Indigenous Employment within the APS: a policy recommendation

 A recent seminar at the ANU on Indigenous employment in the APS by ANU researchers Dr Julie Lahn and Samantha Faulkner managed to shock me. In particular, it mentioned (almost in passing) data on the level of Indigenous representation in the senior levels of the public service, generally known as the Senior Executive Service or SES.

The seminar reported on the findings of a report (link here) commissioned by the Australian Public Service Commission on ‘enablers and barriers which act to support or impede career progression of Aboriginal and Torres Strait Islander employees to senior levels in the Australian Public Service (APS)’.

In laying out the context within which these issues play out, the report presented a snapshot of the relevant data:

The 2018 State of the Service report indicates that representation of Aboriginal and Torres Strait Islander people across the APS has improved in recent years and currently sits at 3.3% (Australian Public Service Commission 2018, p. 58). This is a significant achievement in terms of having met the Commonwealth Aboriginal and Torres Strait Islander Employment Strategy 2015-2018 target of 3% representation.

Despite this achievement, employment of Aboriginal and Torres Strait Islander people within the APS is concentrated at the lower levels. The majority are employed at APS6 and below and the largest proportion (27%) are at APS4 level.

In contrast, employment at senior executive levels is very small, just 1%. Over a ten year period, representation at the Senior Executive Service levels has remained disappointingly small while Executive Level employment has declined.

The proportion of Indigenous APS members mirrors the proportion of the Australian population who identified as Indigenous in the 2016 Census. Recently published analysis by Nick Biddle and Danielle Venn provide some broader context for these figures:

For both men and women, the public sector accounts for a considerable share of employment, either through direct employment in government at Commonwealth, state or local level or in industries where public sector employment is high, such as education, healthcare and public safety. In 2016, just over 20% of Indigenous employment was in the public sector, compared with 15% of non-Indigenous employment. 

The majority of Indigenous employment in the public sector was with state/territory governments. Indigenous women were more likely than Indigenous men to be employed by Commonwealth or state/territory governments, but Indigenous men had higher employment rates in local government than Indigenous women. 

[Biddle & Venn 2018 ‘Recent Trends in Indigenous Employment’ Journal of Australian Political Economy vol 82, summer 18/19,  link here].

In other words, public sector employment is comparatively more important to Indigenous citizens than private sector employment. However, it needs to be remembered that Indigenous employment is much lower than for mainstream citizens, with less than 45% of Indigenous citizens aged 15+ being employed in 2016 (See Biddle & Venn: Figure 2).

The Lahn & Faulkner report sourced their data on SES employment from a submission to the APS Review from the APS Indigenous Steering Committee. This submission is available at the Review’s submissions page (link here).

That submission provided more detailed data on SES employment in the APS:

At the SES level, the discrepancy is larger, with 25 Indigenous SES officers compared to 2,326 non-Indigenous SES officers (1%).  Furthermore, this discrepancy has continued over the last ten years…

The submission also provides data that makes clear that the proportion of Indigenous SES officers has barely moved over the past decade. Moreover, when we consider the data from different perspectives, the magnitude of the issue becomes apparent. There are just over 150,000 Commonwealth public servants (see the appendix to the Lahn & Faulkner report). Of these, just over 5000, or 3.3% are Indigenous. However, of the 5000 Indigenous public servants, only 25, or 0.5%, are Indigenous SES officers.

The Lahn & Faulkner report to the APS was based on interviews with around 50 Aboriginal and Torres Strait Islander staff across the APS, and includes a series of recommendations for policymakers, Indigenous employees and non-Indigenous employees, all of which make intuitive sense.

The Indigenous Steering Committee submission to the APS Review also included a small number of tentative recommendations. I encourage readers to check out both sets of recommendations.

However, my reaction as a former policymaker to both these sets of recommendations was sceptical. Not because they do not have merit, they do. But because they are too fine grained, too detailed, and too amorphous to ensure that policymakers at political and bureaucratic levels focus on them. As a result, notwithstanding their merits, they are unlikely in my view to be implemented and thus are unlikely to be the lever that will make a substantive difference in terms of making the APS an Indigenous friendly environment, and perhaps more importantly, in facilitating policies more attuned to substantive partnerships with First Nations.

