The problem is clear in the latest Closing the Gap annual report, a masterful example of sophisticated political management and bureaucratic obfuscation. This tightly organised combination of new and previous policy commitments, 2023 achievements and key actions for 2024 purports to outline the Commonwealth’s strategic priorities for the next year. But closer analysis reveals deep-seated flaws in policy design, strategic omissions and evasions and a deep-seated lack of ambition, all wrapped in a slick presentation replete with selective case studies, graphics, some useful governance charts and an avalanche of uninformative facts and figures. There is nothing strategic about this document.

The previous government was more inclined to blame the victim, cut funding and pursue punitive policies. It reshaped the Closing the Gap architecture, reconstituting and expanding its targets. Most importantly, it created a new National Agreement on Closing the Gap that directly engaged First Nations in shaping policy while shifting the bulk of political and policy responsibility — and future blame — to the states and territories.

For Labor, the failure of the Voice referendum has exposed a deficient policy framework and diminished its preparedness to pursue substantive reform. In desperation, it has fallen back — holus bolus — on the previous government’s policy architecture.

Despite their tactical and ideological differences, both major parties have used excessively complex bureaucratic processes, extremely low transparency, high-flown promises and the tactical politicisation of specific issues to divert attention from more important underlying issues. Their guiding principles appear to be to deflect, defer and delay.

A fundamental problem with the national agreement is that its policy architecture is extraordinarily over-engineered. It was designed not by a single committee of state, territory and Commonwealth bureaucrats but by negotiations between that committee and a committee of Indigenous representatives. The asymmetric power imbalance inevitably produced an imperfect structure.

It is hard to believe that the government negotiators didn’t see the ramifications of the extraordinarily complex structure that emerged from the negotiations. It created multiple choke points at which multi-party consultation and coordination is required, encouraging a culture of inertia and stasis.

To take just one important example, the agreement identifies nineteen targets and four priority reforms and allocates responsibility for implementation to eight state and territory jurisdictions along with the Commonwealth and the Australian Local Government Association. The Coalition of Indigenous Peaks — which itself has a nascent federal structure in each state and territory — is also ostensibly an equal partner.

No line of sight nor responsibility exists between any one target and any one government or minister: responsibilities and accountability are shared across a highly complex geographical and sectoral matrix involving layers of mainstream and Indigenous-specific programs. National-level data is deficient across all targets and all four priority reforms, at least partly because the targets themselves have been poorly chosen and loosely specified. Most importantly, the targets are not aligned with dedicated investment strategies.

The four priority reforms at the heart of the agreement would best be seen as overarching frameworks. But they have been broken down into arbitrary elements to be measured and reported on, notwithstanding the vagueness of these elements and their poor fit with existing data. Instead of bringing macro-level strategic coherence the four priorities have been converted into arenas of micro-focused navel-gazing.

While the agreement requires each jurisdiction to publish an annual report and develop an on-going implementation plan, the joint council that manages its operation decided some years ago to shift to annual implementation plans, adding a further layer of process. Instead of being a roadmap laying out each jurisdiction’s multi-year pathway to each target, the plans merely recount innumerable actions and funding decisions, most with limited timeframes.

The latest Commonwealth implementation plan lists sixty-five commitments of varying significance; state and territory plans are generally much more complicated. A requirement that jurisdictions explain how they would “close the gap” has been transformed into a requirement to publish a profusion of meaningless facts and intentions to develop plans.

By combining that latest implementation plan with its annual report the Commonwealth has signalled its unwillingness to develop and lay out a longer-term roadmap. Its decision-making is very much at odds with the recent Productivity Commission review of Closing the Gap, which recommends that implementation plans reflect a more strategic approach.

Any serious attempt to lay out such a roadmap would involve two elements that are seemingly anathema to the Australian government. First, the Commonwealth would need to establish a framework to coordinate the disparate and largely inadequate efforts of the states and territories. This is a glaring hole in Closing the Gap’s architecture and desperately needs attention not just from the Indigenous Australians minister but also from the treasurer, the finance minister and the prime minister.

Notwithstanding its potential to give First Nations people access to policymaking, the national agreement has formalised a regression across the federation towards the inertia last experienced before 1967. Labor would face few insurmountable obstacles if it resolved to reverse direction and effectively coordinate government efforts to deal with Indigenous disadvantage across the federation. A failure to do so will risk Closing the Gap imploding under its own weight.

The second element of a realistic and effective roadmap would be an estimate of the size of the multi-year investments required. This would facilitate better decision-making, assist in placing the myriad demands on governments in perspective and assess the financial costs — the imputed shortfalls in funding, in other words — that First Nations Australians continue to bear.

Unfortunately the Commonwealth’s latest implementation plan appears designed to preclude even modest reforms like these.

Many other questions and issues aren’t dealt with in the Commonwealth’s plan. There’s space here to look at just two of them.

The Community Development Program provides income support and job search for around 40,000 participants in remote Australia. This year’s Closing the Gap annual report lists a total 1950 new jobs employment placements/jobs created under CDP. Even so, the prime minister announced that the government was “moving on” from the “failed Community Development Program” and establishing a Remote Jobs and Economic Development Program to help community organisations create 3000 jobs over three years in remote areas, at a cost of $707 million. This funding for real jobs in regions where employment opportunities are scarce or non-existent is welcome and long overdue. Unfortunately, it is pathetically unambitious. And what is the future for the 37,000 CDP participants? Will they continue in a “failed” program?

A second example: the report lists ninety-eight actions from last year’s implementation plan and reports on their status. Most are mere process matters. Nine are listed as delayed; one as “stopped.” The latter is target 9b, relating to remote essential services infrastructure (though that’s not spelt out in the report). The target, which was approved by ministers in August 2022, states:

By 2031, all Aboriginal and Torres Strait Islander households:

• within discrete Aboriginal and Torres Strait Islander communities receive essential services that meet or exceed the relevant jurisdictional standard

• in or near to a town receive essential services that meet or exceed the same standard as applies generally within the town…

Last year the Commonwealth declared that “delivering on Target 9b will provide vital infrastructure to support liveable, safe, sustainable and healthy communities for all First Nations peoples… The initial focus for the target will be on the development of a new Community Infrastructure Implementation Plan, in collaboration with the National Aboriginal Community Controlled Health Organisation (NACCHO) and key stakeholders.”

Why then, without explanation, has work on the implementation plan for “vital infrastructure” been stopped? Perhaps the Commonwealth fears a remote infrastructure implementation plan would encourage the states to demand increased Commonwealth funding. So much for mobilising all avenues and opportunities to overcome the entrenched inequality faced by too many Aboriginal and Torres Strait Islander people.

All in all, the latest Closing the Gap report makes for depressing reading. It comes across as a convoluted box-ticking exercise, overflowing with plans, partnership committees, good news stories and the like. It makes no serious attempt to look behind the available data to acknowledge and reflect on the challenges of those families caught up in extreme poverty, cycles of alcohol-and drug-induced despair, youth suicides, and the trauma of extraordinary rates of incarceration and unfathomable out-of-home-care rates for Indigenous children.

The report’s implicit agenda is to defer committing financial resources, and delay making difficult decisions. Sure, governments can’t solve all the nation’s problems, but it is inexcusable that, where governments do invest, resources don’t flow equitably.

The Closing the Gap process is perhaps the most useful way to bring these problems to the nation’s attention. Its success will require vision, political commitment and a preparedness to think through the policy issues and make decisions commensurate with the size and severity of the challenges. The Albanese government, like the government before it, has so far failed on all counts.

In his 1963 “Letter from Birmingham Jail,” Martin Luther King Jr. famously wrote that “justice too long delayed is justice denied.” It is time the government commissioned an independent strategic review of the Indigenous policy domain, akin to the recent 2023 Defence Strategic Review, aimed at bringing a much greater degree of discipline, rigour and, most importantly, urgency to a worsening crisis blighting the life opportunities of many tens of thousands of First Nations citizens.

The fact that the depth and severity of this crisis is largely invisible to most Australians increases the responsibility on governments to act; it is not an excuse or rationale for inaction. •

The post Gap years appeared first on Inside Story.

Recent censuses have documented a quite extraordinary growth in the Indigenous population, largely in southeastern Australia, driven by growing self-identification and rising numbers of mixed Indigenous and non-Indigenous relationships. As a result, the national profile of the Indigenous population is changing, accompanied by even greater levels of income inequality. Very high levels of income inequality exist within the Indigenous community, levels that are greater than those that exist within the non-Indigenous community.

Alongside these shifts has been a growth in the diversity of political perspectives among leading Indigenous figures. The contrasting views of Indigenous No campaigners Jacinta Nampijinpa Price and Nyunggai Warren Mundine, on the one hand, and Lidia Thorpe and author/lawyer Michael Mansell, on the other, are just one example.

The geographical, social and linguistic heterogeneity of Indigenous Australians has long been recognised by policymakers yet only sometimes taken account of. The regionally organised Aboriginal and Torres Strait Islander Commission (1990–2005) was a rare example of a positive recognition of heterogeneity; in other cases — tighter conditions on social security in remote Australia, for instance — the recognition has come with a punitive veneer.

This diversity has increasingly been overlaid (though not replaced) by a pan-Indigenous focus on identity and identity politics that has begun to permeate the national imagination. The emphasis on a single identity — rather than on layered identities, as Noel Pearson advocates — has created a unity with its own fragility.

These strands have created social, economic and political complexities that undercut the possibility of building an enduring consensus among First Nations on virtually any issue. If substantial Indigenous consensus on policy aspirations is just as elusive as it is among the non-Indigenous population, then all-encompassing Indigenous representation is inherently elusive, particularly nationally.

The referendum result alone won’t drive this complexity; it has been emerging for at least two decades. But the vote will inevitably be perceived as a political and societal inflection point. The notion that governments should seek to discern an overarching and representative Indigenous perspective is likely to give way increasingly to multiple Indigenous interest groups, themselves engaged in the cut and thrust of interest-group politics both within the Indigenous domain and between the Indigenous domain and the wider political domain.

Virtually all recent public commentary has been on the politics of the Voice: the campaign, the tactics of the Yes and No camps, the effectiveness of the most prominent advocates, the implications for social cohesion and reconciliation, and the implications for Australia’s international reputation. The shape of the post-referendum policy framework has received almost no attention. Yet it will determine the opportunities available to First Nations citizens and inevitably shape the nation’s future in ways that are difficult to predict but nevertheless consequential and far-reaching.

In a hyper-rational world, the obvious response to the referendum loss would be to press ahead with legislation to create a Voice. After all, if it is important enough to be constitutionally entrenched, why wouldn’t the government seek to establish it legislatively?

We don’t live in an entirely rational world. Prime minister Anthony Albanese explicitly ruled out a legislated Voice before the vote, primarily on the basis that the process of legislating a Voice would become hyper-politicised. Opponents would argue that the referendum result made crystal clear that Australians don’t want a Voice, thus depriving any such proposal of an electoral mandate. Its design would become deeply contentious both in wider political circles and among Indigenous interests. Without constitutional enshrinement, a legislated Voice’s views and policy perspectives would arguably carry less weight and be more susceptible to being ignored by governments.

One alternative path would be to create an appointed Voice, though the prime minister appears to have implicitly ruled this out too. Governments often appoint specialist groups to provide advice; in fact, the previous government appointed a prime minister’s Indigenous Advisory Council in September 2013 with Warren Mundine as its first chair. It was silently abandoned in 2019 when its advice on how best to progress the Uluru Statement and the proposed Voice became politically inconvenient.

Since then, reflecting the triumph of political considerations over rationality, the Coalition government (and now Labor) operated without a formal Indigenous advisory mechanism while simultaneously funding elaborate bureaucratic and legal processes to design and implement a proposed Voice.

