the Secretaries Board will first undertake cross-portfolio analysis on lessons learned and success factors for place-based approaches, including opportunities to expand this work. As part of this analysis, the Board will consider how regionally-based Senior Executive Service (SES) can better work with local communities and other jurisdictions. The Board will also consider how to best use different data sources in place-based work.


Recommendation 10: APS to work in genuine partnership with Aboriginal and Torres Strait Islander peoples

Agreed in part.
The Government and the APS are committed to improving the lives of Aboriginal and Torres Strait Islander Australians. The new National Indigenous Australians Agency is working with Aboriginal and Torres Strait Islander communities around Australia, and with other portfolios and state and territory governments, to ensure Government policies, programs and services address the needs of different communities. The Government is committed to improving local and regional decision-making and considering options for a national Voice, and has commenced a process to co-design models and options for this. The Council of Australian Governments and the National Coalition of Aboriginal and Torres Strait Islander Peak Organisations have agreed to a formal Partnership Agreement to finalise the Closing the Gap Refresh and provide a forum for ongoing engagement throughout implementation of the new agenda. The Government notes the recommendation that Parliament consider establishing an additional parliamentary committee on Indigenous Affairs. The establishment of parliamentary committees is a matter for the Parliament. The Government considers that the current arrangements are appropriate.

Sunday, 1 December 2019

Indigenous precariousness in Latin America: lessons for Australia?


                                                                 Bell, book, and candle shall not drive me back
                                                                 When gold and silver becks me to come on
                                                                                    King John Act 3, scene 2


This brief post is not designed to analyse. Rather, it is aimed at merely opening a window onto a political and socio-economic landscape that receives virtually no attention in Australia. Latin America shares many structural and underlying parallels with Australia. Indeed the economic, social and cultural linkages are both longstanding and substantial (link here), yet they rarely come to the forefront of public debate and consciousness.

I previously posted on these issues in February (link here).

In this post, I want to focus briefly both on the continuing dispossession of Indigenous peoples in Brasil and recent development in Bolivia.

In a recent article in the New Yorker, titled ‘Blood Gold’ (link here), Jon Lee Anderson reports on the impact of the seemingly unstoppable onrush of small and illegal gold miners into the Amazon, and in particular, into the lands of the Kayopo people. The article is notable for the way it weaves together contextual history (only 900,000 Indigenous people remain of the estimated eleven million who resided  there in 1500 AD when the Portuguese colonisers arrived), national politics under President Bolsonaro (‘the agencies that look after the environment and indigenous concerns are practically defunct’), the cultural impacts on Indigenous people in the face of the onslaught of unregulated capitalism, the lawlessness of the Amazonian frontier, and the potential global implications of deforestation and unregulated mining.

On this latter point, Anderson quotes an American biologist and authority on the Amazon on the interplay of droughts and fires leading to less rainfall, more fires and further deforestation. The Amazon produces 20 percent of the worlds rainfall, and on present trends is on course to flip from being a carbon sink the size of the continental United States to a carbon producer.

In relation to the conflict between Indigenous peoples and illegal miners, Anderson reports without comment the racist attitudes that drive both ongoing violence and lawlessness and national public policy. A spokesman for a goldmining advocacy group complained about the existence of Indigenous reserves: ‘It’s just not viable….They should reduce the size of the reserves, especially in these places where whites are now living. That would pacify a lot of people.’  

I strongly recommend Anderson’s article.

In relation to Bolivia, recent weeks have seen the overthrow of the populist Indigenous President Evo Morales. The circumstances of Morales fall from power are complicated and in many respects unclear. Perhaps more importantly, the implications for Bolivia, and in particular, its majority Indigenous population, are yet to fully play out, although it appears that the prospects for a return to democracy in the near future are bleak.

For readers who are interested, I list four articles below addressing these developments. They are each quite different in their analytical starting points, and share differing ideological dispositions. Nevertheless, taken together, they provide a deeper and better picture of the state of play than any one on its own. If I had to pick one article to read, it would be the Webber & Hylton article listed first.

