The Monthly: 'no one can tell us we are not from here'

The July Monthly is a must read for anyone engaged with or interested in the relationship between Indigenous citizens and the Australian nation state. There are at least twelve articles, comments, notes, or reviews canvassing a broad array of contemporary issues from a largely Indigenous perspective.

The lead essay by Galarrwuy Yunupingu, Rom Watangu: The Law of the Land is at once a paean to the cultural wealth and knowledge bestowed on him by his forefathers, an incisive analysis of the history of misunderstanding between owners and interlopers, and a call for a new understanding. It is also infused with Yunupingu’s sombre recognition that it is time for others to take on his life’s work of mediating and promulgating his culture. It is a powerful statement which will resonate for a long time to come.

Rachel Perkins, in a very moving essay, explores the work of Central Australian Arrente women – her family and relations - to reclaim their songs, their cultural identities, their very identities.  It mirrors Yunupingu’s comments about the importance of song cycles: ‘it relates to the past, to the present, and to the future’.

The horrifying reality of violence against Indigenous women is laid out by Marcia Langton in a rhetorically and analytically powerful expose of the injustice of the legal system‘s dealings with two cases involving the excruciating deaths of two women.

In shorter pieces, Wesley Enoch makes a cogent, but emotionally restrained case for greater transparency and public discussion around arts funding, including Indigenous arts funding. Bruce Pascoe describes the invisibility of Indigenous histories in the operations of the Tasmanian tourism industry. Luke Davies reviews Ivan Sen’s Goldstone, and the ABC’s Cleverman; and Anwen Crawford in a review titled  ‘Smart black man with a plan’ interviews Shepparton rapper, writer, performer and record label owner Adam Briggs. Plus First Dog on the Moon reprises a biting comparison of two Indigenous whistle blowers, and Russell Marks in a celebration of 50 years of the ABC’s Play School recounts a deliciously funny anecdote about Christine Anu, a nursery rhyme, and Piers Akerman’s extraordinary response.

I have left Megan Davis’s commentary entitled “Seeking a Settlement’ till last. She makes a highly persuasive case (contra Prime Minister Turnbull) that recognition and a treaty need to be seen as complementary and indeed synergistic in their effects. In contrast to her scintillating essay ‘Listening but not hearing: when process trumps substance’ in Griffith Review 51 this year, ‘Seeking a Settlement’ is more overtly passionate, perhaps less patient with our broader political system and its incapacity to address and deal with issues which are real, legitimate and indeed have been put on the nation’s table by the nation’s leaders.

My own reaction to reading this edition of The Monthly was a contradictory mix of pessimism and optimism. Pessimism that as a nation we are unable to deal with the hard issues which go hand in hand with our colonial history and its insidious and long-lasting consequences. Optimism that we have Indigenous voices across the whole span of our public and cultural life standing up for a better future. In effect, these voices are like a reverberating echo off a mountain top, mirroring the words of one of the Arrente women in Perkin’s essay: ‘Now no one can tell us we are not from here’.

The issue for mainstream Australia is what will our response be?

The Monthly, and its authors, deserve our congratulations.

A new Approach to Tiwi Land Development

A media release from the NT Chief Minister presages a new development in NT Land Rights policy development. It links to a joint announcement with the Tiwi Land Council (TLC).

The release refers to a 2013 Memorandum of Understanding between the NT Government and the Tiwi Land Council, to support economic development on the Islands.

The NT Government and the TLC have entered into a strategic partnership to encourage commercial development on the Tiwi Islands, and have now released a suite of documents outlining the proposed processes.

 The key NT Government agency is the Land Development Corporation (LDC), described on its web site as the NT Government’s strategic land developer, and the Tiwi Land Council and Tiwi Land Trust.

The key document outlining the proposed approach is titled Tiwi Islands Investment Opportunity: Private Sector Investment Opportunities . There are links to a range of other fact sheets and background materials. The document outlines the existence of the Tiwi Development Framework Agreement, entered into in 2015 between the NTG and the Tiwi Land Council and the Tiwi Land Trust. This agreement apparently provides for a process of identifying potential development sites, agreement for prospective developers to inspect potential sites, and for a template approach to leasing development sites for commercial development.

Central to the proposed approach is a lease of up to 99 years to the Land Development Corporation, which will then sub-lease the proposed commercial site to the business proponent. The prospectus suggests there are opportunities in tourism, aquaculture, agriculture and industry available.

The core of the proposed approach, and the new element in NT land rights policy which is implicit, is that the LDC, and thus the NTG, propose to act as an intermediary between commercial proponents interested in pursuing opportunities on Aboriginal land and Indigenous interests represented by the Tiwi Land Council.

The proposed approach has strong similarities with the Township Leasing model established in 2007, and which operates on the Tiwi Islands and Groote Eylandt. That model interpolates a Commonwealth statutory office, the Director of Township Leasing between traditional owners and residents and land users within particular townships. Its rationale is effectively to streamline negotiations over leases within townships and thus reduce transaction costs. However the model has not been supported by the two major land councils and thus its take up has been quite limited. This article discusses some of these issues in greater detail.