Shortly after attending the ANU seminar, the APS Review released their Interim Report titled ‘Priorities for Change’ (link here). I was thus quite interested to see what was proposed in relation to Indigenous employment in the APS, and in particular if they had any ideas for greater Indigenous employment at SES levels.

The report is necessarily very high level, and addresses a range of crucial issues for the future of the nation. I do not propose to summarise or even critique the report more generally, (but see recent reporting in the Mandarin link here) and note that a report such as this will inevitably have little opportunity to deal with Indigenous policy and employment issues in any detail. Nevertheless, it seems useful to summarise what the Review Committee has to say on Indigenous issues.

At page 17 under the heading of partnerships, they note:

Nowhere is the importance of genuine partnerships truer than in supporting the aspirations of, and pursuing outcomes with, Aboriginal and Torres Strait Islander peoples. Now is the time for the APS to reconceptualise how it works with Aboriginal and Torres Strait Islander peoples.

On page 37, a graphic on diversity mentions the key data on Indigenous employment along with that of other specific groups, under a heading that states: ‘The APS struggles to attract and retain diverse employees, particularly at SES levels’. 

On page 49, at the conclusion of a section on Developing stronger internal and external partnerships, the Review included a text box which made a number of points regarding Indigenous issues. I encourage readers to read the whole text. Key paragraphs included:

The panel’s emphasis on the importance of relationships recognises that the APS cannot meet its purpose of serving all Australians unless it works openly and with integrity with partners across the community. Nowhere is this truer than in supporting the outcomes and aspirations of Aboriginal and Torres Strait Islander peoples….

…If pursued, the priorities for change outlined in this report provide an opportunity for the APS to work profoundly differently with Aboriginal and Torres Strait Islander peoples. Creating a genuine partnership would be fundamentally transformative.

Such a partnership needs to operate at different levels. Locally, it will often mean working collectively on community-led or place-based initiatives. This will require the APS to work with much greater humility and to focus on building the strength and impact of Aboriginal and Torres Strait Islander organisations.

Nationally, Aboriginal and Torres Strait Islander peoples must be able to participate meaningfully in matters affecting them. The panel believes this simple proposition should be a guiding principle for the APS. Achieving it will require supporting mechanisms and institutions that provide for national participation and representation…

…It is also critical that the APS supports and develops its Aboriginal and Torres Strait Islander employees, including fostering the development of senior leaders across the service.

These comments are well directed and are intuitively appealing. Again, what they lack is any guarantee or mechanism that will ensure they are implemented. Given this is an interim report, it is incumbent on potential sceptics or critics to wait for the final report. Nevertheless, there appears to be little appreciation that changing the deeply embedded culture of stasis and implicit exclusion will be a major challenge for the APS even if its leadership is fully committed to implementing the new approaches being hinted at by the Review.

Which brings me back to the question I asked myself as I sat in the seminar at the ANU and sought to come to terms with the data on under-representation of Indigenous citizens in the APS, and in particular, what this meant for the capability of the APS to deliver effective policy and programs for Indigenous Australians:

What is the single policy change that might make a difference to Indigenous outcomes and APS employment levels over the medium term?

The answer I came up with is based on my view that it should be a policy change that is easy to implement, that is relatively visible and not easily ignored, and should have ongoing impacts that flow to a broad range of circumstances. My answer is also influenced by the fact that increasingly, it is mainstream policies and programs which impact, for good or bad, on Indigenous citizens, and thus there is a need for mainstream agencies to be sensitised to the issues facing Indigenous Australians.

Accordingly, if I were an incoming Minister for Indigenous Affairs, I would seek an undertaking from the Prime Minister for a commitment to double the number of Indigenous SES officers to 50 within four years, and to double it again to 100 within ten years.

Moreover, such a target should be met by appointments across the breadth of the APS. If the authorising environment at political levels encourages greater Indigenous SES representation, the senior levels of the bureaucracy would do all they could to find ways to meet the commitment. If we had two or three Indigenous SES officers in each of Health, Home Affairs, Finance, Treasury, and so on, they would begin to establish an inclusive environment and context that would encourage the promotion and retention of more junior officers. 

Similarly, more Indigenous friendly working environments would organically and informally encourage and facilitate the sorts of recommendations made in the Lahn/Faulkner report and the submission to the review by the APS Indigenous Steering Committee. These recommendations go to ensuring that the APS retains talented Indigenous entrants and gives them every opportunity to pursue a career to the very top of the APS.

