Indigenous incarceration reform

Fortune, that arrant whore,

Ne’er turns the key to the poor

King Lear, Act 2, scene 2.

Hannah McGlade, an academic and member of the UN Permanent Forum on Indigenous Issues (link here) has recently argued (link here) that the risks of COVID 19 in prisons requires the early release of at risk Indigenous prisoners:

With the over-representation of our people in prison, our lives are on the line.

We are calling for immediate early release, particularly of people who are on remand, women who are victims of family violence and sentenced for lesser offences like fines and public order offences, young people and those most at risk of transmitting Covid-19, like elderly and people with health conditions.

McGlade cites similar calls from the Chair of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), Cheryl Axelby: see NATSILS media release on the COVID-19 crisis (link here). These statements, by focussing attention on Indigenous incarceration, bring into view the deeper and more longstanding issue of Indigenous over-representation in our prisons. McGlade raises the issue in her article, but she is far from alone.

The issue of Indigenous incarceration is of course politically sensitive and complex. It is prone to political manipulation, and self-righteous appeals to law and order, and the propensity of voters to want simplistic solutions to complex problems. There are crimes that require imprisonment, and there is a case for a prison system aimed at deterrence and rehabilitation. The issue with Indigenous incarceration in Australia, however, is that it appears to operate in a structurally discriminatory manner, contrary to the near ubiquitous notion that justice is dispensed without fear or favour.

On Sunday, the Canberra Times ran a full page article (link here) headlined ‘A national disgrace, nobody cares’. The sub-headline in the print edition was ‘Indigenous incarceration is on the rise and government are failing to act on recommendations’. The author, Philip Lee was for five years from 2005 to 2010 Chairperson of the Sentence Administration Board of the ACT (link here). The gist of Lee’s article are two-fold: first, that the statistics on Indigenous incarceration are disproportionate to the representation of Indigenous people in the community; and second, that the recommendations of the 2017 Australian Law Reform Commission Report Pathways to Justice – Incarceration rates of Aboriginal and Torres Strait Islander (ATSI) Peoples (link here) by Federal Circuit Court Judge Matthew Myers, commissioned by the Federal Government three years ago, and delivered to the Government over two years ago, have not been implemented.

Lee cites extensive statistics from the ALRC and other sources; here is just one key paragraph:

The ALRC Report noted that ATSI men are 14.7 times more likely to be imprisoned than non-indigenous men and that ATSI women are 21.2 times more likely to be imprisoned than non-indigenous women. The report also noted that although ATSI adults make up around 2 per cent of the national population they constitute 27 per cent of the national prison population. 

Lee concludes his article with the following assessment:

The Commonwealth government stands condemned for failing to implement the recommendations of an ALRC report on the rate of Indigenous incarceration which it commissioned almost three years ago.

The tabling of the ALRC report in March 2018 somehow evaded my attention, so there was no blog post to record the event. However, I did put up a post in July 2017 on the issue of a Closing the Gap target (link here). I recommend it to readers. One of its key paragraphs stated:

The reality is that where policy challenges are characterised by complex causality, it is most often the case that no single initiative or intervention will of itself be decisive in driving positive change. Moreover, policymakers act within contexts and environments which are constrained: by policy capability, by politics, by resources, and so on. The real world policy challenge is to design a set of incentive structures which encourage policymakers across jurisdictions, and at all levels within jurisdictions, to work on a sustained basis toward the desired outcome.

This blog post was followed in August 2017 by a detailed post (link here) commenting on a Discussion Paper issued by the ALRC. Again, do read it in full. But perhaps the key paragraph for present purposes is reproduced below:

But there is a sense here that the Federal Government may have adopted a strategy of commissioning this inquiry as a substitute for focussed action. Indeed, it is clear from the detailed terms of reference that the policy experts in the Attorney General’s Department already have a pretty good idea of the key drivers of Indigenous incarceration. By commissioning this inquiry, the Government has bought space and time. When the report is finally delivered, it will likely point to the need for joint action by states and territories, and the very complexity of the issues raised will mean that the Commonwealth will be under minimal pressure to drive a coordinated and sustained law reform policy agenda through COAG.

The final ALRC report comprises around 500 pages of detailed analysis, and makes 35 recommendations. It has the benefit of the ALRC’s comprehensive and methodical approach to legal analysis, and draws on the combined expertise of an expert and talented advisory panel of criminological experts. I have not had the opportunity to read it in detail, much less to closely analyse its contents. The data and statistical analysis in Chapter 3 is extremely compelling, and points to deep-seated structural inequities in the administration of justice for First Nations people. I am not able to summarise the level of detail presented in this chapter, but it amounts to a staggering indictment of our treatment of First Nations peoples.

I have made no assessment of the relative importance and significance of the ALRC report’s recommendations, which encompass justice reinvestment, bail, sentencing and aboriginality, community based sentences, mandatory sentences, prison programs and parole, access to justice, Indigenous women, fines and dirvers licences, alcohol, police accountability, child protection and adult incarceration, and criminal justice targets and Aboriginal justice agreements. The Executive summary asserts (pages 35–36) that:

Implementation of the recommendations in this Report will reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander people and improve community safety…. Reduced incarceration and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system will, in turn, improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples.

What is not clear from the report is how Governments should priorities the various recommendations. Nor is there any sustained argument (notwithstanding some commentary within the report) that socio-economic disadvantage is itself a driver of high levels of Indigenous incarceration. Nevertheless, it is clear that the ALRC has delivered a comprehensive and cogent report that deserves serious consideration by the Government that commissioned it.

The elephant in the room then is this: why hasn’t the Australian Government responded in any way to the report and recommendations of the ALRC?  Or to put it even more starkly, why wont governments do anything about the over-representation of Indigenous people in our prison systems?