‘The Eighteenth Brumaire of Macho Camacho’: Jeffrey R Webber and Forrest Hylton on the coup in Bolivia, Counterpunch, 18 November 2019, (link here).

Jim Schulz ‘The rise and fall of Evo Morales’, NYRB 21 November 2019, (link here). 

Nick Estes ‘Is Bolivia turning into a rightwing military dictatorship?’, The Guardian 26 November 2019, (link here). 

And an alternative view from Mascha Mounk ‘Bolivia should worry autocrats everywhere’, The Atlantic, 26 November 2019, (link here).  

Concluding Observations

It may seem slightly strange to focus on developments in Latin America, but I do so because I am convinced that there exist many structural parallels between the challenges facing Indigenous peoples in Australia and in Latin America. Indeed, the value of Latin American perspectives is that they provide in many cases a much more vivid and focussed illustration of the issues that nevertheless are in play in Australia.

We too have our histories of racism and frontier violence. We have a public ideology focussed on economic development at all costs with the implication that it is just not valid for there to be an opposing viewpoint. We have our own policies of climate change denial. We turn a blind eye to divide and rule tactics designed to push Indigenous opponents of ‘development’ out of the way. And while we enjoy a much more robust tradition of the rule of law and good governance, we also have a number of very worrying examples of those legal and political norms breaking down.

A key lesson from Latin America for Indigenous Australian interests, and particularly their advocacy organisations and thought leaders, is that reform and progress is not a one way street. Given the right conditions, the progress of the last fifty years could be threatened and reversed. The world is a volatile place and the rising tide of the last fifty years could easily begin to ebb.

Tuesday, 29 October 2019

A Review of the National Indigenous Reform Agreement over the past decade: not in the public interest to share it with the public


                                                                ‘In nature’s infinite book of secrecy
A little I can read’
Antony and Cleopatra
Act One, scene 2



In December 2018, COAG established the Joint Council on Closing the Gap (link here).

The extract from correspondence from the NIAA is self-explanatory and relates to the status of a review of the National Indigenous Reform Agreement (NIRA) established by COAG in 2008.

The correspondence outlines the ostensible reasons for a decision to withhold release of a copy of the review in accordance with the Freedom of Information Act 1982. It does however provide a glimmer of insight into the processes of negotiation currently underway within the Joint Council. I hope to explore these issues in a subsequent post shortly.

The reliance on the Commonwealth state relations exemption appears to be incorrect as the review does not appear to fall within section 47B (b) of the FOI Act (see text below). The other ground of exemption depends on a balancing of the public interest. The factors listed as being against disclosure appear farfetched and to my mind tendentious. I invite readers to form their own opinion.

Taking a more global view, it is little wonder that the public at large is losing trust in government and politicians when government is not prepared to deal openly with the strengths and weaknesses of major strategic public policy frameworks. This is just one example.

[Extract from Correspondence from NIAA dated 24 October and emailed 28 October 2019]:

OFFICIAL

FOI/NIAA/1920/023/IR

FREEDOM OF INFORMATION ACT 1982

REQUEST BY: Michael Dillon

DECISION BY: Group Manager (name and position redacted)

NOTICE OF INTERNAL REVIEW DECISION

Dear Mr Dillon,

I refer to your email, dated 26 September 2019, to the National Indigenous Australians Agency (the NIAA) in which you sought an Internal Review under section 54 of the Freedom of Information Act 1982 (Cth) (the FOI Act), of the original access decision (the original decision) provided to you on 25 September 2019, in which you sought access to the following:

The most recent communique of the Joint Working Group on Closing the Gap (and which was recently published on the PMC web site (www.closingthegap.pmc.gov.au/jointcouncil) included the following text:
"The Joint Council considered a review of the National Indigenous Reform Agreement (NIRA), completed by the Partnership Working Group, and agreed to develop a new National Agreement on Closing the Gap, covering the next ten years, continuing the NIRA’s successful elements, strengthening others and addressing foundational areas that were previously excluded from consideration."
In accordance with the provisions of the FOI Act, I would like to request a copy of the final version of that review.

