Looking beyond the ANAO governance audits of the NT land councils

Defer no time, delays have dangerous ends.

1 Henry IV, Act 3, scene 2

 

On 15 August 2023, the ANAO published its audit Governance of the Northern Land Council, the last of its four performance audits of governance arrangements in the four NT Land Councils (link here). The NT land councils are statutory entities established by the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA), which is federal legislation.

 

The audit results were largely positive, as was the response from NLC management which agreed to implement the eleven largely technical recommendations. I previously commented on the audits of the Tiwi Land Council and the Anindilyakwa Land Council (link here) and on the audit of the Central Land Council (link here).

 

In relation to the NLC, the ANAO headline conclusions stated (inter alia):

8. The Northern Land Council’s governance arrangements under the Aboriginal Land Rights (Northern Territory) Act 1976, Native Title Act 1993 and Public Governance, Performance and Accountability Act 2013 are largely effective...

10. The NLC’s governance arrangements under the ALRA and NTA are largely effective. The establishment and governance of the Council and its committees complies with legislative requirements. Poor record-keeping reduces transparency over the Council member nomination process and the validity of the constitution of the Council. The transparency of other decision-making arrangements could be improved. The NLC has not met a commitment to the Minister for Indigenous Australians and the community to review its method of choice for Council member selection. Governance arrangements for the exercise of the NLC’s key statutory functions (negotiating and assisting with land use, assisting with commercial activities, consulting and obtaining informed consent, and distributing royalties and rents) are largely appropriate.

11. The NLC’s arrangements to promote the proper use and management of resources are largely appropriate …. the 2021–22 Annual Report was fully compliant with PGPA Act and Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) requirements. There could be improvements to performance reporting…

 

Given the inherent challenges of the NLC’s operating environment, this result must be rated as outstanding. There were nevertheless a number of issues identified that should be of concern to the Minister and her agency, particularly if they are left unaddressed. These include adverse ANAO commentary regarding the failure of the NLC to follow through on a number of repeated commitments to Ministers regarding the method of selection of Council members (para 3.12-13), and some mildly critical commentary on the effectiveness of the Audit Committee (paras 4.57 – 71) including the failure of the land council to advise its own Audit Committee of a fraud by a staff member (Appendix 8, para 1.f). I recommend interested readers take a look at the report for the ANAO’s detailed analysis.

 

What emerges from these four performance audit reports is a policy and administrative landscape permeated with competing pressures, including conflicting cross cultural expectations, complex legislative frameworks, continuous flows of funding from a range of sources including mining royalty equivalents (which are used to fund the land councils and to compensate Indigenous landowners for the impacts of mining, negotiated royalty payments derived from mining and other resource use on Aboriginal land, and so called section 19 payments for the use of Aboriginal land by third parties. All of these funding flows are subject to both upward and downward accountability expectations, that is, to the Parliament and to land councils’ constituents.

 

Given these inherent challenges, it is worth looking at the sorts of issues that the ANAO reports do not assess and consider.

 

In 1985, I published an article (link here) arguing for the extension of public sector audits beyond compliance audits and beyond efficiency (or performance) audits to effectiveness audits. To date, the effectiveness realm has not been embraced by the ANAO (nor most other state audit offices).

 

The four land council performance audits provide a useful case study of the limitations of performance or efficiency auditing within a complex and challenging policy domain. The audits are narrowly focussed on the compliance of the land councils with their statutory obligations. Financial compliance with normal accounting obligations, and compliance with the expectations of ministers and the wider public regarding the standards of governance within statutory entities are extremely important. However, by ignoring the issue of effectiveness, that is, whether the land councils are achieving what they are designed to achieve by the parliament and the community, the ANAO has missed a major opportunity.

 

More worryingly, there is a risk that the failure to analyse the need for reforms designed to improve effectiveness will contribute to creating the preconditions for more radical and retrogressive reform in the future. Indeed, it would not be an exaggeration to observe that in relation to an assessment of the operations of the land councils, the ANAO might itself be regarded as ineffective by failing to focus on effectiveness as well as financial compliance and performance and efficiency.

 

One of the implications of this blind spot by the Parliament which should expect effectiveness assessments, and the ANAO which should be pushing to undertake these assessments, is that other mechanisms are utilised to assess effectiveness. Invariably, these are ad hoc, opportunistic and random. They include royal commissions, parliamentary inquiries, evaluations, commissioned and internal reviews, and perhaps media revelations. In this context, it is worth noting that it is almost twenty years since there has been a comprehensive review of the NT Land Rights legislation, and I am not aware of any comprehensive evaluation or high level review of the operation of land councils since their establishment in 1976, almost fifty years ago. There have been a number of reviews and evaluations focussed on specific issues, but these lack the panoptic perspective required to lay the groundwork for sensible policy reform.

 

In the remainder of this post, I seek to identify a number of issues related to the operation of the land rights system in the NT that would benefit from regular overarching effectiveness assessments. To be clear, I am not seeking to provide policy answers or solutions, but merely point out that issues exist that warrant focussed analytic attention. Nor are all effectiveness issues focussed on the land councils. The Minister, the NIAA, and the NT Government all have interests and responsibility that intersect with the land rights legislative framework. In no particular order, here seven important issues that impact the effectiveness of the land rights framework in the NT and consequently deserve regular analysis and assessment:

 

Royalties and other payments: The NTG is currently consulting on potential changes to its royalty regime (link here). In particular, it seems likely that it is under pressure from mining interests to reduce royalty rates. One consequence of such a change would be to reduce the quantum of royalty equivalent payments that are automatically paid by the Commonwealth to the ABA (and indirectly the land councils, the newly established NTAIC (link here), and landowner groups more generally. Yet it is unclear whether the land councils are engaging with either the NT Government or the Commonwealth on this issue.

 

More broadly, the functions of land councils include to ascertain and express the wishes of Aboriginal peoples living in the area of the Land Council regarding the management of Aboriginal land; and to protect the interests of relevant Aboriginal people. Aboriginal land is held communally, yet payments arising from third party use of the land are often paid to entities that do not necessarily reflect all members of the land owning group. Further, in the case of large resource developments, the payments are also substantial, but time limited. There is a persuasive argument that both the Commonwealth and the land councils in administering financial transfers have something approaching a fiduciary duty to ensure benefits are distributed appropriately and beneficiaries are aware of the potential alternative approaches to use of such benefits. Or to put this another way, there is a risk of future litigation that benefits have not been administered and distributed in accordance with those entities fiduciary responsibilities.  Yet neither the Commonwealth nor the land councils appear to have mechanisms that provide any evidence that beneficial payments are in accord with either fiduciary responsibilities or the land council obligations to protect the interests of their constituents.