The ALRC website (link here) indicates that the review’s implementation status is ‘partial’ on the basis that the WA Government has announced that it would introduce a custody notification service, a partial implementation of recommendation 14-3. What is crystal clear is that two years on, the Australian government as well as the states and territories who are primarily responsible for out criminal justice systems have done absolutely nothing.

The potential answers to these questions can be framed in multiple ways. Lack of political will, bureaucratic incapacity, ideology, powerlessness, fractured responsibility, constrained resources, etc etc….The question deserves sustained and detailed attention, and the answers too will be shaped by the viewpoints, ideology, background and political perspectives of the person asking. I cannot in a short blog post do the question, let alone the potential answers, justice. Suffice to say that my own view is that Indigenous incarceration rates in Australia are the product of deep-seated structural exclusion. The arguments for the existence of an exclusionary structures are set out in a 2019 paper I co-authored with Neil Westbury (link here).

Instead, I will make just a few tangential comments.

First, put yourself in the shoes of an Indigenous person looking at this process over the past three years. What should they make of it? What does it say about the commitment for reform generally? Should they place any trust in the nation’s governments that there is any substantive commitment to addressing unfair and discriminatory outcomes in social policy?

Second, what does this outcome say about our democratic system? How is it that these issues do not appear to have been raised in a sustained manner in Parliament?

Third, what does it say about the widespread view amongst Australians that we live in a nation where everyone gets a fair go?

We certainly live in a lucky country. Unfortunately, it appears that ones luck depends in large measure on whether you are Indigenous or not.

The architecture of fundamental service delivery reform in the Indigenous policy domain

They durst not do’t;

        They could not, would not do’t.

         King Lear Act 2, scene 2.

Last week, the Productivity Commission (PC) released a study report into the Expenditure on Children in the Northern Territory (link here). While technically a report about all children’s services funding in the NT, it is overwhelmingly a report about the services to Indigenous children given the over-representation of First Nations children in these programs.

The genesis of this study was the Royal Commission into the Protection and Detention of Children in the Northern Territory (link here). The study report notes (page 3) that the Royal Commission found that expenditure on children and family services is not rigorously tracked, monitored or evaluated to ensure that it is appropriately distributed and directed. It identified a need for greater coordination and transparency of government funding decisions.

The PC study report is a stunning document. It focusses on one strand of government service delivery (children’s services) in one jurisdiction (the NT), and lays out in forensic and stark detail the extraordinary complexity of the funding and service delivery arrangements, the extent of the overlapping funding, the ongoing existence of gaps in funding, the absence of coordination both between jurisdictions and within jurisdictions (see pages 112- 116), the underutilisation of agencies’ regional networks who of course have most direct contact with citizens, and the lack of internal coherence in funding decisions by both levels of government.

I recommend readers have a look at the report, at the summary findings and recommendations and especially at figure 2 on page 8 and figure 2.5 on page 68. What is crystal clear — even from a cursory reading of the report — is that the system for funding and delivering children’s services in the NT is not fit for purpose. What is particularly arresting is the PC’s documentation in various places (eg page 306) of the long history of previous reports and inquiries whose analyses and recommendations have not been taken on board by governments.

I don’t propose to analyse and critique the PC’s study report in detail. Suffice to say that in terms of children’s services, the study report identifies the need for a huge policy reform agenda both within and between the two jurisdictions. The PC’s Findings and Recommendations are well argued and thought out, cogent, and appropriately targeted. While I disagree with some recommendations, and would have framed others with different emphases, it is fair to say that if they were to be implemented, or even substantially implemented, they would make a huge difference to the quality of children’s service provision in the Northern Territory, and would thus lead to better life opportunities for many, if not most, of the NT’s most disadvantaged children.

Instead of taking a deep dive into the detail of the report, I want to take the opportunity to step back and ask the larger and arguably more fundamental question: what are the implications of the findings in this report for Indigenous service delivery more generally? And once we understand, or just have an inkling of those implications, how should governments and policymakers respond?

The first point to make is that this detailed and sophisticated analysis of one thin sliver of the service delivery spectrum suggests that similar issues are likely to arise in every other sliver. Having previously been a senior public servant in both the NT and the Commonwealth, I can attest that the detailed dynamics that pervade the children’s services programs and which have been identified by the PC permeate (to one degree or another) every other service delivery sector. Whether it is health services, education services, local government funding, housing provision, disability services, interpreter services, land management services, or arts and craft support services, the same issues of overlap, duplication, gaps, lack of coordination, poor data collection, poor data analysis, lack of transparency, ineffective contracting arrangements, and so on exist. Not only do these issues exist, they are deeply embedded in the institutional and political cultures of both the Commonwealth and the NT. In other words they are structural issues, not merely deficiencies in day to day administration. This means, too, that good people, working hard, across all parts of the system, contribute to poor outcomes.

Given that these structural dynamics are pervasive across Indigenous service delivery in the NT, and the accumulated impact of these service delivery dynamics is to create to deep-seated disadvantage, what is the point in focussing merely on children’s services. If a child doesn’t have a house, or lives in a grossly overcrowded house, or her education is effectively non-existent, and so on and so on, why are we surprised when neglect or even abuse occurs.

Second, the same points made by the PC about programs can be made regarding many policy settings: if policies regulating the consumption of alcohol are ineffective, or building regulations are ineffective or non-existent, or police are not stationed in larger communities, then why should we be surprised when children end up suffering.

Third, the PC correctly notes that the Commonwealth has a proportionally larger presence in children’s services and Indigenous issues in the NT than in other jurisdictions. However, the same dynamics are evident in other jurisdictions, at least in relation to Indigenous children. How do we know that? Look at the out of home care data (link here), and the over-representation of Indigenous people in the prison population across virtually every Australian jurisdiction (link here). If the Commonwealth decides to implement some or all of the PC recommendations, (a big ‘if’), there is clearly not a  persuasive rationale for limiting it to the NT. Any reform agenda should be rolled out on a national basis.

