The High Court opens the door on the inexcusable dereliction of remote housing policy

Make the doors upon a woman's wit, and it will out at the casement; shut that, and 'twill out at the key-hole; stop that, 'twill fly with the smoke out at the chimney.

As You Like It, Act Four, scene one.

 

The recently decided High Court case of Young v Chief Executive Officer (Housing) [2023] HCA 31 (link here) turned on some relatively technical issues related to the interpretation of the compensation issues in NT statute law. There have been several media reports (link here and link here) making the point that this case has implications for tenants more broadly, representing an expansion of the onus on landlords. I don’t propose to attempt to summarise, nor discuss, those compensation issues. Instead I wish to point out some of the factual background to this litigation, and the policy implications. While this litigation related to the circumstances faced by one tenant, there are over 5000 houses managed by the CEO Housing in the NT, all of whom are subject to the same maintenance regime and levels of attention (or inattention as the case may be) as those that led to this litigation.

 

This extract from the Judgement of Gordon J and Edelman J is a good place to begin:

41 The premises leased to Ms Young were alleged to be defective in numerous respects . One respect was that for several years from the time that her tenancy commenced, the Chief Executive Officer (Housing) had failed to provide Ms Young with a back door. The absence of a back door was a significant impairment of security in circumstances where, as Ms Young described, roaming wild horses may have bent a fence around the property, and where a snake may have entered the house through a gap that was left between the door and the doorframe following the eventual installation of a back door by the Chief Executive Officer (Housing) . Ms Young was "an elderly woman who was left vulnerable to proven animal intruders and potentially human intruders" .

42 On 22 January 2016, a solicitor acting for Ms Young wrote to the Chief Executive Officer (Housing) saying that there had been no back door on the premises and that, although a mesh-steel door had been installed by Ms Young, a new door was required. More than six weeks later, in late March 2016, the Chief Executive Officer (Housing) installed a new back door .

43 In the Tribunal, Ms Young sought orders for repairs to be made to the premises, as well as a payment of compensation under s 122(1) of the Residential Tenancies Act. The Chief Executive Officer (Housing) was ordered to: refund rent of $4,735.80 for 540 days during which the premises were uninhabitable due to the lack of an air-conditioner; pay $4,000 in damages for distress arising from the associated physical inconvenience from the lack of an air-conditioner; and pay $200 in damages for the breach of its duty to repair Ms Young's stove for a period of 170 days . None of these matters was an issue on appeal to this Court. The relevant issue concerned the Tribunal's decision in relation to the failure by the Chief Executive Officer (Housing) to install a back door.

 

In The Saturday Paper, Rick Morton does an excellent job of contextualising and illustrating the bureaucratic nightmare for Ms Young that ultimately led to the High Court decision (link here). Here is an extract where Morton recounts evidence from 2019 at an earlier stage of the litigation:

Ms Young, who testified through a translator, showed that a shower and drain had been leaking for 2117 days, and that she had no back door for 2090 days and a toilet that flushed poorly and failed to clear waste for 534 days. In a community where animals roamed freely, including wild horses, the perimeter fence was bent all the way to the ground for 2328 days. Ms Young, who was in her late 70s when she brought the case, had no air-conditioner for 2121 days. Mr Conway had a home infested with insects for 1035 days and, on account of leaking water, slept in the kitchen for 1989 nights.

 

In his article Morton mentions another significant judicial win for Indigenous tenants in the NT (and potentially elsewhere):

Just weeks ago, Kelly [the solicitor for the applicants in the Yong case] had another win against the same government landlord operating the same sublet lease from the Commonwealth. The Northern Territory Supreme Court overturned a tribunal decision that found the residents of Laramba, west of Alice Springs, were not owed safe drinking water by their housing provider. Drinking water in the town contains uranium levels three times higher than the maximum for safe consumption.

 

The decision in this case has not yet been published on the NT Supreme Court web page. It does seem that there has been some action on Laramba’s water supply with the opening of a new water treatment plant in April this year (link here). Nevertheless, provision of safe water, power and sewerage remains a challenge across much of the NT (and probably also in other jurisdictions). This is particularly the case given the accelerating impacts of climate change on remote communities (link here and link here). Despite its inclusion as target #9B under the National Agreement on Closing the Gap, we don’t have good information on the status of infrastructure delivery in remote Australia (link here). In 2006 the national Community Housing and Infrastructure Needs Survey was discontinued, removing the only national and objective assessment of infrastructure shortfalls in remote communities [h/t Jon Altman]. Hopefully, with the addition of target #9B, the current federal Labor Government will do something about re-establishing the CHINS.

 

Without wishing to take issue with Morton’s overarching thesis, I do wish to outline an alternative and in my view more accurate analysis of the political and bureaucratic history that has contributed to the current deep seated crisis in remote housing provision, and the concomitant demographic implications which in turn are contributing to (but are not necessarily the major cause for) the substantial challenges in the NT’s major cities and towns related to homelessness, public drunkenness, and the appropriateness of police and private security firms responses (link here). While these issues are perhaps most visible to the national gaze in the NT, similar issues exist in other jurisdictions with remote communities. My interpretation is important because it plays into the policy solutions that are required.