 

Land Council membership: A longstanding weakness in land council membership, emanating from the customary or traditional basis of member selection, has been a reluctance to select women in some quarters. There has to my knowledge never been a female chair of a land council, and women are invariably a minority on land councils. So a quick scan of the various land council web sites indicates the following data on female membership: TLC 4 /32; ALC 8/26; CLC 22/90; and NLC 17/78 with five additional women yet to be appointed. Overall, 51/226. This in turn raises the question: are land council priorities gendered in ways which exclude or diminish women. I don’t know the answer, but nor does anyone ever seem to formally ask the question. A further issue relates to the longevity of land council membership, and whether there is an optimal level of turnover of council members and in particular executive committee members.

 

Executive Committees: The role of Executive committees and the land council CEOs are crucial offices within land council structures. The ANAO identified a number of instances where executive committees were operating beyond the authority delegated to them and without adequate advice and information flowing to members. A further issue concerns the longstanding under-representation of women on these influential decision-making committees. According to the current websites of the four land councils, the representation of women on these committees at present is as follows: NLC 5/14; CLC 3/11. The TLC has a nine member executive management committee, but its web site does not disclose its membership. The ALC has a Finance Committee, but does not appear to have an executive committee. The potential exists for membership of executive committees and the office of CEO to confer extraordinary influence over the operations of land councils and in particular their financial distributions. In the event that audit committees are not operating independently, the risks of influential individuals appropriating decision making power that the Parliament has provided to the land councils increases. The absence of independent effectiveness audits able to scrutinise the substantive activities and decisions of land council executive committees and CEOs (and not just the processes they adopt) removes a potential ‘check and balance’ that would provide additional protection for land councils’ constituents.

 

Section 19 land agreements: the NLC audit lists (para 3.74) data on the numbers of community consultations on all issues undertaken by the NLC. Over six years there were almost 1750 meetings, consulting around 38,000 participants. It is not clear how many of these resulted in section 19 agreements, nor is it clear how many such agreements are on foot. Similar issues arise with the other land councils, although the workload levels will be much lower. Nor is it clear how long section 19 negotiations take to be finalised (see para 3.57 for the NLC estimate). Similarly, there is little data available on the extent of formal agreements as opposed to informal arrangements with traditional owners.

Delays and reluctance of the land councils two decades ago to prioritise speedy section 19 negotiations were one of the drivers of the township leasing arrangements that have long been resisted by the land councils. It is not clear to me if the township leasing framework is working effectively, but the deeper issue (particularly if we wish to see commercial investment encouraged within townships) is to ensure that individuals and corporations prepared to engage in commercial activities within townships have speedy options for securing leases and tenure that facilitate raising commercial finance.

 

The fundamental issue here is the answer to the question: how well do these agreements for access to Aboriginal land operate. Are the needs of landowner groups being met? Are the third party users satisfied? However, as far as I can tell, there is no data or public information available to answer these questions across all four land councils.

 

Royalty and payment distributions: The ANAO found that the land councils are largely complying with their legislative requirements in relation to royalty distributions under Part IV and section 19 of ALRA. However over time, it is clear that land councils and eligible communities have resorted to utilising corporations to receive payments which then distribute the funds to their members. One result of the use of such corporate mechanisms, in effect as a middleman in the process, is that there is no transparency in relation to the characteristics or identity of the ultimate beneficiaries, arguably avoiding the legislative intent that the land council as a whole should decide on the class of beneficiaries. In addition, there are obvious potential risks with non-transparent payments allocated by the land council (or worse still, by the executive committees) to corporations whose controlling members are not always apparent.

 

Issues of organisational scale: Given the complex policy environment described earlier, and perhaps counter-intuitively, it is clear from the ANAO audits that the two larger land councils (ie the NLC and the CLC) have developed and maintained much stronger governance frameworks that the two smaller land councils. Both the TLC and particularly the ALC appear to be beset with serious and deep-seated governance issues. One of the wider policy implications arising from this result relates to the scale of land council operations. The experience of the two smaller land councils, where small numbers of key individuals exercise substantial authority and control without the checks and balances provided by members from different regions and backgrounds, suggests that devolution can be taken too far. Both the larger land councils have developed regional administrative frameworks to address the longstanding pressure for greater devolution of land council powers and functions. Are those arrangements working well, or not? And given the scale of the dollars flowing through the system, should NIAA be undertaking greater oversight of the smaller land councils?

 

Land tenure responsibilities: The relationship between the land councils and land trusts (who are if effect the entities who own Aboriginal land under ALRA) are complex. A person or corporation seeking to utilise or access a land trust’s country must approach the land council. In turn the land council consults the traditional owners (from whom land trust members are appointed) and then conveys the views of the traditional owners to the land trust as a directive. This innovative and prescient arrangement has in my view worked well over the past almost fifty years, but was not adopted by the Parliament when it enacted the Native Title Act (NTA). Under the NTA, the native title holders who are all members of the Prescribed Body Corporate make their own decisions. In the NT, both legislative regimes operate. Which is most effective? No one seriously discusses this within policy contexts.

 

Further, houses (and other assets) affixed and located on land trust land which are not leased to a government entity are the responsibility of the land trust as landlord. The land councils have a responsibility to meet the financial commitments of land trusts, and in turn the Commonwealth has an implicit responsibility to ensure that the financial liabilities of land councils are funded. There is NT legislation (the Residential Tenancy Act) which requires landlords to, inter alia, ensure the property is maintained and habitable, and ensure the property is safe and secure (link here). These obligations are rarely if ever addressed by land trusts or the land councils, and Aboriginal tenants have, to my knowledge, never taken legal action against a land trust to do so. This may be a function of the dearth of independent advice available to individuals in remote contexts. Yet Aboriginal people continue to live in overcrowded and under-maintained conditions throughout the NT. Where leases exist, the landlord is usually a government or community housing provider. But where they do not (for example, on outstations on Aboriginal land), the landlord is the relevant land trust. It is not clear how many NT Indigenous citizens live in houses without a lease, and the extent of support they receive from land trusts and land councils. My own intuition is that the answer is some thousands of people are housed in such locations, and the support they receive from land trusts (who must act on the direction of a land council) is zero or ‘not much’. A regular effectiveness audit would offer one mechanism for beginning to measure the scale of this issue, and encourage policymakers to set in train policy responses to address it.

 

Conclusion

The ANAO audits of the four NT Aboriginal land councils have been an extraordinarily valuable exercise in setting down a detailed picture of the workings of these important organisations. The overall picture has been positive, although the ANAO findings in relation to the ALC in particular are in my view extraordinary and of serious concern. In relation to the ALC audit, we are yet to see any formal or public response by Minister Burney nor NIAA, though one hopes that action is underway behind the scenes.

 

Yet the ANAO remit is limited, and this means that it under-invests in focussing on effectiveness issues. This post has identified seven broader issues that have the potential to impact the effectiveness of the NT land rights framework for better or for worse, and consequently, deserve explicit policy attention from land councils and from the relevant governments. It is my contention that an explicit program of effectiveness audits by the ANAO across the mainstream, but particularly across the Indigenous policy domain would make a much greater contribution to assisting policymakers to find timely and proactive solutions to many of the issues that require attention in those policy domains.