To sum up the analytic component of this post, the PC analysis is sophisticated, persuasive, and deeply shocking. It effectively tells us that in the NT, disadvantaged children, who are predominantly Indigenous , are being structurally neglected (at best) and structurally abused (at worst) by the service delivery systems that have been put in place to mitigate neglect, abuse and family violence. Those service delivery systems are not fit for purpose. Moreover, the systemic and structural incompetence of governments documented by the PC in children’s service delivery extend to other services, and these flawed dynamics are self-reinforcing and thus systemically drive further deep-seated disadvantage.

Moreover, government failures also extend to policy formulation and the overall policy and program failures extend to all other jurisdictions. The reason for the focus on the NT in the terms of reference for this report is that there is a critical mass of (Indigenous) disadvantage there, reinforced by poor policy and program delivery across the whole spectrum of government activity. This political salience of this critical mass is such that the nation’s political system has been unable to ignore it. Yet in other sectors, and other jurisdictions, similar levels of disadvantage and concomitant despair exist, albeit not in politically salient concentrations. It follows, as day follows night, that any reform agenda must reach beyond children’s services, to other program and policy areas, and must also have a national footprint.

So how to develop a reform agenda?

The fundamental paradox we face in the Indigenous policy domain (and elsewhere) is that governments react when events conspire to put issues on the public agenda, as was the case with the genesis of the Royal Commission in the NT, and then this follow up study by the PC. However, the reaction is invariably an involuntary impulse, a knee-jerk reaction, to establish a review, a commission, or a study, and to ride out the immediate pressure for reform. This is what has occurred here. To its credit, the PC has not produced a white-wash, but laid out a devastating critique of the current ways of doing business.  Notwithstanding the PC analysis, the fundamental challenge is to persuade governments to commit to substantive reform. For this problem, the PC has no persuasive answer. And to be fair, neither do I.

A second challenge that reinforces the paradox above is that comprehensive, step change, structural reform is complex and susceptible to implementation failure, to unconscious degradation as policymakers move on to greener pastures, and to deliberate undermining at critical junctures from interests who see benefit in reversion to the status quo ante. The inherent incremental complexity means that any reform process has to be sustained over time, and concomitantly, it also means that there are numerous potential veto points, where governments (often encouraged by interests in favour of the status quo ante) have the opportunity to change direction, or withdraw support. (The PC makes similar points at page 305). Substantive reform requires sustained political leadership and commitment.

Consequently, notwithstanding circumstances where virtually all stakeholders recognise that the status quo is sub-optimal, and even in the face of evidence of extraordinary government dysfunction, policymakers often fail to drive comprehensive sustained reform aimed at re-engineering the flawed processes for which they, and only they are responsible.

The underlying reasons for this governance incapacity are themselves complex and beyond the scope of this post to explore in any detail. I would point to the central role of dominant interest groups in the operation of our political system, and the progressive weakening of oversight institutions especially the parliament vis a vis the Executive, leading over time to the consequential exclusion of less powerful interests. See the analysis in my 2019 publication with Neil Westbury for a fuller consideration (link here).

So I am extremely conscious of the barriers to any reform, let along comprehensive reform. In the current pandemic crisis environment, these barriers are perhaps even more substantial. Who wants to think about government systems for service delivery when the threat and uncertainty of a global pandemic hangs over us?

Yet it seems to me that it is worthwhile to lay out at a high level some of the structural reform options that flow from the recent PC report and the more expansive analysis of its implications as laid out above.

I see two broad approaches to substantive reform that would be worth pursuing. They are conceptually distinct, but could be pursued as complementary approaches.

The first approach would be  for Indigenous interests to implement a targeted strategy that picks out five or six of the key reforms identified by the PC (of course there may be others), and to make them core principles and advocate continuously for their implementation and ongoing retention at both national and jurisdictional levels. For example, the following recommendations all drawn loosely from the PC study report, might provide a template:

·       Support for long term grant funding contracts (minimum of seven years) and a shift to relational contracting models (rather than mechanistic KPI monitoring);

·       Better data at the regional level (including greater local involvement in data collection and analysis);

·       Use of regional forums representing local communities as key planning and priority setting bodies for funding;

·       Adoption of radically greater transparency by governments in relation to program funding allocations to reduce the risk of political rorting and playing favourites; and

·       Guaranteed support for regional Indigenous institutions to allow for independent advocacy, priority setting, planning and so on.

Each of these reforms, if implemented across the board in Indigenous affairs would be significant. Together, they would amount to a major overhaul of the way governments relate to Indigenous interests. But to be properly effective, they would need to be locked in, not be subject to change, degradation or reversal. So they need  some sort of political and/or legislative reinforcement to be truly transformative.

The second (and much more ambitious) approach would involve a fundamental reconceptualisation of the service delivery funding system to take decisions on grants and contracting out of the hands of politicians and place them in the hands of substantively independent service delivery purchasers (SDPs).

Governments would appropriate block amounts of funding over multiple years to say 20 regional SDPs across the nation for key social services, and provide broad (and public) guidance in terms of overall priorities. In turn, the SDPs would make funding decisions on service delivery within their regions, and report on progress to both the public at large and governments. Of course, any change will meet resistance and this would meet more than most as it involves governments giving up the power to reward particular groups, sporting clubs and the like. But it is not radical. Indeed, there are already precedents in various sectors. For example, the North Australia Infrastructure Facility (NAIF) comes close to this model, although the relevant Minister appoints the members and he or she retains both formal and informal veto powers over decisions. Similarly, in the policy realm, Governments are prepared to outsource substantial discretion to the independent Productivity Commission, again while maintain a veto over whether to take up recommendations. Nevertheless, the core architecture already exists as a precedent.