 

I disagree with Morton in relation to his rolling up of remote housing issues (and the related 2008 NT local Government reforms) into the Howard Government Intervention. The two processes largely overlapped but were and remain conceptually separate. It is undoubtedly the case that in the minds of many Aboriginal residents of the NT, the two are conjoined. The motivation for the intervention was primarily to create an electoral distraction, which conveniently involved a subliminal dog whistle to the far right built around inflaming debate around allegations of child abuse and blaming Aboriginal people and communities for the dysfunction and disadvantage they suffered. It was deliberately punitive and sought to wedge the then Labor Opposition in the leadup to an election. Labor pragmatically went along with the associated legislation, including provisions that removed the application of the Racial Discrimination Act. As an aside, it is worth noting that there is no constitutional restraint on a future government acting similarly. The case for substantive constitutional reform is far from resolved, notwithstanding that it will be a generation before momentum to do so and the political will to do so might be tested.

 

Following the 2007 election, Labor was hamstrung by its lack of numbers in the Senate and so could not repeal the most egregious elements of the Intervention legislation. Instead, it sought to ameliorate the impact of its previous pragmatism by investing very considerable amounts of funding in its Stronger Futures policy (link here). Labor also pursued a range of national partnerships focussed on disadvantage in remote regions nationally, the major one being the National Partnership on Remote Indigenous Housing (NPARIH) which allocated $5.5 billion over ten years.

 

In relation to housing, Morton argues that it was the shift of responsibility for managing community housing that is at the root of the problem. He writes, quoting Ms Young’s niece:

“In this community we used to have our own – we called it the Progress Housing Association – that used to be owned and controlled within the community, by community people working together. “And now as soon as the [Northern Territory] Intervention came out, that was the one that wiped everything out.”

Following the NT Intervention, led by former prime minister John Howard and extended by his successor Kevin Rudd, the right to manage community housing was taken from residents, with an emergency lease handed to the NT government. Later, the Commonwealth convinced residents to sign over the housing stock on a 40-year lease to the federal government in exchange for maintenance and funding for repairs. They offered no alternative. As soon as the lease was signed, the Commonwealth sublet the entire arrangement to the NT government, which has had responsibility ever since.

 

In 2017, I published a post (link here) where I discussed these issues, and argued that the changes in responsibility were required because previously governments had not been prepared to provide adequate funding. Leasehold tenure was required to ensure that Governments had a legal responsibility to meet the needs of tenants. Previously, that responsibility was held by land trusts on Aboriginal land (this is still the case) and Indigenous community housing organisations (ICHOs) within communities, but tenants (and Indigenous controlled legal services) were never prepared to initiate litigation against Indigenous landlords. In that post, which was critiquing a supposedly independent review of NPARIH, I wrote (inter alia):

 

Fourth, property and tenancy management (PTM) is given a lot of attention in the report, again with virtually no data presented to back up the points made. The suggestion in section 5.1.1 that PTM was ‘sidelined’ in the early delivery of the program is mere assertion and in my view is just wrong. It ignores the fact that before the program existed, there was virtually no funding and no focus on PTM by ICHOs. The shift of responsibility to state housing authorities under the program, and the requirement for 40 year leases to underpin all investment, meant that the states were for the first time responsible for tenancy management as part of their landlord responsibilities. This was a key objective of the program, and so to argue that it was ‘sidelined’ is tendentious. The NPARIH Review of Progress (2008-2013) released in 2013 (link here) reached a different conclusion, noting that:

There has been considerable progress with property and tenancy management implementation overall, but key elements such as reformed rent setting and tenant support services have not kept pace with capital works delivery in all jurisdictions. (p.11).

Moreover, there is absolutely no mention of the current [ie LNP] Government’s decision in 2015 to cut $95m from the forward estimates for PTM (refer to para 2.15 and footnotes 28 and 29 in the recent ANAO report on the Community Development Program for the rationale for this cut; …. nor any analysis of the performance of the new Community Development Program in delivering housing repair and/or tenancy management services which was the rationale given by the Minister in Estimates in 2015 when he was queried on the cuts.

 

Rather than blaming the Intervention, or the shift to community leasing as the source of the current neglect, I would point directly at the issue of funding. Chronic under-investment by governments in remote housing has been the fundamental cause of the ongoing disadvantage confronting remote communities and has undoubtedly played a major role in contributing to chronic overcrowding, poor health, poor educational outcomes, drug abuse, domestic violence and other symptoms of fundamental dysfunction. I published an article on this issue in Inside Story some years ago (link here). I am not suggesting that housing is the magic bullet, merely that it is an essential element in addressing the deep-seated disadvantage that disproportionately targets residents of remote communities.

 

One further policy implication that deserves serious consideration by the Commonwealth and the NT Land Councils are the consequences of these decisions for dwellings and other facilities on Aboriginal land leased by traditional owners to Aboriginal and non-Aboriginal tenants.

 

The upside of these recent cases in the NT Supreme Court and the High Court is that it will force governments at both Commonwealth and state levels to reconsider the adequacy of their investment in remote housing, to revisit the split between capital and recurrent expenditures in their social hosing programs, and to think again about the benefits of providing much greater support to innovative community housing models of housing provision and management. The persistence of the late Ms Young, her community, and it must be said, her lawyers, has paid off and has delivered what may well turn out to be the most consequential policy change for remote communities in the last decade.

 

 

Disclosure: I was from 2002 to 2006 the CEO Housing in the NT. From 2008 to 2012, I was an adviser to the commonwealth minister responsible for remote housing programs.

 

7 November 2023

Post referendum policy options: perhaps we should blame ourselves

This earthly world, where, to do harm

Is often laudable; to do good, sometime

Accounted dangerous folly

Macbeth, Act four, Scene two.