 

Avoiding asking the hard questions is always convenient at the time, but Indigenous Territorians will not thank policymakers, whether in NIAA, in the ANAO, or in the land councils who deliberately avoid the hard issues. The risk is that at some point, effectiveness deficits will lead to regressive policy changes that undermine the substantial rights presently available to Aboriginal Territorians.

 

17 August 2023

 

Labyrinth: the Productivity Commission Draft Report on Closing the Gap

 

…. that our stars,

Unreconciliable, should divide,

Our equalness to this.

Antony & Cleopatra Act V, scene 1

The Productivity Commission (PC) has released a draft report on its review of progress on closing the gap (link here). The draft report package comprises a nine page plain English executive summary (which I found extremely useful); a 15 page Executive Summary which includes six draft recommendations and a series of requests for information/feedback; a 101 page Draft Report, and a series of seven information papers totalling around 280 pages.

 

The review arises from the terms of the National Agreement on Closing the Gap (link here), in particular, clauses 121 to 124. In particular, clause 121 states:

The Productivity Commission will undertake a comprehensive review of progress every three years … It will provide an analysis of progress on Closing the Gap against the priority reforms, targets, indicators and trajectories, and examine the factors contributing to progress, including by drawing on evaluation and other evidence. 

 

The political and media reaction to the Draft Review has been predictable with a large focus on the report’s implications for the Voice (which to my mind prioritises means over ends). The Australian ran a series of articles on 26 July 2023 (behind its paywall) with headlines such as ‘Closing the Gap failures “show why the vote must succeed”’ (a view espoused by Minister Burney); ‘Indigenous watchdog “with bite” called for regardless of voice vote to deal with Closing The Gap’; ‘Closing the Gap scheme flounders within states of cynical disregard’ (arguing the states have dropped the ball); and an editorial headed ‘Bureaucracy firmly in the sights’. The Chair of the PC, Michael Brennan published an article in the AFR on 30 July (link here $) titled ‘The gap won’t change without fundamental change’. The money quote was his assessment of progress on closing the gap as ‘in large part, a hotted up version of business as usual’. Crikey published an analysis (link here) with the headline ‘Why the Productivity Commission thinks a Voice is needed to Close the Gap’. This is arguably a misinterpretation of what the PC intends. In a perceptive comment on that article, Jon Altman wrote, inter alia, that the PC

continues to produce detailed and expensive report after report carefully documenting the nation’s failure to properly address Indigenous disadvantage. But it does not address the first order issue: is the National Agreement on Closing the Gap framework a sound basis for policy formation? And will valorising equality for Indigenous populations as state-defined statistical subjects generate positive wellbeing outcomes for First Nations people in all their diversity?

 

Like Jon, I wish to focus on the policy issues rather than the quotidian political debate about the Voice (important as that is).

 

The nature of the PC review

There are a number of seriously problematic issues with the draft review (which I will seek to identify below); but these can be traced in large measure to a more fundamental issue: the PC appears to have veered away from the comprehensive review envisaged in the Agreement. The terms of reference for the review provided by former Treasurer Frydenberg in April 2022 state, inter alia:

Scope of the review: In undertaking the review, the Productivity Commission should:

1. analyse progress on Closing the Gap against the four Priority Reform outcome areas in the Agreement;  2. analyse progress against all of the socioeconomic outcome areas in the Agreement; and  3. examine the factors affecting progress. 

 

These tasks can be interpreted in one of two ways. They might be pursued broadly and holistically, in effect asking the strategic question: is the current Closing the Gap process meeting the objective of the agreement laid out in clause 15 of the National Agreement? Or they might be addressed narrowly and less consequentially, in effect asking the question, are the terms of each element of the agreement being met whether or not they are impacting the overall outcome being sought. Unfortunately, on my reading of the report, the PC has adopted the latter approach. I made this argument more expansively in my submission to the review (link here submission #5) based on my reading of an early issues paper.

The result is that despite nearly 400 pages of investigative narration, we don’t really obtain an effective readout on the required new policy roadmap for closing the gap. Instead we get what seems at times an interminable litany of proposals for improved ways to hold governments accountable for particular cogs in the complex machine that comprises closing the gap. I am all for holding governments accountable, but there is an implicit assumption embedded in calls for improved accountability that governments are in fact focussed on implementing actions designed to achieve the overarching objective of the National Agreement. If that assumption is wrong, then all that will be achieved will be more complexity, more engagement/involvement, more process, more bureaucratic kludge, and no change.

 

How might we determine if that assumption if in fact correct? The answer is by examining the tangible plans that exist to achieve the objective. Take this analogy. If I have an objective to build a new home, I develop a plan (let’s call it an implementation plan). I buy some land. I consider what I need to make the home useful to me. I engage an architect, and develop detailed designs and have the design specifications costed. I allocate financial resources both for the capital costs (construction) and for the ongoing maintenance. If there is a mismatch between design and available financial resources, I either adjust the design or allocate more financial resources. This is not rocket science. If I don’t have a plan; if I don’t develop designs that provide tangible links between my aspiration/vision and the ultimate outcome; if my designs are not able to be constructed at present because the materials required are not available; or if I don’t allocate resources and have some idea about how much it will cost; then an objective observer would conclude that I am not serious…

 

In relation to closing the gap, the National Agreement sets out the aspirational plan and steps to achieve the ultimate objective (clause 15 says it is reduced inequality between indigenous and other citizens). But Governments have failed to take it further. The implementation plans produced so far (required under the agreement) are not in fact implementation plans, but lists of what governments are already doing with some marginal new monies added. The PC identified that jurisdictional implementation plans were not fulfilling their intended purpose. See Box 4 on pages 27-8. I don’t agree with the detail of the PC analysis; for example, the Joint Council has agreed that the implementation plans be produced annually, a matter which strikes me as ridiculous, yet not commented upon by the PC.

 

To return to the house construction analogy, you don’t develop an implementation plan iteratively for each month or quarter of construction, but for the complete project. Instead the PC argues for codesign of these plans which is superficially attractive to Indigenous interests, but will inevitably produce delay and a bureaucratic morass (already a problem with this whole process). The time for Indigenous codesign is in developing the targets. Governments then must deliver against them, consulting and codesigning with relevant Indigenous interests as they go. The fact that jurisdictions do not have adequate and effective implementation plans is a fundamental flaw that requires rectification.

 

In relation to identifying the cost of closing the gap, including perhaps its constitutive elements, Governments have made no commitments. Instead, they merely publicise the financial commitments they make, often with little transparency of what the expenditures are achieving. Worse still, in contrast to the original Closing the Gap architecture under COAG (known as the National Indigenous Reform Agreement or NIRA), governments do not in general utilise decade long financial allocations. The problem with this general approach is that there is no way of knowing whether the financial commitments of governments are adequate or not. It is a truism that money is not everything, but in this case, it is an essential component of strategies to reduce inequitable access to services and basic infrastructure (like housing). Adequate funding may not be sufficient, but it certainly essential.

