The Commonwealth is taking us headlong into a remote policy chasm: but who cares?

                                                             This world to me is as a lasting storm.

Pericles, Act 4, scene 1.

 

In 2012, the then Commonwealth  Labor Government put in place a ten year initiative to support better life outcomes for Aboriginal people in the Northern Territory. This initiative followed on from the 2007 Northern Territory Emergency Response.  Originally known as Stronger Futures in the Northern Territory (SFNT), the initiative included a $3.4 billion funding package over ten years and complementary legislation. This initiative, pursued under the national Closing the Gap Framework only applied to the NT and included a sunset after ten years. The sunset takes effect from 17 July 2022.

 

Coalition Governments continued the initiative although they reduced some of the funding commitments, negotiated a new National Partnership Agreement for the funding and slowly withdrew resources to administer the legislation including in relation to the popular store licencing measures. 

 

There has been no public review or evaluation of the measures, as occurred for the Northern Territory Emergency Response before Stronger Futures in the NT was agreed.  However, the Coalition Government  recently announced the extension of its National Partnership Agreement for NT Remote Aboriginal Investment (NTRAI)  for two years (link here). The extension of the NP is welcome as it ensures that funding of $173m over two years is committed. The Ministers’ media release gave further details on the purposes of that funding:

The new funding across the NTRAI schedules of children and schooling and community safety will deliver services such as: police services supporting 300 officers to work in remote locations; alcohol reduction services, including support for a local health workforce and community determined initiatives; Aboriginal interpreter services to assist with interactions with social and justice systems; children and schooling services such as the Families as First Teachers early childhood program across 36 communities and capital works for teacher housing; health services focused on hearing and oral health in remote communities. (Delivered by Department of Health)

The extension also provides continued funding for critical child and family safety services, including women’s safe houses.

 

The Ministers’ media statement also noted:

The end of term review of NTRAI identified that more time was required to work with the Northern Territory Government and Aboriginal stakeholders to design future arrangements that are sustainable and continue to meet the community need.

 

This paragraph is in bureaucratic code: it probably means that the Government would prefer to cease funding, but wishes to defer a decision on long term funding until after the election. Unfortunately, the Review mentioned does not appear to have been released by the agency, as a search of the NIAA website was unsuccessful in locating the review. Consequently, we are not in a position to place the statement in its proper context.  

 

The other missing element in the Ministers’ media statement is the future of the SFNT legislation itself. A number of components of that legislation also sunset on 17 July 2022. These include the SFNT provisions on alcohol management in Aboriginal Protected Areas (APAs), the operation of Australian Government’s regulation of Community Living Areas (CLAs) and Town Camps, and provisions for store licencing in remote communities. Without action by either the Commonwealth or NT Governments, the effect of the legislative sunset will be to revert to the pre-2007 regulatory frameworks. In some cases, this will be out of date NT legislation (e.g. in relation to CLAs and Town Camps), in other cases, it will be a combination of NT arrangements and/or no arrangements whatsoever (e.g. in relation to alcohol and food security).

 

For completeness, it is worth noting that some other complementary legislation enacted along with the SFNT Act was not sunsetted and will continue (eg. income management provisions, customary law in criminal sentencing, and school attendance and welfare reform provisions).

 

The effect of this situation is that Aboriginal citizens in the NT face significant levels of uncertainty regarding the future institutional and policy frameworks applying across a number of major policy areas in the NT.

 

In a normal world with a competent and transparent Government, there would be a public review and evaluation that would assess the effectiveness of the SFNT measures and consider the implications of the sunsetting and  lay out the Governments preferred way forward. Such a review would be published and the community would have a chance to express its views on the proposed policy framework. In particular, if the Commonwealth proposes to withdraw from any of these policy areas, then the community should be allowed to understand its motivations or rationale for doing so. Further, in such a scenario, the proposed response of the NTG becomes highly relevant.  Taxpayers have a stake in this too.  It goes without saying  that taxpayers, voters, and especially Indigenous Territorians are entitled to know what the impact of a substantial investment by the Commonwealth over the past decade has been, particularly with respect to Closing the Gap. The implications for Aboriginal Territorians are enormous.  

 

Unfortunately, we don’t appear to live in a normal world. The Government has not laid out its intentions in relation to the legislation, a Federal election is due by May, and the new Government will be faced with an immediate legislative and policy challenge post-election. If the Government is returned, there may well be a new Minister, and it seems unlikely that the Government will have taken final decisions in advance of the election. In the event of a Labor or Labor/Greens Government, a new Minister will need to develop a policy position, take it to Cabinet, obtain a decision and draft, introduce, and negotiate passage for legislation within the first eight weeks of the Government’s term.

 

The consequences of the new Government (of whichever stripe) failing to legislate will be that the SFNT legislation will cease to operate, its alcohol provisions would cease, the current remote stores licencing arrangements will cease, and land administration policy for CLAs and town camps will revert to the NTG.

 

In relation to alcohol, such an outcome would remove the alcohol regulation framework currently in place, and implicitly shift regulatory responsibility to the NTG. The SFNT policy framework was primarily focussed on harm minimisation. Any shift of responsibility to the NTG will introduce a number of levels of uncertainty. At the most fundamental level, it may take many months for the NTG to itself decide on its preferred framework. When such a policy framework is finalised, there must be some doubt regarding the level of commitment to harm minimisation that will be brought to bear given that the NTG in late 2020 introduced legislation to circumvent the Territory’s own independent Liquor Commission processes (which are designed to ensure community harm minimisation) in relation to the establishment of a proposed Dan Murphy store in Darwin (link here).