Clearly, there is a lot of devil in the detail: the advantages of such a model would be maximised if both the states and the Commonwealth signed up; the independence of members will be crucial, and there would be a need to develop innovative selection processes that guarantee this as well as ensuring that the Boards include financial and governance expertise, client representatives, funded organisation representatives, and perhaps even elected representation; and of course, the wider the remit in terms of functional responsibilities, the more likely that potential service delivery synergies would be identified and taken up. While it would be possible to start in one sector (say children’s services) the benefits of going wider to more sectors and deeper to incorporate multi-jurisdictional involvement are significant.

So there is a clear choice to be made: we have a system of service delivery funding across multiple sectors which is not fit for purpose. The system doesn’t work. We have a long record of governments commissioning review after review, study after study, but subsequently failing to implement substantive change. And we have thousands and thousands of citizens’ life opportunities being curtailed, constrained, smashed and destroyed. In these circumstances — where positive outcomes are exceptions and not the rule, and are the result of the perseverance, ingenuity, resilience and sheer courage of individuals who spend their lives working in a system designed to fail — is it rational, or even ethical, not to consider different ways of managing the system of delivering services.

Compared to the way in which the major interest groups in society operate, the voices of disadvantaged citizens, particularly Indigenous citizens, are not well organised, not well funded, not well networked into the corridors of power, and ultimately just not listened to.  

The tragedy of course is that designing and building a system that works is not rocket science; it merely takes a degree of will, and vision. Nor is doing so win/lose; it is win /win. The nation’s failure to receive and digest reports like we have seen from the PC, and then to do nothing, reflects poorly on our political system, poorly on our leaders, and ultimately poorly on all Australians. We should do better.

Forward looking policy responses to the COVID 19 pandemic in relation to First Nations citizens.

Defer no time, delays have dangerous ends.

1 Henry VI, Act 3, scene 2.

Here are two important policy perspectives on the current pandemic and its implications for First Nations.

First, a reader of this Blog with significant and ongoing engagement in remote Australia sent me the following comments / policy suggestions which resonated strongly with me. I set them out in full below.

Second, I also set out the Abstract to a new Topical Issues paper from the Centre for Aboriginal Economic Policy Research at the ANU (where I am a Visiting Fellow), which sets out eight short policy perspectives from researchers associated with the Centre. I am one of those contributors.

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Policy pathways for a COVID 19 response in remote Aboriginal communities

In recent weeks remote and regional Australia has witnessed the three spheres of Australian governments - local, state and Commonwealth - collaborate in an unusually quick and effective way to achieve the mass movement of large numbers of Aboriginal people out of regional towns and back into the many hundreds of Aboriginal Australia that are dotted across the regional landscape. This has been achieved by enlisting the support of Aboriginal leaders and Aboriginal organisations, backed up at times with wider community and industry support.

Almost every remote community across regional and remote Australia has rapidly increased in population size without evidence of the additional resources heading their way necessary to respond to these new circumstances.

Unless there is urgent response, proportionate to the magnitude of the new circumstances in which these remote communities have been thrust, the Aboriginal leadership and organisations who assisted government in delivering on this rushed population movement could understandably make themselves unavailable to subsequent government approaches when local support might be even more desperately sought.

The Federal Government’s previous policy position - implemented resolutely over the last decade - has been to walk away from earlier partnerships with the States, no longer supporting the essential municipal services and housing construction programs needed in these remote Aboriginal communities. That Federal policy position firmed up and has been pursued despite evidence of serious negative impact across Australia.

This implied new policy position of the Federal government - as evidenced by their active support for the mass movement of Aboriginal people - has been hurriedly expressed in terms that it is “for their own good” that in the face of this pandemic, Aboriginal people should move back onto country and reduce the Covid-19 risk to themselves that they are otherwise facing. An unstated objective would appear to be de-risking the regional towns of remote Australia and therefore protecting the wider population.

However, a whole host of other new risks and consequences open up as a result of the assisted sudden demographic shift. Not least of all is the risk of an outbreak of the standard lethal diseases that can too easily take hold of overcrowded populations living in unhygienic conditions.

With COVID 19 at risk of exploding across Aboriginal Australia, acute unprecedented crisis is recognised. To respond to this crisis and save as many lives as possible, rather than simply following mainstream templates, governments will need to urgently adopt innovative pathways tailored to the specific contexts of Aboriginal Australia.

Most pressing is urgent funding to deliver increased shelter, housing and ablution facilities for the remote communities of regional Aboriginal Australia; not only to ensure that Aboriginal people can avoid Covid-19 but also avoid an explosion in the standard lethal diseases; for example, dysentery.

There is a clear and real role here to support the leadership and authority of the Native Title Prescribed Body Corporates; and, in regions like the Pilbara and Kimberley, to bolster the significant Aboriginal owned and run organisations and building companies which - IF SPECIFICALLY FUNDED FOR THE TASK - could immediately step up and use their capacity and experience to deliver shelter, housing and much needed improvements in ablution facilities and protected water supplies.

During the period of this pandemic and beyond, support for on-country economic and employment opportunities for Aboriginal people will need to be embedded into the landscape of regional Aboriginal Australia. These include seed-collection programs for emerging mine revegetation and rehabilitation programs; expanded ranger programs; on-country artist development and support programs; and currently unavailable online technologies that allow Aboriginal Australians who wish to access the mainstream education, training, and employment opportunities that Australia has to offer.

Taken together, these modest policy innovations would allow remote Aboriginal Australians to stay on their communities close to country; assist in facilitating the effective maintenance of social distance and social isolation and thus minimise the risk of disease; provide increased access to employment opportunities on communities; and provide access to remotely delivered education, health and employment opportunities.

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Abstract

This Topical Issue is a compilation of eight short papers that have been written during the rapid escalation of the Australian response to the COVID-19 pandemic.   

