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The courage to reform

Fixing the Commonwealth’s Indigenous policies

LAST YEAR MARKED the fiftieth anniversary of the 1967 constitutional referendum. I was only four years old when the referendum took place, and still remember conversations in my Presbyterian peri-urban household in Brisbane that continued throughout my boyhood. The crux of the campaign – should Aboriginal people be included in the Australian concept of nationhood – received unanimous support in parliament and over 90 per cent of Australians agreed.

When I ask friends and colleagues what the vote was about, generally I’m told the referendum gave Aboriginal people equal rights, including the right to vote, and to become citizens of Australia. Also that the Commonwealth gained powers to intervene for the betterment of Indigenous peoples, to counter the poorly performing and sometimes discriminatory practices of the state and territory governments. What the actual changes amounted to was something less.

Two different sets of words were deleted from the constitution, and none new were added. Section 127 – ‘in reckoning the numbers of the people of the Commonwealth, or of a state or other part of the Commonwealth, Aboriginal natives shall not be counted’ – was deleted in its entirety. Thus Aboriginal people were included in the 1971 census for the first time. Population estimates are critical to the machinery of government, including allocation of entitlements, services and funding. But this important amendment did not confer the right to vote, nor citizen rights and entitlements. These processes both preceded and followed the referendum, with the process varying by state.[i]

The second deletion occurred in section 51, which set out parliament’s powers to legislate for the ‘peace, order and good government of the Commonwealth’. Clause xxvi, known as the ‘race’ power, originally provided that the parliament was able to make laws ‘for the people of any race, other than the Aboriginal race in any state, for whom it is deemed necessary to make special laws’. By deleting this middle clause, the Commonwealth could now (in theory) treat Aboriginal people the same as everyone. As federal law prevails over state law under the constitution, the federal parliament could also now legislate for Aboriginal people, overriding the states.

Significantly, these two deletions did not assign the Commonwealth any special powers. Rather, they facilitated an encompassment, an embracement, of Indigenous people into the nation. As John Howard reflected in lead-up to the fortieth anniversary of the referendum in 2007: ‘This was an event where in overwhelming numbers the Australian people affirmed that it was completely unacceptable to regard the Aboriginal and Torres Strait Islander people as anything other than full participants in our national community.’[ii]

The actual wording on the ballot paper asked Australians to agree to ‘an Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population’.[iii]

That’s what we agreed to.

 

PLANNING FOR THE fiftieth anniversary of the referendum began a year in advance. Among other events, the Department of the Prime Minister and Cabinet (PM&C) partnered with the Australian and New Zealand School of Government (ANZSOG) to reflect on the Commonwealth’s achievements and areas for improvements.

PM&C’s choice of ANZSOG was an interesting alliance. ANZSOG has long facilitated training programs and career development of senior public-sector managers across the public service at federal and state levels. At the same time as this conference, ANZSOG opened up free access to its library of case studies for teaching purposes, which it had previously limited to its members only. Named after its former director, the John L Alford Case Library boasted one of the world’s largest collections, with almost two hundred case studies.[iv] Less than ten of these had an explicit Australian Indigenous affairs focus, despite this area being one of the most – if not the mother of all – wicked problems in Australian public administration history. ANZSOG’s late awakening to the training and capability needs concerning the public administration of Indigenous affairs is a hopeful development.

Together, PM&C and ANZSOG held a conference in October 2017 at the University of Sydney titled ‘Can’t we do better?’,[v] followed by two roundtables subject to Chatham House rules. The write-up identified a number of familiar themes: the need for more engagement and delegated control to Indigenous people, for more respect and learning from Indigenous culture and knowledge, the challenges of Indigenous public-service employment and leadership, and problems arising from government churn. More importantly, these events signalled an opening to question the effectiveness of the Commonwealth in leading Australia’s public administration of Indigenous affairs.

Pointedly, then, shouldn’t we also be critically evaluating, fifty years on, whether the Commonwealth joining with the state and territory governments to form a national system of Indigenous affairs actually worked for the betterment of Indigenous people? Shouldn’t we be pondering the counterfactual: what if the Commonwealth had stayed out of it, or what if it had gotten involved in a very different way?

 

FOLLOWING THE 1967 referendum, the Commonwealth responded through a series of departmental arrangements and ever increasing budgets. First up, the government of Harold Holt established the Office of Aboriginal Affairs. The Gough Whitlam government formed the Department of Aboriginal Affairs and enacted the Racial Discrimination Act in 1975. It also successfully used its powers to override discriminatory state laws and policies in states such as Queensland.[vi] The Malcolm Fraser government passed the Aboriginal Land Rights Act in 1976, granting land rights to Aboriginal groups across the Northern Territory. It also started the Community Development Employment Projects (CDEP) scheme from 1977 as a work-for-the-dole scheme that enabled local community development. The government of Bob Hawke created the Aboriginal and Torres Strait Islander Commission (ATSIC), a bold experiment in self-determination and self-government, based on a series of elected regional councils that aggregated into a national board. The Paul Keating government responded to the 1992 Mabo High Court judgement by enacting the Native Title Act 1993, and then successfully defended a High Court challenge from Western Australia. It also established the Indigenous Land Corporation in 1995 to acquire land for Indigenous peoples through a billion-dollar Land Fund. Successive Commonwealth governments through the ’80s and ’90s supported the outstation movement, as people moved from community settlements to their traditional lands. While the relative merits of its actions might be debated, the Commonwealth did seem to be acting in the interests of Indigenous people, and to counter the problems of recalcitrant states and territories.