Finally, for those interested in reading more about Indigenous employment in the public sector, the publications listed on this page will be helpful.

Addendum 1 April 2019

I have just seen PMC's Communique Number 10 (link here), which reports on the deliberations of the Secretaries Equality and Diversity Council, and includes a section on Indigenous employment. The bureaucratic formulations are tried and tested, but hardly engender confidence that the Equality and Diversity Council is infused with a reforming zeal:

"The Council will explore further retention and development strategies as part of the next Aboriginal and Torres Strait Islander Strategy....noted the value of the Strategy as a catalyst for change....agreed ....to the APSC exploring opportunities..."

It is worth reading the document inits entirety.

Disclosure: In my ‘day job’, I am a Visiting Fellow at CAEPR.

Remote area tax concessions and payments: a new review is underway

The Productivity Commission has released an Issues Paper on remote area tax concessions and payments (link here) as part of a review into these issues commissioned by the Treasurer.

The APO web site (link here) summarises the review in the following terms:

This study focuses on three long-standing measures that provide support to individuals and businesses in remote areas, namely the:

·         zone tax offset (ZTO)

·         fringe benefits tax (FBT) remote area concessions

·         Remote Area Allowance (RAA).

There have been concerns within the community that these measures have failed to keep pace with demographic, cost of living and infrastructure changes in Australia. In response to these concerns, the Australian Government has asked the Productivity Commission to evaluate these measures’ objectives, design, operation and effects, and to consider alternatives to them.

The issues paper is an early step in the review and identifies a range of potential issues requiring consideration. One of the obvious issues that will require detailed research is the absence of data relating to both the demographic makeup of recipients of each measure, and the costs to the budget of each measure. Other issues at the core of the review will be policy rationale, policy design, and alternative options for meeting existing or new policy objectives.

The three measures under study are each mainstream measures, and are available to any residents of the relevant geographic areas (which span most of remote Australia) who meet the relevant criteria.

One of the potential issues embedded within the Productivity Commissions remit is the impact of the measures in meeting broader Indigenous policy objectives, noting that remote Indigenous citizens remain amongst the most disadvantaged citizens in Australia.

Commendably, the Productivity Commission has acknowledged this, stating in the issues paper at page 7:

Due to this study’s focus on remote areas, we will evaluate the effects of remote area tax concessions and payments on remote Indigenous communities, as well as any interaction with other government policies designed to assist those communities.

I don’t propose to undertake a detailed analysis of the Issues Paper and the issues it raises for Indigenous policy, but note that there is a substantial overlap insofar as remote Indigenous citizens are affected (for better or worse) by each of the three measures. Indigenous employees / taxpayers are recipients of the zone tax offset, Indigenous businesses take advantage of the FBT concessions, and Indigenous citizens make up a substantial proportion of income recipients who are entitled to the RAA.  

There are however a number of obvious issues which will need consideration and attention.

The RAA was originally introduced to provide an equivalent payment to welfare recipients to extend the benefits of the ZTO to non-tax payers in remote Australia. Given the over-representation of Indigenous citizens in the income support cohort, and the under-representation of Indigenous citizens in employment, the disparity in rates between ZTO and RAA impacts disproportionately on Indigenous citizens, and deserves to be reconsidered.

A further potential issue relates to the impact of conditional welfare in remote Australia (ie the CDP program: link here) and the increasing evidence that as a result of punitive penalties (link here), significant numbers of remote Indigenous residents are not accessing their welfare entitlements and thus not accessing RAA.

One of the challenges is assessing the utility of these policy measures, is that they were primarily devised to assist and benefit mainstream interests, particularly mainstream taxpayers and businesses. Consequently, it can be easy to overlook Indigenous perspectives in assessing the changes in underlying rationales over time. As the Commission notes:

A range of justifications have been advanced for special assistance for people living and/or working in remote areas (box 3), although many of these are contentious. For those justifications drawing on the isolation and arduousness of life in the outback, the changes in transport, communications and living conditions over the past seventy years mean that their strength has diminished (at least in many parts of the country). Such arguments have also been challenged on the basis that ‘individuals have a free choice whether or not to live or work in remote areas and to compensate them, if they so choose, would lead to resource misallocation and reduced growth for the country as a whole’ (see Cox et al. 1981, p. 15).