The government’s most likely move will be to embrace the role of the Coalition of Peaks, the alliance of eighty-plus Indigenous peak bodies that emerged in early 2019 from discussions between representatives of fourteen Aboriginal community-controlled organisations and prime minister Scott Morrison. Those discussions ultimately led to the National Agreement on Closing the Gap. According to its latest annual report, the Coalition of Peaks directly and indirectly represents more than 800 organisations and at least 550,000 Indigenous people across numerous sectors.

Announcing a greater reliance on the Coalition of Peaks — or, more probably, gradually lifting engagement — has several political advantages. The coalition encompasses a wide swathe of Indigenous policy, it was established and funded by a Coalition government, and it is capably led by its convenor, the experienced former bureaucrat Pat Turner. Perhaps even more importantly, building on the coalition requires no legislation and can accurately be characterised as a continuation of the status quo.

If it pursues this option, Labor will presumably take the opportunity to signal its increased commitment by allocating new Indigenous funding in the coming 2024 budget. One obvious spending opportunity championed by Turner and the Coalition of Peaks is housing, a policy domain with implications for health, education, criminal justice and domestic violence. As the government develops its new National Housing and Homelessness Plan, which will encompass new intergovernmental funding arrangements, it could earmark increased funding to Indigenous communities.

The Coalition of Peaks is, of course, quite different from the proposed Voice. Unlike previous Indigenous representative bodies, it seeks to represent the interests of “community-controlled” organisations rather than the entire Indigenous constituency. Its members cover a broad range of Indigenous interests, but obvious gaps include the educational and economic development sectors. Implicit in any greater engagement would be a shift to engaging with coalition’s constituent peak bodies.

At the core of the Coalition of Peaks is NACCHO, the National Aboriginal Community Controlled Health Organisation, which represents 145 Aboriginal community-controlled health organisations across the country employing around 6000 staff. NACCHO’s members service more than 550 primary care sites delivering more than 3.1 million episodes of care to more than 400,000 people.

Apart from their sheer breadth of activity, NACCHO members have the advantage of receiving mainstream healthcare funding for their services, thus ensuring a substantial level of political independence. That advantage does not extend to most of the Coalition of Peaks’s other members, which rely to a greater or lesser extent on discretionary government funding. So too does the Coalition of Peaks’s policy secretariat, creating a major risk to its continued independence.

As a member of the council overseeing the National Agreement on Closing the Gap, the Coalition of Peaks has guaranteed cabinet-level access to every jurisdiction in the Australian federation. This is unprecedented in modern Australian history, though the reality is that it is outnumbered and outgunned by the sheer institutional heft of the states and the federal government, and particularly by the size and intellectual capital of their bureaucracies.

Of course, governments will continue to engage with Indigenous interest groups outside the Coalition of Peaks, and will draw on specialist advisory bodies where necessary, as already occurs in the mainstream policy domain. When both Indigenous and non-Indigenous interests are involved, governments will continue to appoint Indigenous members to relevant advisory committees.

The advantages of using the Coalition of Peaks to underpin the future framework of Indigenous policy are significant, but there are also significant challenges.

Foremost is the fact that the extraordinarily complex policy architecture of Closing the Gap is unfit for purpose and requires serious attention. Its bureaucratic complexity ties the Coalition of Peaks down in never-ending process, across eight jurisdictions, virtually guaranteeing it cannot focus consistently on strategic policy opportunities. Complicating its work is the fact that the Coalition government shifted political responsibility for most targets to the states and territories and stepped back from any overt leadership role, a move not reversed so far by Labor.

These problems should have been tackled head-on in the Productivity Commission’s recent draft report on the National Agreement on Closing the Gap. Although the report is critical of progress, its strategically underwhelming analysis is a lost opportunity to take stock and shift course to ensure governments take their commitments seriously. The machinery of Closing the Gap will not collapse in the short term, but neither will it survive into the medium term without focused attention.

Governments are inherently conflicted on this issue: reform of the policy architecture and a stronger Coalition of Peaks will inevitably make life harder for them. Visionary political leadership within government, always in scarce supply, will be required to crack this nut.

A second implication of the referendum defeat is that governments and First Nations will be forced to reconsider the preparedness of the Australian electorate (and the nation’s underlying political settlement) to accept treaties as a mechanism for advancing Indigenous aspirations. While many First Nations leaders and their supporters will intensify their calls for treaties, the risk of devoting decades of work to inchoate policy reforms, and the challenges of agreement-making with reluctant governments could fracture Indigenous views on the benefits of such a strategy. Pragmatic leaders could well see better and more immediate uses for scarce advocacy resources.

It is also worth mentioning that while a successful referendum would have paved the way for a vote on an Australian republic, the defeat is likely to dampen enthusiasm in the current decade. Perhaps paradoxically, it may also increase the likelihood of an Indigenous person being appointed as Australia’s head of state in the interim.

Progress on Indigenous constitutional recognition, meanwhile, appears more remote than ever. Short-sighted self-interest has triumphed over visionary reform. The 1967 referendum gave the Commonwealth an implicit mandate to lead on Indigenous policy, one it has progressively walked away from over the past decade. The Indigenous leadership, encouraged by progressive Liberals, decided to shift away from the recommendations of the 2012 report of the expert panel on constitutional recognition and replace it with the Voice proposal, a move that now seems a well-intentioned error of judgement.

Led by Pat Dodson and Mark Leibler, the expert panel recommended the repeal of section 51(xxvi) of the Constitution, which allows the federal government to enact adverse and discriminatory laws based on race, and called for a new provision prohibiting racial discrimination.

The nation’s Indigenous policy framework over the coming decades will inevitably focus on particular Indigenous interests rather than a notional general interest, tempered by more of the same: more rhetoric over substance, more evasion of responsibility, more blame shifting, less transparency and ministerial accountability, and continued policymaking aimed merely at giving the appearance of action.

If they are to force their way into the dominant bloc of interests that controls Australia’s institutions, Indigenous interests will need to look beyond governments for support and as the sole locus of political action. To be effective, they must build alliances, institutionalise the independence of their advocacy capabilities, and create their own policy institutions. They will need to span their diverse aspirations, and build and sustain the intellectual capital necessary to achieve inclusionary policy reforms in the face of opposition from mainstream interests concerned to protect the status quo. Inevitably, this will be a multigenerational struggle. •

The post Indigenous policy’s inflection point appeared first on Inside Story.

The number of active and fluent speakers of these languages is low and declining. Among the Indigenous population aged under twenty-five — half the region’s Indigenous population — the lingua franca is primarily English and Kimberley Kriol, a relatively recent hybrid. The 2016 census listed 2315 Kriol speakers and just 158 Gija speakers.

Colonisation came late to the East Kimberley. The four decades of frontier violence after the pastoral invasion in the early 1880s caused untold — and largely unrecorded — loss of life as a result of disease, economic and social disruption, and overt violence. Today’s Aboriginal population of the East Kimberley are the descendants of the survivors of that forty-year war — survivors who made an accommodation with the owners of the cattle that had disrupted their waterholes and destroyed the basis of their subsistence livelihood.

The incentive for Aboriginal people to detach themselves from their subsistence lifestyle, attach themselves to missions and work on pastoral stations was reinforced by the imperative to avoid the pervasive violence of pastoralists and police, and possible exile to Rottnest Island and other prisons. Working for pastoralists at least gave traditional owners continued access to their Country, and time off for ceremonies during the wet season, and removed the risks of relying completely on subsistence.

Despite their concessions, Kimberley people have strenuously sought to maintain their cultures and languages. They have established cultural and language resource centres across the region, and many of the region’s schools support language maintenance. The Ngalangangpum School at the Warmun community and the Purnululu Community School at Frog Hollow, or Woorreralbam, both in the heart of Gija Country, offer instruction in English and Gija. But these cultural maintenance projects increasingly compete against the pressures of modernity and commercialism.

This is the context for Aboriginal Studies Press’s recent publication of Gija Dictionary. Its authors, Frances Kofod, Eileen Bray, Rusty Peters, Joe Blythe and Anna Crane, have produced an extraordinary linguistic resource for Gija people, derived from thirty-plus years of linguistic research, especially by Kofod, and the expert language skills of Gija co-authors Bray and Peters and the linguistic contributions of around sixty other Gija collaborators.

This is not simply an etymological project, translating vocabulary and explaining meaning; in many respects, it allows Gija speakers — and learners — to see themselves and their culture in a linguistic mirror. It reflects and documents the sophisticated worldview, developed over eons, that enabled Gija society to thrive in one of the most severe environments in Australia.

Gija Dictionary opens by introducing Gija language and Country, with an excellent map illustrating the extent of Gija Country’s approximately 30,000 square kilometres. Individual chapters deal with spelling and pronunciation, word classes, grammar and, importantly, Gija relationships. The core of the book, the Gija-to-English dictionary, defines in excess of 5000 words and phrases, and a separate and more succinct English-to-Gija word-finder identifies the Gija terms for more than 3500 English words.

But merely listing the contents doesn’t do justice to the effort and innovative thinking that have gone into producing a dictionary useful to Gija speakers, to future Gija learners, and to teachers, health workers and others interested in learning Gija.

Importantly, the introductory chapters explain the conceptual underpinnings of the Gija language: the fact, for example, that topographical directions (upstream/downstream; uphill/downhill) are just as important as cardinal directions. Interspersed through the text are more than ninety photos of current and past community members, local wildlife and significant locations, each labelled with a phrase in Gija, thus encouraging readers to look up the words to interpret the photo.

Not surprisingly, the dictionary is replete with vocabulary that reflects the social and cultural concerns of traditional Gija speakers, including their outdoor lives and focus on being on Country. Often, Gija terms have no equivalent word in English: for example, the English-to-Gija word-finder lists around twenty terms for different actions associated with the concept “walk.” Or, to pick terms almost at random, galayi means to shade your eyes with a hand while looking at something; galayyimarran refers to being in the brightness at sunrise or sunset; dooloo means to make smoke as a signal or as part of a smoking ceremony.

The word-finder also demonstrates the centrality of spears to traditional Gija life. It lists five different types of spear and six different types of spearhead, along with terms for using spears, such as hooking onto a woomera, straightening a spear, and throwing a spear at someone. My favourite is the word bililib: to drag a spear surreptitiously with your toes.

In Gija culture, the relationship between speakers is always significant. The Gija Dictionary’s definition of garij, calling someone’s name aloud, notes that this is considered an action with serious consequences depending on your relationship with the person named. It also includes a short explanation of the terms used in joking relationships between individuals denoted as ganggayi.

Were I to use any of the swear words listed, Gija speakers would respond with an interjection warri-warri if I was swearing at my parent or uncle or aunt, or yigelany if I was swearing at my brother or sister. If I swore at my brother- or sister-in-law, they would make a kissing noise and two tsk tsk clicks. They would then look away, use their hand to signal me to stop swearing, and then move their hands to block their ears.

Just as the dictionary reflects Gija culture for Gija speakers and learners, it provides a window that allows non-Indigenous readers to glimpse the Gija way of experiencing the world. Gija speakers’ grafting of new meanings onto old terms to incorporate non-Indigenous categories and technologies demonstrates their culture’s inherent dynamism.

Examples of Gija linguistic repurposing abound in the dictionary. For example, it identifies two words for police officer: mernmerdgaleny (literally, one who is good at tying up) and ngerlabany (having string or rope). In a similar vein, the word dimal, for boat, appears to be an appropriation of the English word “steamer.” A note explains that this is an old word used by Gija people, derived from the Aboriginal pronunciation of steamer and referring to the steam ships that transported Aboriginal prisoners to Rottnest Island.

Or take the word lendij, which means either to write or to read, but also to pressure flake a stone. The word came to mean writing because the old people saw it as a similar action to pressure flaking stone spearheads with a small hard stick called a mangadany. The transition from writing to reading followed naturally.