The Commonwealth’s intentions became considerably more clouded under the John Howard government. Not long after coming to power in 1996, it intervened in a controversy surrounding damage to sacred sites due to a proposed major bridge to Hindmarsh Island near Adelaide, allowing construction to proceed. The Ngarrindjeri people challenged the government in the High Court, which ruled that the constitution did not limit the Commonwealth to acting solely for the ‘benefit’ of any particular race, implying that it could act to the detriment as well.[vii] Lilon Bandler, academic and daughter of prominent 1967 campaigner Faith Bandler, summed up the response of Indigenous people ‘as a betrayal not only of trust, but of an obligation and a responsibility that the federal government now held’.[viii]

No one knows precisely what the nine out of ten Australians were thinking by agreeing to the two deletions in 1967, but it is unlikely that they considered that the Commonwealth would act in a way that was detrimental to or discriminating against Indigenous people, as had been practised by the states. Judging from the effectiveness and longevity of the ‘yes’ campaign, and the lack of any opposition or a ‘no’ campaign, I don’t think the prospect was even considered.[ix] Maybe that is why constitutional experts spend years debating unintended consequences from the most minor of changes to the constitution’s wording.

The Howard government then went on to abolish ATSIC in 2005, signalling the end of the self-determination policies. An Office of Indigenous Policy was established within a new Department of Immigration, Multicultural and Indigenous Affairs, while Indigenous programs were mainstreamed through a range of Commonwealth departments. In 2007, the Howard government then instigated the Northern Territory Emergency Response (NTER), relying on its constitutional race and territory powers. The Rudd–Gillard government started with the Apology and then introduced the ‘Closing the Gap’ policy, which included $4.6 billion dollars of new funding.[x] It then largely stayed the course, introducing snappy departmental acronyms, with ‘faaxia’ (FaHCSIA), ‘deewarr’ (DEEWR) and ‘doeha’ (DoHA) entering the Indigenous Affairs lexicon. The Abbott government then consolidated the portfolio into its current home, within the deeply centralised, operationally challenged Department of the Prime Minister and Cabinet.

 

THE NORTHERN TERRITORY is particularly illustrative of the influence of the Commonwealth. Under section 122 of the constitution, the Commonwealth has unfettered power over each of the Australian territories. Although it conferred self-government to the Northern Territory, the Commonwealth retained powers that it does not enjoy elsewhere.

I sat in a high-level executive meeting on the fifth floor of FaHCSIA in 2012. Chatham House rules prevent me from disclosing names and details, but while discussing where to pilot a proposed initiative, a senior executive service officer suggested anywhere in the Northern Territory, simply stating ‘because we can’. There was muffled amusement around the room.

So what has the Commonwealth done in the Northern Territory – ‘because it can’ – compared to the other states? Many of its successful experiments (based on their longevity) were first trialled in the Northern Territory, including land rights, the outstation movement and CDEP. But its most notorious experiment was the NTER, also known as ‘the Intervention’, in response to evidence of widespread abuse of Aboriginal women and children. Within seventy-three legislatively prescribed communities, the NTER banned alcohol and pornography, allowed compulsory acquisition of Aboriginal land, excluded customary law for consideration in sentencing and bail, and introduced welfare reform through income management for all. Existing Indigenous organisations and leaders were not consulted before the shock announcement by Prime Minister Howard. In order to effect the NTER, the Commonwealth suspended the Racial Discrimination Act.[xi] Importantly, the NTER legislation was supported by the Labor Opposition also, which continued it, with some modifications, when it formed a government in 2007.

Like most interventions in Indigenous affairs, the NTER had both its supporters and detractors. Without being drawn into the debate over its effectiveness, it was a top-down intervention unprecedented in the fifty years since the referendum. The senior public servant that led its implementation, Brian Stacey, recently published an apology to Aboriginal people in the Northern Territory for what occurred.[xii] I personally sat in a community meeting where everyone present was external to the community, with a ‘disengaged youth’ kicking a coke can down the street outside. And I observed career public servants relocate to remote communities, with no prior experience, holed up in air-conditioned demountables and barbed-wire compounds. And together with the amalgamation of local community councils into new super shires under Northern Territory legislation, fledgling community organisations that had been more than a decade in development were swept away in the aftermath. What was clear was that the design and the implementation of the NTER was contrary to the global consensus on how social change occurs: that people need to agree to, and willingly engage in, their own development.

In the course of unprecedented consultations undertaken by the Referendum Council in 2017, the Indigenous peoples gathered expressed their concerns over the powers the Commonwealth exercised over the course of the NTER. The ‘Uluru Statement from the Heart’ called for the ‘establishment of a First Nations Voice enshrined in the Constitution’.[xiii] The Referendum Council recommended ‘a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament’. The Indigenous leaders involved envisaged an ‘active and participatory [Indigenous] role in the democratic life of the state.’