Authorised decision-maker

I am authorised to make this decision in accordance with arrangements approved by the Agency’s Chief Executive Officer (CEO) under section 23 of the FOI Act.

Matters Taken Into Account

In making my decision, I have had regard to the following:
• the FOI request;
• the document relevant to the FOI request;
• your correspondence of 26 September 2019;
• the FOI Act; and
• the Guidelines issued by the Australian Information Commissioner under section 93A of the Freedom of Information Act 1982 (FOI Guidelines).

Decision

I have decided to affirm the original decision to refuse access to the document, in full, on the basis that it contains information that is exempt under section 47B (Commonwealth-State relations) and section 47C (deliberative matter) of the FOI Act. The reasons for my decision are set out below.

Reasons
The requested document is a reflective assessment of the National Indigenous Reform Agreement (NIRA). The document contains input from all members of the Joint Council on Closing the Gap (the Joint Council). This is one of the key documents currently being used by the Joint Council to develop a new National Agreement on Closing the Gap (National Agreement).

Section 47B of the FOI Act – Commonwealth-State relations

Section 47B of the FOI Act provides that a document is conditionally exempt if disclosure of the document:
b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth.

In your submission of 26 September 2019, you queried ‘whether there was a requisite expectation of confidentiality given all states and the NT as well as up to 40 plus constituent member organisations of the Peak Council, are all potentially privy to the contents of the review.’ In addition, you requested ‘further consideration to the issues of balancing the public interest against the interests of the Joint Council members in operating in secret, given that the review relates to an overarching policy framework put in place over ten years ago.’

The Joint Council consists of forty (40) members made up of representatives from the States and Territory Governments and peak Indigenous bodies. The requested document contains frank assessments of the success and failures of the Closing the Gap program, which were provided on the mutual understanding of confidence to the restricted members of Joint Council. I am therefore of the view that the requisite expectation of confidentiality is satisfied as the audience is limited to the Joint Council, being its 40 members.

Accordingly, I consider the requested document to be conditionally exempt under section 47B of the FOI Act. Where a document is assessed as conditionally exempt, access must be given subject to the public interest test detailed in section 11A(5) of the FOI Act.

Public interest

Section 11A(5) of the FOI Act provides that the requested document must be disclosed to the applicant unless its disclosure would, on balance, be contrary to the public interest.

In determining whether disclosure would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public interest factors in favour of disclosure against the factors against disclosure.

Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must not take into account when deciding whether access to the document would be contrary to the public interest:
• access to the document could result in embarrassment to the Commonwealth Government, or cause a loss in confidence in the Commonwealth Government;
• access to the document could result in any person misinterpreting or misunderstanding the document;
• the author of the documents was (or is) of high seniority in the agency to which the request for access to the document was made; or
• access to the document could result in confusion or unnecessary debate. I have not taken any of the above factors into account in making my decision.

My consideration of the public interest in relation to the application of section 47B of the FOI Act follows.

Factors favouring disclosure

I have considered the factors set out in section 11B of the FOI Act that may operate in favour of disclosure and acknowledge that disclosure of the request document may:
• promote the objects of the FOI Act;
• would inform a debate on a matter of public important; and
• promote effective oversight of public expenditure.