 

The consequence of the cessation of the remote stores licencing framework would be to increase the level of food security risk considerably, and potentially open up opportunities for new store entrants with much less focus on delivering healthy and affordable foodstuffs and other essentials. This could undercut the profitability of those stores doing the right thing, and lead to an across the board deterioration in the quality of remote stores, with adverse consequences for remote community health, and increased economic pressure on families.

 

In relation to the land legislation, the removal of the SFNT provisions would remove the increased flexibility and capacity of Community Living Area owners to deal in their land in ways which facilitate their ongoing residence.

 

These are all quite technical issues, and I have summarised them at  a high level. But the bottom line is that the consequences of a poorly designed and implemented transition from SNFT is serious, and the window of opportunity for a new Government to even ensure that the SFNT continues unchanged is extraordinarily tight.

 

Unfortunately, in the absence of transparency about the current Governments intentions, we are unable to properly consider the implications. It is possible that the Government has developed a preferred pathway forward, or even taken formal decisions regarding that pathway. But no announcements have been made.

 

My intuitive assessment, reinforced by the decision that has been announced to renew the NTRAI for only two years and not ten years, is that the Government would prefer to shift responsibility to the NTG for all current SFNT measures.  . This would be consistent with their larger project of shifting Indigenous program and policy responsibilities wherever possible to the states and territories.

 

Clearly, such a decision would be politically problematic in the lead-up to an election. Hence the complete silence from the Government.  Yet the risk is that it will create the potential for a serious interregnum in regulatory arrangements in three areas of crucial significance to remote Territorians, and/or create preconditions that increase the risk of poorly thought out policy design and implementation in the transition to new arrangements.

 

These issues are hidden in plain sight. While they are on the public record, the technical complexity of the legislation means that very few individuals on the ground who will be most affected will be aware of what is approaching. The key Aboriginal Advisory Group with responsibility for representing communities in the NT is APONT (link here). APONT and its members must certainly be aware of the issues, but appear not to have made any public statement or media release on this issue. Nor have the key members of APONT, the Land Councils and AMSANT. How is it that no Aboriginal advocacy organisation in the NT has raised these issues publicly?

 

Perhaps coincidentally, in the media release announcing the extension of the NP NTRAI the Government announced a grant of $3m to APONT:

Minister for Indigenous Australians Ken Wyatt said $3 million will also be provided to NT Indigenous peak organisations to strengthen their ability to provide advice to Government.

“Putting Aboriginal people at the centre of decision making is a critical part of investments going where they’re needed most,” Minister Wyatt said.

“Building the capacity of Aboriginal Peak Organisations Northern Territory (APO NT) will allow Indigenous Territorians to help guide future investments that benefit and reflect their aspirations.

“This continues our commitment to working in partnership, so Indigenous Australians have a say on the policies and programs which affect them.” [emphasis added]

 

Of course, if one were to interpret funding payments such as this as a form of co-option, it would amount to the Government effectively ensuring that Aboriginal people are at the edges of the decision making over future changes to the key legislated regulatory regimes for alcohol, food security and CLAs and town camps.

 

The rhetoric regarding codesign, Aboriginal decision making and so on means nothing if governments are not prepared to have the issues under consideration dealt with openly and in the public domain. In fact, in the absence of open and transparent processes, claims of codesign are more likely to involve co-option and will inevitably lead to sub-optimal policy outcomes.

 

In the current case, the review of the NP NTRAI should have been released. If there is a similar review of the SFNT Act and the implications of its sunsetting, it should be released. If the Government has taken a decision on its approach to the SFNT sunset provisions, it should announce it. If it hasn’t taken a decision, is should explain why not. If the Opposition parties and the NTG were committed to open public debate, and truly concerned about the quality of life in remote communities, they would have raised these issues before now. If Aboriginal advocacy organisations wish to build trust with their own constituencies, they need to be on the front foot and keep Governments up to the mark.

 

It is worth remembering that in 2007, in the leadup to a federal election, a Commonwealth Government decided that the state of remote communities in the NT was such that it demanded an extraordinary policy intervention including the use of the Australian Defence Force, and a set of draconian and often punitive policy initiatives not seen in generations. Today, a Commonwealth Government, similarly months out from an election, has turned 180 degrees, and decided that policy inaction under the cover of obfuscation and slick political management is what is required.

 

It is also important to remember that exclusionary policy is not some abstract concept. It translates into real and tangible adverse impacts on the lives and life opportunities of Aboriginal families and individuals. If we want good public policy in the Indigenous policy domain, and wish to avoid tumbling headlong into the gaping remote policy chasm we will shortly confront, we all need to do better.

 

Indigenous land and economic development in northern Australia

 

I have been long a sleeper; but I trust

My absence doth neglect no great design

Which by my presence might have been concluded.

Richard III, Act 3, scene 4

 

The Parliament’s Joint Standing Committee on Northern Australia has recently released its report: The engagement of traditional owners in the economic development of northern Australia (link here). The inquiry was initiated, at the suggestion of North Qld MP Warren Entsch who chairs the committee, in late 2018, lapsed in April 2019, and restarted in August 2019. It has thus been in preparation for over two years (see paras. 1.43/44). The Terms of Reference were broad and relatively open ended, and cover a lot of ground both literally and metaphorically. The report comes in at over 100 pages, and is clearly written. The report is essential reading for anyone interested in the interplay of native title and economic development.