 

In the wake of last week’s referendum defeat, Queensland Opposition Leader David Crisafulli announced via an op ed in the Courier Mail last Thursday that he was withdrawing his support for a treaty in Queensland (link here) and if returned to government would repeal the Path to Treaty Act 2023 (link here) legislation which the Opposition had previously supported. That legislation establishes a pathway to a treaty or treaties. Section 5 of the Act sets down the main purposes of the Act:

The main purposes of this Act are to—

(a) establish the First Nations Treaty Institute to— (i) develop and provide a framework for Aboriginal peoples, Torres Strait Islander peoples and the State to enter into treaty negotiations; and (ii) support Aboriginal peoples and Torres Strait Islander peoples to participate in treaty negotiations; and

(b) provide for the establishment of the Truth-telling and Healing Inquiry to inquire into, and report on, the impacts of colonisation on Aboriginal peoples, Torres Strait Islander peoples and the history of Queensland.

 

Following the passage of the legislation, the Queensland Labor Government issued a statement (link here) where the Premier stated:

“[This legislation] furthers the commitment made between the Queensland Government, Aboriginal and Torres Strait Islander peoples, and non-Indigenous Queenslanders on 16 August 2022, and paves the way for truth-telling and healing, and treaty preparations to begin… All Queenslanders will benefit from a reconciled Queensland, and we are committed to working with Aboriginal and Torres Strait Islander peoples towards reconciliation, truth-telling and healing, and reframing the relationship.” [Emphasis added]

 

In the period since the Act was passed, there has to date been no indication of substantive progress in appointing the Institute members. Meanwhile an interim body continues to operate (link here and link here).

 

According to Opposition Leader David Crisafulli, a treaty would only create further division. Within 24 hours, the Queensland Premier was expressing her own reservations regarding her Government’s legislation establishing a path towards a treaty, stating that a treaty would require bipartisan support (link here). The Australian (link here $) in an article headed ‘Palaszczuk to give up on treaty’, reports that the Government had ‘moved to abandon laws – passed this year with the support of the LNP – enabling treaty deals and reparations for up to 150 groups…. [at a press conference] Ms Palaszczuk would only commit to going ahead with truth-telling hearings, due to begin early next year’. In an article in today’s Australian (Local voice on cards for remote island; Link here $) the Premier is quoted as stating that she personally supported treaty deals but they would not progress without bipartisan support:

It’s a long process, so the truth-telling is three to five years. The treaties will come afterwards and that is for subsequent governments.

 

Ben Smee’s analysis in the Guardian (link here) points to the political calculus behind the Opposition’s policy shift, and the Government’s response, and observes how the Government’s preparedness to buckle to pressure both diminishes trust and encourages further provocation. What he doesn’t emphasise however is the deeper and longstanding reinforcement of distrust and disenchantment amongst Indigenous Queenslanders that will inevitably follow.

 

In NSW, the Labor Government is reassessing its own policy settings in relation to establishing a state wide Voice (link here). The Australian today (link here $) is citing the NSW Premier as indicating his government was not planning to take a position on a possible treaty before the next state election:

All we’re promising is to start that dialogue…I can’t promise quick changes, but I have promised dialogue.

 

In The Conversation Michelle Grattan laid out a succinct assessment, arguing that despite the Government’s good intentions, the pursuit of the perfect over the good has delivered nothing:

…the Voice is dead and reconciliation is, at least for the moment, a wasteland …. Albanese was well motivated, but a great deal of harm has been done. (link here)

 

In the light of the developments in Queensland and perhaps NSW, this assessment is looking accurate.

 

Grattan goes on to say:

Albanese says he is waiting to be advised by Indigenous people on where to from now. When the government said in the campaign it had no plan B, that seems to have been the case. It has not yet clarified its post-referendum position on treaty and truth telling.

 

The Deputy Prime Minister, Richard Marles did state on the ABC Insiders program the day after the referendum that the Uluru Statement for the Heart (which addresses treaty and truth telling) continues to be part of the Government’s agenda. I subsequently saw reports that these comments were being tracked back and downplayed. The Government is now stating that it is waiting to hear from Indigenous people on their views on how to proceed before outlining its position. Grattan’s assessment is likely correct.

 

The referendum campaign, and in particular its result, were clearly epic failures; and since he came to office, the Prime Minister had been central to each of the strategic and tactical decisions taken along the pathway to that result. Implicit in Michelle Grattan’s critique is to lay responsibility for the consequences of the outcome with the Government and in particular the Prime Minister, and clearly, in terms of day-to-day politics in Australia, that is where accountability must reside.

 

Yet an analytic focus that sees the world purely through the lens of its impact on quotidian politics is to my mind fundamentally inadequate. Such a focus is infused with an innate contemporaneousness that over-emphasises what politicians and political actors say rather than what they do, and adopts the perspective promulgated by political actors across the political spectrum that implicitly frames political and policy debate and discussion as ephemeral and never final. This is particularly the case in relation to Indigenous policy, because Indigenous interests lack the innate influence of more powerful interest groups and tend to focus on the perfect over the good (perhaps because that is how to best obtain and sustain support within extremely heterogeneous Indigenous constituencies). The result is that there is a dearth of sustained focus on specific policy proposals in public policy discourse on First Nations related issues, and instead an over-emphasis on vague and inchoate high level aspirations such as ‘treaty’ or ‘truth-telling’. These are perfectly legitimate and adequate political tactics, but entirely inadequate as a guide to policy development.