While there have been improvements in the circumstances of remote citizens, the circumstances of remote Indigenous citizens are still highly disadvantaged. Moreover, they may not have the same level of flexibility in their choice of residence as mainstream citizens. These are less obvious factors that the Productivity Commission will need to grapple with as it progresses its review.

I am sure that as the review progresses, a range of new issues of relevance to Indigenous interests will arise. Hopefully the various Indigenous peak bodies will step up and lodge submissions to the review.

Perhaps the substantive take out from the release of this issue paper is to reinforce once again how mainstream programs and policies are increasingly important for any assessment of Indigenous wellbeing and opportunity.

Trade agreements and Indigenous policy: implications

The Government recently (4 March 2019) announced the finalisation of negotiations with Indonesia on a proposed trade agreement (link here and here), the Indonesia – Australia Comprehensive Economic Partnership Agreement (IA-CEPA).

The agreement is highly significant, as the following two paragraphs form the Minister’s statement (link here) indicate:

The deal marks a new chapter in Australia’s partnership with one of our closest friends and neighbours. Indonesia offers significant economic opportunities right on our doorstep. Our neighbour has one of the fastest-growing economies in the world, averaging five per cent growth over the past two decades.

Most predictions have Indonesia on track to be the world’s fifth-largest economy by 2030. With a population of 270 million people – an expanding middle-class – the world’s third-largest democracy and most populous Muslim nation – our agreement with Indonesia helps build economic prosperity for both our nations and the region.

The agreement is yet to come into force, as it requires further ratification steps in both Australia and Indonesia (link here).

The DFAT summary of the agreement (link here) notes, under the heading Services and investment, that:

Australia’s services and investment commitments in IA-CEPA lock in Australia’s existing open policy settings, similar to those in other trade agreements. These commitments include exceptions that preserve policy flexibility in sensitive areas such as: • public health and education • social services • culture and broadcasting • indigenous policy • maritime transport (emphasis added).

The text of the agreement (Annex II: Schedule of Australia) states, inter alia:

Trade in Services and Investment

Australia reserves the right to adopt or maintain any measure according preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation in relation to acquisition, establishment or operation of any commercial or industrial undertaking in the service sector.

Australia reserves the right to adopt or maintain any measure with respect to investment that accords preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation.

For the purpose of this entry, an Indigenous person means a person of the Aboriginal and Torres Strait Islander peoples.

Existing Measures: Legislation and ministerial statements at all levels of government including Australia's Foreign Investment Framework, and the Native Title Act 1993 (Cth).

Implications

I wanted to make just three broad points regarding these developments.

The first is to acknowledge the preparedness of Australian negotiators involved in the IA-CEPA to carve out an exception that will allow continued policy measures designed to support Indigenous inclusion in economic and commercial development.

Second, and of most policy significance, the negotiation of these provisions by the Australian negotiators is tangible demonstration that mainstream policy settings, and in this case, mainstream international policy settings, have an increasing potential to impact on Indigenous issues.

For example, one of the current Government’s most successful policy initiatives has been the Indigenous Procurement Policy. The Government has recently published new data on the performance of the program and adopted new targets (link here and here). I remain concerned that the IPP may operate in many cases to benefit non-Indigenous firms more than promote Indigenous business engagement (link here and here). The only evaluation of the program so far published by PMC (link here) noted:

It is acknowledged that business structures will continue to vary, and some arrangements will continue to raise questions about alignment with the ‘spirit’ or ‘intent’ of the policy. The qualitative data suggested that the 50 per cent ownership structures may not work in the interests of Indigenous business partners, and due diligence was required by all parties to ensure no disadvantage.

Notwithstanding these concerns, there is little doubt that the IPP has substantial potential and has already taken Indigenous business policy to new levels. In these circumstances, it is extremely important that Australia’s international trade agreements do not constrain the capacity to strengthen the Indigenous economic policy sector further.

Third, it follows on from point two that Indigenous advocacy bodies and peaks will increasingly be required to build their capability to engage with mainstream policymakers, including international trade negotiators, to ensure that Indigenous policy interests are protected. My guess is that the provisions in the IA-CEPA related to excluding Indigenous related policy measures are not the result of lobbying or advocacy from Indigenous interests, but rather have been included at the instigation of Australia’s negotiators to ensure that existing government policies are not adversely affected. This is positive as far as it goes, but provides little guarantee that in the future, Indigenous interests will be prioritised.