 

On my first scan of the recommendations, I was pleasantly surprised, as the Committee has focussed on some of the key challenges confronting the native title/land rights policy space in northern Australia (and beyond), and identifies the actions that Governments must take if they wish to see Indigenous communities across northern Australia contribute to and indeed drive the take up of economic opportunities over the coming decades. Implicit in the committee’s thinking (but not stated) is that the failure to grasp these opportunities will not merely be a lost opportunity, but will lead to the development of an Indigenous underclass excluded from economic participation, and will ultimately have an adverse impact on opportunities for mainstream economic development of the north.

 

In particular, the Committee recognises the crucial importance of effective Indigenous organisations in managing the Indigenous land estate in northern Australia.  Recommendation one which recommends increased funding for PBCs and native title Representative bodies, and to a lesser extent, recommendation two, which recommends increased support for capacity building of PBCs and NTRBs, are crucial to the future viability of the native title system nationally. The importance of the effectiveness of the native title system is made crystal clear if we consider that almost 80 percent of northern Australia is held under some form of Indigenous tenure or subject to an unresolved native title claim (para 1.42). Yet the report also notes that the Government was advised in a report conducted by Deloitte Access Economics in 2014 that the native title system required greater financial support (para 2.14). Paras 2.13 to 2.35 in the report lay out the case for increased funding in detail, but notwithstanding the unequivocal recommendation, the committee fails in my view to effectively portray the extent of systemic underfunding, and says nothing about why Government has ignored the issue for the past seven years.

 

Upon closer reading, the following eight recommendations usefully point the way forward on a series of issues that require attention, but each of them is framed in an equivocal fashion, that simultaneously would allow a government to accept the recommendation without necessarily committing it to action. So, recommendation three recommends a review of systems for appointment of PBC directors rather than recommending specific changes; recommendation four recommends that the Commonwealth should give consideration to crating an Indigenous strategy for northern Australia and a northern Australia Indigenous economic development body, recommendation five recommends the Commonwealth should support (unspecified) initiatives to make innovative use of land tenure systems to make land management effective (whatever that actually means)…and so on....Only recommendation ten is unequivocal. It recommends that the NT Aboriginal Land Rights Act be amended to reinstate separate vetos at exploration and mining stages, a policy change I support, but which I suspect has zero chance of being implemented.

 

The Committee’s report follows the standard model for these reviews: an introductory chapter describes the lay of the land (so to speak), then a series of chapters on the key issues. Each chapter sets out a high level narrative supported by extensive quotation from stakeholder submissions, and concludes with a Committee comment. The three substantive chapters in the report are titled: ‘strengthening representative bodies’; ‘role and performance of government entities’, and ‘pathways to economic development’, with a concluding chapter summarising the overall analysis.

 

The concluding chapter tells a coherent and valuable story, but it is a story that is far from new, and which doesn’t really break new ground. The Committee identifies the longstanding power imbalance between traditional owners and development proponents, argues that it can only be ‘redressed with resources and institutional capacity’ (para 5.3), which leads into the rationale for recommendations one and two. What the recommendations ignore however is the potential for governments to take seriously their role of representing the public and national interest (rather than particular corporate interests) and adopt and implement policies and legislative change that rebalances the playing field. In other words, we need to acknowledge and address structural exclusion and systemic power imbalances.

 

The report argues for increasing the transparency of decision making in representative bodies, (para 5.9) which I strongly support, but makes no mention of the reciprocal and arguably more important need for governments to increase their transparency.

 

The Committee’s analysis is somewhat confused and arguably one-sided when it seeks to address the tensions arising from the inalienability of both statutory and common law Indigenous tenures. At para 5.10/11, the Committee states, somewhat tautologically, that

 ‘A major barrier to the productive use of title to land under native title or land rights is land tenure….One of the key problems is the limited fungibility of land, especially that held under native title legislation, and the consequent problems of using land for investment…’.

 The Committee goes on to espouse the benefits of township leasing in the NT, making specific reference to the recent amendments that provide for community owned corporations to hold the headlease, which likely reduces the likelihood that banks and corporate lenders will take a mortgage and provide finance. I dealt briefly with this issue in a June 2021 post relating to the proposed changes to the NT Land Rights Act (link here). See also the Parliamentary Library’s Bills Digest on those amendments (link here)

 

The Committee discussion of these tenure issues extends from para 2.64 to para 2.106, essentially setting out the problem, and canvassing various solutions, but failing to alight on any specific solution. The core of the problem is that there are multiple factors mitigating against the ability of Indigenous land owners to raise capital using their land as collateral. The problem is best described as multi-faceted market failure. See the AIG submission for some case studies (link here). Leases (linked to ILUAs) are part of the solution, but while necessary, they are not sufficient. The way forward is for Government to establish an institution or mechanism to provide an underlying guarantee for loans which are utilising Indigenous land as collateral. Yet after two years of hearings, the Committee failed to explicitly identify the required policy action. Para 2.106 makes it clear that PMC (now NIAA) and AGD intuitively understand this, however they won’t take the final step as they understand too that there is no political will at the Government level to do so. As a result, the Committee is left lamely suggesting (para 5.13) that:

The financial challenges that prevent more effective leveraging of Aboriginal and Torres Strait Islander land assets should be seriously considered, including by financial institutions and banks.

 

Finally, it is worth considering what is missing from this report.

I will nominate three high level issues.

