The ANAO performance audit of the NIAA NT Remote Housing program

 

I can keep honest counsel, ride, run, mar a curious tale in telling it and deliver a plain message bluntly.

King Lear Act One, Scene Four

 

The ANAO and its performance audit function is an extraordinarily valuable resource in providing the community with a level of assurance that government programs and policies are being managed effectively in the public interest. These reports also provide a welcome level of transparency that is in practice unavailable anywhere else, providing a window into the quality of bureaucratic advice and strategic planning that underpins the delivery of government services and programs.   

 

The ANAO’s recent report titled Remote housing the Northern Territory is a case in point (link here). It reports on the five year National Partnership for Remote Housing Northern Territory that provides for $550m in Commonwealth finance for the five years from 2018-19 to 2022-23. Program delivery is by the NT Government (NTG).

 

The performance audit is limited to the NT, because following the expiry of the ten year National Partnership on Remote Indigenous housing in 2018, the Commonwealth withdrew from funding remote housing in all other jurisdictions. The ANAO give a detailed and valuable account of the history of Commonwealth funding of remote housing.

 

The ANAO audit team on this report have done an excellent job in synthesising and compiling an enormous amount of information and data which will be enormously helpful to those interested in understanding what has transpired in relation to remote housing programs over the past 15 years. Unfortunately, in this area of Commonwealth activity, the past decade has been a story of progressive decline and poor management, a narrative that a detailed reading of the report confirms. Yet for reasons I can speculate on, but cannot confirm, a high level reading of the report, focussed on its key findings and recommendations, gives little hint that this is the case.

 

For example, the report states (para. 8):

Improving Indigenous housing in the NT has been a policy priority for successive Australian and NT Governments. By 2022–23 the Australian Government will have invested $2.65 billion over 15 years in remote housing in the NT through successive national partnership agreements.

 

This statement is factually correct, particularly if you give the term ‘policy priority’ a generous and flexible interpretation. Yet if we apply a more penetrating analysis, we can note that the total is in nominal dollars and the real expenditure in the earlier years is somewhat greater. Setting that aside, that ‘priority’ has averaged $177m per annum over the 15 years, whereas the current five year National Partnership provides for $110m per annum from the Commonwealth. The most recent National Partnership involves a nominal reduction in Commonwealth financial commitment of $67m per annum; hardly a reflection of an ongoing policy priority. For a discussion of whether the National Partnership Agreement incentivised a matched commitment from the NTG, see below.

 

The ANAO frames its findings as follows: [emphasis added]:

• The National Indigenous Australians Agency’s (NIAA) administration of funding for remote housing in the NT has been partly effective.
• The development of the National Partnership was partly effective.
• NIAA has been partly effective in assessing the delivery of the program of works under the National Partnership.
• NIAA has been partly effective in ensuring that the National Partnership’s outcomes are being achieved.

 

The ANAO’s formal recommendations align with these findings, albeit with a focus on the development of ‘risk based assurance processes’ in four of the five recommendations (para. 30).

 

The ANAO’s ‘glass half full’ approach is facilitated by two inter-related high level techniques or dispositions, though to be clear, I am not at all sure whether the ANAO sets out to do this deliberately, or whether it is merely a function of an inherently cautious culture.

 

The first is that the report uses excessively neutral language and a passive tone to communicate its findings, particularly in the executive summary sections. The best example is perhaps the way each of the four major findings and some of the supporting findings are framed, utilising the equivocal and indeterminate formulation that NIAA actions were ‘ partly effective’ (see paras. 14 to 17 and paras. 22, 23, 234 and 28). More substantively, in the reports recommendations, there is a subtle choice to focus on non-threatening technical issues such as risk management (important as they are) rather than highlighting management failures or lack of substantive progress.

 

The ANAO approach on communication and presentation in relation to what is a complex program is akin to assessing the operation of a sailing ship, and finding that notwithstanding the disintegrating caulking, the hull was partly effective, the broken compass which was only five degrees out was partly effective, and the damaged rudder is partly effective because it continues to steer the ship, albeit in circles.