First Nations people are being, and will continue to be, affected by this crisis in ways that differ from the effects on other Australians. The pandemic risks exacerbating deep-seated health, social and economic inequities in Australian society, especially the long-standing inequalities between First Nations people and other Australians. The pandemic has also made plain the shortcomings of the relationships between Indigenous people and Australian governments, revealing a governance gap that is difficult to ignore. But despite these inimical conditions, the disruption of the COVID-19 crisis is opening up new opportunities for public policy change. And many First Nation organisations and communities are leading the way. Unprecedented new government expenditure creates space for policy innovation, as the boundaries of what is possible become blurred.  The pandemic is a time of stark risks, but it is also a time when informed policy bravery could create new foundations for a better future. 

Contributions to this Topical Issue focus on employment impacts, social security reforms, Indigenous governance, violence against women, the Indigenous health workforce, school closures, energy security in remote communities, and a proposal for an Indigenous reconstruction agency

The link to the CAEPR Topical Issues Paper is here.

Policymaking in a maelstrom: preliminary thoughts on the longer term implications of the current crises

This world to me is as a lasting storm

Pericles Act 4, scene 1

What are the implications of the current crises for Indigenous policy in the future? At a national level, the current health and economic crises exude uncertainty at multiple levels. Neither governments, their health and economic professionals, nor the citizenry at large have answers to key questions: how long will the crises endure, where will the impacts fall most severely, which demographic cohorts will be most severely affected; what will be the most effective strategies to ameliorate adverse impacts, how will the inevitable trade-offs between competing objectives be managed and determined, and so on and so on.

In this post, I don’t wish to focus on the immediate consequences, risks and even opportunities emerging as a result of the crises. Others are doing this, and I don’t have anything substantive to add.

On the health front, I would point interested readers to the NACCHO web site and their regular updates on the virus (link here). See also recent articles from The Conversation focussed on the health implications of the crisis  (link here) and some economic implications of the crisis (link here).

On the economic front, the Treasury web site has a succinct and accessible document outlining the economic consequences of the Covid19 pandemic and the Federal Government’s most recent response (link here) which they estimate at $189 bn over the forward estimates.

At the macro/mainstream level, governments have set in train a rolling program of ever stronger health related precautions, including constraints on immigration, internal movement, on assemblies in public places, and on non-essential businesses, and are likely to extend to school closures in the near future. These all have economic costs and consequences, and will over time lose their effectiveness as the virus spreads within the community. They are likely however to be difficult to remove once in place.

The economic measures are designed to counter the macro-economic contraction of demand within the economy and to support the resilience and capabilities of firms  who are being forced to lay off employees and reduce or cease trading activities.

While huge in historical terms, the size of this intervention is likely to rise over the coming months. For example, it seems likely that the Government will have to step in to further support or effectively nationalise some or all of the nation’s airlines.

It is clear that notwithstanding the government’s intervention, the nation is facing a recession this year. What is unclear is just how deep and how prolonged it will be. A prolonged recession will itself have severe social and health costs for the nation, including perhaps increased mortality over the ensuing years, although there will be no obvious link between economic contraction and individual morbidity and mortality outcomes. Intuitively, these hidden costs and ramifications are most likely to fall on the vulnerable within the Australian community.

What is also clear is that the nation’s policymakers have a gargantuan and once in a generation policy challenge on their plate. The politicians among them have an additional side dish of diabolical political challenges to manage. The next federal election is due in mid-2022 (link here), so there is a strong likelihood that the Prime Minister will not call the next election until the first half of 2022.

Given these sudden and largely unforeseen circumstances, the question I wish to explore is what does this mean for Indigenous policy into the future?

Perhaps we should first list the known changes and their likely consequences, before moving to list the potential policy outcomes.

Known changes:

Indigenous communities and citizens are more likely to be vulnerable to the virus, and to have higher adverse morbidity and mortality outcomes . This is particularly the case in remote regions, but urban and regional populations are also vulnerable. Offsetting this is the knowledge that the Indigenous population is comparatively young, with the median age in 2016 being 23 years compared to the mainstream population median age of 34 years (link here). The virus appears less dangerous to younger cohorts.

The economic changes announced to date will allocate an extra $10 bn or so into social security payments over each of the next two years. To the extent that Indigenous citizens are over-represented amongst social security recipients they will benefit more pro-rata than mainstream interests from these allocations. They are likely under-represented in small businesses and will thus benefit less pro-rata than mainstream interests. Without a detailed study, the ultimate incidence of the stimulus in relation to Indigenous interests is unclear; however it does not appear that economically vulnerable Australians including Indigenous Australians have been given preferential treatment in the stimulus package.

Potential policy changes:

The following points are largely speculative insomuch as the future is fundamentally uncertain, and in current circumstances, even more so. Nevertheless, there seems value in at least considering what might emerge from the current crises in the Indigenous policy domain.

In terms of the Federal Government’s existing (or perhaps more accurately pre-existing) policy agenda, there are three significant policy reform initiatives in train: the development of new Closing the Gap targets in conjunction with COAG and the Coalition of Peaks under a COAG Partnership Agreement (link here); the development of proposals for an Indigenous Voice to Government; and the implementation of a northern Australia policy agenda under the recently signed Northern Australia Indigenous Development Accord (link here). A fourth policy agenda with the potential for significant policy implications is the eventual Government response to the forthcoming Productivity Commission report on an Indigenous Evaluation Strategy (link here). The Commission’s draft report is now scheduled for May 2020 (it was initially to be released in February 2020), to be followed by a final report currently scheduled for October 2020.

So how will each of these policy agendas now play out? My own assessment is that there is likely to be delays across three of the four agendas. Policy reform momentum will stall. The reasons are two-fold: the difficulty in gaining policy attention from policymakers who will be consumed with handling the implications of the health and economic crises; and the difficulty of gaining attention from Indigenous citizens and others as they strive to survive in increasingly difficult circumstances. A third, more cynical, reason worth considering is that governments generally respond to pressure, and in the absence of pressure, prefer the status quo to change. In a crisis, pressure will shift from calls for medium and longer term reform to calls for more immediate action. For all these reasons, the political incentives on the Government will be to focus on managing short term measures, and this will work against finding the time and resources to develop longer term policy reforms.