 

First, while there are multiple reference regarding the desirability of greater accountability within PBCs and NTRBs, there is virtually no recognition that Governments too need to be accountable for their policy actions and inaction, and that the best way for this to occur is via greater transparency.

 

Second, there is a desperate need for greater (not less) proactive policy engagement by government with a focus on the policy opportunities that exist within the native title /land rights space. The longstanding decision to place the administration of the bulk of the native title Act with AGD (and not with NIAA) is a recipe for adding ever more legal complexity at the cost of policy coherence and policy vision. In my view, it is major oversight that the Committee says nothing about the overarching portfolio responsibilities and what the means for the outcomes on the ground.

 

Third, given the focus on the intersection between Indigenous landowners in northern Australia, and economic development, it seems extraordinary that there is no mention in the Committee report of the operation of the North Australia Investment Facility, the Government’s $7 billion flagship for its northern development policy framework. The mention of the NIAF in the Office of Northern Australia submission (link here) is underwhelming. I don’t propose to go into detail here (I have previously discussed this issue here), but the fact that Indigenous interests have accessed only a miniscule proportion of the funds committed to date is clearly worth some attention.

 

While this appears somewhat negative, there are some positives. The Committee clearly put a lot of effort into building a consensus position, something that is probably necessary to gradually shift mindsets among the political elites who will determine the pace and nature of policy reform into the future. And the Committee inquiry created the opportunity for some substantive policy contributions from stakeholders and academics, including from the Indigenous Reference Group for Northern Australia (who promoted the idea of a northern Australia Indigenous economic development body supported in recommendation four. The submissions (amongst others) by Altman and Markham, by the ANU, by the Aboriginal Investment Group and of course by the Department of Prime Minister and Cabinet and the Attorney Generals Department are all worth reading (link here) and add to the quantum of accessible and policy relevant information in the public domain.

 

The bottom line arising from a closer reading of the Joint Standing Committee on Northern Australia’s report, both in what it recommends, and what if fails to deal with, is to reinforce how little the government has done since coming to office in 2013 to encourage the inclusion of Indigenous landowners and communities in economic activity. The Committee’s report deserves to be widely read with a critical eye. It identifies some positive directions, but falls short of providing a clear roadmap or policy agenda for taking Indigenous participation in the northern Australia economy to the next level. Unfortunately, there is also a risk that if there were to be a change of Government in May this year, then the new Government might be tempted to use this report as a partial policy roadmap. Such a result would be disastrous in my view for Indigenous interests, and a lost opportunity for a new Government, and would signal a lack of real engagement at systemic levels by the new Government.

 

The Committee is correct in highlighting the economic opportunities for Aboriginal and Torres Strait Islander interests in northern Australia, but fails in my view to lay out an effective pathway to ensure those opportunities will be grasped anytime soon. The responsibility to act however falls upon governments. It is time they roused themselves from their drowsiness, and woke up to the opportunities available from pursuing policy reform designed to reverse the ongoing exclusion of Indigenous interests in northern Australia, and beyond.

See How We Roll

 

In the perilous movement of people through time and space, both places and kin are made and remade. A primary driver of movement is the opportunistic pursuit of resources: a meal, an adventurous ride, the numbing release of alcohol or ganja, the conviviality of assembled kin … All of these forms of Warlpiri movement, no matter their diversity, never seem to be in search of a destination per se. The near pristine abandoned houses at one of the outstations on Nungarrayi’s ancestral estate attest to this; the houses stand as a kind of melancholy memorial to the collapsed outstation movement more generally and the bewildering history of the disconnect between government imaginaries and Aboriginal ways of living. Warlpiri rarely look to settle in the conventional Western sense; they do not arrive at a destination. They keep moving, always on the lookout for what is coming next.

 

The extract above is from page 84 of Melinda Hinkson’s recent book, See How We Roll, which focusses on the challenges inherent in the life of a Warlpiri woman living in exile from her ancestral country in Adelaide. The subtitle is Enduring Exile Between Desert and Urban Australia.

 

See How We Roll is an ethnography exploring myriad issues which explicate and illuminate Warlpiri ways of living in modern Australia. It is narrated reflexively through the prism of a friendship between anthropologist Hinkson and her ‘informant’ Nungarrayi (a subsection term that serves to anonymise the individual concerned). Hinkson has written a comparatively dense book, interleaving an individual narrative embedded within a complex world of local Aboriginal politics, conflicts and social relations, anthropological theory, contextualised within a staccato account of two decades of policy history related to remote Australia.

 

My sense is that See How We Roll was written for a largely academic and anthropological readership, and I expect it will be well received. It is very well written, builds on the pre-existing literature, and moves smoothly between participant observation and theoretical exegesis. Despite its theoretical density, the narrative alone is worth reading as it brings to life the lives of not just Nungarrayi, but her extended family. While Hinkson doesn’t say so, my sense is that the experiences narrated in See How We Roll are widely replicated across remote Australia and the surrounding urban cities and towns.

 

Hinkson’s nuanced narrative describes, in largely non-judgemental terms, the extraordinarily precarious lives of Warlpiri people, the daily challenges of sustaining welfare payments, keeping power on, engaging government services, their drinking culture, the moving in and out of prison, hospitals, and the early deaths of far too many. She also describes the social relations at the heart of Warlpiri society, the importance of kin, the attachments to place and to country, and (as in the quote above) their addiction to perpetual movement and engagement, all from the perspective of a grandmother who has decided to leave her Central Australian community and live in Adelaide; a grandmother who has a propensity to live on the edge.