 

In my submission to the review, I argued that the PC should seek to estimate the likely total cost of closing the gap. To return to our analogy, we don’t start building a house without knowing what it will cost. Unfortunately, the PC has ignored this element of my submission. It is bad enough that governments do not estimate these costs, but it is an egregious dereliction of responsibility for the ‘independent’ reviewer to ignore this issue. No other area of public policy is seriously analysed without a focus on cost. In areas of high ideological salience like defence, the debate over cost is assessed not just in terms of real growth rates, but the proportion of GDP allocated to the task (link here). In Indigenous affairs, all we get is an incessant flurry of media releases announcing this grant and that, often directed at squeaky wheels.

 

One of the consequences of this seemingly deliberate blindness by the PC is to promulgate and maintain the myth that closing the gap is solely of concern to Indigenous interests. If adequate resources are to be allocated to addressing Indigenous disadvantage, then mainstream attitudes need to change. This requires understanding which is best obtained by encouraging wider community involvement in the processes associated with closing the gap. [As an aside, the forthcoming vote on the Voice is another example of the importance of building wider community understanding in relation to the issues of core concern to Indigenous citizens.]

 

A further issue identified by the PC relates to the status of the targets in the Agreement. This is addressed at length in Information Paper 6, but it is too convoluted to dissect here. Instead I suggest interested readers look at the plain English Executive Summary (link here). Alternatively, see the discussion on page 5 of the draft review. Here are some choice extracts from the Summary (pp. 6-7) regarding targets and data (emphasis added):

For clear progress on the socio-economic outcomes and Priority Reforms, the Agreement says there must be: • performance tracking • public reporting. But doing this has been a big challenge.  The Priority Reforms are the basis of the Agreement. Even so, governments report no data on: • the agreed targets  • indicators that support the Priority Reforms.  These are critical gaps in data. 

Also, progress on socio-economic outcomes is measured against national targets. It is not clear how to hold governments accountable for what happens at the regional level.  There are no data developed for: • any of the targets under the Priority Reforms • 4 of the 19 socio-economic targets • roughly 140 supporting indicators  • more than 120 data development items. 

We probably will not see these data developed within 10 years from the start of the Agreement (that is, by 2030).  More effort is needed to: • improve governance  • prioritise data development.

 

In other words, we have the policy architecture, but not the means to implement it. The PC recommendation is for a dedicated government agency to drive data development. I beg to disagree. To return to the house construction analogy, we have constructed the frame, but the walls and roof are missing as the relevant materials are not yet available or developed. Do we appoint another builder to supervise the current builder, or go back to the drawing board?

 

I suggest the Commonwealth should step in and initiate an immediate process of radical simplification to take this process back to its core purpose. There is a need to consider once again what the targets are actually for: instead of providing a policy roadmap indicating that we are heading in the right direction, they have been transformed into an attempt (that is bound to fail) which seeks to guide us each and every step along the way. Nineteen targets times eight jurisdictions plus hundreds of supporting indicators and data development items again across eight jurisdictions, all under constant change and refinement, and we have a data labyrinth which is guaranteed to ensure that any one foolish enough to enter is swiftly lost in the bowels of the machine.

 

There are a range of other issues embedded in this draft review that require detailed consideration by those interested in seeing Indigenous inequality and exclusion removed from Australian society. I will address a few below in no particular order.

 

Conceptual issues

 The philosophical and ethical issues that are embedded within the notion of closing the gap receive too little attention by policymakers. The tension between the state’s rhetorical focus on removing inequality and the right of citizens, particularly Indigenous citizens, to choose fundamentally alternative ways of living (implicit in the rhetoric of self-determination), which Jon Altman alluded to in his comment to Crikey quoted above, is of enduring relevance in the policy quest to close the gap. It is an issue that is generally avoided as ‘too hard’ by policymakers, yet lies at the heart of much Indigenous distrust of governments and their bureaucratic processes. Altman explores this issue at length in this submission to the PC inquiry into an Indigenous evaluation strategy (link here sub.#23). The PC has entirely ignored these issues in its draft report; a reflection in my view of its lack of analytic interest in exploring what it is that the Closing the Gap process is seeking to achieve.

 

Deficit discourse and remote disadvantage

One of the key polemical drivers of the Closing the Gap refresh process initiated by the former LNP Government which led eventually to the National Agreement was an ostensible reaction to the notion of deficit discourse which advocates argue is designed to blame Indigenous citizens for their own disadvantage. This is clearly an important policy insight, one that has recently been highlighted in relation to mainstream disadvantage by the Robodebt Royal commission (link here page iii). Yet when this concept is taken to extremes, it undercuts the whole point of closing the gap.

 

Unfortunately throughout the draft report, the PC appears to have adopted and endorsed such an extreme interpretation uncritically, thus setting up a polemical dichotomy where governments can do no right and must be held accountable for every shortfall and (paradoxically) where Indigenous interests are ongoing victims without agency. So for example, in Information Paper 6 (Link here pp. 14-5), the PC writes:

Review participants indicated a role for performance monitoring in supporting a paradigm shift in policy narratives about Aboriginal and Torres Strait Islander people. This shift moves policy discourse away from framing Aboriginal and Torres Strait Islander people as a disadvantaged minority towards rights-bearing peoples with strong connections to diverse cultures, Countries, and communities that have withstood current and historical institutional racism …  In its submission, the Lowitja Institute explained: Data is a powerful tool. Data can be used to hold governments and the community-controlled sector to account on actions under the National Agreement, however there is a risk that this can be decontextualised and misused if data sovereignty and data governance mechanisms are not in place. The oversupply of deficit-based data has created a discourse that sees Aboriginal and Torres Strait Islander peoples presented as a problem, or as wholly responsible for inequities…. (sub. 15, p. 7). (emphasis added)

 

One consequence of this aversion to anything that even hints at deficit discourse is that important issues at the core of ongoing Indigenous exclusion and disadvantage are being deliberately written out of the policy relevant narrative and thus the policy agenda. It may not be a coincidence that given the current demography of Indigenous Australia (link here), it would be theoretically possible to conjure a positive narrative on progress in closing the gap while ignoring the needs of remote Australia. The losers from this process are the most disadvantaged Indigenous citizens, particularly those in remote regions. So for example, in the 101 pages of the draft report on the status of closing the gap, there are only seven mentions of the word ‘remote’, most just passing references, and there are no specific statement by the PC referencing the fact that Indigenous disadvantage is deepest and most severe in remote regions. The closest is a reference in a case study on the Torres Strait on p.62 where the Torres Strait Council refers to its very remote location as an issue.