But in their deliberations, they were also astute to protect this right from Commonwealth interference: ‘One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122.’ In coming to this conclusion, the Referendum Council rejected alternative amendments that would have retained the Commonwealth’s power. Their report stated ‘discriminatory legislation like the NTER would be contested before it originates’. Not a lot of trust towards the Commonwealth comes through.[xiv]

 

IN OTHER AREAS of public administration, the Commonwealth devolves its functions to state and local governments. Its modus operandi in Indigenous affairs is much more hands on, exacerbating an already crowded field of providers. Although it has been able to enforce a reasonable consensus on achieving Closing the Gap outcomes, it is blissfully blind to the sheer disarray in implementation. This is evident in the number of programs with competing, overlapping agendas.

When the Commonwealth has analysed Indigenous affairs expenditure, it has tended to bury the reports as confidential[xv] or aggregated the data to regional or state scales, with an absence of any locational or programmatic details.[xvi] Then in 2014, the Western Australian Department of the Premier and Cabinet bravely released its ‘location based expenditure review’ into two communities in the Pilbara: Roebourne and Jigalong.[xvii] The results were astonishing. Roebourne, a country town of fourteen hundred people with a majority Indigenous population of almost eight hundred experienced two hundred and six services, program and projects. On a per capita basis, the concentration was even higher for the discrete Aboriginal community of Jigalong, with ninety interventions serving a population of only three hundred and sixty.

These figures are actually conservative. Their analysis excluded housing, infrastructure and related services. It also did not account for services that residents accessed in other locations, and it did not fully account for industry contributions through mining and native title benefits. Despite this intensity of programming, the review found that outcomes for Aboriginal people remained poor.

The ratio in Jigalong is one intervention for every four people. Looking to a smaller troubled segment of the community, such as disengaged youth, the ratio increases. I have claimed that remote Indigenous communities like Jigalong experience the highest level of programmatic crowding in the world. There is no global database on which to stake this claim, so I have just been putting it to out to scholars and practitioners around the world to prove me wrong. So far, the claim stands. When I give them these figures, they are incredulous. Most state the obvious need to fix the system first.

The machinery of the Commonwealth keeps defaulting to the ‘program’ as its funding method of choice in Indigenous affairs. Each of these programs typically collects data and measures KPIs. They build support bases and narratives of success, often using ministers to put out media releases. But as they do not account for the confounding effects on each other, there is a lack of credible evidence of what is working or not working. Different programs have different theories of change, which assemble at their point of ‘treatment’ into complex hybrids. This disproportionately affects some groups, such as disengaged youth, where as many as ten different programs can serve as few as fifty youths. The intended ‘beneficiaries’ have developed rational and often innovative ways of coping, avoiding or profiteering. The net effect is a unique political economy of Indigenous disadvantage.

When Prime Minister Malcolm Turnbull tabled the latest Closing the Gap report in February, there was evidence of steady progress over the past ten years in absolute terms across most of the measures. But in relative terms, progress in closing the gap was again mixed, with seven of the ten measures resistant to change.[xviii] The reasons are complex and multifaceted, with both demand- and supply-side dimensions. Given this intractability, how can individual programs claim to achieve their public accountability benchmarks in Canberra or Perth, when ‘closing the gap’ policy outcomes for community and clients remain resistant to change? Where is the public accountability, unless to auditors and funders other than the people the programs are designed to serve?

The Commonwealth is the major funder of these programs. It accounted for 30 per cent in Roebourne and 45 per cent in Jigalong. The Western Australian review also analysed the three smaller Martu communities of Punmu, Parnngurr and Kunawarritji, where the Commonwealth funding went up to 62 per cent. So the remoter and smaller the community, the greater the Commonwealth’s involvement. These figures align with those available nationally. The Productivity Commission 2017 Indigenous Expenditure Report quantified the total national expenditure at $33.4 billion, with close to half (44 per cent) channelled through the Commonwealth.

The vast majority, $27.4 billion (82 per cent), was channelled through mainstream programs and services, defined as expenditure available to all Australians (such as health, policing, education). An additional $6 billion came through Indigenous-specific programs (such as youth, enterprise, job readiness), targeted exclusively to Indigenous Australians, to fill shortfalls, special needs and to improve effectiveness. Of this Indigenous-specific funding, the main provider is the Commonwealth’s PM&C, which administered almost $2 billion via its flagship Indigenous Advancement Strategy.[xix] This is a significant sum, concentrated in a single agency.

Under the current lead of PM&C, the Commonwealth has a critical strategic role to play in driving national reforms to Indigenous affairs. As Malcolm Turnbull recently stated in his annual Closing the Gap speech, the most valuable lesson over the last ten years has been to ‘do with, not to’.[xx] I believe this is the role envisaged by the more than 90 per cent of Australians who voted yes in the 1967 referendum. I don’t think the Commonwealth should be assuming the role of yet another service or program provider, assuming responsibilities normally considered to be that of the states, competing with an already overcrowded field of providers. Nor do I think it should step back to hand its tenure back to the states and territories, or adopt a hands-off policy role, or wash its hands of implementation problems either.