 

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

 

I do have one critical comment regarding See How We Roll. While Hinkson’s narrative describes the experience of Indigenous lives neutrally and largely objectively, she resorts to a more value laden approach to her description of various policy measures. It is not that I fundamentally disagree with her policy critiques (which are often included as brief asides more than extended arguments), but it somehow doesn’t sit well within an otherwise neutrally descriptive narrative. In the scheme of things however, my criticism is a mere quibble.

 

See How We Roll is more than an anthropological treatise. It is a window into issues of enduring salience and importance to policymakers. It doesn’t offer solutions, it doesn’t argue for particular policies, but it certainly allows those of us whose knowledge and experience of Aboriginal social, economic, and political realities is thin to gain a better appreciation of what is at stake when policies directed at reshaping Indigenous lives are promulgated unilaterally and from ‘on high’.

 

Ultimately, Hinkson challenges policymakers, and the nation generally, to look harder at the underlying constraints on Indigenous lives, and our own responses to Indigenous life choices, and to truly ‘see’ how ‘we’ roll.

 

 

 

See How We Roll was published by Duke University Press in 2021.

Energy insecurity in remote Australia

 

An extraordinarily important recent article published in the online journal Nature Energy (link here) raises serious questions regarding the current policy settings related to access to energy in remote communities.

 

The article titled Energy insecurity during temperature extremes in remote Australia assesses the prevalence of power shutdowns across 28 remote NT communities involving 3300 households during 2018-19.

 

The article is significant because it combines sophisticated statistical analysis, contextualised within a detailed exegesis of the prevalence of climate extremes, as well as by an outline of the underpinnings of energy injustice in remote Australia. It is not my intention to attempt to summarise the argument, but rather I merely aim to cherry pick some (but not all) of the policy issues raised in the paper.

 

The executive summary states, inter alia:

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

 

The total disconnection event numbers are staggering, totalling 170,226 for the 3300 households. Over 14,000 were multi-day disconnections. These figures underestimate the number of remote community disconnections as there are more households using prepayment metering than are represented in the study.

 

The article notes that over the course of the year, 49,000 disconnection events (or 29%) occurred during hot and cold temperature extremes. In the three hottest climate zones in Australia, between 4.5 and 9.1 percent of all deaths were associated with heat related mortality, much higher than the 2% figure in the rest of Australia.

 

The authors mention, but do not explore in detail, the policy issues which underpin the use of the prepaid metering systems. Nor are the adverse health, social, economic and educational consequences explored in detail, although the article does mention some potential (technical) policy responses available to governments to mitigate the adverse impacts of disconnections, including the installation of rooftop solar systems, and adjustments to ensure refrigeration, and medical equipment continues to operate through a disconnection event.

 

The evidence presented reinforces the depth and extent of systemic disadvantage facing remote communities. Energy disconnection plays into health issues; exacerbates overcrowding (as residents move to houses where power is still available); contributes to the challenges school age children face in maintaining attendance and homework schedules from overcrowded shelters without access to regular power; raises issues regarding food security (and all that involves), and points to a widespread and deep lack of access to sustained financial literacy training for remote communities and their residents. All of these issues are arguably the responsibility of the NT Government.

 

Under the Closing the Gap National Partnership, each jurisdiction prepares an Implementation Plan to guide its activities across the Board. The NT Government Implementation plan is available online (link here), but upon my quick examination, provides virtually no indication that there will be any focus on addressing the tangible systemic issues identified above arising from ongoing energy disconnection issues. This in itself is an indicator that the current Implementation Plans under the National Partnership are not fit for purpose. That however is an issue beyond the scope of this post.

 

While the NTG clearly has a major role in addressing these issues, so too does the Australian Government for two substantive reasons.

 

First, while the article make no mention of it, the potential link between hyper-excessive energy disconnections and the history of hyper excessive social security breaches (let’s call them CDP disconnections) leading to hyper variability in access to social security income is impossible to ignore. ANU academics cited estimates that pre-pandemic, the remote CDP program inflicted over 500,000 penalties on its 30,000 participants over four years (link here). The CDP scheme is currently undergoing a slow, phased, reconfiguration, after the Government announced it is to be co-designed with Indigenous interests following the completion of some pilot programs set to begin in late 2021. The positive changes to income support payments in the first year of the Covid pandemic may well have lessened the rate of energy disconnections in the last two years, but these will likely increase as fiscal normality returns and temperatures rise.

 

The second reason the Australian Government is involved is that it is a significant contributor financially to the NT remote housing sector, given that many of the housing leases are held by the Australian Government and not the NTG (link here).

 

Over and above these substantive policy responsibilities, the Australian Government has a national responsibility to oversight the complex Indigenous policy domain. The fact that the current Government resists this framing does not weaken its logical and political force. Why else did the Australian electorate vote in 1967 to give the Australian Government legislative responsibility for Indigenous affairs under the constitution? Such a national perspective is important because while the NatureEnergy article relates only to the NT, it seems likely that similar systemic energy security issues will apply in other parts of remote Australia, albeit perhaps with differing characteristics depending upon the extent to which remote communities elsewhere utilise prepaid energy systems.

 

One obvious step would be to commission the CSIRO to undertake a more policy oriented status report on the current state of play nationally. Another would be to substantially increase the investment in remote housing, including in ancillary infrastructure such as solar power systems. A third would be to expedite the work on redesigning the remote income support systems.