 

The second high level reason for the ANAO’s high level anodyne framing is that its analysis is flawed in two respects: it doesn’t adopt a comprehensive or systemic approach to understanding what is occurring with the program, instead satisfying itself with segmented and compartmentalised assessments of different elements, without taking the next step and ‘joining the dots’. It also ignores or fails to grasp a couple of crucial issues that in turn would lead to a much more critical set of conclusions (I address these below). To use the sailing ship metaphor again, the ANAO short-sightedness is akin to failing to recognise that with key elements compromised, the operation of the ship is no longer fit for purpose, even if it continues to stay afloat.

 

To over-emphasise the critique of the ANAO would be a distraction. So I now turn to laying out a number of the ‘submerged’ key points which focus more on the performance of the NIAA based entirely on the information contained in the ANAO report. I won’t begin with a summary of the key information regarding the program as it is laid out in the summary section (paras. 1 to 33) which I recommend readers at least scan. The Commonwealth program is based on NTG implementation of the core elements (capital works, property and tenancy management (PTM) and Indigenous employment, and involves payments to the NTG based on delivery against agreed milestones.

 

The delivery of capital works is not on track

As at 30 September 2021, 39 months (65%) into the 60 month program which ends in June 2023, the Commonwealth program had delivered only 363 out of a projected 1950 bedrooms, or 19% (see para 1.11 and table 1.2). Only 26% of the program funding had been paid to the NTG, including 11% of the capital works funding. The ANAO determines that the NIAA assessment of the NTG’s delivery of the capital works is ‘partly effective’ (para 3.3), but the bottom line is that the NIAA has not delivered adequate progress and is now presumably in panic mode seeking to make up lost ground.

 

Slow delivery of outcomes has an adverse impact on Aboriginal tenants in overcrowded housing. The ANAO states that the ‘NIAA has not managed risks to the delivery of the National Partnership effectively’ (box above para 4.55). The statement is correct, but it evades the more fundamental point: the NIAA has not ensured that the outcomes required are delivered in a timely way. The ANAO Recommendation Five (para 4.68) is framed around risk management when in fact it should be framed around program delivery failure. The ANAO notes that NIAA were aware as early as November 2019 of delays in program roll out (para 4.8) and had expressed concern to the minister in April 2020 that the construction program may not be completed over the duration of the National Partnership (para 4.72). The recommendation that the ANAO should have made, but didn’t, was for the NIAA to urgently implement a strategy to bring the program back on course by June 2023.

 

In this context, the ANAO correctly raises the very real concern that NTG commitments to ensure the targets in the Commonwealth program are delivered will come at the cost of the NTG’s own committed targets (para 4.9). This raises a second key issue: why are there two sets of program targets being delivered simultaneously by the two Governments.

 

The Commonwealth decision to maintain separate program targets

It is not clear why the Commonwealth insisted on a separate program targets to be delivered by the NTG in parallel with its own program targets in its pre-existing program known as Our Community. Our Future. Our Homes (OCOFOH). It is problematic in a number of ways, yet the ANAO makes no adverse comment regarding this decision. Obvious disadvantages include added management complexity, reduced overall transparency, and increased risks of ‘target shifting’ and financial mismanagement. The ANAO uncovered, and notes without adverse comment, that PMC (before NIAA’s establishment) provided what appears to be incorrect and misleading advice to the Minister (see paras 2.10 to 2.12).

 

Part of the reason for two sets of targets may relate to a misleading narrative promulgated by PMC / NIAA in the drafting of the National Partnership and apparently accepted by the ANAO (see para. 1.5) that the NTG was matching the Commonwealth commitments. In fact, the NTG had committed $1.1bn over ten years from 2017-18 before the Commonwealth made its decision to continue funding in the NT (see para 2.33). In turn, this presentational sleight of hand relates to the underlying raison d’etre for the Commonwealth involvement in the NT in a context where it had taken a decision to withdraw from funding remote housing in every other jurisdiction.

 

What was the Commonwealth motivation for continuing a remote housing program in the NT?