 

To take a random example, the absence of sustained pressure for the provision of core funding for PBCs in the native title space astounds me (link here).  Both governments and First Nations advocacy groups are happy to engage in policy discussions about complex and high level issues that are continuously swathed in process, discussion and review, but never lead to final decisions or progress. Yet simple and comparatively inexpensive reforms that would make an appreciable difference to First Nations negotiating power are ignored by both governments and First Nations advocates.

 

In the case of the Voice, this presentism in most public discourse ignores the history and wider factors that led to the referendum result, and under-values the consequences and implications for the future of today’s decisions and actions by actors on all sides of the debate. At the risk of over-simplifying my argument, the public debate leading to, and beyond the referendum is taking place in the realm of ideology and ‘the vibe’ rather than in terms of substantive argument and exchange of views designed to persuade. The processes established by governments over the past six years have been consistent with the longstanding approach by governments of promising the world, raising expectations, but failing to deliver. This is essentially Michelle Grattan’s argument. Going forward, there is every likelihood of more of the same.

 

In these circumstances, we can blame governments. The Queensland Government’s ‘commitments’ on Treaty appear to be not worth the paper a treaty would be written on. Both the Queensland and NSWE Governments appear determined to kick the treaty can down the road, again. Federally, the previous LNP Government established a seemingly never-ending set of slow moving processes and reviews to ‘develop’ a Voice, along with a series of shifting and politically convenient policy rationales (e.g. support for regional voices) yet never took action to either legislate the Voice or to put it to a referendum. The Albanese Government pursued the ‘perfect’, a high risk all or nothing strategy without a ‘plan B’, hiding behind the rationale that this is what First Nations wanted — a rationale it has doubled down on post referendum.

 

This is not the first time that the expectations of First Nations have been raised and then razed, although in this case it was the Australian electorate that delivered the coup de grace, and not the executive government. Governments deserve enormous criticism for raising expectations time after time, year after year, and when they change policy direction, for razing whatever institutional infrastructure exists to the ground, and forcing Indigenous citizens to start afresh. The sorry history of Indigenous advisory bodies to Commonwealth governments are just one case in point.

 

However, perhaps those who make it their business to criticise governments for their poor or non-existent performance (for example bloggers such as myself) and policy think tanks, leaders and advocates, both Indigenous and non-Indigenous, should look more carefully at their own complicity in this all so predictable danse macabre. A dance which involves governments and oppositions alike, avowing, pledging, promising, making commitments, raising expectations, baulking, shifting course, penultimately ‘kicking decisions down the road’, and only when cornered, coming clean and announcing that what had been a commitment was in fact just an ephemeral thought bubble. We know what politicians are like. We know they are prone when deemed necessary to deceive, delude, dissemble and divert. Yet how is it that we fail to call governments out when they are so clearly focussed more on raising expectations than on delivering. Perhaps it is time to blame ourselves?

 

Why might we deserve to be blamed?

 

Reasons abound. For allowing debates to proceed untethered to reality. For allowing ideology to permeate our thinking, marginalising pragmatic incremental gains. For allowing political actors — whether politicians or advocates — to commit to or support outcomes (or targets, or processes) without undertaking the requisite intellectual work to specify the strategy, and without articulating how policy proposals and promises will be funded and by whom. For readers who would like an extended list (focussed on the vexed issue of closing the gap), I refer you to my submissions to the current Productivity Commission review of the National Agreement on Closing the Gap (link here).

 

My fundamental point is that the threat of political accountability is patently ineffective, and —even when delivered decisively at an election — is not adequate to ensure constructive policy outcomes in the Indigenous policy domain. Power — its necessity, its benefits and uses, its excesses, and its costs — pervades our systems of democratic policymaking. Yet left unchecked, power degrades and corrupts our institutions, our systems of governance, and ultimately our way of life. The paradox we confront is that power is both necessary and ubiquitous, and insidiously avoids all attempts at constraint and regulation. It flows through our institutions like water through rubble. The challenge is to devise ways to check its most egregious excesses. One obvious way is to build and sustain a robust culture of ‘speaking truth to power’, where debate is welcomed, and the contest of rigorous argument between alternative views is valued. Promoting and engaging in constructive debate is a responsibility that falls on us all; but is easier said than done.

 

Too often we baulk at the threshold, as engagement is hard work. The Indigenous policy domain is not just about policies that impact First Nations citizens. It is also about the sort of nation we wish to be, and this requires all Australians to develop and express ideas (which flow into actions) about the place of Indigenous citizens within our nation’s fabric and institutions. To my mind, it is a mistake to think that non-Indigenous citizens have no role to play in shaping our nations policies in relation to the place of First Nations citizens within our polity. Bernard Keane in Crikey adopts the diametrically oppositive view in his article titled The job of non-Indigenous Australians now is to… shut up (link here).

 

It is particularly a mistake for governments to abandon the responsibilities they took on upon being elected, namely to make decisions in the general public interest, and to implicitly claim that it is for First Nations interests to set out the policy agenda to be pursued. The obverse of this assertion is that it would also be a mistake for Indigenous leaders and advocates to be taken in by such rhetoric, and to allow themselves to once again be misled and ultimately to be disappointed. To be clear, it is both necessary and important that governments and policymakers listen to, consider, and hopefully take on board where they can Indigenous views; but this does not justify governments abandoning their overarching responsibilities for the policy choices necessary to advance the public interest, and it certainly does not justify governments hiding behind rhetorical nonsense — views that they do not in fact believe — in order to avoid making difficult policy decisions.