 

If the Australian Government is not prepared to step up and initiate this work unilaterally, then the Coalition of Peaks would be wise to utilise its access via the Joint Council established under the National Partnership to pressure all jurisdictions to do more. The case for immediate action is unassailable.

 

 

The formal citation for the article which prompted this post is:

Longden, T., Quilty, S., Riley, B. et al. Energy insecurity during temperature extremes in remote Australia. Nat Energy (2021). https://doi.org/10.1038/s41560-021-00942-2

 

 

IBA appointments: More questions than answers

 

The Minister for Indigenous Australians has this week announced new appointments to the Board of Indigenous Business Australia (IBA) (link here). There is only a single new appointment, Mr Rick Callaghan (link here). On its face, this appears to be a sensible appointment of a qualified and experienced Director.

 

The Minister has announced the reappointment of the Chair Mr Eddie Fry and two other existing Directors. The Minister’s media release omits mention of the terms of the new appointments, but notes that each of the three re-appointees have been on the IBA Board sine 2014.

 

There are a number of intriguing issues at play here. Good governance principles would normally dictate that after seven years, there would be significant  rejuvenation of the Board. This might particularly apply to the Chair, not least as the Minister previously expressed a lack of confidence in him in relation to his chairmanship at the ILSC (link here). Mr Fry was recently replaced as Chair of the ILSC (link here). The Minister has never explained how it was that Mr Fry lost his confidence as the ILSC Chair, but was able to stay on for the best part of a year as Chair of ILSC and has now been reappointed as IBA Chair.

 

Second, the IBA page on the Government’s online directory (directory.gov.au) lists IBA’s Directors and their terms. In relation to the three reappointments, the Directory includes start dates of 1 December 2021 and end dates of 28 February 2022. The page indicates that it was last updated on 25 October, but that may be an error. In any case, it appears that the three reappointments are for only three months.

 

So what might be the explanation for this ?

 

Perhaps the Minister’s reluctance to mention the appointment terms stems from a concern that by announcing what are clearly interim arrangements, it might suggest that he has been unable to obtain Cabinet approval for his preferred choices, and thus lacks influence within the Government.

 

An alternative , and more cynical, explanation might be that the Government is determined to make new appointments before the election that extend through the term of a potential new Labor Government.

 

A third explanation might be that the Minister just didn’t get his act together in time to make new appointments and was forced into making interim appointments.

 

None of these explanations reflect well on the Minister and has administration of the portfolio. It would have been better if the Minister took interested citizens into his confidence and provided a fuller explanation for his decisions.

 

A more worrying possibility is that the Ministers recent announcement applies to the post February terms of the three Directors. If so, this would lock in a serious failure of good governance principles.

 

Finally, the fact that the Minister has left us unclear as to what he has actually done, while purporting to keep us informed of his actions, reflects poorly on his commitment to open government and the highest quality of public administration.

 

The deeper issue that underlies the process of appointments to statutory offices within the Indigenous Australians portfolio (and no doubt beyond) is the increasing levels of politicisation of appointments.

 

It is time that the Parliament stepped up and legislate for much more transparency around the basis for appointments. The fiasco within the Board of the ILSC over the past two years (link here and link here) demonstrates unequivocally that the present system is broken. These most recent interim appointments confirm that conclusion. In particular, while there is a case for Ministerial decision making, there is a need for the establishment of multi-partisan/independent selection committees that propose a merit based short list to the minister for each vacancy. The process used for the ABC (link here) and largely ignored by recent Prime Ministers is one potential model. I would go further and propose that where Ministers ignore an independent selection committee shortlist, their nominees should stand down with a change of government.

 

Statutory corporations such as IBA are given independent remits for a reason. Governments should not be able to control their activities by default through informal influence over appointments.

 

 

 

 

Opportunities and risks: the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021

 

Our wills and fates do so contrary run
That our devices still are overthrown;
Our thoughts are ours, their ends none of our own.
Hamlet, Act 3, scene2

 

The Senate Finance and Public Administration Legislation Committee has now published its report of its Inquiry into the legislation. The Government and ALP members of the Committee recommended the Bill proceed unamended. The Greens provided a dissenting report. The report, copies of submissions, and some associated documents are available on the Committee’s web page (link here).

 

I expect that the Bill will be passed this week, probably without amendment.

 

From one perspective – that of Minister Wyatt, his agency, the NT Land Councils, and APONT (the Aboriginal Peak Organisations of the NT) – the Bill is a positive step towards Aboriginal empowerment and greater self-determination. It is the result of a codesign process over a number of years that inter alia streamline the mining provisions of the legislation (various mining interests were involved in the drafting of the legislation), reverses a number of provisions that the land councils have strongly opposed for some years, in particular relating to the capacity to delegate their powers to local corporations, and provisions relating to permits. The core of the amendments however are the proposal to establish a new statutory corporation, the NT Aboriginal Investment Corporation (NTAIC), which will be provided with a capital base totalling $680m over the first three years from funds already appropriated to the Aboriginals Benefit Account (ABA). The majority of the Directors of NTAIC will be appointed by the Land Councils. The NTAIC will have responsibility for investing that capital base (either passively or actively), and for deciding and making beneficial payments to community groups and projects across the NT.

 

On the surface, this all seems to be heading in the right direction, not least since the 1984 review of the ABA by Jon Altman recommended consideration be given to shifting the ABA under Aboriginal control, a proposal that has sat in abeyance for over thirty years (see Altman’s submission to the Inquiry).