It will be interesting to observe whether the new approach, which potentially applies across all Aboriginal land on the Tiwi Islands (and not just within townships) will be taken up by the other NT Land Councils.

On its face, there appear to be advantages insofar as the LDC will have a pre-existing relationship with the Tiwi Land Council and the key traditional owners which will operate to build the trust necessary to facilitate effective negotiations. The LCD will also have an interest in ensuring that its proposed sub-lessors are serious and above board, with viable proposals. The LCD may also operate to persuade external investors to consider adding Indigenous owned equity to their proposals thus ensuring that Indigenous interests have both a stake as ‘’landlord’ and as commercial operator.

Nevertheless, there are also risks which may be harder to discern and guard against. Perhaps the most significant is that the implementation of the framework agreement model may precondition the Land Council to seek to find ways to approve commercial proposals which either are not supported by the Traditional owners, or even if they are supported which do not drive the best possible commercial outcome for traditional owners. There is a history on Tiwi of failed or flawed commercial projects being approved following significant hype and considerable doses of back-room politics. The fiasco of the Tiwi forestry project and the separate fiasco of the later port development are stark reminders of the risks for all involved.

Accordingly, the quality of financial governance within the Land Council will be of increasing importance, and potential risks (which are unfortunately very real in remote communities – see this post) involving conflicts of interest, fraud, and just poor financial and legal advice all need to be managed effectively. The regulator for the NT Land Councils is effectively the Federal Minister for Indigenous Affairs and his Department, and there would be merit in the Minister initiating a forward looking internal review of the quality and capacity of his Department to provide regulatory oversight of the land councils given the increasing shift to commercial land use decision-making.

It is too early to form a considered judgment on the merits of the new approach proposed by the NTG and the TLC. Implicit in the policy however is a recognition that commercial development of Aboriginal land in the NT is not impossible, but does require tailored approaches which acknowledge the rights of traditional owners and which opens up options for Indigenous participation in economic activity. This in itself is a good outcome.

The Redfern Statement and the Challenges Ahead

Last week, the National Congress of Australia’s First Peoples auspiced the release of a pre-election policy agenda, the Redfern Statement, outlining a comprehensive policy agenda which Indigenous interests are asking political parties and the next Government to implement.

The Statement was compiled and released on behalf of 17 peak indigenous organisations, and had the support of some 29 mainstream NGO’s and advocacy groups. The Statement was released at a meeting of Indigenous leaders in Redfern and gained useful media coverage. (See here).

Interestingly, the Statement made no reference to land issues, and the main news story arising from the day related to a call for the next Government to establish a new Indigenous affairs agency separate from the Department of Prime Minister and Cabinet (see here). I wrote a previous post on this issue.

My own reaction to the Statement and its attendant media releases and coverage was mixed. I was extremely pleased to see Indigenous interests and in particular Congress articulating a range of important policy positions during the election campaign, and was heartened that effort was being made to jointly develop an overarching policy agenda which is the first step in forcing political parties and governments to take the issues raised seriously.

The Statement will be a useful benchmark in assessing the state of play on Indigenous affairs going forwards, and simultaneously offers a useful summary of the extent to which the Indigenous policy agenda has been ignored by the political system over the past five years. It also provides a tangible demonstration of the importance of building policy coalitions as a first step towards policy influence within a political system which is extremely crowded with multiple interests jostling for attention let alone influence, ruthlessly pragmatic and responds only to pressure and publicity.

My reservations are largely pragmatic in nature: I fear that the Statement and its embedded policy agenda will not be taken seriously and ultimately will sink into oblivion. The reasons for my pessimism include the singular focus of the electorate and political elites on the economy and major service delivery sectors such as health and education, the short attention span of the political news cycle, and marginal status of Indigenous issues in electoral terms.

In these circumstances, Indigenous interests need to present their case in a way which is crisp, focussed, and which cuts through. And they need to supplement their initial release with some follow up media which reinforces the key messages, and pressures the government and opposition to respond. While the virtual silence of both the Governmental and to a lesser extent the Opposition in response to the Redfern Statement is disappointing, the onus falls on Indigenous interests to do whatever it takes to challenge this implicit marginalisation.

It is worth noting how business goes about the same task. At virtually the same time as Indigenous groups released the Redfern Statement, the four most influential business peak bodies, the Business Council, the Australian Chamber of Commerce and Industry, the Australian Industry Group and the Minerals Council released a joint statement setting out their key policy ask heading into the election. IN contrast to the Indigenous statement, business focussed on one key issue, corporate taxation, and laid out a narrative which argued that more competitive corporate taxation leads to greater investment, economic growth, boosts to wages and increased national income. The Statement was published in the Australian Financial Review (AFR 9 June 2016 behind paywall), which also ran a complementary front page story under the headline “Business rebuts tax cut attacks”.

In contrast to the Indigenous approach, business have synthesised their message down to one key issue, corporate taxation. Their focus is on the arguments which support their position rather than a detailed description of the technical issues involved, and their stance is future oriented, not backward looking. The BCA website is clean, uncluttered, and takes the reader straight to the joint statement as one of three of four points of interest.