 

Creating a culture of robust and respectful debate on public policy, and particularly Indigenous policy, where different views can be raised and discussed is an important task that we as a nation appear to have allowed to lapse. The restitution of such a broad-based culture of debate and discussion is important if we value a free and fair future for our children and their children. Unfortunately, for too many of us (including me), taking concrete steps towards the establishment of such a culture too often seems like dangerous folly

 

24 October 2023

 

 

The Voice result will be seen as an inflection point for Indigenous policy

 

I am amazed, methinks and lose my way

Among the thorns and dangers of this world.

King John, Act four, scene three.

 

Following the defeat of the Voice referendum, I published a short article in Inside Story (link here) arguing that the referendum will come to be seen as an inflection point in Indigenous policy: no longer will it be tenable to conceptualise the policy domain as involving a single Indigenous interest that must be weighed and factored into the public interest. Instead, policymakers will increasingly deal with Indigenous issues on the basis of particular Indigenous interests, and these will be advocated and articulated against the countervailing pressure of other interests, Indigenous and non-Indigenous.

 

In my view, this is increasingly how public policy is made — the current reality — albeit it has not been widely recognised. Instead, the virtually ubiquitous perspective, including amongst the advocates for the Voice, has been that it remains possible to span the competing Indigenous sub-voices, and conjure up a single national First Nations Voice which represents or speaks on behalf of all Indigenous nations, communities and people on all major issues of concern to First Nations. I too have, until comparatively recently, unthinkingly shared this view.

 

To be clear, while it is possible to argue that the multiplicity of Indigenous views (reflecting different yet cogent perspectives and interests) contributed to the defeat of the referendum, I am not seeking to engage with why the referendum failed. Instead, I am seeking to look forward, and make a hard-headed assessment of how mainstream policymakers will increasingly engage with policy issues involving Indigenous interests into the future.

 

Nor am I seeking to deny the existence and importance of shared histories, shared cultures and shared identity amongst First Nations people. My point is merely that in policy contexts, interests and interest group competition will increasingly come to dominate decision making processes. I am not arguing in favour of this, merely making an assessment that this is what is happening.

 

An aspect not directly addressed in my article, but of increasing significance, are two trends: the first is the inexorable shift by governments to utilise mainstream policies and programs rather than Indigenous specific programs and policies combined with greater policy reliance on, and deference to, the states and territories rather than the Commonwealth, and the second is the trend in mainstream policy and political decision-making forums to give increasing profile and attention to special interests (link here). Both trends reinforce the argument I am making; both can be persuasively criticised, but they are nevertheless happening. One implication is that when interest group influence is pervasive, governments are not as focussed on ensuring that the public interest is protected.

 

The bottom line for First Nations is that if they desire to shape policy, they will increasingly need to engage in the struggle for influence with competing interests, both Indigenous and non-Indigenous. See this earlier post on similar development in the US (link here). Of course, there is enormous scope to critique such an outcome, and it is important in democratic polities that such critiques exist. But such critiques (however persuasive) are normative and conceptually distinct from the ways and processes that apply to the of making of policy impacting and affecting First Nations. Reliance on mere rhetoric, or an implicit assumption that democracy (where voters are properly informed) will always deliver just outcomes aligned with the general public interest will not be enough to shape policy. The outcome of the Voice referendum provides a clear cut demonstration of this point.

 

I recommend the Inside Story article to interested readers.

Indigenous involvement in the renewables transition: the case of critical minerals

 

Make use of time, let not advantage slip.

Venus and Adonis, 129.

 

On 4 October 2023, Professor Ciaran O’Faircheallaigh (link here) gave an insightful and well-argued seminar at the Centre for Aboriginal Economic Policy Research (CAEPR) at the ANU on the implications of the transition to renewables and net zero on demand for critical minerals, and the concomitant implications for Indigenous peoples globally and in Australia.

Information on the seminar is available on the CAEPR website (link here) and a recording of the seminar may be available shortly.

O’Faircheallaigh’s core argument can be boiled down to a series of propositions:

• the transition to renewable energy/ net zero will involve an extraordinary increase in production of critical and energy transition minerals (including lithium, cobalt, copper, nickel and rare earths) in order to produce the technology required to avert a climate catastrophe;

 

• The world’s resources of transition minerals are heavily concentrated on or near Indigenous territories.

 

• The history of mineral extraction on or near Indigenous lands has had significant adverse impacts on Indigenous peoples and thus been fundamentally unjust.

 

• Increasingly, in circumstances where Indigenous landowners have not been engaged and their social, cultural and economic rights have not been respected, Indigenous peoples have found ways to successfully delay or stop resource developments on their lands using a range of tactics from protests and direct action to litigation.

 

• These conflicts impose commercial costs on mineral developers, and will increasingly pose a threat to the global transition to renewable development.

 

• Governments are increasingly allocating substantial financial incentives to corporations aimed at encouraging the acceleration of investments necessary for the transition to a renewable future.

 

• However, invariably, there is no support in these strategies for Indigenous interests who are key stakeholders in the lands that are directly affected by mining and other elements of the transition. O’Faircheallaigh cited the Australian Critical Minerals Strategy (link here) which provides over $3bn in financial incentives to developers, but zero to Indigenous landowners affected by developments.