Other words have similarly been adapted. Ngoorr-ngoorrgalill means car (good at growling), with similar variants for car key and car engine. Wingini, which originally meant to spin around and around on the spot, now refers to being drunk. With a gender change, the term for wedge-tailed eagle (wirli-wirlingarnany) refers to an aeroplane (wirli-wirlingarnal). The word for photograph, ngaaloom, is repurposed from the word for shade and shadow.

What these words show is that Gija speakers, while anxious to maintain their language, have been prepared to incorporate non-Indigenous technological, cultural and institutional concepts within the Gija language. This engagement and accommodation has always been strategic, aimed at conceding what can’t successfully be defended, but also reflects a determination to find ways to protect what is important to Gija culture. The dictionary’s presentation of a unique Gija language, culture and worldview provides tangible proof that Australians inhabit a multiverse rather than a narrow social, economic and cultural universe.

While Australian English has similarly incorporated Indigenous vocabulary (boomerang, kangaroo), it is not obvious, at least to me, that this extends to the widespread adoption of such fundamental Indigenous notions as deep respect for Country and the power of reciprocity in cementing ongoing relationships. For all the talk of pursuing social justice and reconciliation with First Nations, mainstream Australia appears unable to acknowledge the extent of the loss suffered by Aboriginal people as a result of colonisation.

Most importantly, the nation appears unable to see — really see — that Indigenous people like the Gija have been prepared to make extraordinary compromises in order to bring the endemic violence of the frontier wars to an end and, later, to survive the upheaval of the equal-wages decision in the 1960s, which led to mass dismissals of Aboriginal pastoral workers and the forced removal of their families from stations.

It is an extraordinary paradox that while the few hundred Gija speakers are among the poorest and most disadvantaged Australians, at least a dozen Gija speakers are represented in international art galleries from Paris to New York, and in every capital city in Australia.

While other schools of Indigenous art have equivalent international reputations, Gija artists certainly hold their own. A reproduction of a work by Gija artist Lena Nyadbi is etched on the roof of the Musée du Quai Branly in Paris and can be seen from the Eiffel Tower. Internationally known artists such as Paddy Jaminji, Queenie McKenzie, Rusty Peters, Rover Thomas and Paddy Bedford (all of whom are now deceased but contributed to and inhabit the Gija Dictionary) are the subjects of published biographies or catalogues dedicated to their art.

In putting the East Kimberley on the international art map, these artists have also put Australia on the map. The core element in their success was their knowledge of Country and the intellectual capital inherent in Gija “ways of being,” both reflected in the Gija language.

Yet the demographics of the Kimberley are changing. Modern transport, communications technology, regional economic developments, educational opportunities and even sporting opportunities have expanded the horizons of young Gija speakers. The future of Kimberley languages is no longer guaranteed. If the Gija language does disappear, we will all lose not just a language but also an alternative worldview, a way of seeing and inhabiting the world that reflects and emerged from 60,000 years of living on this land.

At its most fundamental level, as an assertion of the legitimacy of Gija perspectives and worldview, the Gija Dictionary represents the next stage in the Gija’s 140-year quest to make their way into the future on their own terms. Its publication is an opportunity for the nation to acknowledge the inherent legitimacy of an alternative Gija worldview and to recognise the strategic compromises and accommodations imposed upon, and made by, Gija people.

Of course, the Gija are not alone in this respect. Hundreds of First Nations have experienced similar histories since 1788. Such an acknowledgement must involve — at the very least — taking effective action to repay younger First Nations generations with the skills that will assist them to continue living successfully in an increasingly multicultural Australia and world, along with substantive financial and policy commitment to language support and maintenance.

First Nations’ languages are a strategic cultural asset for the Australian nation and its people, yet they all confront existential risks. If reconciliation means anything, it means ensuring the survival of these intellectual and cultural assets. The value of the Gija Dictionary is that it is a modest but determined and tangible step in that direction.

Within two years, the nation may have a constitutionally enshrined Indigenous Voice. By 2050, will the Indigenous Voice be limited to communicating in English, or might it youwoori (speak loudly), gooyoorrgboo (speak with power to change Country), wiyawoog (speak or sing to ward off danger) or even just jarrag Gija (speak in Gija)? •

Gija Dictionary
By Frances Kofod, Eileen Bray, Rusty Peters, Joe Blythe and Anna Crane | Aboriginal Studies Press | $34.95 | 430 pages

The post A dictionary for the future appeared first on Inside Story.

A subcommittee of COAG, chaired by Indigenous Australians minister Ken Wyatt and Coalition of Peaks chief executive Pat Turner, oversaw negotiation between Indigenous interests and all levels of Australian governments. The result, the National Agreement on Closing the Gap, released in late July, provides an opportunity to assess the ramifications and effectiveness of the Indigenous groups’ involvement in the process.

The agreement included not only sixteen new targets — mostly in policy areas that are primarily state and territory responsibilities — but also a series of priority reforms for joint national action. The latter, included at the insistence of Indigenous interests, were designed to tackle the systemic and structural underpinnings of Indigenous disadvantage; they focused on formalising Indigenous involvement in policymaking related to programs and services; strengthening Indigenous community-controlled organisations; transforming the operations of government organisations to improve accountability and responsiveness; and improving access to data.

The reaction to the new agreement has been mixed, focusing overwhelmingly on the scope, rationale and shortcomings of the sixteen new targets and the absence of other targets. Although a significant segment of public opinion (both mainstream and Indigenous) appears to be supportive of the aspirations and content of the new agreement, widespread scepticism has also emerged. Critics point to the targets’ lack of ambition, particularly in relation to incarceration rates and family violence, and the absence of the investment needed to ensure they are met.

Nationally, Labor and the Greens support the new national agreement, but both parties have called for extra funding. The most surprising criticism came from prominent architects of the Uluru Statement from the Heart, who pointedly questioned the representativeness of the peak organisations that negotiated with governments — a development that raises complex issues about how Indigenous interests are represented and advocated more widely.

Despite this debate, some of the key implications of the new partnership agreement have been overlooked.

The best way to unravel the deeper policy implications of the new Closing the Gap targets is to consider what each of the parties to the agreement — the Commonwealth, the states and territories, and Indigenous interests — were seeking.

While the governments’ objectives were opaque, their shape can be discerned by analysing past policy approaches and by reverse engineering the final agreement. It would be naive to take the public rhetoric of governments regarding their objectives at face value; for example, the Commonwealth refused access to an evaluation of the National Indigenous Reform Agreement, the COAG document that established the Closing the Gap targets in 2008, on the basis that to do so would reveal “deliberative processes” regarding the negotiations.

In my view, the Commonwealth is likely to have had four objectives in refreshing Closing the Gap:

• to shift the goalposts so as to diminish the significance of the annual ritual admission of failure to meet its targets (the “humiliation driver”)

• to avoid structural or systemic policy reforms that are necessary for greater Indigenous inclusion yet would impose unacceptable political costs (the “policy stasis driver”)

• to avoid significant new and ongoing financial investment in addressing Indigenous disadvantage (the “deficit driver”)

• to shift political and financial responsibility for Indigenous services to the states and territories to the maximum extent possible (the “fiscal federalism driver”)

All of these drivers are mutually reinforcing, and their attainment would combine to compound and reinforce Indigenous exclusion.

Because the original Closing the Gap targets, fixed by COAG, were expiring, the Commonwealth was able to corner the states and territories. The premiers and chief ministers were already at the table, and couldn’t easily avoid engaging. In many respects, they also share those four objectives, except that their fiscal federalism driver points in the opposite direction. Above all, they would want to ensure that the Commonwealth doesn’t offload responsibilities for servicing Indigenous citizens and communities without providing funding too, and to ensure that the agreed targets can be implemented and assessed flexibly. In theory, they could have pushed back, but the Commonwealth had cleverly brought Indigenous interests into the design of its strategy, making it politically harder for the states and territories to resist a new negotiation.

The Indigenous parties to the process were the most transparent. The Coalition of Peaks had laid out its overarching agenda in a number of public forums. It had no choice but to do this openly, because it had to build, and importantly sustain, an alliance of disparate organisations with no established organisational infrastructure. The Peaks’ initial core objectives (as set out on its website) were fourfold: shared decision-making, community control, structural transformation of government agencies, and better access to data.

Spelling out these objectives of the parties helps clarify the dynamics of the refresh. First, the Commonwealth’s fiscal dominance and legislative heft outweigh the states and territories individually and collectively, and its policy objectives — though never made explicit — are more straightforward and encompassing.

Second, the parties’ objectives are not “mirror images”: they don’t involve zero-sum calculations and therefore allow for win/win outcomes (admittedly constrained by the respective ambition and comparative strength of the parties).

Third, the Indigenous objectives were, of necessity, dependent on ongoing commitment and implementation by governments, whereas the governments’ objectives were not dependent on Indigenous responses and were essentially one-off decisions, albeit with longer-term institutional implications.

Fourth, while Indigenous interests traditionally prefer more rather than less Commonwealth engagement, it seems likely that they faced a trade-off between their own objectives and supporting the states in resisting Commonwealth disengagement. Their focus on building Indigenous capacity lessened their ability to insist on mechanisms to pressure on the states and territories to wholeheartedly implement the necessary policies.

Finally, a further “interest” is at stake in these negotiations — namely, the wider public interest — though it is inchoate and intangible and has no seat at the table. This interest transcends the partisan and institutional interests of governments and oppositions, and extends beyond the preoccupations of the current generation of Australians. It posits a simple question without easy answers: how might the negotiations contribute to the sort of nation we hope to bequeath to our children and their children?

While it will take some years for the agreement’s tangible outcomes to emerge, an informed assessment of likely outcomes is possible now that we know the detail of the proposal. After all, the strategists and insiders within each party who determined what was and wasn’t on the table made just such an assessment.

My own assessment, against the notional objectives of the parties, is as follows.

The Commonwealth, by achieving all of its likely objectives with minimal political cost, is the big winner. It has retreated from its overarching national policy role to essentially become a mere aggregator of statistics. By strenuously advocating the notion of shared accountability, and by choosing targets that overwhelmingly relate to state and territory responsibilities, it has shifted the responsibility for explaining failure largely to the states and territories, and to a lesser extent to Indigenous interests.

Importantly, the proliferation of implementation plans and performance data across eight jurisdictions and against sixteen (plus) targets, most of which are required to be disaggregated into four or more categories, will create an extraordinarily complex maze of outcomes to be monitored, assessed and (in theory) adjusted as necessary by policymakers. Commonwealth ministers will sleep soundly at night in the knowledge that when everyone is accountable, no one is accountable.

The Commonwealth’s success in avoiding policy responsibility is not just about Closing the Gap. It is the culmination of a decade-long push to shift Indigenous policy responsibilities away from the Commonwealth and towards the states and territories, and away from Indigenous-specific programs and towards mainstream programs. On issues as diverse as heritage protection, essential services, Indigenous housing and legal aid, the Commonwealth has been reducing its footprint. Where it retains responsibility — in relation to income support, for example — it has increasingly turned to mainstream programs rather than Indigenous-specific ones. The new Closing the Gap agreement is a major capstone on a pre-existing trend that will shape Indigenous policy for generations.

Measured against their assumed objectives, the states and territories have emerged from these negotiations as losers. They will each be obliged to develop detailed implementation plans against the various targets and introduce the necessary policies to deliver them. They receive no extra funding, which means they must either raise extra revenue or borrowings, cut services elsewhere, or — perhaps most attractively from their perspectives — find ways to replace tangible actions with rhetoric (which would shift the loss to Indigenous interests).

Assessing the outcomes for Indigenous interests is not straightforward. The first-order issue is that they leveraged their partnership status into an ongoing role in overseeing Indigenous service delivery both in Canberra and in the states and territories. If implemented, this is of huge strategic importance: it would be the first time Indigenous interests are present when decisions with life-changing implications are being made.