 

Yet the PC itself, in its July 2023 Annual Data Compilation Report identifies (albeit in cautious bureaucratese) the dire state of disadvantage in remote regions (link here page 30):

People living in a more remote area may experience additional barriers to better outcomes; for example, not having access to key government services or infrastructure at the same level as people living in other areas. Aboriginal and Torres Strait Islander people typically experienced poorer target outcomes as remoteness increased, which was mostly not the case for non-Indigenous people … Aboriginal and Torres Strait Islander people living in more remote areas also saw less progress toward target outcomes. Target outcomes typically only improved for Aboriginal and Torres Strait Islander people in major cities and regional areas where there may be fewer barriers, including better access to key infrastructure. There was little or no improvement in remote and very remote areas. The exception was for target 9A ‘appropriately sized housing’ where outcomes improved the most in very remote areas, though they remain well below the outcomes in less remote areas…

 

Or more starkly, in the same report the PC states (emphasis added):

One jurisdiction where the worsening outcomes are particularly concerning is the Northern Territory. The Northern Territory’s outcomes worsened across eight target indicators and in most of these they were already performing relatively poorly at baseline compared to other jurisdictions. For example, the adult imprisonment rate in the Northern Territory increased at the highest rate despite already being above the national average at baseline.

 

It is worth noting that the NT has the most geographically concentrated remote population, and has the weakest financial base in the federation.

 

Priority Reforms

The PC’s approach to assessing progress on the Priority Reforms, particularly Priority Reform 3, is in my view deeply flawed. I dealt with this in my submission to the review, so won’t duplicate it at length here. The key point is that increasingly, mainstream policies and programs are gaining greater salience across the indigenous policy domain. Ensuing mainstream agencies are focussed on addressing Indigenous disadvantage in their core activities is crucial to ensuring that there is a whole of government focus on these issues. Yet treating the priority reforms as akin to mechanically constructed targets, and measuring important but incidental issues such as levels of racism within agencies as the metric of success is a recipe for failure and non-performance. Unfortunately, the PC does not see this as they ignore this issue in its entirety.

 

Concluding comments

The problem with this draft review is that it is fundamentally misconceived, and fails to step back and look at the nation’s approach to closing the gap holistically. This was a crucial opportunity only three years into the revised process, and unfortunately, the PC has failed to grasp it. There is a lack of real policy analysis throughout this report, and the attached information papers.

 

As a consequence, the review fails to ask the hard questions and ignores many aspects that should have been front and centre. For example, there is no substantive assessment of the operations of the Joint Council. There is no assessment of the capability requirements on the Coalition of Peaks and whether the current levels of support are adequate. There are mentions of states failing to deliver on their commitments, but no real solutions offered in response. There is no recognition of the primacy of the Commonwealth in the federation, and the implications of the deliberate strategy embedded within the architecture of the agreement for the Commonwealth to outsource its overarching responsibilities to the Joint Council and the states. There is no analysis of the nature of the refreshed targets which are increasingly not focussed on comparative economic and social status, but are framed in terms of absolutes (ie improvements on current levels).

 

There is no recognition that the current design architecture for the agreement, while incomplete and thus subject to ongoing remedial work, is simultaneously over designed and in need of radical simplification. As presently configured, it guarantees that the Coalition of Peaks (representing Indigenous interests) will be wading through bureaucratic sludge for the next ten years, and thus effectively distracted from the main policy game. It also ensures that the probability of the national agreement imploding under the weight of its accumulated complexity is high and bound to grow. Proactive reform is preferable to stasis followed by abolition.

 

The bottom line however is that the six recommendations of the draft review (see pages 10-15), if implemented, would in my view not make any substantive difference to the nation’s progress on closing the gap within five or even ten years. They are an amalgam of doubling down on the current hyper-complexity of the policy architecture along with a hefty dose of blind faith in the bureaucratic leadership of the nation. Did the robodebt royal commission not make any impression at all on the PC? Notwithstanding the PC Chair’s view in his recent AFR article that governments are engaged in ‘a hotted up version of business as usual’, the draft recommendations in this report might be characterised in similar terms.

 

I have a recommendation for the Commonwealth Government. Issue the PC with revised terms of reference, and perhaps an extension of time. Request them to (a) develop an estimate of the cost of addressing the entrenched inequality facing Indigenous Australians; (b) map out a realistic timeframe and strategy for achieving that objective; (c) make a more fundamental analysis of the current status of the Closing the Gap architecture; and (d) provide options for radically simplifying the structure and design of the current architecture while retaining the four priority reforms. And for good measure, keep it to fifty pages. Such a report would then allow the Commonwealth Government to meaningfully and honestly engage with Indigenous interests and the states and territories.

 

3 August 2023

Note this post was amended on 4 August to correct a number of typographical and grammatical errors

Compulsory voting and remote Indigenous electoral disengagement

… this new governor

Awakes me all of the enrolled penalties

Which have, like unscour'd armour, hung by the wall

So long that nineteen zodiacs have gone round

And none of them been worn; …

Measure for Measure, Act one, Scene two.

 

I previously wrote about remote electoral engagement in an August 2020 post on voting turnout in the NT election (link here). In that post, I suggested that there appeared to be strong and increasing levels of Indigenous disengagement with the electoral system and government more generally.

 

On 26 July 2023, Deputy Australian Electoral Commissioner, Jeff Pope, gave a very useful seminar at the ANU on the topic of Aboriginal and Torres Strait Islander people's participation in Australian elections and referendums. According to the pre-seminar blurb

Since 2017, there has been year-on-year growth in the estimated Indigenous enrolment rate. Despite these steady increases, in 2023 the estimated Indigenous enrolment rate remains lower than Australia’s national enrolment rate. Mr Pope will outline the broad history of Indigenous voting rights since Federation and consider some of the challenges that Indigenous people may face with fully participating in elections and referendums. Mr Pope will discuss how the AEC is using an evidence-based approach and working with Indigenous communities and service providers to deliver a range of initiatives to support Indigenous electoral participation. 

 

The seminar delivered on this plan, and provided a very useful overview of the AEC’s strong efforts to lift enrolment rates for Indigenous citizens in particular. He referred extensively to recently updated data on the AEC website. Key data points included that nationally, mainstream enrolment rates are now 97.5%; there are just over 18 million Australians eligible to vote and just over 450,000 of those citizens are not enrolled.  Nationally, Indigenous enrolment rates have been increasing, and are now 94.1%. The estimated Indigenous voting age population is 567,528, and of which an estimated 33,319 citizens are not enrolled. Mr Pope described the Indigenous enrolment rate as the ‘highest ever’ (link here). Mr Pope noted that enrolment rates in remote regions were much lower. The AEC data (link here) indicates that in the WA and the NT, Indigenous enrolment rates are 86.9% and 87% respectively, while in SA, the rate is 92.7%. All other jurisdictions exceed 95%.

 

Close assessment of this data indicates that there have been extraordinary shifts in enrolment. For example, over the past two years, the estimated number of Indigenous unenrolled nationally has fallen from 112,000 in June 2021 to 33,000 in June 2023. In the NT, the unenrolled level has dropped from 16,000 to just over 7,000 over the same period. These are quite extraordinary shifts, and suggest that the AEC has in recent years begun to put real effort into addressing these issues.