O’Faircheallaigh characterized the likely outcome of the current global transition pathway as lose/lose: Indigenous interests would seek to inject themselves into the development processes for new mines and other developments, and likely achieve sub-optimal outcomes (both financially and in terms of their other objectives); but so too will the global climate (that is, you, me, and the global population) lose as the critical investments in land based resources necessary for the transition will be slowed and perhaps diverted elsewhere as a result of the Indigenous objections and lawfare.

The solution according to O’Faircheallaigh is to ensure that Indigenous landowners have a legal right to exercise free, prior and informed consent (FPIC) over developments on their land. In Australia in the context of land rights legislation, this is often also known as a veto. Such a right would ensure Indigenous interests are engaged in the development process, and have the capacity to negotiate the terms of any mining or resource development.

Commentary

I found O’Faircheallaigh’s argument broadly persuasive, and agree that the introduction of FPIC rights for Indigenous interests would ensure faster and more certain outcomes in relation to proposed resource developments, including critical minerals.

O’Faircheallaigh largely justified his position on ethical grounds, without specifying the precise set of arguments he uses to justify that approach. I too agree that such ethical grounds exist and should be more widely recognised. I would base my arguments on the injustice involved in dispossession by settler states, the concomitant absence of comprehensive compensation, and the intergenerational costs imposed by the violence used to dispossess Indigenous landowners. Yet such arguments are far from widely accepted in Australia and elsewhere, and gain very little electoral traction.

There are however also a set of economic efficiency arguments that also point to the benefits of more explicit specification of property rights as an enabler of economic development and a facilitator of more efficient negotiations over particular developments. While a focus on working towards ‘just outcomes’ based on the existence of UNDRIP or other human rights instruments is intuitively appealing, it is rarely sufficient to persuade policymakers (and electorates) to shift direction. I have a sense that arguing the case on economic efficiency grounds would have a better chance of success as it engages with policymakers in the language they use themselves.

Even so, I am skeptical that policymakers in Australia (or elsewhere ) are about to shift direction and grant Indigenous landowners FPIC rights. In Australia, there has been no jurisdiction prepared to grant Indigenous interests FPIC in land related legislation since the enactment of the 1976 NT Land Rights Act. Under the Commonwealth’s 1993 Native Title Act, there are only procedural rights available to native title owners and claimants. Governments have not even been prepared to provide core funding to all Prescribed Bodies Corporate notwithstanding their statutory basis and their role in dealing with third party applications to access native title land.

The reason for this policy conservatism boils down to the fact that public policy outcomes in Australia are ultimately not a matter of what is most effective, or efficient, or what is in the public interest, but is determined by a complex interplay of implicit interest group negotiations seeking to influence government decisions. In those implicit negotiations, the onus is on those proposing change to overcome the significant inertial power of those interests benefiting from the status quo. Moreover, the very structures of government have been shaped and influenced over time by the most powerful interest groups which ensure that policy decision processes are weighted against those interests seeking to shift the status quo.  

I had one caveat regarding O’Faircheallaigh’s argument. I too have noted that Indigenous interests both globally and in Australia appear to have gained greater traction in slowing or preventing resource developments that they consider culturally threatening. In Australia, this is largely a result of the procedural rights embedded within the Native Title Act, environmental legislation,  and cultural heritage legislation. Yet while media reports of Indigenous successes are relatively common, I have yet to see any comprehensive data that either supports or refutes this proposition. Intuitively, one element in support of the O’Faircheallaigh proposition is the rise of ESG (link here) as a driver of corporate policies, a shift that is largely being driven from outside of the Indigenous policy domain. This suggests to me that there is an implicit potential for stronger alliances between Indigenous and environmental interests. Yet there is a long (and ongoing ) structural tension between these two sets of interests.

Given this context, the introduction of FPIC for Indigenous landowners in the near future might be characterised as a ‘first best’ solution, but one that is unlikely to eventuate anytime soon. The challenge then for Indigenous interests, academic commentators, and even policymakers (given the fact that lose/lose outcomes are a distinct possibility) is to find ‘second best’ solutions while keeping open the possibility of eventually moving to the ‘first best’ solution.

I don’t have a developed view on what the optimal second best solution matrix looks like, but it does strike me that an ongoing focus on achieving ‘just outcomes’, while important, needs to be supplemented by a stronger dose of pragmatically seeking merely better solutions. If Professor O’Faircheallaigh is correct, and we are looking down the barrel of lose/lose outcomes in the nation’s access to critical minerals and where Indigenous interests who seek to protect their cultural and socio-economic interests will be blamed for delaying the transition to renewables and net zero, there are even stronger grounds for Indigenous interests to proactively position themselves as pragmatic and constructive interlocutors.

My own approach to a ‘second best’ policy matrix would place a stronger focus on:  

• building the capability and intellectual capital (link here) of key Indigenous advocacy organisations so as to both protect existing rights and expand their institutional influence over future public policy decisons;

 

• building the independence of key Indigenous advocacy groups by exploring opportunities for reducing their reliance and use of funding and other mechanisms used by governments to leverage and shape Indigenous policy advocacy;

 

• building alliances and partnerships with like-minded interests (such as environmental interests, public interest advocacy interests, and philanthropies); and

 

• committing to supporting transparency reforms generally so as to place greater pressure on the existing interests who shape and protect the status quo.