The Closing the Gap targets may well be the exception; the federal Government has an incentive to substantially shift the policy goalposts this year to avoid the reiteration of ongoing and deep-seated policy failure highlighted in the annual presentation of the report to Parliament. Moreover, the process of policy redesign is well advanced (albeit the details of the discussion have not been made public) and has the support of the national Coalition of Peaks. The Coalition of Peaks will be pushing for the target changes to proceed if they are agreed and perceived to be substantive and positive reforms. In a recent media interview (link here),  Minister Ken Wyatt went on the record confirming that the process remains on track:

Patricia Karvelas: Very briefly, Minister, before we end - the 2020 Close the Gap campaign report has been released today, and it's warned that only systemic reform will make up for the harrowing failure of the last 12 years of government policy on Closing the Gap. It seems to me closing that gap is ever more important as we now deal with the Corona virus. Are you still working to deadline on changing those targets?

Ken Wyatt: Yes, we are. And whilst we're focussing on COVID 19 we're also continuing with business as usual. And this means finalising the targets and then looking at what systemic commitment and change must occur at all levels in order for us to close those gaps. We have to do things differently. [inaudible] Closing the Gap, led by Tom Calma and then endorsed by Prime Minister Rudd, was a great way forward, but we collectively have not seen the systemic reform that would help achieve those gaps and close them.

While both the Government and the Coalition of Peaks appear to see benefit in the refresh process, I am wary and see significant risks as well as opportunities (link here). To date, there is inadequate information in the public domain to enable a close assessment of the likely results of the refresh process.

The other three policy reform agendas appear much less likely to be advanced in a timely fashion.

The process established to develop a National (and locally constituted) Voice to Government (link here) appears cumbersome, with three separate committees tasked to consult and develop proposals over a two phase process. Those Committees will find it difficult to convene over the next three to six months, and even harder to consult communities on the ground. The current schedule suggests that advice will be provided to Government by the end of 2020, with no timeframe on the Government’s own internal deliberations regarding how to proceed. I will be amazed if the Committees advice is ready before mid 2021, and see little prospect of the Government prioritising legislation or executive action to establish such a Voice before the next election.

The Indigenous component of the Government’s northern Australia agenda has been extremely slow to emerge. The Indigenous Reference Group to the Ministerial Forum was appointed in December 2017, and in its most recent meeting communique (link here), noted inter alia,

The IRG provided the Ministerial Forum an update on the extensive work undertaken to investigate access to capital, reform of the northern Australia Indigenous institutional landscape, and improve opportunities to leverage and commercialise the northern Australia Indigenous estate. This will help ensure that Traditional Owners can fully use their land and rights holdings should they choose to support economic development.

While the details of that work are not yet in the public domain, there seems little evidence to date that the Government has been serious about the structural reforms necessary to reshape the institutional and policy landscape in northern Australia to deliver a step change in Indigenous economic development outcomes. The likelihood that this will change in the current crises seems remote, not least because the two ministers who designed this policy architecture (Matt Canavan and Nigel Scullion) are no longer in place. We may see some policy change at the margin, but this would be window dressing. A close analysis of the Northern Australia Indigenous Development Accord (link here), the centrepiece of the policy process to date, suggests that it is largely process oriented: compare the proposed outcomes in clause 15, with the detailed outputs in the attached Implementation Plan. It seems likely that the IRG will continue to meet and the jurisdictional parties to the Accord will continue to ‘scope options’ and ‘engage constructively’ in working parties and the like, but actual and tangible reforms are unlikely this side of the next election.

On evaluation of Indigenous policies, the Treasurer requested the Productivity Commission to

develop a whole-of-government evaluation strategy for policies and programs affecting Indigenous Australians. The Commission will also review the performance of agencies against the strategy over time, focusing on potential improvements and on lessons that may have broader application for all governments.

Policy and program evaluation is a complex area, and I cannot do it justice here. See this previous post (link here). I expect the Commission will produce a detailed and comprehensive report, but it seems unlikely that the Government will set aside the policy resources required to institute the far reaching reforms to evaluation practice required to improve policy and program performance across the board in a time of ongoing crises. Nor do I think it is likely that the current Government will mandate ongoing Productivity Commission reviews of all agencies evaluations strategies. Let’s wait and see what the Commission recommends. The more robust its recommendations, the more likely that the Government will sit on the report and do nothing or little. In such circumstances, the existence of interrelated health and economic crises will be the perfect excuse for inaction.

It is also worth considering some ‘blue sky’ Indigenous policy ramifications of the dual crises we currently face.

On Constitutional recognition, the Government has been consistently sceptical of anything with more than symbolic content. The likelihood of any constitutional change agenda emerging over the next two years appears close to zero. Indeed, the likelihood of a post-election / post-2022 constitutional reform agenda emerging must be assessed as much lower today than may have been the case two months ago.

In terms of broad policy focus in the Indigenous domain, the stars appear to be aligning for a shift towards a much greater focus on Indigenous health issues. The Minister, Ken Wyatt has a long background in the health sector. NACCHO, the peak body for Indigenous medical services is the most effective peak body and First Nations advocacy body in the nation, ably led by Pat Turner, an experienced ex-public servant, who herself has a strong background in health sector issues. And of course, the political prominence of the impact of the Covid19 virus will propel greater focus on wider health risks and issues for Indigenous citizens, particularly vulnerable cohorts within the Indigenous community.

Of course, the corollary of a shift towards health will be shift away form focussing on other non-health policy sectors (such as land rights / native title).