 

Notwithstanding these efforts, voter turnout has been dropping substantially over recent decades (link here).  In fact, according to AEC data, the turnout for the House of Representatives in 2022 was 89.8%, the lowest turnout rate in 101 years (link here).  This suggests that around ten percent of at least 17 million enrolled voters, or 1.7m enrolled voters and after taking into account unenrolled voters, over 2 million potentially eligible voters did not vote. Over the period 2001 to 2016, mainstream turnout dropped around 2% in each of the top ten electoral divisions by turnout (link here table 4, p. 25). Clearly there are national trends in play.

 

However, electoral divisions in remote Australia with high proportions of Indigenous potential voters are at the very bottom of the voting turnout hierarchy. The two electoral divisions with the lowest voter turnout in the country are Durack in WA and Lingiari in the NT. In 2001, turnout was 86.81 and 80.55 respectively. In 2016, turnout in Durack was 82.03% and in Lingiari it was 73.7% (link here table 4, p. 25). There are strong grounds for thinking that remote communities in Queensland and South Australia display similar characteristics, albeit the evidence is not immediately available given the larger non-Indigenous populations in the relevant remote electoral divisions.

 

It was clear from the ANU seminar presentation that the AEC is acutely aware of the current trends, and is devoting significant efforts, backed by senior level support and commitment, to addressing these challenges. The broad strategy at this point appears to be twofold: to maximise enrolment by removing blocks to enrolment; and to expanding electoral education.

 

Notwithstanding the AEC efforts (which to be clear I am not criticising, and indeed support wholeheartedly), there are a couple of broader points worth making.

 

First, it seems likely that the extraordinary jump in the Indigenous population between 2016 and 2021 due in large measure to increased identification has probably flowed into the improvements nationally in Indigenous enrolment (link here). These changes in identification are overwhelmingly focussed on urban and regional Australia.

 

Second, it struck me that the notion that we have compulsory voting in Australia is under serious threat as potential voters disenchanted with the responsiveness of governments to their concerns voted with their feet (so to speak) and abstain from engagement with the electoral system. In such an environment, engaging potential Indigenous voters in remote regions is going to be doubly difficult. In addition, the fact that voting turnout in electoral divisions with high percentages of Indigenous potential voters in remote Australia is extraordinarily low suggests the possibility that there are additional drivers of low voting turnouts, or that at the very least, that the disengagement with the nation’s political system is qualitatively different in remote and non-remote Australia.  

 

These broader points suggest that there are deeper structural issues in play beyond the way in which our electoral systems are designed and administered.

 

Given this background, it seems to me that it is time that those Australians who support substantive democracy and/or compulsory voting should begin to think more seriously and more innovatively about how to make our political system more responsive to voter concerns. Moreover, there is likely to be a requirement to consider different approaches for supporting improved governance responsiveness in remote and non-remote regions. These are issues that extend way beyond the systems of voting we have and the valuable efforts of the AEC to increase enrolment and educate potential voters about voting systems and the like.

 

In the ANU seminar, I pressed the AEC Deputy Commissioner about the levels of enforcement in relation to both enrolment and voting through the lens of incentives. I asked whether the AEC has an in principle position on the use of incentives to encourage enrolment, and what their policy was in relation to non-voting in remote regions.

 

In relation to incentivising enrolment, I didn’t get a clear answer. At the back of my mind was the approach taken in relation to Research & Development in Australia, where the inability of firms to capture the entire benefits of innovation investment means that they limit investments, and as a result there are sub-optimal levels of innovation investment nationally. To address this market failure, the public sector provides tax incentives (worth billions of dollars each decade) to incentivise firms to undertake an optimal level of national R & D. If there are structural impediments to enrolment, and we value 100 percent electoral participation, perhaps governments should consider ways to incentivise electoral enrolment either nationally or in some more targeted manner? While it may seem that the significant improvements in enrolment make such a policy otiose, it is worth remembering that enrolment status is dynamic and vulnerable to degradation over time.

 

In relation to enforcement of compulsory voting in remote regions, the AEC indicated that Commonwealth fines are comparatively low, but that they use the option of prosecutions ‘judiciously’. I understand this response as I think the use of the legal system to enforce voting would be perceived negatively by many Indigenous citizens, and would likely be counter-productive and backfire. But education, while important, may not be an adequate strategy in the face of deep seated disengagement from a social system that is seen by many remote people as ineffective at best and racially exclusionary at worst. There is thus a need to think more broadly.

 

A large part of the problem is that parliaments (in Canberra and in states and territories) are in large measure controlled by the Executive arm of Government (whereas the normative theory is that the Executive is drawn from elected members and should implement the will of the parliament). Moreover, there are serious question marks over the extent to which the Executive arm of governments of all persuasions are themselves democratic (link here and link here). In this situation, and in the absence of reforms to strengthen parliamentary supremacy over the Executive (or even just greater Executive transparency), it is incumbent on policymakers and advocacy interests to explore innovative ways of ensuring that voters feel like their votes do count and influence outcomes. Off the top of my head, one option would be the greater use of deliberative democracy to work through contentious policy issues. Other options include greater transparency over political donations, and strengthening the operation of FOI laws. These sorts of ideas resonate closely with Indigenous calls for greater co-design of policies. There may well be other ideas that might make a positive contribution.

 

Of course, I am not holding my breath on these reforms. We already live in a nation where around 11 percent of eligible voters do not participate in federal elections (and probably state and territory elections) If voter turnout continues to fall across the board, then we should not be surprised to wake up one morning and realise that we no longer live in a society where the governments we elect have the authority that comes from being selected by the widest possible cross section of the community. Such a society is more prone to political dissension and conflict whether through anarchic chaos or direct action.

 

In particular, the longstanding challenges across remote Australia will be that much harder to solve if governments learn that they do not need to response to citizens needs because citizens’ votes are either diminished or non-existent; and if Indigenous citizens ‘learn’ that voting is not relevant and not compulsory and that governments do not listen even if they enrol, vote and participate in the political system. Indeed, there are strong grounds for the view that Indigenous citizens in remote Australia have already learnt this, and are voting with their feet. The nation’s growing challenge is to create the preconditions for Indigenous citizens in remote Australia to unlearn those conclusions.

 

28 July 2023

 

Alcohol and community safety in the NT

There is a history in all men's lives,

Figuring the nature of the times deceased,

The which observed, a man may prophesy,

With a near aim, of the main chance of things

As yet not come to life…

2 Henry IV, Act 3 scene 1

 

 

In February 2023, the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, Chaired by Labor Senator Patrick Dodson, issued the report on its Inquiry into community safety support services and job opportunities in the Northern Territory (link here).  The terms of reference provided by the Senate in establishing the Inquiry focussed on three broad issues: the remote alcohol policy regime in the NT leading up to and after the sunsetting of the Stronger Futures legislation in June 2022 and its impact on alcohol regulation; remote employment issues; and justice reinvestment policy issues. This post limits itself to the first of these three topics.