Of course, the shape and detail of any second best strategy aimed at greater influence over the coming scale up in resource development is for Indigenous interests to determine and implement. As climate change worsens, the determination of governments to respond will ramp up, and this will inevitably shift the balance of power towards those interests arguing for removing ostensible impediments to rapid mining development. The time for Indigenous interests to devise their own strategic responses to the coming changes is now.

 08 October 2023

 

 Addendum: Here is the link to Professor O'Faircheallaigh's seminar (link here).

12 October 2023

 

The remote community education scandal in the NT

                                                            That glib and oily art

to speak and purpose not.

King Lear, Act one, scene one.

 

The Weekend Australian (23-24 September 2023) has begun publishing a series of articles (link here and link here $$) researched and written by three independent journalists and has also published an editorial titled NT schools worsen disadvantage (link here $$). The front page article is accurately titled Nation’s forgotten schoolkids scandal, and the back up article is titled Thirst for learning in education desert.

 

 The articles describe appalling conditions in makeshift classrooms in remote outstations, endemic shortfalls of registered teachers, and quite atrocious educational outcomes. The article also points out that large numbers of Indigenous students fall below established minimum standards and attendance rates are extraordinarily low. The NT Education web page (link here) provides a good overview of the extraordinarily poor attendance levels particularly in very remote regions. What those figures do not tell us is the proportion of students who are attending 90 percent of the time. For example, fifty percent attendance may mean that every student is attending only half the days in the school year, or that fifty percent are attending every day, and fifty percent none. The devil is in the detail. In any case, those outcomes scandalous in their own right, a ‘scandal’ informed observers have been aware of for decades (link here), and a ‘scandal’ the NT Government has been aware of and has done nothing substantive to address. Of course, the real scandal is that these outcomes are scandalous, but not a scandal that forces government action.

 

 The ‘scandal’ The Australian article authors point to are the funding mechanisms in place in the NT education system for remote schools. In particular, they point out that the NT is the only jurisdiction that funds schools on the basis of attendance numbers, and not enrolment numbers.

 

 According to The Australian articles, following a 2022 Deloitte Report that identified the harm arising from this system, the NT Government announced it will move to an enrolment based system over the next five years, but the NT Minister would not answer the authors questions on the current status of this transition. The result is a massive level of underfunding, estimated at $214m, that impacts on the most disadvantaged students in the nation.

 

 The second funding mechanism that is defective, and according to the article directly affects an estimated 400 remote students, relates to so called Homeland Learning Centres, that are in effect classrooms notionally attached to a hub school. The article states:

There is no public record of HLC student numbers, teaching ratios, educational outcomes, facilities or funding.

 It is not clear if the hub schools incorporate these statistics or not. A 2014 Review commissioned by the NT Government and cited by the article raised “issues about equity and quality in the delivery of education for all NT students” and suggested that hundreds of Indigenous students lived in homelands with no education provision at all.

 

 A third issue, raised by the Australian Education Union NT (AEUNT) was that education funding required on the ground is instead directed into the NT bureaucracy. According to Productivity Commission data compiled by the AEUNT, the NT has 22 non-school staff per 1000 students compared with nine in the ACT and eight in Tasmania.

 

 The Australian’s editorial includes the following assessment, with which I would agree:

The situation is unconscionable and suggests the NT government is not fit for purpose. The indifference, warped priorities and maladministration that have created the problems stretch back for decades across the political divide.

 

 So what are we to make of all this in policy terms?

 

 At the risk of gross simplification, and bearing in mind that remote NT is not the same as remote Victoria, it is worth assessing this from two perspectives, a micro community level perspective; and the macro jurisdiction wide perspective.

 

 At the micro level, the provision of education services by the public sector is just one element in a labyrinthine intercultural world, where community priorities are shaped by the seasons, the geography, cultural responsibilities, localised conflicts and alliances, family obligations, and the obligations and opportunities across multiple sectors emanating from mainstream institutions. To use a gross over-simplification, it is a complex micro policy environment. Mainstream values and assumptions are not guaranteed to operate as they might in Melbourne. Nor do local communities necessarily punish a government that does not provide services (particularly when all governments effectively treat them the same); instead, bush community members may take the view that voting is irrational and not a priority (link here).

 

 At the macro policy level, mainstream policy engagement is shaped overwhelmingly by political pressures and opportunities, with Cabinet and Ministers making zero sum decisions regarding the allocation of resources, both in terms of what is available to a particular sector (like education) and then where the finite and perhaps insufficient resources are allocated, making zero sum decisions within the sector, funding some schools more than others. If for example urban infrastructure is the paramount priority in a polity with small electorates, and where winning margins are razor thin, politicians and governments will be strongly incentivised to put electoral considerations above fairness, above long term investments with payoffs in the future, and above the interests of particular groups of citizens, above the public interest, and above the national interest.

 

 The funding available to a particular school, and its associated homeland learning centres, is a function of factors operating at both micro levels and macro levels. Governments are adept at finding bureaucratic processes (that is, systemic institutional processes) to allocate resources which deliver the outcomes desired by the political agenda of the government while appearing to be neutral and fair. The use of attendance rather than enrolment to allocate school resources across the NT is a prime example of this. It is not a policy mistake or oversight, but a deliberately chosen policy mechanism designed to deliver political outcomes while appearing anodyne and even appropriate. Other strategies adopted by governments include deliberate reliance on opacity or overt confidentiality, prioritising secrecy over openness. The articles in The Australian mention a number of times various reports that have been commissioned and not released, and information that is not available or not even collected. Transparency is the friend of the public interest and good policy, not its enemy (as governments implicitly argue).