The ANAO, somewhat credulously, notes that ‘the objective of the National Partnership is to improve housing conditions and reduce overcrowding in 73 remote communities and 17 town camps’ (para 2). The NIAA response to the performance audit goes further and states that ‘the sole objective of the National Partnership’ is to improve housing conditions and reduce overcrowding’ (Appendix One). The ANAO explains that the Commonwealth’s rationale for continuing the program in the NT while discontinuing its assistance in all other jurisdictions was that it ‘considered that the housing need was significantly higher’ in the NT (para. 1.14).

 

The 2017 Review of NPARIH (the national forerunner of the NT National Partnership) had determined that about half of the outstanding remote housing need to 2028 would be in the NT, but this does not explain why a Government would preference one half of the need over the other half, or one unhoused family in the Northern Territory over an unhoused family in Western Australia.

 

We can probably set aside the possibility that there was any link between the then Minister’s role as a Senator for the NT, and the decision, as he did not contest the 2019 election held two months after the National Partnership was established in March 2019.

 

However, the most substantial incentive for continued Commonwealth funding arose from the fact that the rollout of NPARIH from 2008 was predicated upon the granting of leases to Government to underpin improved tenancy management. In the NT, the Land Councils strongly pushed for the Commonwealth to hold those leases rather than the NTG, and the then Labor Minister agreed. The NT was the only jurisdiction where the Commonwealth holds housing leases directly.

 

The ANAO notes (see paras. 1.20 – 1.24) that the Commonwealth holds some 3500 underlying housing leases in the NT, and thus (in the absence of any subleases arrangements) is effectively the landlord and responsible for property and tenancy management (PTM) for around 59 percent of all remote housing. The LNP Government did not wish to take a direct role in delivering social housing in the NT, and thus needed to negotiate subleases and management responsibilities with the NTG (or some other entity). The objective of the National Partnership is more accurately characterised as the price of persuading the NTG to take on this responsibility. This conclusion is reinforced by the ANAO observation (para 1.24) that the current subleases over the Commonwealth housing leases are due to expire at the same time as the National Partnership, in June 2023.

 

Acknowledging that the Commonwealth had an ulterior motive for its decision to maintain a remote housing program in the NT is important because it explains in large measure the lack of attention to implementation that lies at the heart of the current failure to deliver on outcomes.

 

The Implementation Plan and PTM fiascos

The ANAO report makes clear that the Implementation Plan for the program, negotiated contemporaneously with the program design and negotiation, included numerous gaps and flaws such as reporting period inconsistencies, including in relation to PTM. They go so far as to count them, reporting over 30 inconsistencies, syntax and typographic mistakes,  (para 2.24, and footnote 44).  Recommendation One, which flows from this analysis, states:

2.28    National Indigenous Australians Agency revise the Implementation Plan to support public accountability by providing accurate information on how each party to the National Partnership for Remote Housing Northern Territory will achieve the outcomes and outputs.

 

This is fine and good, but the import of these multiple so-called ‘technical‘ errors (see para 2.29) is twofold: first, it made the key areas of the agreement such as payment schedules unworkable, and second, it demonstrates clearly that senior PMC/NIAA staff did not take the time to read the Implementation Plan. It is as if the roll out of the program wasn’t important; all that mattered was to shift responsibility for the Commonwealth landlord responsibilities to the NTG.

 

Even more surprisingly, PMC/NIAA set the funding amount for PTM in the Partnership Agreement at $35m, but failed to properly advise the Minister. The ANAO notes (para 2.40):

The advice to the minister did not provide a rationale for the decision to set the funding amount for PTM services at $35 million. A December 2018 ministerial brief stated that ‘independent financial modelling’ confirmed the proposed base annual rate to be paid to the NT Government to manage Australian Government leases. However, the ANAO examined the financial modelling and found that the cost of PTM services was estimated at between $53.3 and $76.6 million annually. Australian Government funding to the NT Government for PTM services under NPARIH and NPRH averaged $42 million annually between 2013–14 and 2017–18. [emphasis added]