Second, the new national agreement gives Indigenous interests a commitment by the governments of eight jurisdictions, plus local government, to a new policymaking approach based on partnership and greater community control of service delivery. This commitment is built around a formal cross-jurisdictional agreement to four overarching priorities:

• Shared decision-making, including a joined-up approach to five policy priority areas and the creation of six place-based partnerships between all levels of government and relevant communities.

• Sector-strengthening plans in priority areas, starting in early childhood care and development, housing, health and disability.

• Transformed government organisations focusing on issues such as cultural safety, improved engagement with Indigenous organisations and, importantly, improved accountability through more transparent funding processes.

• Shared access to data and information at a regional level.

Implemented effectively and with imagination, these reforms will be far-reaching and will fundamentally increase the influence of First Nations people in policymaking across the nation. To have them embedded in a formal agreement signed up to by all levels of government in Australia is a monumental achievement.

Offsetting these nominal gains are two serious downsides for Indigenous interests; risks that I assess as both high-impact and highly probable. First, they will struggle to build — and, importantly, sustain — the organisational capabilities to engage persuasively and influentially both nationally and, most importantly, across eight jurisdictions. A “seat at the table” does not guarantee positive outcomes. This challenge will be more difficult if governments pursue strategies encouraging internal dissension.

The second risk is the one I foreshadowed earlier: that governments will avoid implementing, resourcing and sustaining the strategies necessary to achieve these reforms. Implementation failure is ubiquitous across Australian governments, even in contexts where policymakers have the best intentions and a relatively free hand. Nicholas Gruen recently framed this as a disjunction between what policymakers say and what they do; a problem he described as being endemic in policy circles. Memorably, he referenced Lord Acton’s observation on rowing as the perfect preparation for public life: moving in one direction while facing the other. The new agreement will require policymakers in a variety of jurisdictions to operate at levels of coordination and cooperation that are rarely achieved in mainstream services, and will require them to take account of Indigenous views in fluid policy and political contexts.

But are governments prepared to make such commitments? Two examples, incarceration levels and employment levels, suggest they may not be, and point to the likely impact of that failure on the lives of Indigenous citizens.

After a leaked version of the final agreement revealed a proposed (and not apparently ambitious) goal of parity in incarceration rates by 2093, Minister Wyatt announced that the target would be changed. The parties subsequently reframed the target as a reduction in Indigenous adult incarceration of 15 per cent by 2031. If achieved, according to the most recent data, this would bring the rate of Indigenous incarceration down from 2589 per 100,000 to 2201 per 100,000, against a mainstream incarceration rate of 223 per 100,000. After ten years’ effort, in other words, Indigenous incarceration rates would still be around ten times the rate of the wider community.

In relation to employment, Closing the Gap now aims by 2031 to increase to 62 per cent the proportion of working-age Aboriginal and Torres Strait Islander people who are employed. According to researchers at the ANU, around 47 per cent of working-age people — those aged fifteen to sixty-four — were employed at the time of the 2016 census, compared with 72 per cent of the non-Indigenous working-age population. The new target focuses on the narrower age range of twenty-five to sixty-four, sidestepping extremely low youth employment, both mainstream and Indigenous, and shifting the latter challenge to the target that focuses on youth employment, education and training.

Even if the new employment target is achieved, some 40 per cent of Indigenous citizens aged twenty-five to sixty-four — four out of ten — won’t be employed by 2031, with all the associated health and economic repercussions for individuals, families and the wider community.

If reducing Indigenous incarceration or increasing Indigenous employment were actually a real priority for Australian governments, these targets would be much more ambitious. In fact, their failure to commit to ambitious targets — and to the policy reforms and increased funding necessary to achieve them — clearly represents a lost opportunity for Indigenous interests. But it can’t credibly be argued that Indigenous negotiators — the party with the least negotiation leverage — bear responsibility for this outcome; instead it is a failure of governments to move decisively beyond the status quo.

Finally, what of the public interest? Australia’s continued failure to tackle deep-seated Indigenous disadvantage diminishes us all. The federal government’s ongoing retreat from policy responsibility is driven by short-term politics and doesn’t align with the expectations of the Australian population when they voted overwhelmingly in 1967 to give the Commonwealth the power to legislate in relation to Aboriginal people. More insidiously, the pretence and self-deception involved in reassuring ourselves that we are doing all that is possible, and that somehow the issues are “intractable” and thus insoluble, undercut the very integrity of our democratic culture. This is not a win for the public interest.

All of us, Indigenous and non-Indigenous alike, have a propensity to see politics and policymaking in terms of a destination rather than a journey. Yet, as we reach each milestone, others appear on the horizon.

The Closing the Gap negotiations saw Indigenous groups successfully demanding a role in developing future policies and programs, and forced governments to formally commit to structural reforms, shifting the nature of the journey ahead. Instead of the previously impenetrable terrain surrounding arid targets and arcane statistics, we now face a climb, admittedly steep, through more open terrain on which the milestones are more visible and are linked to a framework for developing further reforms. Despite my pessimism, the opportunities for the nation have expanded. •

The post A steep climb ahead, but the landscape has become clearer for Closing the Gap appeared first on Inside Story.

In developing the job guarantee proposal, Pearson has linked up with economist Bill Mitchell, a leading proponent of Modern Monetary Theory, or MMT. Mitchell argues that fiscal deficits are not inherently bad and that seeking to control inflation by maintaining a “buffer” of unemployed people (the current orthodoxy) is economically damaging. While the lively international debate about the feasibility of MMT is important, the job guarantee proposal doesn’t stand or fall according to how you view MMT.

Proponents argue that a universal job guarantee, set at the minimum wage, would have three important benefits. It would act as an “automatic stabiliser” (in Keynes’s terminology) by countering undue rises or falls in demand across the economy. It would forestall the significant economic and social costs of structural unemployment. And it would allow the central bank to focus squarely on managing inflation rather than having to attend to both inflation and employment targets.

In an opinion piece in the Weekend Australian, Pearson made plain what was driving his interest in this issue: “My people, consigned to welfare and structural exclusion from the real economy in the post-60s era of growing unemployment, have been victims of public policy choice for which there existed a better and more humane alternative.” He went on to outline his long campaign against passive welfare and its “bitter harvest”: “social problems, broken families, intergenerational poverty, lower life expectancy, egregious rates of out-of-home care for children, juvenile detention and adult incarceration.”

Although the necessary legislation would be national, the scheme would be administered through local government, Pearson wrote. He distinguished it from work for the dole — “It’s a full-time, minimum-wage job” — and stressed that the payment would replace unemployment benefits and end the churning of “hapless clients” through welfare-to-work programs.

Three weeks later, Pearson and Mitchell followed up with a two-pronged argument for their idea. First, focusing on the employment gap for Indigenous citizens, they cited a recent national cabinet pledge (not then public) to raise the Indigenous employment rate from 49 per cent to 60 per cent of working-age people by 2028. When it was finally announced on 29 July, the target was set at 62 per cent by 2031. With the mainstream rate currently 75 per cent, this new Close the Gap target concedes that four in ten Indigenous people will be without a job for the indefinite future.

Second, focusing on mainstream employment, they pointed to current estimates of 7.4 per cent unemployment and around 11.7 per cent underemployment. Figures recently published by Mitchell suggest that an annual $50 billion in government outlays could create 1.24 million jobs and bring employment down to 4 per cent. This fiscal stimulus would also have the flow-on effect of increasing private sector demand for labour, and its cost would come down as the private sector picked up.

Pearson and Mitchell point (persuasively, in my view) to the illogicality of the government’s recent decision to withdraw fiscal stimulus in the face of ongoing community shutdowns and rising unemployment.

Finally, they argue that separating Indigenous disadvantage from mainstream disadvantage is a poor policy choice:

[It] allows a pall of exceptionalism to be cast over the constantly depressing and outrageously out-of-step numbers that characterise Indigenous disadvantage. It’s as if the country — inured to the bad numbers — has come to accept that little can be done.

The country needs to address inequality and poverty as an Australian problem, not just an Indigenous problem.

So, how should we assess Pearson and Mitchell’s job guarantee plan?

The Australian’s editorial on 8 July 2020 provided an early critique. Headed “The Promise and Pitfalls of Modern Monetary Theory: Printing Money Doesn’t Reduce Deficits or Create Lasting Jobs,” the editorial takes aim at Pearson and Mitchell for overreach, the cost of administration, and the putative lack of fiscal self-control if “a populist National, a clueless Green, or a Labor class warrior” were they to control the Treasury benches.

“Pearson’s is a mammoth, brave proposal, one that would redefine the role of the state,” said the editorial, conceding that “In the midst of the greatest social and economic calamity in ninety years, there has to be more scope for imagination and ambition in our policy approach.”

Nevertheless, it saw a number of hurdles. The cost and administration of the scheme “would be vast,” work incentives would be skewed, some citizens wouldn’t want to work or train, and welfare would still be required for those who fall through the cracks. “While the policy edifice is failing Indigenous people, a neat solution is a chimera,” it summed up, concluding with the trite observation that:

we live in a complex, even messy world… How can you hope to manage the economy?… As an analytical tool the theory [MMT] has merit. But with printing money in the real world, there is a day of reckoning or just a long stagnation. Our income can never be guaranteed, so we need to earn and pay our way.

The value in this editorial is that it begins to set down the outlines of the case against the Pearson–Mitchell proposal — and it appears to be a collection of time-worn chestnuts synonymous with the slogan “private good, public bad.”

The Australian relies on the ideological trope that fiscal responsibility (austerity, in other words) must at all times be paramount in policy-making and administration — an idea already blown to smithereens by the pandemic. It also assumes that government’s role should be minimised and the concomitant red and green tape shredded — a view also blown out of the water by the exigencies of the pandemic. And its argument rests on a belief that complexity and messiness make for expensive policy and programs. Well, yes, but that reflects the world we live in. Markets and Adam Smith’s “invisible hand” are amazing mechanisms for allocating resources, but they require strong and independent regulatory oversight if they are to work in the public interest.

What is missing from the Australian’s critique is an acknowledgement of the devastating costs (both financial and intangible) of an unemployment rate in excess of 10 per cent — and much higher among young people — over a sustained period. A recent Productivity Commission working paper on the consequences of the global financial crisis reports that “workers aged twenty to thirty-four experienced nearly zero growth in real wage rates from 2008 to 2018, and workers aged fifteen to twenty-four experienced a large decline in full-time work and an increase in part-time work.” Imagine what the commission will report in 2030 about the consequences of the current crisis.

A second omission from the Australian’s response is any acknowledgement of past policies directed at full employment, including New Deal–era programs in the United States and Australia’s own 1945 White Paper on Full Employment, which underpinned the postwar boom. The white paper’s full employment focus continues to this day as one of the legislated core functions of the Reserve Bank.

The third major omission is any conception of a dynamic and evolving role for government not just as a provider of public goods but also as a manager of risk. A job guarantee can be viewed as an institutional mechanism to retain, strengthen and develop the nation’s human and intellectual capital. To take just one example, the laws governing limited liability corporations are a form of risk insurance for shareholders. As the American economist David Moss points out in When All Else Fails: Government as the Ultimate Risk Manager, it wasn’t initially obvious that such innovations were required or would work. Today, they underpin the financial markets that raise most of the world’s capital for investment. I don’t hear any calls for this “red tape” to be removed.

Ultimately, though, the problem with the Australian’s editorial is that it focuses on the costs of delivering a job guarantee but entirely ignores the costs of failing to deliver one. Yes, a job guarantee would have implications for other policies. But it should be included on policymakers’ list of potential priorities and assessed against all others.

Leaving employment policy to the private sector is a choice of policymakers and governments, and it has serious consequences for citizens who can’t find work. Conveniently for governments, employment levels are made to seem as if they are someone else’s responsibility. Notwithstanding the rhetoric of the government (and indeed the opposition), the current orthodoxy allows governments to avoid hard decisions about social priorities. It means they can dodge the question: is full employment a priority or not?