 

Senator Dodson’s Foreword to the Committee Report is both a robust critique of past governments and their policies and a succinct high level summary of the Report’s argument. It is worth reading in full. Here is an extract:

… over the past 15 years, [Aboriginal communities in the NT’s] right to self-determination has been deliberately denied by governments of all stripes. The Northern Territory National Emergency Response and the Stronger Futures in the Northern Territory Acts were both legislative means of structurally disempowering remote Aboriginal communities in the NT. Through these policy regimes, governments have destabilised, disempowered, and disoriented Aboriginal communities. Governments have taken away community power and instead made them dependent on government for survival and have done so with little to no accountability. These actions occurred under the guise of a failure for Aboriginal communities to run their own affairs and to make decisions about what is best for their community.… In order to truly enable community-led solutions, governments need to transfer power and resources to communities. This requires investment based on outcomes, rather than outputs; ensuring data is available at the local level; and listening and acting on what communities say will work best.

 

This argument represents a rhetorical narrative that resonates powerfully with many Indigenous people because it reflects their lived experience of Australia’s history, yet for reasons I set out below it simultaneously serves to gloss over and to some extent erase the complex and in many respects insurmountably difficult issues at the cutting edge of policy development and implementation.

 

A case in point is the Committee’s assessment of the Rudd Labor Government’s Stronger Futures Northern Territory (SFNT) legislation, effectively equating it with the Howard Government’s NTNER legislation. This conflation is facilitated by the fact that Labor while in Opposition voted to support the NTNER to avoid making allegations of Indigenous child abuse in remote communities an election issue, and when in Government continued to support some key elements of the NTNER, most notably compulsory income management of welfare benefits. However policy, and more importantly it tangible impact, is about more than the political ‘vibe’. With policy, the devils (or the angels) are in the detail.

 

The Committee Report usefully summarises both the NTNER legislation (paras. 1.12 to 1.22) and the Stronger Futures (SFNT) legislation (paras. 1.23 to 1.39). In contrast to the NTNER, SFNT removed most of the punitive elements of the previous package, did not involve the Australian Defence Force, allocated significant funding (listed in para. 1.27) totalling $3.4 billion over ten years, and reinstated the application of the Racial Discrimination Act which had been set aside by the NTNER legislation. The Committee preferred to give little weight to these differences, and in it’s comment after assessing these initiatives, it expressed its concurrence with Senator Dodson’s conclusion in the Foreword:

The Committee considers that the NTNER and Stronger Futures legislative packages systemically disempowered communities—in their delivery, implementation and transition—causing immense trauma that now requires concerted effort by all levels of government to enable and invest in the re-empowerment of these communities.

 

To be clear, I do not dispute that finding in relation to the NTNER, and agree that remote NT Indigenous communities have faced and continue to face immense trauma and systemic disempowerment. However, policy solutions (as opposed to political solutions) require rigorous analysis. We should not confuse political advocacy and rhetoric with policy analysis. In particular, I would argue that the sources of these ongoing challenges are not rooted solely in past actions by governments, but are built into the very fibre of the contemporary actions of governments.

 

The dilemma faced by the Joint Standing Committee was that having concluded that the SFNT legislation ‘systematically disempowered’ communities, it leaves very little room for accepting that the SFNT approach to alcohol regulation was and remains, at least in the short/medium term, the best approach to addressing the significant and arguably widening impacts of alcohol abuse within remote communities.

 

In chapter two, the Committee makes what appears to me to be a cursory assessment of the processes leading up to the sunsetting of the alcohol provisions, and the introduction of the NT Government’s ‘opt-out’ mechanism. This allowed affected communities to seek to opt-out of arrangements that had lifted the previous SFNT restrictions. The Committee’s conclusion in effect was that there was a failure of consultation and bureaucratic preparation for the transition from SFNT to largely unrestricted access. My own reading of the process is that both the former LNP Government and the NT Labor Government achieved exactly the outcome that they intended, and the incoming Labor Government in Canberra were not prepared to challenge the NT Labor Government over this issue. In doing so, they grossly under-estimated the consequential political impacts in Central Australia that exploded into national prominence in early 2023, and more egregiously, ignored the impact of the NTG policy on the lives of thousands of Aboriginal women and children.

 

In para 1.6, the Committee notes that the chaos in Central Australia led to policy changes that post-dated much of the evidence they received. These changes are assessed in chapter three of the Committee Report.

 

The first sections of chapter three provide a useful summary of the operations of alcohol controls in remote NT communities over the past two decades. From paras 3.32 to 3.69, the Committee examines issues of alcohol related harm following upon the sunsetting of the SFNT legislation, and the joint Government response in early 2023 to the chaos on the streets of Alice Springs. At para. 3.29, the Committee noted that only one Alcohol Management Plan (AMP) was approved under the SFNT over its ten year life and that a number of communities prepared AMPs but had them rejected. The Committee could have done much more to unpack this issue and provides no detailed data or information. My own understanding is that in the early years of the SFNT legislation, a number of AMPs were prepared, but were sent back for revision as they were effectively attempts to remove all restrictions on access to alcohol and gave inadequate attention to the risks to families and children. After the change of Government, there appeared to be an unannounced policy moratorium  on  considering AMPs. In effect, this involved a return to the NTNER regime of absolute restrictions, albeit effected via administrative fiat. Had such a policy been announced, it would likely have been struck down by the courts.

 

In relation to the operation of the SFNT alcohol regime, the Committee’s comment on the evidence it heard strikes me as particularly tendentious and unpersuasive. It argues that the SFNT legislation ‘focused only on reducing supply and did not sufficiently support people at risk of alcohol abuse or of experiencing or causing harm.’ (para. 3.62). This ignores the significant funding under the SFNT across all sectors, much directed to community controlled organisations, as well as the mechanism in the legislation for AMPs which could have included specific requests for such harm reduction support.

 

In para 3.63, the Committee notes:

The NT Government’s decision to adopt an opt-in approach for maintaining alcohol restrictions was ineffective at minimising harm from the relaxing of alcohol restrictions. While the government intended to address the racist legacy of the Intervention, it is the Committee’s view that this decision was made without meaningfully consulting widely across affected communities.

The first sentence of the Committee’s comment is undoubtedly correct. However, as a reasonably close observer of these events, I do not accept that the motivation of the NTG was to ‘address the racist legacy of the intervention’. It was certainly the rhetorical rationale adopted by the NTG, but this rationale was and is fundamentally flawed as it fails to acknowledge the provision in the Racial Discrimination Act (RDA) for special measures, a core element of the legislative mechanism established by the RDA (link here), and one which the NTG’s legal advisers undoubtedly would have brought to Ministers’ attention if they had been asked.

 

Even if we accept that the stated rationale was in fact genuine, what does that say about the NT Government’s concern regarding the potential impact of alcohol on Aboriginal families, and the quality of life now and into the future for countless women and children? I refer readers to the earlier posts on this blog related to alcohol for more detailed critique of the NTG model (link here for a list).