Instead of rolling out its latest intervention, to arrive as the ninety-first program in Jigalong, the Commonwealth could set out to fix a failing public administration system. This could include innovations in new funding methods, with collaboration and accountability measures that wrap and build around the discrete place or dispersed urban population, instead of targeting individual recipients with more grants. Mainstream services – such as education, school, health, police and child protection – are essential and must remain. But if the funds for all of the ‘additional’ programs were pooled and channelled into a small number of locally based organisations, or into all-encompassing community development program(s), it could create a more effective and enabling environment for innovation and locally led reform to occur.

 

IN THE PARLANCE of public administration in Australia, the notion of a ‘jurisdiction’ is synonymous with the state and territory governments. If we adopt a more dictionary definition of ‘jurisdiction’ as ‘a territory over which authority is exercised’, then a much different picture unfolds.

The territorial jurisdictions that matter when looking to achieve social development outcomes are at the local level, regardless of whether the location is remote, rural or urban. Policy and legislative frameworks at a Commonwealth and state/territory level set the field of play, but transformational human and social change are inherently interpersonal and transactional, played out face to face. Running between meetings at Centraplaza in Woden in Canberra, it might be easy for public servants to lose sight of this practical truism. PM&C, or whichever Commonwealth agency has the lead role in the future, is not itself the primary site of Indigenous development. It should be seen as a centralised administrative means to a localised end.

So what are the local territorial jurisdictions that define Indigenous affairs? Marcia Langton coined the notion of ‘ancient jurisdictions’ that predate colonisation and British claims to sovereignty.[xxi] Native title determinations and freehold grants under land rights legislation have gone some way towards enshrining some powers to the traditional owners over these jurisdictions. Laid over the top of these ancient jurisdictions, the contemporary system of Indigenous affairs consists of a multitude of overlapping territorial jurisdictions largely divided by administrative function and service-delivery catchment area. They operate at traditional, local, regional and functional scales, and they overlap.

The extent to which Indigenous peoples control these jurisdictions varies substantially. Those that have been most successful have been able to define and maintain territorial jurisdictions and, better still, have their accountability and responsibility arrangements – both political and administrative – enshrined in legislation. They can then gain access to the holy grail of Indigenous affairs funding: flexible untied block grants. Rather than being beholden to a multitude of programs, they can fall under a different public finance category of intergovernmental transfers.

The leading example here is the Torres Strait Regional Authority (TSRA), which received a direct appropriation from the Commonwealth Parliament of $39.5 million in 2015–16. The TSRA develops its own plan and performance measures that it reports against in its annual report, which is tabled in the Commonwealth Parliament. Another example are the Indigenous shire councils in Queensland, which are funded in part from untied Financial Assistance Grants (Commonwealth) and State Government Financial Assistance Grants (Queensland), because Queensland legislation affords them the same statutory basis as its other mainstream local governments. Both of these examples remain beholden to a plethora of programs, but they illustrate the link between territorial jurisdiction and intergovernmental transfers.[xxii]

For most Indigenous organisations, however, their territorial jurisdiction ambiguously and confusingly overlays that of other jurisdictions. The Institute for Urban Indigenous Health (IUIH) in Brisbane, for example, is an accomplished Aboriginal community-controlled health organisation that works across an urban Indigenous population dispersed across South-East Queensland. In a recent study, Morgan Briggs and Jodie Curth-Bibb observed how IUIH used their Indigenous constituency’s entitlement to Medicare to decrease its dependency on grant funding, giving them the discretion to adopt ‘holistic understandings of community wellbeing, including by drawing on culture and identity’.[xxiii] Through clever innovation, IUIH have established a jurisdictional basis over the top of other mainstream services. This suggests that the overlapping of jurisdictions is not necessarily a problem for performance or outcomes.

These examples are not typical. Most organisations struggle due to challenging operational and political environments, ambiguous territorial jurisdictions, a lack of untied general-purpose funding and a dependence on multiple small and short-duration grants. Julalikari Council Aboriginal Corporation, for example, has fulfilled a broad cross-sectoral service delivery role in Tennant Creek and the surrounding Barkly region for almost thirty years. Unlike TSRA, it does not have a legislated territorial jurisdiction, but it still has political responsibility to deliver services effectively to the Indigenous population of the region. In its 2011–12 financial report, it acquitted against eighty-one grants for a total income of $11.5 million. It cobbled together the cost of its core governance functions by charging a small administration fee from some of these grants when permitted under the terms of the grant.[xxiv]

 

THREE POLITICAL CONTESTS drive the public administration of Indigenous affairs. First, resolving how to assign responsibilities, powers and resources to different levels of territorial jurisdiction. Second, determining the best mix of government, Indigenous organisations, NGO and private sector responsibilities that can efficiently and effectively convert these resources into services and outcomes. Third, how to effectively distribute and account for public resources among competing Indigenous leaders and organisations. On the last point, getting a slice of the public funding cake drives a fierce politics, given the high stakes of public finance. This is a growing global phenomena that is not confined to Australia. In his observations of global inequalities and rising societal wealth, the political anthropologist James Ferguson observed an emerging ‘politics of distribution’ of wealth, orientated toward the state, fuelling both a frustration and desire for development.[xxv]