 

Yet all is not what it seems. Of the 67 submissions to the inquiry, less than ten were supportive of the proposals. See Altman’s tabled supplementary document providing a critical assessment of the submissions in favour. Key issues raised by those with concerns (and I am one of those people)  included the extent of consultations including the lack of involvement of Aboriginal interests beyond the land councils, the effective secrecy of the process, alleged flaws in the design of the NTAIC that potentially compromise the quality of its governance, and structural tensions related to the NTAIC’s overarching functions (is it an investment body focussed on driving economic development as the name of the Bill suggests, or a beneficial grants body?). The Scrutiny of Bills Committee raised a series of technical concerns (that may nevertheless have real world implications) that the Minister proposes to disregard. An overarching concern was the potential for the land councils to accrue greater power at the expense of the interests of traditional owners.

 

It must be said that the Land Councils in their evidence to the Committee were adamant that the critiques of the Bill do not stand up to close scrutiny. Whether it is the land councils who are correct, or the critics, only time will tell.

 

For those interested in a more comprehensive understanding of the respective arguments, I recommend readers start with the Parliamentary Library’s excellent Bills Digest on the Bill (link here) read the submissions to the Senate Committee inquiry in favour of the Bill by the NIAA and the Land Councils, and for the critical perspective Jon Altman, Greg Marks, Bill Gray, the Australian Human Rights Commission, Ngurratjuta/Pmara Ntjarra Aboriginal Corporation and Michael Dillon (link here). The Committee’s majority and dissenting reports are also good overarching accounts of the arguments, albeit not entirely comprehensive (link here).

 

If we step back, and get up in the grandstand, what might we surmise about the drivers behind the process on this issue so far? In three words: politics, politics and politics.

 

The Government clearly wished to neutralise the potential threat of overwhelming anti-government sentiment from Territory Aboriginal voters. Labor too is focussed on this constituency, having preselected former NLC CEO and former NT Government Minister Marion Scrymgour for the House of Representatives seat of Lingiari. Labor’s support for this Bill may well be a result of the fact that to adopt an alternative position would be seen to undermine their candidate in the forthcoming election. IF so, this is astute politics at the cost of poor policy. On the issue of electoral disengagement, see this previous post analysing the extremely poor voting turnout amongst Territory voters (link here).

 

The Government also wished to deliver miners streamlined access for prospective mineral exploration on Aboriginal land, and was prepared to trade the Howard Government inspired, but now defunct and no longer contentious provisions on delegated powers and permits for these gains.

 

A further Government motivation is its need to deliver the appearance of action to its own ideological constituency. Thus we see it package up what I previously described as ‘a largely rhetorical policy narrative built around economic opportunity, jobs and wealth creation’ (link here). While the NTAIC gives the appearance of substance, the funds to be allocated are entirely transfers from already appropriated funds for the ABA. There is no net addition to the Government investment in ‘developing the north’ and for this reason, I continue to assert that this reform is, at its core, essentially rhetorical in purpose. Yes, it will potentially have substantive impacts (hopefully positive, potentially negative), but they will not in themselves make a serious difference to the economic status of Aboriginal Territorians. The amounts involved are, compared to the scale of the needs, not large enough.

 

A final Government motivation derives from its deep antagonism to funding social housing in remote areas, notwithstanding the crucial significance of overcrowding as a driver of poor social and economic outcomes. This is an issue I have posted about on numerous occasions previously. The Land Councils have for some years been pursuing an agenda to establish a community controlled housing entity, an agenda that I very strongly support. How might a government divert them from this agenda? By offering an alternative agenda and arguing that it is not possible to do more than one thing at a time. See my November 2020 post (link here) where I explicitly canvassed the possibility that the Minister was seeking to avoid progressing this agenda. The following exchange from the Committee’s public hearing is instructive:

CHAIR: Great. Do you see this legislation as the end of the codesign process?

Mr Nugent (CLC): Certainly not. From the views that've been expressed, and the documented resolutions of our council, the Central Land Council, there is still much reform and much to be done. One of the larger reforms that has been sought was the establishment of an Aboriginal community-controlled housing entity. It was hoped some years ago, when discussions began with the current minister and the current minister authorised discussions with his department, that an Aboriginal controlled-community housing entity would be part of this suite of reforms. It's a very large and complex piece—housing in the Northern Territory for Aboriginal people, particularly now in a time of a world-wide pandemic health crisis. It's absolutely vital. It was accepted some time ago that this particular piece, the community-controlled Aboriginal housing entity, still required further work. We're still endeavouring to engage with the government on that basis. That would be one major piece that still has a ways to go. (Committee Hearing 18 November 2021, pages 2/3; emphasis added).

 

The Land Councils clearly believe they have obtained adequate concessions from the Government during the codesign process to offset the adverse implications of the Government’s broader motivations. While that is an assessment for them to make, for what it is worth, I don’t see substantial benefits for Aboriginal interests. As I argued in my submission to the Committee inquiry, I do not accept that there is Aboriginal control over the NTAIC. Whatever increased influence is obtained (there will undoubtedly be some), it is partial and leaves open the potential for future co-option by governments regarding the ongoing flow of funds from the ABA to the NTAIC.

 

Moreover, as I argued in my submission, the broader risk to the core statutory role and modus operandi of the land councils is significant. This risk (discussed in detail in my submission) goes to the heart of the role of land councils, and to the very raison d’etre for land councils to have a role in negotiating third party land access on Aboriginal land in the NT. So too is the risk of economic loss significant if the NTAIC decides to adopt an active (as opposed to passive) investment strategy.