Closing remote children's dental health gap

The AIHW has recently (26 February 2019) released a report titled Northern Territory Remote Aboriginal Investment: Oral Health Program July 2012 to December 2017 (link here).

I don’t propose to attempt a comprehensive summary the report as it is very accessible and easy to read. A quick scan of the graphs and tables will give any reader a good sense of progress. Not unexpectedly, remote children appear to have higher levels of poor dental health than their mainstream counterparts.

In terms of service delivery, preventative services, primarily involving fluoride varnish treatments, appear to have grown consistently (off an almost non-existent base in 2012) over the past five years (see figure 2.2). In terms of fissure sealant services, numbers have decreased slightly since 2013 (figure 2.4) and in relation to clinical services, numbers of services peaked in 2013, fell dramatically in 2014 and 2015, and are still below the 2013 levels in 2017 (figure 2.6).

In terms of outcomes, while the proportion of Aboriginal children with tooth decay remains extremely high, over time those proportions appear to be reducing. So in the period 2009 to 2017, the proportion of 1-3 year olds with tooth decay went from 73% to 43%; for 8 year olds it went from 93% to 88%; for 11 year olds it went up from 69% to 75%; and for 12 year olds it went from 81% to 68% (see page 16). While this is positive news, it also suggests that it will be decades before we attain parity in dental health outcomes.

Two appendixes discuss a number of data issues and limitations. The report is not based upon a comprehensive survey of all dental services across the remote parts of the NT, and thus there is no guarantee that the data which this report is based on is telling us the full story.

Nevertheless, like most AIHW reports, this report appears to be well researched, thorough, and reasonably accessible notwithstanding a degree of social and bureaucratic complexity.

However, the report raises a number of policy issues that are beyond the AIHW remit, but nevertheless demand consideration and attention.

The program being assessed is a Commonwealth program that is limited to the NT. It is a direct descendant of programs begun as part of the NT intervention and the subsequent Stronger Futures era. This raises the immediate question: what is the state of play in other remote jurisdictions?  The short answer is that we don’t know. My guess is that the outcomes are likely to be similar or worse (unless there is a particular jurisdiction that is delivering outstanding dental services to remote communities).

A second issue that the report fails to mention relates to the causes of high levels of poor dental health. The discussion of preventative health in the report is limited to health related prevention (largely the application of fluoride varnish treatments). Yet it is widely understood that the causal links between consumption of sugar and high sugar drinks and tooth decay are crucial.

These issues thus raise two further significant and related issues for policymakers. First, are governments allocating enough financial resources to both preventative and clinical dental services in remote Australia? In addition, are the programs that exist effective?

Second, are there wider policy responses to poor remote dental outcomes that ought to be pursued, or pursued with greater vigour? For example, should there be tighter regulation or higher taxation on high sugar drinks?  And as a further aside, what are the soft drink manufacturers and retailers doing in terms of their corporate social responsibilities to diminish the impact of poor dental health on children?

These are not simple policy issues, and design of appropriate policy interventions require careful consideration. However, we appear to be in a largely policy free zone at present.

The PMC website includes a number of reports related to dental health of Indigenous Australians. One of the more recent, the Aboriginal and Torres Strait Islander Health Performance Framework 2017 Report (link here) notes inter alia in a section on ‘Implications’:

Implications
Available data indicate that dental health is worse for Indigenous Australians than for other Australians, for both children and adults. Barriers to good oral health include cost of services (see measure 3.14), healthy diets on limited budgets (see measure 2.19), attending services for pain not prevention, insufficient education about oral health and preventing disease, public dental services not meeting demand, lack of fluoridation in some water supplies, and cultural competency issues with some service providers (see measure 3.08)...

Prevalence estimates for oral health conditions for Indigenous Australians are based on out-of-date and incomplete surveys—further data development is a priority for this performance measure.

In the 2018 Closing the Gap statement in the chapter on healthy lives (link here) the Government mentions efforts by Outback Stores (a government owned stores company operating in remote communities) to reduce sales of sugary drinks, and notes also that:

The Australian Government has developed a strategy to reduce the sales of highly sugared products sold in stores in remote Indigenous communities. The store is often the main - or only - source of food and drinks in remote communities, so a reduction the amount of sugared products sold in the store is an effective way of reducing the amount sugar products consumed. The strategy is being implemented in stages through until June 2020, focusing on sugary drinks and expanding to other high-sugar products such as confectionary.