While Australian dinner-party talk sometimes turns to the inability of Indigenous people to govern themselves, this competitive politics of distribution is strongly a function of externalities arising from Indigenous affairs funding. Competition for scarce public resources pulls communities apart. My suburban comrades typically counter: ‘So why are “they” so dependent on the public purse?’ I explain that remote Indigenous communities are largely public economies, beyond the reach of the market. Public funding dominates in the form of programs, services, organisational grants and welfare payments. Interactions with government agencies are omnipresent in the lives of most Indigenous people, occurring at a frequency and intensity that most Australians struggle to imagine. It is less so for disadvantaged Indigenous people living in urban areas, but still prevalent.

This politics of distribution is evident in the sheer number of Indigenous organisations, many of which are family or clan based. Achieving funding is largely dependent on getting incorporated. The initial impetus was the Commonwealth Aboriginal Councils and Association Act 1976, with the number of organisations increasing to a peak of three thousand in 1997–98, when the Office of the Registrar of Indigenous Corporations (ORIC) started to tighten its regulations. Aboriginal groups have also exercised their option to register under state/territory associations’ legislation. The exact number today is unknown and many are inactive, but in 2010 ORIC estimated the number to be between six thousand and nine thousand.[xxvi] The number of organisations incorporated under the Commonwealth legislation was 2,910 in 2017.[xxvii] So somewhere between one third and one half of Indigenous organisations continue to be incorporated under the Commonwealth.

A little known feature of this Act is that it also allowed for the creation of an ‘Aboriginal council’ as an alternative form of local government. These provisions were never taken up, due to opposition from the states and the Northern Territory. As Commonwealth legislation overrides other levels of government, their fear was the Indigenous inhabitants in an Aboriginal council area would be exempt from local government and perhaps state law, and leave non-Aboriginal residents in limbo.[xxviii] The inclusion of the provision was interesting because, under the constitution, the Commonwealth otherwise does not have powers pertaining to local government.[xxix] Indigenous affairs has somehow empowered the Commonwealth to lay additional supra-jurisdictions on top of the two tiers of local and state/territory government.

In the early days of ATSIC, even the state/territory lines were no borders. The Aboriginal and Torres Strait Islander Commission Act 1989 established sixty elected regional councils. When the boundaries were first drawn up, a number crossed state/territory borders to reflect traditional associations. Two crossed the Northern Territory border: the Mount Isa ATSIC Region from Queensland and the Wunan Region from Western Australia. The most dramatic example was the regional council formed for the southern Pitjantjatjara communities, spanning South Australia and Western Australia, to include Yalata and Oak Valley in South Australia, across the Great Victoria Desert and the remote community of Tjuntjuntjara in Western Australia, to a boundary that was only about one hundred kilometres west of Kalgoorlie. While this worked well for the communities, the bilateral arrangements proved too administratively complicated to manage, and boundaries were redistributed to align with state/territory borders for the 1993 ATSIC election.

At a regional level, the ATSIC Regional Councils did at least reach a reasonable accommodation between Commonwealth authority and that of the local and state governments. When the Indigenous leaders I know reflect back on the ATSIC days, they speak highly of the regional councils. They blame ATSIC’s failings on internal political problems at the national board level rather than the regional councils. A major government review of ATSIC came to this conclusion in 2003 but, regardless, the Howard government announced its decision to disband it the following year, with the support of the opposition.[xxx]

Whatever the ATSIC model may have achieved and whatever the internal political problems it experienced,[xxxi] its closure signalled the beginning of a much more widespread demise of the jurisdictional basis for Indigenous governance. After ATSIC, the Howard government’s focus shifted to Shared Responsibility Agreements and business creation. The social entity on the community side of the ledger became the household, or the autonomous entrepreneur. Indigenous organisations were no longer seen as having jurisdictional authority over the Indigenous communities they served and represented. They came to be treated as service-delivery contractors to tender for work against mainstream NGOs and private corporations, but without any selection criteria requiring the tenderer to be representative of an Indigenous constituency. This led to a decline in Indigenous organisations and corresponding increase in mainstream NGO and private contractors.

The Commonwealth’s activity in supporting, amending and abolishing these supra-jurisdictions has greatly complicated the administrative complexity of Indigenous affairs. It often does so at the clear instigation and potent advocacy of Indigenous leaders. Its current support for the Empowered Communities (EC) initiative is the most recent example, with new regional jurisdictions forming around the EC leaders and organisations. In keeping with the original design, the EC organisations set out to achieve local decision-making based on locally led plans, budgets and pooled funding agreements with government.[xxxii] Progress has been slow, due in part to the Commonwealth not progressing the needed reforms on its side. While it funded the EC organisations, it then stepped back from the reform process. In expanding their initiative to other communities and organisations in their regions, the EC leaders pragmatically adopted a voluntary ‘buy-in’ process to placate other leaders and organisations that were opposed to this new approach. A Swiss cheese jurisdiction is less than what the EC leaders hoped for.