Public interest factors against disclosure

The factors against disclosure in relation to section 47B, in my view, are that disclosure:
• would inhibit the interests of good government and sound public administration;
• would restrict the candour and utility of future discussions;
• may impair the Commonwealth’s ability to obtain information for the purposes of assessing the delivery of Commonwealth programmes, namely all related Closing the Gap initiatives;
• could reasonably expect to harm the interests of a group of individuals, namely Aboriginal and Torres Strait Islander peoples. In particular, release could reasonably be expected to diminish the NIAA’s ability to manage its ongoing service delivery operations relating to Closing the Gap initiatives in an effective and efficient manner; and
• could reasonably expect to prejudice the management function of the NIAA. In particular, the NIAA’s ability to manage its functions in meeting the Government’s Closing the Gap agenda priorities, policies and programmes for Aboriginal and Torres Strait Islander peoples.

After careful consideration of all relevant factors, I have decided that the factors against disclosure of the requested document outweigh those favouring disclosure. I am of the view that disclosure of the request document would, on balance, be contrary to the public interest at this time.

I am therefore satisfied that the requested document is conditionally exempt under section 47B of the FOI Act.

Section 47C of the FOI Act – deliberative processes

Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency, a Minister or the Government of the Commonwealth.

In order to determine whether a document is conditionally exempt, the FOI Guidelines explain at paragraph 6.58 that:
A deliberative process involves the exercise of judgement in developing and making a selection from different options: The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

In your correspondence of 26 September 2019 you contend that ‘further detailed consideration be given to whether this is in fact a deliberative comment; to whether factors in favour of release were adequately identified’.

Upon review of the document, I am satisfied that the document contains opinions, advice and recommendations provided for the purpose of consideration of the Joint Council in developing a new National Agreement. These assessments were provided to the Joint Council in confidence, to assist in their deliberations on the new National Agreement. The development of the National Agreement is still ongoing and the premature release of the requested document would substantially and adversely impact the effectiveness of the National Agreement and the future success of Closing the Gap initiatives.

I therefore consider the requested document to be conditionally exempt under section 47C of the FOI Act.

Public Interest

I have not taken any of the irrelevant factors listed above into account in making my decision.

Factors in favour of disclosure

The particular factors in favour of disclosure in this case are that disclosure would:
• promote the objects of the FOI Act;
• improve public over sight and scrutiny of government decision making; and
• promote effective oversight of public expenditure.

Factors against disclosure

The factors against disclosure in relation to section 47C of the FOI Act are, in my view, that disclosure:
• would inhibit the interests of good government and sound public administration;
• would restrict the candour and utility of future discussions relating to the ongoing development of the National Agreement;
• would restrict the candour, completeness and utility of future advice;
• may impair the Commonwealth’s ability to obtain information for the purposes of assessing the delivery of Commonwealth programmes, namely all related Closing the Gap initiatives;
• would reasonably expect to prejudice the management functions of the NIAA. In particular, the NIAA’s ability to manage its functions in meeting the Government’s Closing the Gap agenda priorities, policies and programmes for Aboriginal and Torres Strait Islander peoples.

After careful consideration of all relevant public interest factors I have decided that, on balance, the factors against disclosure outweigh those favouring disclosure. I am therefore of the view that disclosure of the requested document would, on balance, be contrary to the public interest at this time.

I am therefore satisfied that the requested document is exempt under section 47C of the FOI Act.

[Further content of the document related to review rights, complaint rights, contact details, and a signature block and date].                                     

Monday, 14 October 2019

Select Committee on the effectiveness of the Government’s northern Australia development agenda




On 4 July 2019 the Senate agreed to the establishment of the Select Committee on the effectiveness of the Australian Government’s Northern Australia agenda.

The committee is due to report on the last sitting day of 2020.

Information relating to the Select Committee including membership, the terms of reference and copies of submissions are available on the Committee’s web page.

A link to Committee home page can be found here

The Terms of Reference state:
That a select committee, to be known as the Select Committee on the effectiveness of the Australian Government’s Northern Australia agenda, be established to inquire into and report on the effectiveness of the objectives, design, implementation and evaluation of the Australian Government’s Northern Australia agenda, with particular reference to:

facilitation of public and private investment in infrastructure and economic development;

economic and social benefit arising from that investment for Northern Australians, in particular First Nations people;

funding models and policy measures that capture the full value of existing and emerging industries;

measures taken to develop an appropriately skilled workforce;
emerging national and international trends and their impact on the Northern Australia agenda; and

any related matters.