More speculatively, I suspect that the impact of the dual crises, combined with the changing demographic shape of the Indigenous population, will accelerate the importance of mainstream programs in the lives of First Nations citizens. To the extent that Indigenous specific policy agendas are left to languish, this will merely serve to reinforce this trend.

While Government rhetoric will not necessarily reflect this, the reality is that mainstream institutions (the social security system; the justice system; the child protection system; the disability support system; the education system; the telecommunications system; the health system and the nation’s finance system) already dominate and shape the lives of Indigenous citizens much more than Indigenous specific policies and programs. Indigenous advocacy is yet to appreciate this reality, and if, as I suspect, the current crises represent a critical juncture which strengthen radically the influence of mainstream institutions across the Indigenous policy domain, it will become even more important that Indigenous leaders and peak bodies build the capability to advocate across mainstream policy domains, and seek out common cause with like minded mainstream advocacy bodies.

It is worth reminding ourselves that these crises will inevitably have uncertain outcomes, and the policy responses of Governments, both in the short and medium terms, will have unanticipated consequences. At the micro level, the social and health costs of mental anguish will likely be significant across the whole community. At the macro level, the potential for social and political breakdown and unrest will rise. Vulnerable members of the community (among whom First Nations citizens are over-represented) will be particularly at risk in these uncertain times. The impacts of structural inequality and exclusion are magnified in times of crisis.

Finally, it would be remiss of me if I did not turn my gaze backward rather than forward. In particular, should governments have given more attention to the risks of a pandemic, and more generally to the regularity of crises. Or to put it another way, when I stated above that the pandemic was unforeseen, was that in fact a reflection of poor and ineffective governance in relation to a foreseeable and inevitable eventuality. Part of the issue is that public policies are most effective when they operate as a neutral arbiter between competing interests, including in relation to the risk of temporal trade-offs. To the extent that policy is captured by special interests, it becomes much less attuned to managing for wider societal risks.

In the Indigenous policy domain (and beyond), this is reflected in a shift over the past two decades to privileging corporate over community interests in terms of program delivery (eg in the realm of social security). In turn, this opens up service delivery gaps when markets fail (eg in the shallow coverage of providers within the disability sector).

One outcome of the current crises is that a much stronger light will be shone on the risks and failures of recent policy settings in Indigenous affairs (and beyond). Whether future governments will have the independence, vision and political will to change course seems to me to be a moot point. One of the comparative advantages First Nations communities and citizens have is that there is widespread acknowledgement amongst the wider community and policymakers that they do have particular and unique needs and aspirations. Looking forward, this is a cause for hope that policy reforms and necessary reversals may be considered, notwithstanding the myriad reasons for pessimism in what appears to be a once in a century social, health, economic and political maelstrom.

Child protection: the invisible pandemic

A wretched soul bruised with adversity,

We bid be quiet when we hear it cry;

But were we burdened with like weight of pain,

As much, or more, we should ourselves complain.

Comedy of Errors, Act 2, scene 1

The Australian Institute of Health and Welfare recently released their report Child protection Australia 2018–19 (link here). I have not had a chance to make a close examination, but even a cursory scan makes for devastating reading.

This national snapshot comes in the wake of multiple reports and reviews over many years. To take just one of the many, in October 2019, Professor Megan Davis finalised a comprehensive report (link here) for the NSW Government. Family is Culture: Independent review of Aboriginal children and young people in out of home care is the most wide-ranging and comprehensive report on Indigenous child protection issues in Australia for at least a decade. It is full of detailed analysis and statistics, along with suggestions for reform. Professor Davis makes 125 recommendations. A particular focus of Davis’ analysis is the need to address the structural issues underpinning what is widely acknowledged to be a dysfunctional child protection system seeking to address widespread issues of neglect, abuse and violence within many Indigenous families. I have not had a chance to review implementation progress, however it seems unlikely that there has been adequate time for a considered NSW response to date. The risk that the NSW Government will do nothing, or very little, appears very high, as along with so many of these reports, the Davis report gained very little media coverage and has had very little public impact. Moreover, it has been overtaken by emergencies such as the bush fires and now the Covid 19 pandemic that inevitably consume all the available political oxygen.

The Davis report came hard on the heels of a report by former Commonwealth public servant David Tune into the mainstream child protection system in NSW. Neil Westbury and I made a detailed study of the Tune Report in our Policy Insights Paper published by CAEPR in March 2019, Overcoming Indigenous exclusion: very hard, plenty humbug; see pages 55-57 (link here).

I don’t wish to attempt to make a detailed assessment of the core issues arising from these reports here; interested readers should go to the publications themselves. I do however wish to make an important policy point: the extraordinary levels of out of home care in NSW (and other urban and regional jurisdictions) is demonstrable proof that structural exclusion is an issue for Indigenous citizens across the whole nation, and not just in remote regions.

Rather than seek to re-analyse and regurgitate insights proposed by others over time, I thought I would merely reproduce some selected quotations from the AIHW Report before drawing some very high level conclusions. I make no claim to comprehensiveness in doing this, my purpose is merely to bring home to readers just how dire is the situation of First Nations children in this country.

Selected extracts of the AIHW report

From the Summary:

• 1 in 6 Aboriginal and Torres Strait Islander children received child protection services. 12,600 Indigenous children were the subject of a substantiation in 2018–19. The most common type of substantiated abuse was emotional abuse (47%) followed by neglect (31%).

• 1 in 18 Indigenous children (around 18,000) were in out-of-home care at 30 June 2019, two-thirds (64%) of whom were living with relatives, kin or other Indigenous caregivers.

Page 15: In 2018–19, 51,500 Aboriginal and Torres Strait Islander children received child protection services, a rate of 156 per 1,000 Indigenous children. This was almost 8 times the rate for non-Indigenous children (21 per 1,000 non-Indigenous children).