 

THERE IS A necessary role for the Commonwealth to resolve and support durable territorial jurisdictions across Indigenous affairs. When Indigenous and statutory organisations have a clear jurisdiction, then government can use intergovernmental fiscal funding transfers instead of rolling out still more programs and funding still more organisations. Clarity around a jurisdiction enables performance frameworks to be designed around an organisation that clearly exists to serve the population of that jurisdiction. This approach can both increase local autonomy and decrease the duplication and quantity of reporting requirements across multiple programs. It also reduces the number of Indigenous organisations as the form of each organisation will follow its jurisdictional function, instead of partisan political interests. A territorial jurisdiction brings an inherent non-judgemental inclusivity to people living within its bounds.

For the remote parts of Australia where Indigenous populations dominate, Indigenous local governments can show examples of successful territorial jurisdictional devolution and innovation. In Queensland, the local community government councils consider themselves as Indigenous organisations in their own right. Under the Local Government (Community Government Areas) Act 2004, elections are held every four years, with statutory requirements for a range of good governance activities. At their best, a confederation of local Indigenous organisations join them in working together within these local government jurisdictions. So you can find a functional local government, a justice group, a youth group, an aged care facility and so on.

In the Torres Strait, there is a federation of self-governing local organisations on each island, which aggregate into higher levels of regional governance. The super shires in the Northern Territory initially failed to serve their local Indigenous boards, but there are promising signs of progress now with dedicated funding to local authorities within their boundaries.

What works in Brisbane, or the Torres Strait, won’t work in Jigalong or Tennant Creek. Jurisdictions are inherently local and politically fragmented. How their mandates and boundaries form is highly political. Groups can be aligned by clan, family, allegiance, economic interests and administrative organisation. What is local, and what is regional, can be especially highly contested. Who defines? Who decides?

The Commonwealth could play a productive role here, to set the playing field for negotiations to resolve a national spatial system of jurisdictions, for it and others to devolve to. The Commonwealth can facilitate the rules, involve the necessary stakeholders and level out power imbalances to allow local negotiation and contestation over what these jurisdictions will look like. Rather than being a service provider itself, and establishing more supra-jurisdictions that override others, the Commonwealth can mandate competing stakeholders to mediate political contests towards durable agreements.[xxxiii] It is likely that many of the emergent jurisdictions will overlap and subdivide by function. The resulting map will not be simple, but the number of jurisdictions in any location will be far less than the current number of programs and organisations. Win-wins will be hard won, but not impossible.

 

CANBERRA IS TOO far removed from the local and regional interactions where social change occurs and too close to the national politics. As noted by Will Sanders, ‘Indigenous affairs is the moral cause célèbre of Australian nationhood’.[xxxiv] National politicians are alert to the political gain of championing their program to tackle Indigenous disadvantage. In the lead-up to the election of the Abbott–Turnbull government, Tony Abbott pledged to be a ‘prime minister for Indigenous affairs’.[xxxv] The Howard government announced the NTER in the lead-up to a federal election when it had long been trailing in the polls. Academic economist Boyd Hunter questioned the timing and military framing of the NTER as reports of child abuse had long been known.[xxxvi] Political scientist Dennis Grube described the tactical advantage that the Howard government sought by blaming the negligence of the Northern Territory Government at a time when the Labor Party was in power.[xxxvii]

As the nation’s moral cause célèbre, the government of the day is tempted to use the tragedy of Indigenous disadvantage to legitimise universal reforms that might not otherwise be palatable to the broader public. Thus reforms to the welfare system, including income management via cashless welfare cards, were first trialled in Indigenous communities before being rolled out nationally.[xxxviii] This led anthropologist and governance expert Patrick Sullivan to conclude that the clients of Indigenous affairs policy also includes non-Indigenous Australians.[xxxix]

No wonder, then, that Indigenous affairs has become a highly unstable policy environment, constantly undergoing policy reform, legislative change, realignment of departmental portfolios and new incursions to tackle new conceptualisations of the ‘problem’.[xl] Those promoting new policies see the political opportunity of discrediting the efforts of those preceding them. As noted last year by Michelle Patterson from PM&C, there have been nine organisational structures of the portfolio over the past thirty years.[xli] Much fledgling capability is swept away in the aftermath of each new reform, as occurred with the Northern Territory Emergency Response.

And what of those on the ground? According to research undertaken in Central Australia, local leaders are ‘less concerned with the relative merits of alternate government policies, but rather are frustrated with seemingly endless and largely fruitless rounds of policy changes seeking improvements’.[xlii] For them to adapt, innovate and risk-manage their people through transformational change, they want more stability in the public administrative environment and more continuity in outsiders coming to their aid.

The reality of Indigenous affairs is that achievements are hard won over many years, and they remain tenuous for years longer. Given the intractability of alleviating Indigenous disadvantage, there is little argument to justify sweeping away past gains for the perceived hopes of a new policy idea. Policy-makers cannot simply afford to dismiss past practice as failed or irrational because it does not align with their latest solution. What higher knowledge do they bring?