In other words, I am a strong supporter of the Pearson–Mitchell proposal. If implemented, it would expand social inclusion, alleviate financial disadvantage and undoubtedly have other positive spin-offs for individuals, while providing a considerable impetus to social and economic infrastructure in local and regional communities. It would also make a huge contribution to eliminating Indigenous disadvantage, although it is not a silver bullet in that regard.

Like any complex public policy proposal, the guarantee will present challenges. As with planning for postwar reconstruction in the 1940s, designing the scheme will throw up many issues, the administrative systems required will be complex, and unintended consequences will emerge, particularly in the implementation phase. Tension is inevitable between the Commonwealth, as the funder of the program, and the delivery agencies (currently proposed to be local governments) over modes of operation, allocation of labour resources, and lines of accountability and reporting. These are not insurmountable challenges, but they do point to the importance of maintaining a degree of flexibility in the overall architecture of the scheme.

Despite the substantial merits of this proposal, though, the likelihood of any Australian government implementing it over the next five years is close to zero. This is not down to any fault in the proposal; it reflects the quality, risk aversion and blinkered ideologies of our governments and public institutions.

Would any modifications to the proposal make it more attractive to government? While a key virtue of the Pearson–Mitchell proposal is that it is universal, it may be that a second-best option, more limited in scope, will have a better chance of being implemented. This wouldn’t preclude the eventual adoption of a universal scheme and would provide an opportunity to test what will inevitably be a challenging and complex reform.

The economic and social crisis arising from the pandemic certainly demands more than business as usual, and its impact is likely to persist well beyond the current political cycle. This suggests that a proposal focused on the current crisis — rather than an open-ended scheme — might be more politically palatable. With a ten-year horizon, for instance, the effectiveness of the policy could be assessed based on its tangible record in cushioning the economic impacts of the crisis.

Another possibility would be to introduce the job guarantee across remote Australia, replacing the current Community Development Program, which is widely acknowledged outside government circles to be less than effective and highly punitive in its implementation. The levels of unemployment and underemployment are far worse in remote and very remote Australia, and it is already clear that current policies are doing very little to turn that around.

Even this scaled-back version would meet political resistance, but the Commonwealth’s very modest Indigenous employment ambitions in the new Closing the Gap program — and the absence of any strategy to meet even those meagre targets — suggests the need to try something new. A mainstream job guarantee in remote Australia would automatically target a substantial proportion of the most disadvantaged Indigenous citizens in the nation.

However a job guarantee program is rolled out, the unique circumstances of remote Australia will require particular attention. Indigenous organisations would expect to co-design the program, and community-controlled organisations would expect accreditation as job providers. The decentralised demographics and legitimate cultural aspirations of the remote Indigenous population will also create challenges. The lack of resources for managing the extensive and growing Indigenous land estate will need to be a focus, and the guarantee must build on successful innovations like the “working on country” programs that fund over one hundred ranger groups across the nation.

In what is clearly shaping to be a once-in-a-century financial, health and social crisis, the job guarantee is an idea whose time has come. It would align squarely with both major parties’ claim that job creation is the key priority for government. It would provide stimulus over the next decade. It would build rather than waste our most precious national resource, the skills and intellectual capital of our citizens. It would provide a strategy to reject the idea that the nation’s prosperity requires the impoverishment of a significant proportion of our citizens, particularly our youth. And it would open up employment opportunities to structurally excluded Indigenous communities and citizens — a choice the nation has lacked the political will to reverse.

In the shadow of a potentially existential climate crisis, we need all hands on deck. The national interest requires that we use all the human resources available in economically, socially and environmentally productive ways. •

The post All hands on deck appeared first on Inside Story.

Labor was committed to a referendum on constitutional change in its first term. It would have included a yet-to-be-legislated Indigenous Voice to Parliament, embedded in the Constitution, with the detail left to a post-election design process. Key Indigenous proponents such as Noel Pearson and Megan Davis believed they could overcome the widely recognised impediments to a referendum lacking bipartisan support, but the risk of failure would have been high.

The Coalition went to the election having spelt out its deep opposition to the Indigenous Voice in a series of statements by prime ministers Malcolm Turnbull and Scott Morrison, former deputy prime minister Barnaby Joyce and former Indigenous affairs minister Nigel Scullion. All four men alleged that the Voice would amount to a third chamber of parliament, and thus threaten the integrity of our system of government.

In a shift in tactics, though, the Morrison government highlighted its support for the recommendations of the parliamentary committee on Indigenous constitutional recognition, jointly chaired by Liberal MP Julian Leeser and Labor senator Patrick Dodson. The committee wanted a further process of consultation leading to a final report before the end of the new parliament. In its pre-election budget, the government allocated $7.3 million for those consultations and pointed to having earlier allocated $160 million to its contingency fund to run a referendum at an unspecified point in the future.

These decisions appear, and were designed, to signify a commitment to the recognition process. But despite the welcome appointment of Ken Wyatt as minister, the government has given absolutely no commitment to dealing with any other substantive Indigenous reform proposals, including the Indigenous Voice. What is on offer is yet another of the seemingly interminable consultation processes on constitutional recognition commissioned by Labor and Coalition governments over the past decade, and the prime minister’s latest comments merely reinforce this point.

While Labor offered the best chance so far of successful constitutional reform, neither party has committed to a detailed and specific proposal, let alone a referendum question to be put to a vote. In a Policy Insights report published this week by ANU’s Centre for Aboriginal Economic Policy Research, we take a step back and focus on the structural issues that perpetuate Indigenous exclusion in Australia. We argue that continuing disadvantage and the inability of the nation to come to terms with Indigenous recognition are a function of that exclusion.

While we see considerable value in the Indigenous Voice proposal, we also argue that it alone cannot deal with deep-seated Indigenous exclusion. Even if an Indigenous Voice were established and effective, it would take decades to make the nation’s many social and political institutions more inclusive. Substantive Indigenous reforms have a history of being resisted by those with an interest in preserving the status quo. Even when reform is successful (as was largely the case with the Aboriginal and Torres Strait Islander Commission, notwithstanding its patchy record), it is wound back when those who feel adversely affected by the reform gain influence and power.

We take a detailed look at the history and experience of ATSIC, a previous mechanism designed to give Indigenous interests a voice (though within government rather than to parliament). ATSIC’s leadership and internal governance had a mixed record, but its strengths and contribution — and particularly its regional representation structure — far outweighed its shortcomings. Its failings were arguably the fault of ministers reluctant to use their powers to support ATSIC’s and Indigenous peoples’ repeated calls for necessary reforms. Its successes were overshadowed when the Howard government decided it would take the blame for the Coalition’s Indigenous policy failures.

What then of the Indigenous Voice? We discuss both implementation tactics and the design options available to policymakers. Whether the proposal is put to a referendum first and then legislated (assuming it is successful) or legislated first and then entrenched in the Constitution via referendum, legislation will be needed. The options, as to both its makeup and its scope, are myriad. Legislation also means that parliament, with all the usual trade-offs, will have a say over structure, design and remit. Again, the experience of ATSIC is relevant.

We also assess and analyse the issues likely to arise when an Indigenous Voice is being designed. Two of the more salient are the fact that in our system parliament is effectively dominated by the executive, and the fact that mainstream policy issues and programs increasingly have greater impact on Indigenous citizens than Indigenous programs do. The major risk we identify is that the Indigenous Voice legislation will create an entity that is structurally incapable of influencing parliament effectively on matters relevant to Indigenous interests. The tasks of devising a path to successful implementation and designing an effective Voice are extraordinarily complex, and we propose a number of strategies to deal with this complexity. But it should be recognised that an Indigenous Voice is not a panacea for what most analysts agree has been an area of longstanding and comprehensive policy failure.

Other structural changes will be required, potentially including agreements, treaties and other mechanisms, and these will play into a greater role for Indigenous interests in the design and implementation of government programs and policies. In all cases, First Nations peoples face power differentials and inevitable pressure from other interest groups pursuing their own concerns. These are significant challenges, and they pose a serious threat to the likelihood of effective reform. Part of the solution, we argue, is for Indigenous interests to invest in better advocacy; another is for them to seek out allies among other interest groups. A third, perhaps quixotic observation is that it is in the long-term national interest to create a more inclusive and equitable society.

We also spend considerable time in our report explaining why it is that political parties, the media and the community at large tend to grasp for simplistic Indigenous policies. A consistent theme through our analysis is that reform must be substantive. The political process has failed over at least the twelve years since John Howard promised during the 2007 election campaign to deliver constitutional recognition within the first eighteen months of his next term. At virtually every decision point, across the breadth of the mainstream political spectrum, the path of least resistance has been chosen — a path based on rhetoric and aspiration rather than substance.

While the moral imperative for making the nation’s institutions less exclusionary is unarguable, the political imperative for reform is weak or non-existent. First Nations are left seeking to take advantage of ephemeral political and policy opportunities, the insecure generosity of dominant interest groups, and the possibility that extraordinary individual action, whether by a minister within a government or by the Indigenous community, can navigate the maze of structural obstacles. The progress to date of the proposal for an Indigenous Voice, driven by the sheer persistence and vision of First Nations leaders such as Davis and Pearson, is an example of the latter.

Central to our analysis is our view that the nation is making unacknowledged but enormously significant choices by failing to pursue substantive Indigenous policy reform. The costs of prevarication, short-sightedness and endemic self-interest fall not only on First Nations citizens but ultimately on the nation as a whole. While First Nations and their leaders will clearly need to take stock and reassess their options and strategy, it is beyond time that the Australian nation took stock as well. •

The post Indigenous affairs: how we’re choosing by not choosing appeared first on Inside Story.

The states reacted predictably, immediately releasing statements critical of the cuts. The federal Indigenous affairs minister, Nigel Scullion, duly accused them (in a statement that doesn’t appear on his website) of “undermining good faith negotiations” and denied that Commonwealth funding was ceasing. But he also said that the states should spend some of their mainstream federal funding on social housing for remote residents, and confirmed that the negotiations had begun only on 20 December. Then, during a visit to Gunbalanya in the Northern Territory last week, he appears to have pledged to match the NT government’s longstanding commitment of $1.1 billion over ten years for remote housing. Once again, he told the three states to put up their own money.

No one doubts that housing plays an important role in alleviating deep-seated disadvantage, and few would dispute that remote Indigenous communities are the locus of perhaps the most concentrated disadvantage in the nation. So what is going on here? Why the last-minute resort to mixed messages?

The federal government has played a crucial role in funding social housing since the second world war. Following the 1967 referendum, it gradually ramped up its direct investment in Indigenous housing programs both through the Commonwealth–State Housing Agreement and with a number of Indigenous-specific programs. Until 2007, the CSHA included funds for Indigenous social housing delivered by the states and territories, while the Commonwealth itself ran a nationwide Indigenous housing and infrastructure program, the Community Housing and Infrastructure Program, or CHIP.

These programs recognised the reality that the states had not provided adequate social housing to their Indigenous citizens. While the overt racism of the states’ policies has largely disappeared, the invisibility of Indigenous interests continues. The case for an ongoing Commonwealth engagement in remote housing policy remains incontrovertible.

A 2007 report on CHIP, commissioned by John Howard’s Indigenous affairs minister, Mal Brough, found that the program had failed to focus on need. Given that Indigenous citizens in urban areas and regional centres had access to mainstream social housing options, the most urgent need was clearly in remote communities. There, the almost total lack of private rental housing in remote communities meant that residents couldn’t qualify for Commonwealth Rent Assistance, the largest social housing program in the nation.