 

In para 3.66, the Committee finally reaches the nub of the policy issue (an issue that has received virtually no attention in the media):

It is clear to the Committee that the NT Government has sufficient legislative means to manage alcohol-related harm within its jurisdiction where there is the will to do so. This has been demonstrated by its recent legislative amendments to the Liquor Act 2019 (NT). It is the view of the Committee that this is the appropriate role of the NT Government (informed by the views of community), rather than the Commonwealth.

This is the key conclusion, because it is the Committee’s rationale for ongoing Commonwealth inaction. While $300m in funding appears substantial, it is not ongoing, and will disappear like a shower of rain into the desert dust. It is not action to address the issues, but funding to manage the media fallout. The Commonwealth’s inaction ignores what appears to be a deliberately misleading narrative seeking to justify the NTG opt in model by alleging the SFNT alcohol regulation model was racist and discriminatory. It represents inaction in the face of a policy approach designed around making the abolition of alcohol restrictions the default; a model which would also have made the reimposition of restrictions challenging to both implement and to sustain. And finally it represents inaction in the face of clear evidence regarding the impact of shifting to an opt-in model. While the NTG have now shifted to an opt-out model as applied under SFNT, there is no guarantee that it will be managed effectively to ensure alcohol induced harm is minimised.

 

The Commonwealth’s current position amounts to placing enormous trust in an NT Government that has shown it was prepared to place the lives of Aboriginal women and children in particular at risk for what appears to be base political advantage.

 

To take just one data point, alcohol related domestic violence assault offences spiked in Alice Springs, Katherine, and outside major centres in the 12 months to March 2023 (link here). The only location where there was a decline in these offences was in Darwin. Across the NT, there were almost 1000 extra reported assault offences over the year coinciding with the nine months of reduced restrictions. With the majority of NT electorates in the Darwin region, it is not difficult to develop a hypothesis for why the NT Government may have been intent on removing alcohol restrictions in the bush. In the light of the issues outlined above, the unqualified confidence of the Committee (set out in para. 3.66) in the capacity and political willingness of the NTG to manage alcohol related harm astounds me.

 

Paras. 3.67 and 3.68 lay out two formal recommendations to the NTG related to the facilitation of community alcohol plans. These are discussed further below.

 

In paras. 3.69 to3.94, the Committee addresses the issue of community safety. In para. 3.69, the Committee acknowledges the existence of anti-social behaviour following the sunset of the SFNT, and notes:

When witnesses discussed these behaviours, they were almost always directly linked to the poor social and economic factors people were facing.

 

I may be over-reading this, but in my experience, these behaviours are almost always directly linked to the abuse of alcohol or drugs, and only indirectly liked to social disadvantage. Yes, structural factors are important — but if the Committee really believed this, why not recommend actions and funding to address these structural factors. It is as if the Committee does not wish to acknowledge the role of alcohol in harming Aboriginal Territorians. At para. 3.82, the Committee returns to blaming past policies, and extraordinarily to my mind states:

The application of special measures under the Racial Discrimination Act 1975 (Cth) has had little benefit in creating equality for these children.

 

The implication of this statement is to undermine the rationale for a significant swathe of Commonwealth policy measures from Indigenous language support to the Native Title Act. Even if it is argued that it is contextually constrained, it opens the door to future downgrading of special measures, and strikes me as an own goal. The Committee’s comment on community safety (paras. 3.92 to 3.94) ignores the role of alcohol, fails to mention the deep disadvantage arising from the social determinants of poor health, including the shortfalls in basic housing (a matter picked up by Senator Thorpe in her addendum to the report), and instead focusses solely on intergenerational trauma and the need for early intervention. Both these issues should be priorities, but on their own they will provide no short term relief to the ongoing harm caused to both Indigenous people and the wider non-Indigenous community in the NT.

 

The Commonwealth Government response to the Committee report (link here) was released last week. In the introduction, the response notes that the Commonwealth (not the NTG!) has announced investments totalling almost $300m in community safety in the NT since the beginning of this year. The response deals with all nine Committee recommendations, the first three of which relate to alcohol policy and the sunsetting of the SFNT legislation.

 

As is de rigeur for such responses, the response lists each recommendation, and provides a summary response, and then provides a short narrative in relation to each. There are a couple of revealing statements included. For example, in relation to recommendation one, the response asserts that NIAA worked with the NT Government over a period of 18 months leading up the sunset, thus adding weight to my assertion above that the outcome achieved was not a mistake.

 

A second revelation, in the discussion on recommendation two, is that the Commonwealth is providing $14m over two years to assist in the development of community alcohol plans and other support services and a public health campaign, notwithstanding the summary response that the recommendation to the NTG for resources to facilitate this was ‘a recommendation for the NT Government’, and notwithstanding the Committee’s conclusion that the NTG has the legislative means and the political will to manage alcohol related harm in its jurisdiction.

 

The response notes that ‘Independent consultants will be funded to assist in the development of community alcohol plans’. The use of consultants appears to me to be exactly the wrong approach, as it ensures that the work of developing alcohol management plans is undertaken by individuals without any pre-existing or ongoing relationship with the communities affected, and ensures that once it is completed, there is no corporate knowledge retained either by the community nor NIAA. If the Commonwealth is serious about addressing the challenges of remote Australia, a major priority in my view must be to begin to rebuild a cadre of staff either within NIAA, or perhaps within and employed by communities, with the skills and remit to facilitate engagement with governments.

 

The larger problem with this Government response however is that the import of this Committee Report is not to be found in the recommendations, but elsewhere in the swirling narrative which (sometimes explicitly):  

·       avoids the difficult policy issues around alcohol availability and regulation;  

·       downplays the role of the Commonwealth Government vis a vis the NTG in the face of an extraordinary and ongoing policy failure in the NT;

·       ignores the possibility that special interests associated with the alcohol industry play an outsized role in determining regulatory policy in relation to alcohol in the NT; and

·       unsuccessfully seeks to deal with the paradox that the SFNT legislation is simultaneously argued to be retrograde to Indigenous interests yet the evidence following its sunset indicates it was essential to maintaining social stability and reducing social and community harm.

 

In particular, where is the Commonwealth Government’s appreciation of the overwhelmingly negative impacts of alcohol (and other drug) abuse on Aboriginal communities, and particular Aboriginal women and children. Ignoring supply issues — and the even more insidious influence of the alcohol industry on governments — by seeking to shift blame to an alleged historical lack of focus on alcohol demand issues and alcohol harm reduction measures just does not cut it. 

 

Perhaps it is time to give some attention to, and reinforce the relevance of, the 1967 referendum. The referendum that reversed the provision that stated that the Commonwealth could legislate in relation to the people of any race except the Aboriginal race. The referendum that underpins the existence of the Minister for Indigenous Australians and her portfolio, and that facilitates the existence of the Native Title Act and much other Indigenous legislation. The referendum that signalled that the Australian people overwhelmingly expected the Commonwealth Government to do what was necessary to address Indigenous disadvantage.

 

 

Disclosure: I was employed on the staff of the Minister for Families, Housing, Community Services and Indigenous affairs from 2008 to 2011 when the Stronger Futures legislation was being developed.

 

11 July 2023