 

THE TIME IS now ripe to critically evaluate the role of the Commonwealth in Indigenous affairs. Mixed progress on its flagship Closing the Gap policy, despite massive additional investment, is giving pause for reflection and fundamental analysis. Together with the Council of Australian Governments, PM&C has announced the Closing the Gap Refresh, calling for comments via a recently launched discussion paper.[xliii] In his Closing the Gap speech to parliament, Malcolm Turnbull extended the consultation period to the end of October.

The Commonwealth will and should continue to hold power in the constitution to legislate to make ‘laws for the peace, order and good government’ for Aboriginal people, just as it does for all Australian citizens.

Had words been added to the Constitution as a result of the 1967 referendum, instead of just being deleted; had we not gone from negative to neutral, but instead shifted to a positive position; had the Turnbull government not rejected the recent recommendations from the Referendum Council after six years of deliberations that began with the Expert Panel in 2011; had the referendum then been approved by the majority of Australians in the majority of states, a different role for the Commonwealth might have emerged. We might then imagine the Commonwealth in another capacity, as the First Nations of Canada, the US and New Zealand enjoy. But this is not the Australia we currently have, nor the constitution we currently have.

The ‘Uluru Statement from the Heart’ has brought new-found energy for change and a different future. The Commonwealth has a role to play, but not whereby it just creates its own programs, preferred organisations and jurisdictional layers, riding roughshod over existing efforts, or by amending or abolishing those of its own prior making. It should instead be working to stabilise the system, to guard against the whims of national politics and distributive politics. It should be enabling durable agreements over territorial jurisdictions that have been locally negotiated to allow locally led reforms to occur. And it could align this process with what the Empowered Communities leaders set out to do and what Indigenous people called for in the consultations organised by the Referendum Council. As noted in their final report, the ‘Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling’.[xliv]

After PM&C and ANZSOG partnered to mark fifty years of Commonwealth involvement in Indigenous affairs, they signalled how ‘we are poised at a critical juncture for courageous change’.[xlv] The Commonwealth Government is indeed well placed to lead other levels of government, to authorise a funding environment that enables local Indigenous aspirations, capability development, transformational change and innovation. For the Commonwealth to fix a dysfunctional public administration system that is largely of its making is the courageous change that is most needed.

 

References

[i] Gardiner-Garden, J. 2017. The 1967 Referendum – History and Myths. Research Brief: Parliamentary Library, Parliament of Australia, Department of Parliamentary Services. http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/JTZM6/upload_binary/jtzm62.pdf

[ii] http://webarchive.nla.gov.au/gov/20070829130748/http://www.pm.gov.au/media/Speech/2007/Speech24192.cfm

[iii] Image of ballot paper: 1967 Referendum – Ballot papers [Commonwealth Electoral Office], National Archives of Australia, item barcode 1843611, p 51. https://recordsearch.naa.gov.au/SearchNRetrieve/Interface/DetailsReports/ItemDetail.aspx?Barcode=1843611&isAv=N

[iv] https://www.anzsog.edu.au/resource-library/news-media/anzsog-s-john-l-alford-case-library-now-open-to-all/?searchword=alford&_content-type=Resource+Library&published_date%5B%5D=&published_date%5B%5D=&_resource-library=News+%26+Media&ordering=relevance+ASC&searchmodule=131&limitstart=

[v] https://www.anzsog.edu.au/indigenous-Affairs-conference

[vi] Kidd, R. 1997. The Way We Civilise. Brisbane: University of Queensland Press.

[vii] http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf

[viii] http://www.abc.net.au/rightwrongs/story/hindmarsh-island-bridge-case/

[ix] Gardiner-Garden, J. 2017.

[x] http://www.theaustralian.com.au/archive/apology/kevin-rudds-closing-the-gap-speech/news-story/5ed69819ecb6a42f4fd28e76dceb02a6?sv=2f253a1ec9e8048ae943b87bf5647eb0

[xi] https://www.humanrights.gov.au/publications/suspension-and-reinstatement-rda-and-special-measures-nter-1

[xii] https://www.nlc.org.au/media-publications/land-rights-news-northern-edition-july-2017-edition

[xiii] https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/UluruStatement; https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF

[xiv] https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf

[xv] Department of Finance and Deregulation. 2010. Strategic Review of Indigenous Expenditure. Canberra: Neil Johnston. http://finance.gov.au/foi/disclosure-log/2011/docs/foi_10-27_strategic_review_indigenous_expenditure.pdf.

[xvi] Productivity Commission Indigenous Expenditure reports.