Submissions of particular relevance to Indigenous issues (link here) include:
#13 by Jon Altman and Francis Markham,

#58 by the Cape York Aboriginal Land Council,

#62 by the North Australia Indigenous Land and Sea Management Alliance (NAILSMA), and

#67 by Michael Dillon (the author of this blog).

Submission #80 by the Western Australian Government  is also worth reading, not least for the information it includes relating to the Indigenous Reference Group on Northern Australia (IRG) (see section (b) of the WA submission) where the WA government notes that the Commonwealth and relevant state and territory jurisdictions are developing a ‘Northern Australia Indigenous Development Accord’ aimed at capturing the extensive and collaborative work of the IRG’ and providing ‘a framework for Forum Government’s to align efforts to advance Indigenous economic development in northern Australia’. As far as I am aware, neither Minister Canavan nor Minister Ken Wyatt, nor their departments, have announced or discussed the proposed Accord. Certainly neither Minister’s departmental website provide any information on these proposals.

The key issue from my perspective will be to assess the extent to which the proposed Accord includes substantive policy initiatives, particularly in relation to land reform and native title, funding of PBCs, social and community housing in remote communities, and of course, access to public and private sector development finance for economic activities in remote communities. These are all issues I have argued for in previous blog posts. The WA submission goes on to advocate adjustments to the Investment Mandate of the NAIF to better support Indigenous economic (and hopefully social) investments in northern development. This is an issue that I have argued for over the past year or so in this blog and elsewhere.

To sum up, the Select Committee has the potential to both re-set the agenda in terms of Indigenous social and economic development in northern Australia, and to re-energise the Government’s current policy framework, which to my mind is big on rhetoric, but very short on substantive initiatives.

Tuesday, 1 October 2019

Progress at last: NAIF and Indigenous interests



Henry VI, Part One, Act 1, scene 4


Given that I have been critical of the lack of Indigenous engagement with the North Australia Infrastructure Fund (NAIF) – see my previous post here – I was pleased to learn that the NAIF has recently approved a $12.5m loan to and Indigenous mining project. The project is based on an orebody known as Wonmunna (since renamed First Iron) purchased from Fortescue mining in 2018, and will involve the sale of iron ore to Fortescue Mining Group (FMG) and its transport to FMG’s Cloudstreet project under an agreement entered into in 2017 (link here).

On 19 September, Minister Canavan announced NAIF support for an Aboriginal owned mining project in the Pilbara (link here). The Australian Aboriginal Mining Corporation (AAMC) will operate the project, based on two small deposits close to the BHP’s Yandi and West Angelas mines and the Rio Tinto Yandicoogina and Area C mines in the Pilbara. See the map in this National Indigenous Times article on the project (link here).

AAMC is privately owned by 21 shareholders. AAMC has 51% beneficial Aboriginal ownership with Aboriginal owned Carey Mining owning 25% and traditional owners of the areas to be mined apparently making up some or all of the balance of Indigenous owned equity (link here). Carey Mining is the largest shareholder in AAMC. It is owned and managed by Daniel Tucker, who is also the Chair of AAMC. Tucker is also a member of the Prime Minister’s Indigenous Advisory Council.

The AAMC media release (link here) provides the most detailed information on the overall project. The NAIF funding will be complemented by a $14.6m facility from Westpac, and the balance of capital required will be obtained through an equity raising exercise.
On its face, this is all good news and represents a positive step forward for Indigenous interests in the Pilbara and more generally.