In its last year in office, the Howard government increased funding for Indigenous housing and infrastructure. Then the Rudd government struck a National Partnership Agreement on Remote Indigenous Housing with the states, which came with a massively increased Commonwealth investment of $5.5 billion over ten years. Construction and tenancy management were to be undertaken by the states and the Northern Territory, with each jurisdiction given targets for dwelling numbers, refurbishments and Indigenous employment. Even so, it was recognised that the investment wouldn’t meet the totality of housing needs in remote Australia.

The ten-year agreement survived the arrival of the Abbott government in 2013, albeit with the almost-mandatory change of name (it is now known as the National Partnership on Remote Housing, or sometimes as the Remote Housing Strategy) and a funding cut of $95 million. But now, with less than six months to run, what is likely to replace this scheme?

In November 2016, to pave the way for the decisions that will answer that question, Nigel Scullion announced a review of remote Indigenous housing. “Overcrowding, homelessness and poor housing conditions in remote Australia remain unacceptably high,” he said. The review had two tasks: an analysis of what had been done and an assessment of what should happen.

The prime minister’s Indigenous Advisory Council was briefed on the review progress in May last year. In its 19 May communique, the council made a number of comments on Indigenous housing and the review-in-progress, among other things expressing concern that “despite significant reductions in overcrowding investment is required to meet unmet need and maintenance of housing stock.”

In August, Scullion foreshadowed a number of likely policy directions during an episode of ABC TV’s Q&A broadcast from the Garma Festival. “We’re deadly serious about this,” he said. “We’ve invested $5.4 billion over the last decade, and I think everybody would agree we could have done a lot better. We have reduced overcrowding from 52 per cent to 37 per cent — it’s still in the margins, and that took a fair while to do.” In talks with the states and territories about the National Partnership, he said, “we’ll be negotiating on the basis of what the communities have asked us to negotiate on.”

He went on: “So, Indigenous employment is non-negotiable. Indigenous procurement is non-negotiable. And we’ll be asking the states to match those funds. Because we need a pulse. Sometimes we can just trickle along and we’ll be just catching up, just getting ahead, but we actually need a significant injection of funds. So, that’ll be the basis of our negotiation with the states.”

Then, on 26 October, just before the most recent Senate Estimates hearings on Indigenous affairs, the minister released the Remote Housing Review’s report, which essentially confirmed the minister’s assessment of the unacceptable state of remote housing. Its headline finding was that:

By 2018, the Strategy will have delivered over 11,500 more liveable homes in remote Australia (around 4000 new houses and 7500 refurbishments).

This increase in supply is estimated to have led to a significant decrease in the proportion of overcrowded households in remote and very remote areas, falling from 52.1 per cent in 2008 to 41.3 per cent in 2014–15. The Panel projects this will fall further to 37.4 per cent by 2018.

The minister and his officials made no absolute commitments to remote housing at the Estimates hearing. But they did lay down what appeared to be the benchmarks that will shape future Commonwealth policy.

First, they argued — against accepted wisdom and contrary to the history of Commonwealth involvement since at least 1968 — that funding for remote Indigenous housing was primarily a responsibility of the states and territory, and that the Commonwealth’s role was in effect optional or discretionary. “Yes, we have seen this review and we’ve let the states know about the review,” said Scullion. “They are aware that this is a national partnership agreement under which we haven’t reached the goals we were supposed to reach, because then it was to go back to the states’ responsibility…” The Commonwealth would negotiate with the states about what percentage of the responsibility it retains, he went on. “It was the intention that by this stage, the Commonwealth would have no further role and the role would go back, rightly, to the states and territories in this regard.”

But there was never an “intention” that the National Partnership on Remote Housing would be the end of the Commonwealth’s involvement; indeed, it was recognised when the agreement was negotiated that its targets would meet only around half of the outstanding need for remote housing. Moreover, the National Partnership largely met its goals; in fact, allowing for substitution of investment between new builds and refurbishments, it exceeded its goals.

One way to interpret the minister’s statement is that a cabinet decision had not been made, but that he recognised it was unlikely to allocate a further $5.5 billion over ten years. He also appeared to rule out a new national agreement, indicating instead that the government was considering a series of bilateral agreements with the three states and the Northern Territory. No persuasive argument has been made for such a shift, but it will clearly allow what will effectively be a bidding war between the relevant jurisdictions (which all happen to have Labor governments) based on their preparedness to match Commonwealth funding.

This shift also opens up the possibility that the ten-year program will give way to shorter-term agreements. It also increases the likelihood of reductions in funding through the annual federal budget process, whereas the National Partnerships — endorsed by the Council of Australian Governments — appeared to have a greater (but not total) degree of protection from budget revisions.

The minister also backtracked on the timing of an announcement of the new funding arrangements. In responses to earlier Estimates questions, the government had advised that the decision would be announced as part of the Mid-Year Economic and Financial Outlook statement, or MYEFO, normally brought down in December or January. In the latest Estimates hearing, Scullion shifted ground, indicating that discussions with the states and territory were at a very preliminary stage and “it’s unlikely any announcement will be made prior to MYEFO, but there will certainly be an announcement prior to or during the budget process.”

One key recommendation of the Remote Housing Review was that “a minimum five-year rolling plan” should be created for the program. Yet the Commonwealth’s delays mean that the states and the Northern Territory will enter the 2018–19 financial year with very little time to develop a capital works program, more or less guaranteeing a hiatus of a year or more.

What should the next iteration of the National Partnership look like? The two first-order issues are the levels of need across remote Australia, as measured by overcrowding; and the investment needed to maintain the existing housing and increase its lifespan. The necessary level of funding flows from these two factors.

Other issues are important but secondary. They include maximising local Indigenous employment and/or Indigenous employment generally; deciding how best to deliver necessary repairs and maintenance; choosing and resourcing the most effective tenancy support models; and determining how to make trade-offs between design and cost, between new building and refurbishment, and between construction cost and whole-of-asset lifespan cost.

As a guide to meeting the first-order goals, the minister’s Remote Housing Review is of only limited assistance. In estimating the ten-year need for 5500 houses, it includes only households that need three bedrooms or more, and citizens who are homeless. As it concedes, “the overcrowding challenge is likely to be greater.” The review’s estimates are based on 2011 rather than 2016 census data, and it fails to include any estimate of how many houses are reaching the end of their effective lifespan, and when they will need replacing. (Such data is virtually non-existent, but if average asset lifespans were thirty years, and the national remote Indigenous community housing asset base were 15,000 houses, then we could expect around 500 houses to reach effective “end of life” each year, or 5000 over the next decade.)

The review’s modelling is based on reducing overcrowding from 37 per cent to “around 25–30 per cent by 2028,” a level still 10 percentage points higher than in urban and regional areas. It makes no assessment of outstanding need based on matching the rate in metropolitan Australia. (Given that the National Partnership’s extra 4000 houses reduced overcrowding by 15 per cent, and that the review estimates that 5500 extra houses would reduce overcrowding by another 10 per cent, then at least 5000 more houses would probably be required.)

The review reports but then entirely ignores the figures on current demand and projected need provided by three jurisdictions, which total 7520 houses. This suggests that a more accurate figure for the coming decade would be at least 10,000 new houses and arguably 15,000 new houses. Assuming a construction cost of $600,000 per house, delivering 10,000 houses would cost $6 billion. This would need to be complemented by a program of refurbishments aimed at extending asset lifespans wherever possible; assuming effective property and tenancy management policies are in place, this might involve somewhere in the region of 2000–5000 refurbishments over the next decade. Three thousand refurbishments at $100,000 each would add $300 million to the necessary outlays.

Finally, the review correctly emphasises the need for a complementary recurrent program designed to deliver property and tenancy management to the entire asset base. The review’s most insightful conclusion, based on detailed research by Nous Consulting, is that annual rental revenues cover only between 10 and 20 per cent of the actual cost of maintaining remote housing. (Much of this extra cost is a function of remoteness.) This suggests that some $2.8 billion in additional funds will be required to maintain the existing asset base over the next decade.

These rough though conservative calculations suggest that meeting the outstanding housing need in remote Australia over 2018–28 would cost around $9 billion: $6 billion for 10,000 additional houses, $0.3 billion for refurbishments, and $2.8 billion for property and tenancy management. While these figures are daunting in themselves, the challenge is magnified by the fact that they don’t include land servicing, essential services infrastructure, and access roads, all of which were selectively funded by the current National Partnership.

Underinvesting in remote housing over the coming decade will have devastating consequences. For taxpayers, the lifespans of housing built under the National Partnership will be substantially and prematurely shortened by inadequate maintenance. The costs of poor health, education and social outcomes will expand. The local economic activity that spins off capital works will dissipate, further undermining economic development in remote communities. Most importantly, though, the lives and opportunities of tens of thousands of remote citizens will be irretrievably constrained. Evidence from the latest census shows that income levels are worsening in remote Australia, and a pullback in remote housing investment will only exacerbate the trend.

Apart from renewing the National Partnership with a significant level of funding, what options exist for the Commonwealth and the states? I would suggest four.

First, the Commonwealth needs to make good on its commitment to open up opportunities for private-sector investment in remote community housing. One major impediment thus far has been the lack of progress in land reforms (which, to be effective, must not lessen the rights of traditional owners or native title holders). Another has been a lack of innovative vision within government. A third has been the transaction costs and other hidden disincentives that hold back investment, even where progress has been made on more flexible institutional frameworks (for example, the township leases in a number of NT communities). And the fourth is a lack of access to capital. The government’s focus on higher levels of home ownership among remote Indigenous citizens, the vast majority of whom are welfare recipients, has been misdirected; they would do better to concentrate on building up a rental housing market in remote Australia, where it is virtually non-existent.

One way to kickstart such a shift would be to establish a government-owned corporation (which might joint venture with Indigenous corporations) able to borrow in the private sector to build, own and rent out housing in remote communities. Such an initiative would tackle the shortage of housing, and of staff housing, in remote communities (which acts as a disincentive to attract and retain both locally engaged and external staff); would open up new sources of private-sector capital for investment in remote locations; and would begin to give remote Indigenous residents access to the Commonwealth Rent Assistance program.

Second, policy-makers could focus on supporting three or four community housing providers across remote Australia to complement the operations of state housing authorities in remote regions. Although the National Partnership established formal lines of accountability for the owners of social housing, state and territory housing authorities have yet to deliver on their responsibilities. Introducing competing providers may be necessary to demonstrate that poor housing is not an inevitable and endemic feature of remote regions.

Third, given the propensity of the states and the Northern Territory to underfund property and tenancy management in remote regions, the Commonwealth should take a much more direct role, either by delivering these services itself (perhaps by injecting Commonwealth officials into the relevant parts of state and territory housing authorities) or by establishing a new statutory office to monitor, oversee and regulate them. Such an initiative might need only exist for ten or fifteen years until new expectations are embedded into bureaucratic practice, but it would ensure that the capital investments to date, and any future investments, will be protected from accelerated wear and tear.

Finally, one innovative element of the National Partnership was the capacity to vary funding allocations in response to state governments’ performance against key metrics. Despite improvements in state and territory performance, this element was discontinued after the change of government. While the Remote Housing Review argues that varying funding had “undesirable and unintended consequences,” it is salutary to reflect on the fact that the best-performing state in terms of value for money, South Australia, was penalised for poor performance in the early years of the program.

Without a renewed commitment, we will witness a slow-motion national crisis. The asymmetry between the short-term benefits of reduced investment and the longer-term social, economic and health costs is leading to decisions that are not in the public interest, and certainly not in the nation’s long-term interest.

How this issue is resolved will be a test not only of the capacity of the Australian Public Service to drive good policy, but also of the calibre of our political leaders and, ultimately, our national character. The pre-Christmas flurry appears to have been designed to scare the states into thinking that the Commonwealth might allocate no funds at all, and thus pressure them into treating any offer as a bonus. It might work politically, but will magnify the task of closing the gap in remote Australia. ●

The post Tactics versus strategy in Indigenous housing appeared first on Inside Story.