In the 2019 Closing the Gap Report at page 137 (link here), there is mention of Outback Stores operating in 37 remote stores (the Outback Stores website refers to 38 stores), and provides further mention of its store based sugar reduction strategies. But no reference to a wider strategy applicable to all remote community stores, and no mention to widening the strategy to confectionary. Perhaps the reference in the 2018 report was just to the Outback Stores footprint, which is less than a quarter of all remote stores.

The Outback Stores Annual Report for 2017-18 (link here) provides further detail on their sugar reduction strategies, built upon a foundation of price incentives and a support grant from PMC of $500k. What is less clear is whether PMC is doing anything substantive beyond the Outback Stores footprint. The indications are that it is not.

To sum up, we have an excellent report from AIHW addressing only one of the five jurisdictions encompassing remote Australia. It outlines serious dental health issues affecting scores of thousands of children. Its focus on measuring the scale of preventive services is limited to health interventions. There is some indication that Commonwealth policymakers have been focussed on addressing other wider causes of poor dental health in remote communities, but only in an extremely limited way and only in a small proportion of remote communities.

To be blunt, in relation to levels of dental health across remote Australia, the available evidence indicates that we know there is a problem, we don’t know how extensive it is, and we aren’t prepared to do what is necessary to address the wider causes of the problem. Admittedly, probably another twenty health issues across the remote indigenous health domain require focussed attention.

But the question remains, how will we close the gap on remote Indigenous dental health let alone remote Indigenous health status generally when governments are focussed on signalling they are doing something, but are not prepared to devise, develop and implement the substantive policies which might make real inroads?

Accelerating Indigenous Dispossession in Brazil

The world is increasingly interconnected, yet our policy horizons are shaped by a media focus which is predominantly both incestuous and parochial.

Brazil is the fifth largest country in terms of population, sitting behind Chine, India, USA, and Indonesia (link here). Australia ranks 55.  In economic terms, it ranks eighth, behind the USA, China, Japan, Germany, UK, India and France (link here).

Brazil’s new President, Jair Bolsonaro was sworn in on 1 January 2019 (link here), and was immediately praised by US President Trump (link here).

There is increasing evidence however that the new Government in Brazil is adopting a much more aggressive stance in favour of agricultural and other interests and against Indigenous landowners (link here). A recent article in The Intercept provides a good summary of recent developments. I recommend readers have a look (link here).

Over 80 Australian companies have a presence in Brazil including a quarter listed on the ASX 200. Given these strong trading and commercial links between Australia and Brazil (link here), and Australia’s support for the UN Declaration on the Rights of Indigenous Peoples (link here), there is a strong case for the Australian Government to communicate its concern in relation to these developments to both the Brazilian Government as well as to the UN and its various forums for dealing with Indigenous rights. Key Australian corporations with interests both in Australian Indigenous communities and in Brazil and Latin America (such as BHP Billiton and Rio Tinto) should also consider making their views known to the Brazilian Government.

Food for thought: facial recognition technology and Indigenous incarceration

‘Ye have angels’ faces, but heaven knows your hearts’

Henry VIII, Act three, scene one.

Yesterday’s Australian Financial Review (9-10 February 2019) ran a fascinating article by Mark White (‘Nowhere to Hide’: link behind paywall) on the accelerating spread of facial recognition technology world-wide. In the US, a number of members of Congress recently wrote to 39 law enforcement agencies seeking information on the extent of their use of this technology (link here). In Australia, the Identity-Matching Services Bill 2018 is currently before the Parliament, and according to White, once enacted will create a giant searchable hub somewhat ominously named 'the Capability' by pooling federal and state data bases such as passports and drivers licences. The Bill is currently being examined by the Parliamentary Joint Committee on Intelligence and Security.

The article also mentions that state and federal police currently use facial recognition software in varying degrees, and points to the risk that these new technologies may have adverse implications for individuals when combined with existing watchlists and the like.

I recommend the article as a good introduction to what is clearly shaping as an important privacy issue generally.