 

The huge and largely unpublicised increases in Land Council budgets that I pointed to in my November 2020 blog post (link here) is in retrospect directly relevant to the ongoing negotiations over the ABA and ALRA amendments. As I said then, Ministers generally expect a quid pro quo for these types of decisions. We can now see that whatever concessions were provided in return for these budget decisions relate to the provisions of this Bill. Without open and transparent process, codesign can easily slide into back room dealings. The fact that the Minister made no mention of the codesign process then underway when he announced the $100m for the land councils (by the way making him complicit in the secrecy that many of the critics – including Aboriginal critics – allege) only reinforces the reasonableness of a deeply sceptical perspective on the process adopted. In hindsight, it is clear that my 14 June 2021 post on the Minister’s first announcement of his proposals (link here) was correct in warning of the need for close consideration of any reform proposals.

 

Under these changes, the Land Councils have achieved only partial control over the ABA. A partial reform may seem attractive, but it can also operate as a rationale for leaving the status quo in place. One of the lessons I have learned over my career in public policy is that real reform is hard, and in particular, there are always unintended consequences. The risk of negative unintended consequences with these reforms strikes me as particularly high.

 

The Minister and the Land Councils should take careful note of Shakespeare’s warning: Our wills and fates do so contrary run!

 

 

Closing the Gap: rhetoric trumps substance

 

I have recently published two CAEPR Discussion Papers on Closing the Gap.

 

The first, titled The first decade of Closing the Gap: What went wrong? (link here), deals with the initial phase of Closing the Gap from 2008 to 2020. This phase extends from the announcement of the new policy architecture for closing the gap by the Rudd Government, established under a COAG agreement known as the National Indigenous Reform Agreement (NIRA), through to its expiry in 2018 -2020.

 

The second Discussion Paper, titled The new policy architecture for Closing the Gap: Innovation and regression (link here), covers the second ‘refreshed’ phase of closing the gap established under the National Agreement on Closing the Gap (link here) promulgated in July 2020.

 

The first Discussion Paper demonstrates how LNP Governments from 2013 progressively dismantled and/or defunded the various National Partnership Agreements that were encompassed by the NIRA, based on an examination of key high level evaluations and reviews, and importantly, on a ‘review’ of the NIRA commissioned by COAG obtained, after extensive effort, under FOI (link here). The key point here (confirmed in the NIRA review prepared by Government officials and endorsed by the Joint Council on Closing the Gap) is that from 2013 onwards, while Prime Ministers stood up each year and delivered heartfelt reports to the Australian people and parliament on closing the gap, the overall funding allocated in phase one was progressively cut back and not renewed as appropriations ended.

 

See this earlier post for an account of the reasons the document was initially refused in full (link here). Following an appeal to the Australian Information Commissioner, and the preparation of multiple submissions countering the agency’s blustering, the Department finally released the document in full in November 2020, in advance of a pending decision by the Information Commissioner. The 15 months delay between the original request (in August 2019) and the release was justified by the agency on the basis that changed circumstances meant that it was no longer not in the public interest to refuse access. I for one was not persuaded by the agency’s rationales, both in refusing access initially, and releasing later in advance of the Information Commissioner review.

 

The second Discussion Paper critically analyses the policy architecture put in place by the ‘refresh’ process which was based on a codesign process with the Coalition of Peaks, comprising over 50 Aboriginal and Torres Strait Islander community-controlled peak and member organisations across Australia. After describing the processes leading up to the negotiation of the new National Agreement on closing the gap, the analysis discusses the relevant academic literature and critically assesses the implementation risks that could undermine the success of the second phase of closing the gap. Those risks are more than substantial. The Discussion Paper then outlines a series of further reforms that might  be considered to address those risks.

 

While each Discussion Paper stands on its own, they are complementary insofar as they are chronologically sequential. The evidence shows that the LNP Government has for eight years cut or failed to renew financial resources directed to closing the gap. Over time, these decisions effectively eviscerated the capability of the initial policy architecture to gain traction. Looking forward, the LNP Government has deliberately shifted responsibility for much of the heavy lifting to the states and territories, and allocated what can only be described as a miserable contribution going forward (link here). In the future, any shortfall in meeting the Closing the Gap targets will be primarily the fault of the states and territories. Over the past eight years, the Opposition ALP, and to a lesser extent the Greens, appear to have run dead on these steadily accumulating incremental cuts, preferring to score vapid political points rather than mount a sustained campaign directed to holding the LNP Government to account for its (deliberate) policy failures. In these circumstances, the likelihood that the nation will get serious about closing the gap and make a substantial difference in the near future seems remote. Only sustained and effective political pressure will change this pessimistic reality.

 

I hope these Discussion Papers will go some way to highlighting the ways in which governments are failing not only First Nations, but the nation as a whole, and consequently, point towards strategies that might ultimately take us out of the wilderness. While the issues are articulated in bureaucratic and technical terms, the outcomes on the ground are measured in shortened lifespans, reduced educational opportunities, increased family violence, increased incarceration, increased out of home care, higher rates of mental illness, higher unemployment, and significantly reduced life opportunities. To some, this may sound like ‘deficit discourse’, but my point is that these outcomes are real and they are clearly and demonstrably a function of the lack of substantive policy and political commitment by governments and the political class generally.