The second phase, which can be interpreted as a direct judicial response to those decisions, was the legal revolution sparked by the High Court’s Mabo decision. At the core was the Native Title Act, which became law in 1993 and was amended in 1998, 2007 and 2009.

Leon Terrill’s excellent book provides the first comprehensive analysis of the third phase of national land rights policies. Here, the focus has shifted to changes in the management and use of Indigenous land through a process Terrill refers to as Indigenous land reform. Although he is primarily concerned with developments in the Northern Territory, he makes clear that the issues have national application and implications.

This third phase will inevitably spill over into policy debates about native title tenure and create pressure for further changes to the Native Title Act over coming decades. It involves three key components. First, the federal government introduced a “township leasing” system in NT Indigenous communities, under which government entities are granted head leases that they then sublease. Second, during the NT Emergency Response the federal government compulsorily acquired five-year leases over seventy-three “prescribed communities.” And third, under “secure tenure” policies introduced in Aboriginal communities across remote Australia, the federal government now requires community landowners to grant forty-year leases to relevant social housing authorities.

These reforms add up to an effort by government to formalise tenure and open up opportunities for greater economic development in remote communities. The implicit assumption driving these reforms – and often the explicit rhetoric – is that a lack of clear property rights, and the communal and inalienable nature of the rights that do exist, has impeded economic and commercial activity in these communities.

Terrill very usefully surveys the relevant international literature and the terms of the political and policy debate that presaged the policy changes. These chapters of Beyond Communal and Individual Ownership disentangle the complex theoretical literature and expertly unravel the threads pertinent to Indigenous Australian contexts.

Terrill is strongly and persuasively critical of the quality of the political debate about these issues, identifying the widespread use of loose language and concepts, and the substantial mismatch between the rhetoric justifying the reforms and the results to date. In particular, he argues that the focus on the binary choice between communal title and individual title has diverted the debate away from the issues that are most salient for remote communities.

This narrow and potentially unproductive framing reflects the fact that many conservatives use land tenure as a proxy for a much broader critique of Indigenous culture and worldviews. But a counter-reaction from the left of the political spectrum (which includes the two major NT land councils), which sees any potential change as threatening, has also contributed to the ideological polarisation.

Terrill also argues persuasively that the reforms have been poorly implemented. He sets up this argument with a chapter succinctly describing the institutional structures applying on Aboriginal land in the Northern Territory – primarily under the Aboriginal Land Rights Act – and a chapter outlining the social and micro-political relationships that permeate community life in remote townships and settlements.

These places are a mix of landowners with both customary and statutory rights, and occupiers/residents who only have informal rights based on accommodations reached over time with the landowners. (In a sense, these informal rights can be interpreted as an extension of traditional rights to forage or enter another person’s estate or country.) He also canvasses with approval the anthropological literature that sees these places, and the “Indigenous” organisations that operate within them, as occupying an “intercultural” space where every aspect of governance is framed according to the social/cultural location of the observer. Given these realities, government-initiated policy changes are inevitably open to resistance, reinterpretation and ultimately failure if they are handled insensitively.

Terrill outlines the elements of an alternative land reform policy. Rather than proposing a specific model of land reform, he opts for the safer approach of identifying the key principles any policy should adopt. He argues that it must recognise three “cardinal” issues: the nature of market conditions applying to the relevant communities, the desired model of governance sought in these locations, and the basis for benefit provision arising from or mediated through the planned structures.

These are highly abstract and implicitly value-laden concepts, and while they potentially provide an analytical framework they do not provide a road map or a guide to policy-making. With the nuts and bolts of policy-making inherently pragmatic and practical, “policy-making by template” would be bound to fail.

Terrill uses this framework to criticise the design elements of the land reforms undertaken to date. In particular, he argues that they have under-recognised the advantages of the pre-existing informal tenure arrangements. Significant social upheaval has arisen from the fact that the reforms prioritised landowners over occupiers and injected increased rent income into landowners’ pockets. As a consequence, the reforms have increased the risks of conflict between landowners and residents.

Terrill’s view is that land reform ought to ensure that the underlying land use authority in each location is structured to act in the interests of all community residents rather than just landowners, who often comprise a minority of residents and may actually reside elsewhere.

At the core of Beyond Communal and Individual Ownership are two chapters describing the recent reforms, outlining their genesis and operation, and assessing their performance, particularly in comparison to the political and policy rhetoric that preceded their implementation.

Importantly, Terrill links the various initiatives and demonstrates their common assumptions and elements, thus providing a more comprehensive understanding of the totality of the policy changes in this third phase of land rights. In particular, he expertly links the changes in legislation with the changes in housing policy. He also draws connections between the financial outcomes of land reform and government welfare policy, and the influential concern to counter welfare dependency.

This holistic analysis is especially important because the third phase of land reform is far from complete. Terrill’s analysis will assist immeasurably in understanding and shaping further land reform initiatives as they emerge over coming decades. For this reason alone, it is worth looking in more detail at some points of policy or political significance arising from his analysis.

The first key reform of the third phase, township leasing, is on the face of it a relatively minor reform, both in conception and implementation. As Terrill notes, it involves a new mechanism in section 19A of the Aboriginal Land Rights Act that was already implicit in section 19, albeit with specific lease terms and an executive director of township leasing to hold head leases and allocate subleases. The modesty of the reform is also reflected in the minimal take-up of the township leasing model, and the slow uptake of subleases by individuals and businesses within those townships.

Yet the new section has had a bigger impact than might have been expected. Terrill spends some time exploring how the head leases negotiated by government have been loaded up with constraints that run counter to the government’s rhetorical commitment that the subleases will be as close to freehold as possible. He also makes the point that the reforms have led to a much greater focus on the use of section 19 leases within remote communities on Aboriginal land, a development he doesn’t see as necessarily desirable. Nevertheless, the increasing formalisation of tenure across remote communities is the substantive and probably unintended consequence of the reforms.

This formalisation has occurred because the two major NT land councils have responded to the prospect of township leasing by aggressively pushing the use of standard section 19 leases, and because traditional owners have increasingly realised that informal tenures provide limited opportunities for recompense for the use of their land.

The second key reform, the compulsory acquisition of five-year leases over seventy-three prescribed communities as part of the NT Emergency Response, never had a well-articulated rationale. Its sole purpose appeared to be to pave the way for unconstrained access to communities by Commonwealth officials, particularly Australian Defence Force personnel (in the early phase of the Emergency Response) and government business managers.

Nevertheless, Terrill treats the acquisition of the leases as part of the broader land reform process and makes a number of critical comments about the legacy of these leases. There is a dearth of information about the motivations in play, but the proposal to take control of townships does align, albeit imperfectly, with the rhetoric about clearer property rights that has been so influential among conservative voices.

While it is clear that the “shock and awe” arrival of Australian Defence Force personnel and the combined force of the Emergency Response left deep and enduring scars on communities, these scars were not solely due to the five-year leases. Indeed the tangible changes in communities as a result of the leases were miniscule, and it was left to the federal Labor government to negotiate and pay the just terms compensation that was necessary to ensure the leases were a valid exercise of Commonwealth power.

The real significance of the compulsory acquisition is that it highlights the risks and complexity involved in pursuing policy reform on the run and acts as a warning of what an alternative model of land reform in the Northern Territory might have looked like. Had the Commonwealth decided to acquire the underlying freehold title and move to a freehold allocation approach, the narrative of continuing Indigenous dispossession would have been reinforced and confirmed, the cost to government would have been huge, immediate litigation would have been inevitable, and the broad approach to land reform in remote Australia would have been placed on a radically different footing.

The third land reform Terrill deals with is the so-called “secure tenure” change in the provision of remote housing, and its two components, home ownership and social housing provision. Terrill goes to some lengths to spell out the problematic history of government attempts to encourage home ownership in remote communities, and highlights the almost total failure of Coalition and Labor governments to make much progress. While home ownership ought to be available to all citizens (and in theory is available via long-term leases under the Aboriginal Land Rights Act), the reality is that the vast majority of remote residents are relatively poor and disadvantaged, and many are on welfare and/or do not have stable or secure jobs; many also have low levels of financial literacy, and have highly mobile lives that make living continuously in one location inconvenient.

Advocating home ownership as an unalloyed positive for any citizen, let alone disadvantaged Indigenous citizens, is problematic. Of course, the alternatives, social or community housing, also have their disadvantages, and there may well be different factors at play in locations like Cape York compared to the Northern Territory.

In relation to the reforms of social housing, Terrill makes a major contribution by spelling out the linkages between housing policy and land tenure. Of all the reforms implemented to date by government, the “secure tenure” reforms have had the most significant impact on the daily lives of Indigenous residents of remote communities. They have also been the most widespread, operating across all jurisdictions, and among the most contentious and difficult to implement, based as they are on governments effectively telling communities that they will not invest in new housing stock unless the communities (technically the landowners) agree to grant forty-year leases.

The context to these reforms included decades of underinvestment in remote housing by the state and territory governments, extremely high levels of overcrowding in virtually all remote communities, and extremely poor levels of repairs and maintenance. In 2008, these shortcomings led the Commonwealth to allocate $5.5 billion nationally over ten years under the National Partnership on Remote Indigenous Housing, an extraordinary surge in resources for remote housing. Of course, the political impetus was strongly shaped by the wider concerns about poor health, community dysfunction and welfare dependence that had led to the Emergency Response.

Terrill lays out a range of arguments critical of the social housing reforms: the term “secure tenure” is a misnomer and not consistent with accepted definitions; the policy intention has been “to implement a strategic reduction in tenure security for Aboriginal residents”; the scheme has imposed excessive conditions on tenants in tenancy agreements and removed the ability to transfer residency within families; and the consequence of all these changes has been to reduce the autonomy of residents. These changes are “inherently interventionist,” he correctly notes, “in that they deliberately impose a greater role for governments and a lesser role for community organisations.”

Terrill’s critique places most emphasis on the new responsibilities imposed on tenants, and under-emphasises the new landlord responsibilities imposed on government. Recent media coverage of poor or non-existent maintenance of community housing by Territory Housing suggests that the implementation of the reforms has left much to be desired, with over 600 outstanding maintenance issues being identified in one community alone. Yet it is crystal clear that government is now responsible for community housing and can be held legally accountable for its landlord obligations.

Beyond Communal and Individual Ownership provides the first comprehensive analysis and assessment of the third phase of Indigenous land rights. Leon Terrill has untangled what is, even for those with an interest in these issues, a tight knot of culture, history, demography, anthropology, federalism, bureaucracy, law and politics. It is a considerable achievement.

What emerges is that the structural and institutional forces at work in remote Australia – the laws, the key organisations, and the intricate interplay of interests shape and determine much more than is generally acknowledged. Moreover, the land reform process is still in flux. The directions of reform might be reasonably clear, but the details are not set in concrete and will be shaped for good or bad by the interplay of stakeholders and politics. The decisions reached will in many respects determine the shape of remote communities and the opportunities of their residents for decades to come.

Beyond Communal and Individual Ownership provides us with an entry point into that policy space, a vision of the policy alternatives that might be pursued in the future, and an analysis of the issues that will need to be addressed and determined whichever course is adopted. This is a very substantial achievement in itself.

Priced at £95, this book is clearly targeted at the research library market rather than individual purchasers. Nevertheless, it is essential reading for anyone who is keen to understand Indigenous land reform in recent years, and who wishes to think seriously about the direction of land rights and native title policies in Australia over the coming decades. •

The post Untangling a new era for land rights appeared first on Inside Story.

Apart from the informative introductory essay by the editors, all of whom are academic lawyers based at the UNSW Law School, the collection is bookended by two forthright and in some ways contradictory essays.