[xvii] Western Australia Department of the Premier and Cabinet. 2014. Location Based Expenditure Review. A review of all social, economic participation and community services expenditure delivered in Roebourne and outlying communities of Cheeditha and Mingullatharndo; Jigalong and the Martu Communities of Punmu, Parnngurr and Kunawarritji. Perth: Government of Western Australia. http://www.daa.wa.gov.au/globalassets/pdf-files/remote-comms-reform/location-based-expenditure-review.pdf

[xviii] https://theconversation.com/three-reasons-why-the-gaps-between-indigenous-and-non-indigenous-australians-arent-closing-91561

[xix] https://www.pmc.gov.au/sites/default/files/publications/2016-17-pmc-portfolio-budget-statements.pdf

[xx] http://parlinfo.aph.gov.au/parlInfo/download/chamber/hansardr/847a7799-7922-4328-9023-dadc5782fe24/toc_pdf/House%20of%20Representatives_2018_02_12_5848.pdf;fileType=application%2Fpdf

[xxi] http://www.atns.net.au/papers/Langton&PalmerARC1seminar7-3-022.PDF

[xxii] Moran, M., D. Porter and J. Curth. 2014. Funding Indigenous Organisations: Improving Governance Performance through Innovations in Public Finance Management in Remote Australia. Issues paper no 11. Canberra: Closing the Gap Clearinghouse, Australian Institute of Health and Welfare, Australian Government. http://www.aihw.gov.au/closingthegap/publications/

[xxiii] Brigg, M. and J. Curth-Bibb. 2017. Recalibrating Intercultural Governance in Australian Indigenous Organisations: the Case of Aboriginal Community Controlled Health. Australian Journal of Political Science 52 (2):199-217

[xxiv] Despite being solvent with a strong financial position, the Commonwealth’s Registrar of Aboriginal Corporations placed Julalikari into administration early in 2017, citing problems with ‘Julalikari’s governance and strained relationships with business partners, members and funders’. It was reborn six months later with a new management and board. http://www.oric.gov.au/publications/media-release/julalikari-back-track

[xxv] Ferguson, J. 2015. Give a Man a Fish: Reflections on the New Politics of Distribution. Durham, North Carolina: Duke University Press.

[xxvi] DFD, op.cit., p.261

[xxvii] https://www.anao.gov.au/sites/g/files/net3721/f/ANAO_Report_2017-18_03a.pdf

[xxviii] Corrs Chambers Westgarth Lawyers, Anthropos Consulting, M. Dodson, C. Mantziaris and B. Rashid. 2002. A Modern Statute for Indigenous Corporations: Reforming the Aboriginal Councils and Associations Act. Canberra: Registrar of Aboriginal Corporations. Unpublished.

[xxix] The Constitution is silent on local government, so state and territory government’s constitutions provide for them instead. There have been two failed and one aborted attempt to amend the Constitution, to write local government into the Constitution. https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1213a/13bd147

[xxx] Hannaford, J., J. Huggins and B. Collins. 2003. In the Hands of the Regions – A New ATSIC: Report of the Review of the Aboriginal and Torres Strait Islander Commission.

[xxxi] Pratt, A. 2003. Make or Break? A Background to the ATSIC Changes and the ATSIC Review. Current Issues Brief No. 29 2002–03. Canberra: Department of the Parliamentary Library. [accessed December 2013]. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03cib29

[xxxii] Empowered Communities. 2015. Empowered Communities: Empowered Peoples, Design Report. http://www.dpmc.gov.au/pmc-indigenous-affairs/publication/empowered-communities-report

[xxxiii] Walker, B.W., D.J. Porter and I. Marsh. 2012. Fixing the Hole in Australia’s Heartland: How Government Needs to work in Remote Australia. Alice Springs: remoteFOCUS, Desert Knowledge Australia. http://www.desertknowledge.com.au/Files/Fixing-the-hole-in-Australia-s-Heartland.aspx

[xxxiv] Sanders, W. 2017. Administrative Arrangements in Australian Indigenous Affairs: Will they Ever Settle? Australian Journal of Public Administration 76 (4):400-402.

[xxxv] http://www.theaustralian.com.au/national-Affairs/indigenous/ill-be-a-prime-minister-for-indigenous-Affairs-says-abbott/news-story/69392e0148761ef6a4092f91f2e39e07

[xxxvi] Hunter, B, ‘Conspicuous Compassion and Wicked Problems: The Howard Government’s National Emergency in Indigenous Affairs’, Agenda, vol. 14, no. 3, 2007, pp. 35–51.

[xxxvii] Grube, D. 2010. The Rhetorical Framing of Policy Intervention. Australian Journal of Political Science, 45 (4):559-578.

[xxxviii] https://theconversation.com/healthy-welfare-card-begins-here-where-next-50756

[xxxix] Sullivan, P. 2011. Belonging Together: Dealing with the Politics of Disenchantment in Australian Indigenous Policy. Aboriginal Studies Press, Canberra, p. 76.

[xl] Moran, M. 2016. Serious Whitefella Stuff: When solutions became the problem in Indigenous Affairs. Melbourne: Melbourne University Press.

[xli] https://www.pmc.gov.au/resource-centre/indigenous-Affairs/commonwealth-machinery-government-aboriginal-and-torres-strait-islander-Affairs

[xlii] Moran, M. and R. Elvin. 2009. Coping with Complexity: Adaptive Governance in Desert Australia. GeoJournal 74 (5):415-428.

[xliii] https://closingthegaprefresh.pmc.gov.au/

[xliv] Op cit, p.2

[xlv] Althaus, C. and M. Patterson. 2017. Editorial: A Line in the Sand 50 Years On: Commonwealth Involvement in Indigenous Affairs. Australian Journal of Public Administration 76 (4):395-396.


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