 

An objective observer can only conclude that PMC/NIAA either misled the Minister, or were complicit in creating a document intended to create a false narrative. Either alternative deserves to be clearly and unequivocally criticised. Yet the ANAO says nothing, and merely reports without comment the PMC/NIAA advice in response (more accurately described as a non-sequitur) that ‘PTM funding for PTM services was constrained by the available total funding envelope of $110m a year’ (para 2.40). Unsurprisingly then, the performance of the NTG’s reported PTM performance has steadily declined between 2019 and 2021, with the NTG meeting all six performance measures in 2019, but only two of the six in 2021 (table 3.2). The ANAO outlines the NIAA assessment process (my two word summary: ‘process oriented’), and reports neutrally that NIAA requested ‘additional information’ where there was a shortfall between PTM results and targets (see table 3.3).

 

Of course, the more fundamental issue here is that the Commonwealth is the underlying owner of the assets, that are scheduled to revert to direct Commonwealth control in 2023. Yet it is deliberately underinvesting in the PTM, which means that the assets degrade faster than they should, will need to be replaced earlier than should, and the tenants (real families with real needs) will continue to live in sub-optimal conditions longer than they should. These are the nuts and bolts of structural racism, laid out in plain view by the ANAO, but not reflected in its findings or recommendations.

 

The ANAO report also documents the role for the land councils in the management of the program (paras. 4.11 to 4.16), albeit within a structure that may not always deliver them timely information (paras 3.8 and 4.16). The ANAO notes that in response to claims from NIAA that the land councils provide a ‘broad assurance’ of the ‘progress and quality of PTM services and capital works’ given their involvement in communities,  the land councils have expressed concerns that they do not have the capacity to collect feedback at a detailed level so as to provide more than a general level of assurance (paras. 3.28; 4.16). It is difficult not to interpret the NIAA claims regarding the land councils as an attempt to shift blame or responsibility.

 

The more fundamental issue for the land councils arising from accepting a role in oversighting the program is that they run the risk of being complicit in ongoing underperformance. The slow progress in delivering housing is one example. The PTM example above is another. Similarly, the lack of progress on the leasing and land servicing reviews included in the National Partnerships original design (see paras. 4.31 to 4.37), and still not completed despite numerous meetings between the two governments and the land councils is a further case in point.

 

The more general point here is that the land councils must invest in developing and sustaining the capability to proactively and substantively participate in the governance of what is an extremely complex program, recognising that they are not the ultimate policymakers (notwithstanding the inevitable government rhetoric on co-participation). They would be wise to always retain the right to advocate publicly on issues of concern. Similarly, they should resist the temptation to support government antipathy to greater program transparency. For Indigenous interests, transparency is a significant ally in ensuring governments operate in the public interest, particularly in contexts that do not always gain consistent attention in public debate. Finally, while the benefits of participation in program governance are huge and not to be ignored, the risks of co-option are also substantial, and require specific and ongoing attention within land councils and other Indigenous stakeholders.

 

Conclusion

The ANAO report on remote housing in the NT is an extraordinary resource for those interested in understanding the current state of remote housing provision. It is also a flawed document. It under-emphasises the levels of serious mismanagement of the program by NIAA; documents, yet downplays, instances where Ministers were misled or badly advised; documents poor program design, and most importantly identifies, but then under-emphasises the extraordinary delays and shortfalls in program delivery and the underinvestment in PTM which protects a Commonwealth asset base and ensures safe housing for tenants.

 

In the world of program delivery, a program delay is a program cut, and there is an in-built incentive for governments to make the initial announcement and then go slow and run the clock down. The losers in this game are Aboriginal and Torres Strait Islander peoples, and in particular the tenants of severely overcrowded housing. The fact that this process can occur in a program providing housing services to one of the most disadvantaged segments within Australian society is extraordinary.

 

The ANAO should sharpen its analytical focus. I assess their report as ‘partly effective’. And NIAA should lift its game. I assess their performance as ‘entirely ineffective’.

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.