At the front, Bret Walker SC argues that Australian native title law is fundamentally flawed. He contends that the law unfairly imposes an evidentiary burden that other property holders do not confront, is under-conceptualised by judges, and is too quick and arbitrary in requiring the extinguishment of native title interests. Walker argues that the Native Title Act’s attempts to encourage mediation build in an inertia that leads to the compromise of what should be recognised as cut and dried rights.

At the back end, Glen Kelly and Stuart Bradfield outline the case for the Noongar people’s strategy of moving beyond native title, and negotiating what comes close to being a comprehensive settlement with the Western Australian government. This agreement, when concluded, will benefit almost half of the Western Australian Aboriginal population, and avert the cost and uncertainty of a native title claim process. In return for total benefits exceeding a billion dollars – including $600 million in a trust for land acquisition and management, and freehold title to up to 320,000 hectares of land across an area larger than Victoria – the Noongar native title claimants will give up any future claim to native title over that area.

The essays between these two bookends address the panoply of legal and political issues that native title claimants and holders must come to terms with. To their credit, in addition to legal analysis, the editors have gone out of their way to include and engage with broader political issues affecting native title in Australia.

Jon Altman and Francis Markham, in an extremely illuminating chapter, introduce a geospatial analysis of the expanding footprint of the Indigenous estate, including both statutory land rights title and common law–based native title across the continent. A number of maps and tables outline the extent and location of Indigenous land tenure, including in relation to other factors such as vegetation, threatened species and national reserves. They provide a much-needed context for the legal and policy issues permeating native title. For example, while statutory land rights tenures cover some 10 per cent of the Australian continental landmass, determined native title tenures cover a further 23 per cent, and current registered claims (yet to be determined) cover a further 33 per cent of the continent. Yet Indigenous residents of the existing Indigenous estate number only around 75,000, and in the yet-to-be-determined “claimed” estate, only some 225,000. It is little wonder that Indigenous interests’ potential for policy and political influence on native title issues is virtually non-existent.

One hugely important theme of current and increasing significance is the alienability of native title land. In an insightful and masterful analysis, David Yarrow argues that the High Court under-conceptualised the issue of alienability, and that there is no fundamental reason why the current definitional imperative that native title is inalienable should not be revised by the courts or the legislature. In essence, he is arguing that Indigenous self-determination requires the capacity to alienate (or sell) the land. Conservative or pro-market theorists have advocated this idea for many years, so the fact that an advocate of Indigenous self-determination is making the same case might signal that its time has come.

Andrew Chalk and Sean Brennan point out, in an essay on the NSW Land Rights Act, that Aboriginal title under that statute is alienable but requires an 80 per cent vote of the communal owners to authorise sale. This is in contrast to most of the land rights legislation in Australia. In his usefully complementary chapter, Leon Terrill provides an accessible and insightful synthesis of Hernando de Soto’s influential views on the importance of liberating the “dead capital” imprisoned in informal (and thus inalienable) land tenure, along with an assessment of the arguments of de Soto’s critics. Terrill sets up the case that native title is sui generis, and de Soto’s arguments in favour of alienable title don’t necessarily apply to native title tenures.

While Yarrow’s and de Soto’s views have intrinsic merit, the policy benefits of shifting “broad acre” native title from inalienable to alienable tenure are not overwhelming. As a number of the authors point out, capacity and governance, as well as adequate regulation and oversight would be prerequisites of such a shift. In their absence, the risk of extensive tracts of land being irrevocably lost to the Indigenous estate is considerable. On the other hand, where native title exists in townships and settlements, there may well be a stronger case for greater alienability. Whatever one’s views in balancing these competing considerations, through the inclusion of various alternative analyses the editors have shone a light on the complexity of the choices facing the nation in just one corner of the native title policy landscape.

A second theme that emerges from the collection relates to the institutional framework in place to facilitate the exercise of native title rights once determined. A number of the legal chapters refer to the incentives built into the Native Title Act towards “balkanisation” of claims and native title determinations. David Trigger’s chapter on the micro-politics of social inclusion in claims, and to a lesser extent Danielle Campbell and Janet Hunt’s chapter on the community allocation of payments under the Northern Territory land rights legislation point to how internal dynamics within Aboriginal social structures can similarly lead towards group fragmentation.

In separate chapters, Marcia Langton and Tim Rowse assess the utility of the corporate structures required by the Native Title Act, and their effect on the capacity of native title holders to use the rights that they have had recognised. Rowse’s essay is conceptually sophisticated, but leaves the policy implications opaque. Langton proposes (albeit “provisionally”) changes to native title legislation to facilitate more regional approaches to the composition of native title holding bodies. Her argument is both persuasive and attractive. She is almost alone among the contributing authors in breaking free of academic “neutrality” or caution and proposing specific public policy change. Her proposal requires further analysis by others to map out a pathway to legislative reform. Interestingly, the Victorian and forthcoming Noongar native title settlement agreements appear to be conscious attempts by native title holders themselves to address the advantages of regionally based solutions to managing traditional land holdings.

A third theme, indeed the centre of gravity of the book, is the courts’ detailed exploration and exposition of native title law, in particular the competing judicial interpretations of the components and conceptualisation of native title since the Mabo case. The courts have progressively articulated a more organic view of native title, which incorporates an inherent capacity to reflect change and transformation. This is the journey from Mabo to Akiba referred to in the book’s title, Akiba being a High Court 2013 judgement confirming the recognition of a native title right to take fish for commercial purposes in the Torres Strait.

While acknowledging the considerable strengths of the book, it is nevertheless valuable to consider its shortcomings.

The structure is perhaps too conventional. In their introductory essay the editors articulate four modes that facilitate engagement between Indigenous peoples and settler states: legislation, litigation, policy and administration, and negotiation. The book then divides into two parts: part one, “Legal Dynamics in the Development of Native Title,” and part two, “Native Title as a Vehicle for Indigenous Empowerment.”

This is a particularly passive framework, which says nothing about the capacity for political and policy influence of Indigenous peoples and their organisations, and which ignores the role of business organisations as a potential component of political and policy advocacy in Indigenous contexts. An alternative framework might have focused on the context (both historical and policy) of native title, current issues (both legal and political), and finally the structural underpinning and implications affecting or constraining policy change in the future.

Such a framework would have facilitated a more thematic structure, integrating legal analysis, policy and political analysis. This may have assisted in overcoming the comparative silence of the book on the nuts and bolts of native title public policy.

To take one example, the fact that primary policy responsibility for native title within the federal government has resided with the Attorney-General’s Department for the majority of the past twenty years has led to policy issues being framed in overly legalistic ways, to the detriment of the underlying policy objectives that the Native Title Act might support. Yet while a number of chapters comment on the federal government’s propensity to oppose native title claims in the courts, none make the link to where and why these decisions are being made.

A second weakness is the book’s under-emphasis on the structural issues surrounding use of native title payments and benefits by Prescribed Bodies Corporate (holding corporations established under the Native Title Act) and other Indigenous groups. While Campbell and Hunt’s chapter discusses the processes used by the Central Land Council to broaden the choices available to statutory payment recipients, the book provides no overall account of the size and significance of native title payments made over the past twenty years, or how those funds are being distributed by resource developers, and allocated by native title holders and claimants.

Yet it is arguable that these structural issues are the crucial determinants of whether native title rights will empower Indigenous people into the future. In very simple terms, decisions by native title holders to consume the financial proceeds arising from negotiated agreements to access their lands, rather than save or invest those funds, will effectively disempower Indigenous interests over the long term. Decisions to save and invest will empower them. Unfortunately, these issues receive only passing attention in the collection.

A third shortcoming is the lack of any substantive discussion of post-1975 compensation issues. Native title is extremely vulnerable to extinguishment (a point made in a number of the legal chapters), but following the enactment of the Racial Discrimination Act in 1975, and reinforcement by provisions of the Native Title Act itself, extinguishment requires just terms compensation. The interaction between this legislative imperative for just terms compensation and the uncertainty over where native title continues to exist has set up a policy dynamic that favours the early settlement of native title claims. The Yawuru around Broome and the Noongar peoples in Western Australia’s southwest are beneficiaries of this dynamic. In short, state governments have an incentive to settle now, rather than possibly face enormous compensation claims in the future, particularly in locations where native title may have been extinguished by grants of title to facilitate high-value urban development.

Similarly, the vexed issue of Commonwealth assistance with the costs of potential state compensation obligations, offered by the Keating government after the passage of the Native Title Act, is an underlying and hidden driver of much of the federal–state interactions over native title policy.

The states have an incentive to negotiate settlement with native title claimants. But the financial contributions by states to these agreements are not technically compensation for extinguishment of native title, and so far the Commonwealth has resisted considerable pressure over many years to substantively contribute to such negotiated settlements. The Commonwealth’s reticence to underwrite settlements to which it is not a party is understandable, but its frugality may be inhibiting the negotiated settlement of both native title claims and claims for compensation, thus adding to future costs of litigation for all potential parties.

Litigation for compensation for extinguishment of native title is in its infancy, but is likely to emerge as a key element in the politics of native title over the next twenty years. The shape of these future judicial decisions will play a major role in determining whether Indigenous interests are benefited and potentially empowered. In the meantime, the states and the Commonwealth are warily circling each other over the issue of which level of government will eventually pay the major share of these future liabilities.

These compensation issues are virtually absent from the book, perhaps because so far they have been under-represented in the cases brought before the courts. Yet they underlie much of the positioning by key players and stakeholders in the native title policy domain, and will ultimately determine the extent to which native title can empower Indigenous interests.

While it is perhaps harsh to criticise a book for what is not included, fully assessing the complex issue of Indigenous empowerment demands a more policy-oriented focus than this collection brings to bear. The legal analyses in part one of the book are of a very high quality, but often fail to take the next step of assessing the public policy options and choices inherent in the issues being canvassed. The empowerment analyses in the second section are insightful and hugely informative about the complexities of on-the-ground management of native title issues. However, the link back to the legal issues driving policy outcomes is under-articulated. So, for example, nowhere does the book address the practical political challenges of getting sensible reforms onto the legislative agenda – reforms such as those released by the Australian Law Reform Commission in its April 2015 report Connection to Country, or those raised some years ago by Indigenous interests led by Marcia Langton, and the Minerals Council of Australia in relation to effective use of native title payments.

Notwithstanding its political profile and undoubted significance for Australian land law and ultimately for economic development, on the key substantive issues native title has become a public policy-making and legislative reform dead end. The nation’s native title ministers met in 2013 and 2014 after a hiatus of four years, but without any apparent outcomes. The courts have been left to do the heavy lifting. This should hardly be a surprise, as arguably the Mabo decision itself was engendered by the incapacity of the Australian polity to deliver land justice to Indigenous Australians via statutory land rights legislation.

To ensure that native title has a positive and enduring transformative impact, we need effective and pragmatic legislated reform that acknowledges the realities of past injustice; that reduces the onerous thickets of administration and regulation hindering effective use of the rights that have been recognised and “won”; and that builds political and policy coalitions within and beyond Indigenous interests to keep positive institutional and structural reform on the national agenda. Achieving this reform, rather than any dearth of ideas or analysis, is the real challenge for native title in Australia.

At present the nation is not in that space. The claims process established under the Native Title Act continues to spool out new native title determinations, but the political system is not meeting the challenges of ensuring those claims deliver benefits. Australians, both Indigenous and non-Indigenous, will need to continue looking to the courts to deliver the solutions.

This collection of analytically sophisticated and diverse essays is a considerable contribution to meeting those challenges. It will reinforce the momentum within the courts towards more sensible conceptualisation and articulation of native title rights. From Mabo to Akiba doesn’t lay out the complete roadmap for the journey, but it does explore and synthesise the issues that need to be addressed if native title is to fulfil its potential as a vehicle for achieving a just reconciliation between the nation and its original owners. •

The post Native title: the missing link appeared first on Inside Story.