It also represents a small window into a much larger political, economic and policy realm where private interests and public sector policies (especially Indigenous related policies) intersect and interact. Much of what is occurring in this domain is cloaked by the limited public information available in relation to private sector and commercial activity and contractual agreements (particularly where the interests involved are not publicly listed corporate entities). Thus, it is clear that Indigenous interests have been major financial beneficiaries in the resource development boom in the Pilbara (and other parts of WA and Qld) over the past two decades. However, policymakers and indeed the public at large, have very little information regarding the quantum of funds flowing to Indigenous interests, the nature of the non-financial provisions in the agreements that are being entered into, and indeed the fairness and probity of the negotiation processes that have taken place and are underway.

Of course, it is arguable that these are not matters for government, and the market ought to be allowed to do its job. The counter argument is that these outcomes are a direct result of the operation of Commonwealth (and to a lesser extent, state) legislation, in particular the Native Title Act, and governments have a responsibility to ensure that the outcomes of legislation are consistent with broader societal expectations. 

Indeed, if we were to conceptualise the role of government as a manager of societal risks, then, one might make an argument for much greater transparency by both commercial and Indigenous interests in relation to the outcomes of their negotiations over land use and resource development. Potential risks include unforeseen adverse environmental consequences, the implications of mines not being effectively remediated after their closure, and the implications of high levels of income and wealth inequality within Indigenous communities, to mention just a few potential examples.  Unfortunately, governments tend not to see themselves as societal risk managers, but rather operate within ideological frames focussed on ‘development’ or ‘jobs’. While economic development, growth and jobs are worthwhile objectives, they ought not to be pursued at all costs, without a clear assessment of the societal risks embedded within.

In the present case of the AAMC First Iron project, a range of questions remain unanswered. While one Indigenous shareholder has been identified, the balance of the Indigenous ownership remains shrouded in mystery. In the absence of this information, it is not possible to be entirely confident that Indigenous interests ‘control’ the policies and decisions of AAMC (notwithstanding its name and the majority beneficial ownership). A second set of unanswered questions relate to AAMC’s relationship with FMG, which itself has a somewhat chequered history of involvement with Indigenous interests (link here and here). It seems likely that at least from FMG’s perspective, the arrangements with AAMC are more than commercial and play into the complex commercial competition between the major miners (BHP, Rio, and FMG) in the Pilbara. Of course, this is not necessarily a negative factor for Indigenous interests, but it makes assessing the merits of the AAMC project that much more opaque.

Finally, while the decision by NAIF to assist an Indigenous commercial project is welcome, it is worth bearing in mind the scale of this decision. NAIF has $5bn available for lending, so the $12.5m loan represents around 0.25 percent of its funds. There remains a long way to go if NAIF can be said to be addressing the infrastructure needs of northern Indigenous communities equitably. This decision is at least a start.

Stepping back to a more panoramic viewpoint, this decision represents just one rather narrow and opaque window into the complex and heterogeneous ways in which mainstream interests and institutions engage and interact with Indigenous Australia. In an environment where governments are increasingly focussed on Indigenous policy narratives built around the economic development opportunities of Indigenous communities and citizens, the sheer opacity of this window is emblematic of a deeper structural problem. Policymakers (and commercial interests) spruik individual events (such as the NAIF loan and the start up of the First Iron mine) as policy successes without themselves having any idea or understanding of the totality of the social, cultural and economic consequences both positive and negative of these events. 

The normal approach of policymakers to managing this policy ignorance is to initiate an inquiry or review when a serious problem emerges. A better, more proactive, and potentially preventative approach would be to focus policy resources on increasing the transparency around commercial activities. This is particularly justified for those interests receiving publicly sourced financial assistance whether in the form of tax expenditures or write-offs, and concessional NAIF loans and the like. To take just one example, it is extraordinary that taxpayers do not have low cost or free access to the publicly available corporate records held by ASIC. In relation to NAIF, there is a range of matters that might usefully be placed on the public record once decisions have been taken (I made a number of specific suggestions in an as yet unpublished submission to this Senate Inquiry: link here).

Where commerce and policy intersects, sunlight is invariably a cheap and effective contributor to managing societal risk!