However what attracted my attention in terms of Indigenous policy was the following paragraph in the article:

The NSW Police’s secret watchlist, the Suspect Target Management Program (STMP), identifies those believed to be at risk of offending, repeatedly stopping and searching them, and is overwhelmingly made up of Indigenous people.

I am not aware of any public discussion of this issue in policy forums, although I don’t follow NSW politics and policy issues closely. Nevertheless, it raises important issues for policymakers and those charged with oversighting the Executive both at state and at national levels.

In a recent media statement (link here) announcing the release of a report on the implementation of the 1991 Royal Commission into Aboriginal Deaths in Custody, Minister Scullion noted:

Minister Scullion said despite the review’s finding that significant progress has been made in implementing the recommendations, Indigenous people are still over-represented in prisons.

The report reinforces the fact that the vast majority of policy levers that impact on Indigenous incarceration rates remain within the remit of the states and territories therefore we need to continue to work in partnership with all state and territory jurisdictions if we are to achieve meaningful and long term improvements.

Through COAG and Closing the Gap, the Commonwealth remains committed to leading national efforts to reduce the over-representation of Indigenous Australians in prison.

If we were to take this statement at face value, this might be a good time for the Commonwealth to take some action in addressing the apparent over-representation of Indigenous citizens in police watchlists, and to perhaps consider whether there are any new risks for Indigenous citizens imprisonment rates in the new facial recognition technologies being adopted by governments.

Christmas fudge: eight ways to mislead the Senate - an update on Minister Scullion, the ILC, and the treatment of Senate Estimates Committees

‘Tis an ill cook that cannot lick his own fingers

Romeo and Juliet, Act IV, scene 2

Further to my recent post (link here) on the Minister for Indigenous Affairs’ failure to comply with his statutory obligations, the Minister has now belatedly provided his response to the question taken on notice during a recent Senate Estimates hearing.

In essence, the issue relates to the reasons for the failure of the Minister to terminate an ILC Director who missed five consecutive meetings in early 2018.

Section 192H(4) of the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) states:

If an Indigenous Land Corporation Director who holds office on a part-time basis is absent, except on leave granted under section 192C, from 3 consecutive meetings of the Indigenous Land Corporation Board, the Minister must terminate the appointment of the Director.

I recommend readers re-read my original post as I will cross reference key information therein in analysing the adequacy of this response.

Here is the question and the answer submitted on 17 December and copied verbatim from the Parliament web site (link here):

Senator the Hon Kristina Keneally: asked the Department of the Prime Minister and Cabinet on 2 November 2018

During Estimates, Senator Keneally asked:

Senator KENEALLY: I want to be clear. My concern is not so much with Mr Martin's actions. It is with the actions of the minister in accordance with the act. As you have flagged, if there are particular challenges of people being able to attend meetings or being supported to do so, could you also provide advice as to what you are doing to address that. Senator Scullion: I will take that on notice. I appreciate your comments, Senator. This is about me and this is about the board and reporting on the act. I do appreciate that that is what the questions are about. I will provide a comprehensive answer to that on notice.

Can the Minister advise what steps he has taken in this matter?

Answer — The Indigenous Land Corporation Chair wrote to the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion, about the absences of Mr Martin and subsequently confirmed on 31 August 2018 that Mr Martin had been granted leave of absence from these meetings.

Perhaps the easiest way to analyse this answer is to focus on how many ways it manages to mislead the Senate.

First, the Minister promised a ‘comprehensive response’. He acknowledged that the question was about his actions (or inactions), about the Board’s involvement, and about the reporting from the ILC of relevant information.  He provided his response in one sentence of 42 words, with no explanation of his role and actions, vague reporting of the ILC Board’s role and involvement, and no information on the adequacy of the reporting of relevant information in relation to the requirements of the Act. This is patently not a comprehensive response. On the basis of this response, the Minister’s statement to the Estimates Committee that he would provide a comprehensive response was patently misleading.

Second, the ILC Chair wrote to the Minister about some but not all of the relevant absences of Director Martin (see my previous post for details). The answer provided states that the Chair wrote to the Minister about the absences, but in fact he did not mention all the absences. It is misleading in this respect.