Page 17: The number of Indigenous children receiving child protection services rose between 2014–15 and 2018–19, from 42,900 to 51,500. This was reflected in the rate, which rose from 134 to 156 per 1,000 Indigenous children in the same period. For non-Indigenous children the rates have remained relatively steady at 21 per 1,000 non-Indigenous children between 2014–15 and 2018–19, with minor fluctuations during the period.

Page 25: Children from geographically remote areas had the highest rates of substantiations—children from Very remote areas (20 per 1,000 children) were almost 3 times as likely as those from Major cities (7 per 1,000) to be the subject of a substantiation (Figure 3.6). Of the children who were the subject of a substantiation from Remote and Very Remote areas, 88% were Indigenous. In Major cities only 16% of children subject to substantiations were Indigenous.

Page 27: In 2018–19, 12,600 Indigenous children were the subject of a substantiation. This is a rate of 38 per 1,000—6 times the rate of non-Indigenous children (6 per 1,000). This is consistent with findings for previous years.

Page 41: At 30 June 2019, 37% (21,900) of children on care and protection orders were Indigenous. Of these children, 70% (15,300) were on guardianship or custody orders. The rate of Indigenous children on orders was 66 per 1,000 Indigenous children, 9 times the rate for non-Indigenous children (7 per 1,000). The rate of Indigenous children on orders was higher than that for non-Indigenous children across all jurisdictions, with rate ratios varying across jurisdictions.

Page 43: From 30 June 2015 to 30 June 2019, the rate of children aged 0–17 on care and protection orders rose from 9 to 11 per 1,000 children. Over the 5-year period, the number of Indigenous children on care and protection orders rose steadily, from 16,900 on 30 June 2015 to 21,900 on 30 June 2019, with rates rising from 53 to 66 per 1,000 Indigenous children.

Page 49: In 2018–19, about 4,300 Indigenous children were admitted to out-of-home care at a rate of 13 per 1,000 Indigenous children, nearly 9 times the rate for non-Indigenous children (1.5 per 1,000 non‑Indigenous children). Similar differences in rates of admission to out-of-home care for Indigenous and non-Indigenous children were evident across all age groups.

Page 52: At 30 June 2019, more than half (54%) of the children in out-of-home care lived in Major cities, and 42% lived in Inner regional and Outer regional areas (based on postcode of living arrangement).

The rates for children in Remote and Very remote areas were twice that of those in Major cities for children living in out-of-home care at 30 June 2019. The rates of Indigenous children in out-of-home care were much higher across all remoteness areas than the rates for non-Indigenous children.

Indigenous children living in Major cities were 14 times as likely as non-Indigenous children in Major cities to be in out-of-home care at 30 June—62 per 1,000 Indigenous children compared with 4 per 1,000 non-Indigenous children.

Indigenous children living in Remote and Very remote areas were 10 times as likely as non-Indigenous children to be in out-of-home care.

Page 53: At 30 June 2019, about 18,000 Indigenous children were in out-of-home care—a rate of 54 per 1,000 Indigenous children, which was nearly 11 times the rate for non-Indigenous children. This difference between Indigenous and non-Indigenous children was evident across all age groups.

Policy Implications

There are a range of potential responses to this information by policymakers. The first approach, perhaps the most likely, and the easiest in the short term, is to just ignore this situation and hope a political scandal or media revelation does not emerge in the near future.

A second possible approach would be to seek to ascertain the underlying causes of the extraordinary rates of out of home care and then adopt policies and programs designed to mitigate and ameliorate those causes. Such an approach is not as straightforward as might be imagined, since the potential causes are multiple, are potentially legacies of previous policies , and are potentially subject to debate and  argument (even within the policymaking community). Moreover, the potential political support of the measures required to address those causes is often non-existent (either out of ignorance or self-interest), and even were it to exist, the implementation capacity of governments in these complex cross-cultural domains is weak and problematic.

A third approach, that I find intuitively attractive, but is likely to be the least likely approach of policymakers, is to ramp up considerable the policy focus and attention on the issue, allocate substantially more resources including to supporting foster families and, and give the issue more profile in policy contexts. This would require political leadership and commitment, and would necessarily be guided by the broad thrust of the Indigenous community’s insights and concerns, for which Professor Davis’ analysis and recommendations including her calls for greater Indigenous involvement in the child protection system might be considered a proxy. Of course, she correctly articulated the case for broader contextual reforms in the Indigenous policy space, and this too will be essential. My point is that there is a case for a crisis response to the child protection pandemic that will be contingent on wider reforms, but should be pursued on its own terms nevertheless.

I have made a very direct link to the need for a pandemic response not merely as a rhetorical device. It is worth thinking about the child protection statistics, and then making the imaginative leap to try to understand what they mean for real children and families. Their worlds are in turmoil before the child protection system is engaged, but that turmoil continues both during and afterwards. Moreover, the levels of need for child protection services are extraordinary, suggesting that the reverberations of poor policy will spread far and wide. Like the operation of the health system in a pandemic, the effectiveness of the operation of the child protection system in mitigating family violence, rebalancing lives, and creating a foundation upon which children can build a future life will have life and death consequences. Future rates of drug use, domestic violence, incarceration, psychological health, and employment are all impacted by individuals’ experience in their childhood years. Let me repeat: the child protection policy domain has life and death consequences for First Nations peoples.

Of course, it is instructive that when a health crisis such as Covid 19 hits the wider community, creating an associated economic crisis, governments are prepared to adopt the third approach above, focussed on moving quickly to acknowledge the crisis and throw untold resources (‘whatever it takes’) at mitigating it including across the health, finance, immigration and social security sectors. As I write this, the media is reporting that the Government is preparing a massive second stage economic stimulus package in excess of $50bn. Yet Governments have been unwilling to adopt an equivalent approach to the long standing, and ongoing child protection crisis engulfing Indigenous Australia. The answer to the question: ‘why this continues to be so?’ would provide the most persuasive insight into the underlying structural causes of the longstanding child protection crisis in Indigenous Australia.