 

 The educational outcomes at a particular school, and aggregative across the sector, are a function in large measure of funding availability, but also a function of other factors at both micro and macro levels. This is widely recognised by all participants in the sector, but paradoxically, it becomes a further reason for governments to rely on under-investment as a political strategy as outcome failure can always be blamed on something else (e.g. poor parental commitment, poor teacher skills, remoteness and poor roads, the weather, welfare dependence and so on). Yet while adequate funding is not in itself sufficient to guarantee good educational outcomes, it is certainly necessary (that is, essential) for good educational outcomes. Other factors that are essential include  effective alignment between the curriculum and approach to instruction and the cultural values of the school community; safe and secure housing; social stability within the community (including protection from alcohol related violence; and of course access to good health services. There may well be others such as effective community governance, and perhaps access to sport and recreation facilities, access to traditional country, and so on.

 

 In other words, if we as a nation wish to ensure that remote Indigenous communities are able to access an effective education system, we need to adopt a more holistic policy approach that is both culturally aligned and which priorities the community interest over short term political interests. This may sound somewhat naïve and idealistic when written in abstract prose, but it needs to be remembered that politicians are making decisions that are affecting adversely the life opportunities of tens of thousands of children and adolescents over the course of any decade. Those decisions are, in a very real sense, shaping and determining future life paths: prison or employment, alcohol or sobriety, sickness or health, long life or early death.

 

 If this all sounds too hard, I beg to differ. It is certainly complex, difficult and challenging. But there are people in the NT, Aboriginal and non-Aboriginal, who in the face of the widespread political indifference and obstruction outlined in The Australian article, are giving it their best shot. I refer readers to the Karrkad Kanjdji Trust (KKT) (link here) which is primarily an organisation established to care for country. It has apparently taken the view that education is too important for its members and their children to be left to the NT education system’s under-performance. They established and supported an associated entity, the Nawarddeken Academy (NA) which now operates three schools in western Arnhem Land. Their 2021 Annual Report (link here) outlines in detail what they are seeking to do. I do not have first hand knowledge of their educational approach and strategies, but what is available in their documentation strikes me as a significant step in the right direction. The fact that there are people working hard in the face of the political and bureaucratic indifference outlined in The Australian’s article is to my mind inspiring.

 

 I am however very conscious that micro success in delivering education programs (if achieved) is not the whole solution. It needs to be replicated across the whole sector. It may well be that the talents and commitment of the intercultural teams at KKT and NA are not widely available even if funding were to be made adequate and other ancillary requirements provided. Macro policy is, in this respect, more difficult than micro policy. This leads me to conclude that there is a need to focus on making macro policy settings effective and fit for purpose.

 

 In a recent submission to the Productivity Commission in relation to their draft report on the review of the operations of the National Agreement on Closing the Gap (link here to a my post on this issue – click through to my submission), I argued that the current closing the gap policy architecture was sub-optimal and used the absence of a target which directly monitors the effectiveness of school education as an example. I cited Productivity Commission research that links poor education outcomes to continuing deep disadvantage. I also argued strongly that the Commonwealth should step up and take an oversight role in relation to the performance of the states and territories on closing the gap. Importantly, I argued that the Productivity Commission should make the case for a more effective policy architecture, an approach that I hadn’t discerned in its draft report.

 

 It struck me that the Productivity Commission should be using its status as an independent expert body to provide potential solutions to the deep-seated inequities confronting First Nations citizens. The Australian exposé just reinforces the argument that the Productivity Commission, and indeed, the Commonwealth, must look beyond the strict terms of the National Agreement on Closing the Gap if they wish to see real progress in the next thirty years.

 

 In relation to the NT education system, it seems obvious to me (and increasingly others) that the NT Government has neither the political incentives, nor the policy capabilities to deliver adequate education services to remote communities. The Australian’s editorial suggested that elements of the NT education system be handed over to ‘an experienced non-government education service.’ I don’t support this idea as any such non-government entity would be at risk of direct or indirect  interference and pressure by electorally (and not policy) motivated NT politicians.

 

 It is time that the Commonwealth accepted that the NT Government is incapable of delivering remote education in a manner consistent with the public and national interest, and in such a way that it actually delivers outcomes. These poor outcomes are feeding directly into the social dysfunction that is endemic in parts of remote Australia, and which I have previously argued is a slow burn catastrophe (link here). I suggest that what is required is a joint Commonwealth and Territory Authority, inclusive of Indigenous representation and interests, to oversight the allocation of funding resources and development of policy for the delivery of education across the Norther Territory outside of Darwin and perhaps Alice Springs.

 

Such an Authority should be established by Commonwealth legislation, and should have a finite term, say twenty years. The Commonwealth should fund the authority, and adjust the existing funding to the NT if it so wishes to effectively ensure joint funding. There may also be merit in considering whether such an authority should be extended to remote regions in other jurisdictions. The 1967 referendum provided the Commonwealth with the legislative remit in relation to Indigenous matters in the states and territories (as does section 122 of the Constitution in relation to the Territories). The Commonwealth Government should fulfill its responsibility to the citizens of the NT who are being systemically deprived of the opportunity for an education, and the life opportunities that flow from that by the longstanding policy decisions of the NT Government.