Third, the Chair of the ILC wrote twice to the Minister (see previous post for details), once on 4 May advising that the requirements of the legislation relating to termination of the Director had been met and requesting that Director Martin be terminated in accordance with the Act, and later in July reversing his position and suggesting termination was no longer required (notwithstanding the clear intent of the legislation). The Minister’s failure to outline and explain this is misleading by omission.

Fourth, the response states that the ILC Chair had confirmed in a letter dated 31 August 2018 that Director Martin had been granted leave of absence from ‘these meetings’ (ie the incomplete set of meetings). The Minister’s response omits to mention that the granting of leave of absence was retrospective, and is thus misleading by omission.

Fifth, the response fails to mention that while the ILC Chair did confirm that leave of absence had been granted, the ILC had subsequently formed the view that the Chair’s purported actions in granting retrospective leave of absence were beyond his authority, and thus of no effect (see previous post for details). The Minister should have been advised of this discovery particularly as it meant that the 31 August letter to the Minster was substantively incorrect. By the time the Estimates questions were answered, the relevant information was available on the ILC FOI log and had been the subject of an article on 14 December in the Mandarin (link here). There seems little basis for an argument that the Minister or PMC were not aware that the 31 August letter was substantively incorrect (and if they were not, they should have been), yet the Minister went ahead and used it as the basis for his lack of action in his response to the Senate. The response was thus fundamentally misleading in relying on the ILC Chair’s 31 August letter without further explanation.

Sixth, the response omits to mention that the Minister and the Chair had discussed the issue in June (refer previous post). The response not only fails to indicate the tenor and content of those discussions, but avoids any mention of the meeting notwithstanding that it was clearly a crucial element in the Minister’s consideration of the events. Given that the question explicitly refers to ‘what steps’ the minister took, the response appears to be deliberately misleading in relation to this meeting albeit by omission.

Seventh, the response omits to deal with the issue of the delay between the third consecutive missed meeting (on 9 March 2018) and the eventual effective granting of retrospective leave of absence on 1 November, a period of almost eight months. Even were we to grant the Minister the benefit of the doubt and use the purported granting of leave of absence in August as the relevant date, the delay amounts to almost six months.

Eighth, the response provides no information or any explanation for the Minister’s failure to act in a timely way to comply with his statutory obligations under the legislation. It is clearly deliberately misleading in this respect.

What might we make of all this. I focus on two general points.

The first relates to the particular issue relating to the minister’s statutory obligations, and the analysis in my previous post. The Ministers ‘explanation’ offers no alternative explanation which might cast doubt on my earlier analysis.

It leaves major questions unanswered concerning the quality of governance within the ILC under the current Chair’s tenure, the quality and accuracy of information provided to the Minister, the processes put in place by PMC to ensure the Minister is in a positon to carry out his statutory obligations under the Act, and to oversight more generally the activities and operations of a statutory corporation within his portfolio. Further, while it implicitly lays blame and attention on the information provided by the ILC, it fails to acknowledge that that information was in many respects incorrect, misleading and inaccurate, and it fails to identify what action the Minister has taken or intends to take to rectify these deficiencies in the future.

Most importantly, the response and ‘explanation’ fails to address the likelihood that the Minister played a direct role in encouraging the Chair to change his formal advice and instead request that the Minister defer action while a retrospective leave of absence for Director Martin was put in place.  Determining what transpired in relation to this issue goes to the heart of determining what has occurred here, and has significant implications for the independence of the ILC. It also raises serious questions about the capacity and preparedness of the ILC Chair and ultimately the Board to carry out their statutory responsibilities independently of Ministerial interference. All in all, the extreme parsimony of the Minister’s response only adds to the weight of suspicion that he was involved in an inappropriate plan aimed at avoiding the necessity for him to carry out his statutory duty.

The second point relates to the apparent disdain with which this Minister treats the Senate and in particular the Senate Estimates Committee. He promised a comprehensive response and delivered what amounts to a deliberately misleading fudge. He missed the key deadlines in terms of the provision of answers. And he comprehensively failed to adequately explain why it is that he failed to act in accordance with his statutory obligations.

Of course, this is an issue which goes beyond this Minister, and appears to be part of an inexorable slide in the influence of the Parliament vis a vis the Executive. It is time that the Parliament stood up to the Executive, demanded substantive accountability from Ministers. 

In particular, it is to be hoped that the Senate will refuse to accept the self-serving fudge this Minister serves up to them and in turn, to the Australian people.