This comparison suggests that Indigenous interests, and in particular the National Congress, have more work to do to synthesise, simplify and sharpen their political messaging, while ensuring that they retain the confidence and active support of what is an extremely diverse constituency.

Admittedly, Congress is financially challenged following the current Government’s decision to cut their funding in the 2014 Budget. However this may be an opportunity. In my view, it is time that the Indigenous leadership acknowledged that not only must they speak with one voice if they are to maximise their policy influence within our political system, but that this voice must be established independent of government funding and influence. Opportunities exist to raise funds from the increasing number of significant Indigenous organisations nationally, from philanthropic sources, and even from business which over the last decade has increasingly seen and accepted the need for it to engage meaningfully with Indigenous Australians (see this page on the Business Council website).

It appears increasingly likely that Australia faces a decade or more of significant financial constraint, if not austerity. In such an environment, governments will be forced to make difficult choices. Given these accelerating challenges, it will be imperative in my view that Indigenous interests develop two broad capacities.

First, Indigenous interests would benefit from having a clear and effective voice in the broader political debate, with a capacity to both work with government and to take the debate up to government and to the public at large. The likely election of three or four Indigenous MPs across a range of parties in the next Federal Parliament will help, but will not be a substitute for an external Indigenous voice independent of the party system.

Second, Indigenous interests need to develop and sustain an independent and effective policy analysis capacity with both legitimacy and authority to speak on behalf of Indigenous interests, which would allow them to engage substantively both with the broader Indigenous constituency and with governments, state and federal. Policy issues are increasingly complex, have short life spans in public debate, and thus present only limited widows of opportunity for interests affected to have their say. Moreover, in many respects it is the macro economic and social issues which have the most potentially to affect Indigenous interests, for good or ill. Not to have a considered and persuasive view on these mainstream macro issues is to abdicate influence to mainstream interests groups and the bureaucracy.

The development and release of the Redfern Statement is a positive step on this pathway, but much work will be required over the next five years by the Indigenous leadership if Indigenous interests are not to be further marginalised by the Australian political system.

Improving Financial Accountability for Government Investment in Indigenous Affairs

This week’s Four Corners program provided a telling reminder of vulnerability of remote Indigenous communities to the predations of unscrupulous individuals who have been engaged to assist them in managing their financial affairs either as employees, advisers, or office bearers.

Tellingly, at the end of the program, the presenter Sarah Ferguson noted that this was not the first time that Four Corners had covered issues of fraud and financial mismanagement in remote communities, and asked rhetorically, ‘Is it a vain hope that we will not be returning to tell this story again?’

Accountability challenges in relation to funding for Indigenous development have a long and dishonourable history, and for better or worse, have contributed to the widespread public perception that much of the funding allocated to Indigenous affairs is wasted or misdirected. Whether this perception is fair or correct is irrelevant; the reality is that fraud and financial mismanagement within Indigenous organisations exists and any level of poor financial management should be deemed unacceptable.

Nevertheless, closer examination of the issues surrounding Indigenous funding arrangements, and the extent of funding mismanagement, reveals a more complex reality which is worth setting out in greater detail.

Waste

The first point to make is that there is a clear distinction to be drawn between the effectiveness of Government programs and inappropriate financial management. Clearly, the latter undermines the former. However, effectiveness shortfalls (which in everyday parlance we can term ‘waste’) can occur for a range of reasons, beginning with poor program design, poor program management, and poor program implementation and delivery.

It is only at the implementation and delivery end of this spectrum that Indigenous organisations are closely involved, and increasingly in Indigenous affairs, even those stages are being outsourced via competitive tender to a range of providers, indigenous and non-indigenous. It follows that Government – not Indigenous organisations – must bear primary responsibility for any ‘waste’ in Indigenous programs.

A second related point to note is that in public policy terms ineffective program investment (‘waste’) is a much more important issue than fraud. It has larger consequences for taxpayers, and more importantly, larger and adverse consequences for Indigenous citizens insofar as the purported benefits of the program investment are not realised or only partially realised.

In other words, program effectiveness is a much more salient and significant issue for taxpayers than financial mismanagement, and the responsibility for ensuring programs are effective falls overwhelmingly to government and not Indigenous organisations and citizens.

Arguably, the effectiveness of government programs (particularly grant programs) gets too little attention by the media and informed commentators. Governments habitually make it difficult for the public to be informed of the investment and grant decisions which have been taken, and the processes by which those decisions are taken. Evaluations are rarely totally independent and methodologically sound, and their terms of reference are often deliberately constrained so as to minimise the likelihood of adverse findings. Once completed, they are often not published or not published immediately.

In relation to grant funding, while there are processes for accessing information on grant funding such as Freedom of Information requests or Annual Reports, the transaction costs for individual citizens in doing so in any meaningful way are generally insurmountable, and once obtained, the information is often presented in ways which occlude the nature of what is being funded.

To provide an example, the recent Senate Committee Report into PMC’s Indigenous Advancement Strategy (IAS) struggled to receive a coherent account of the extent and nature of the funding processes under that program. Notwithstanding the extensive information on the public record relating to the IAS through that committee process and recent Senate Estimates questions, an interested citizen still has no way of assessing the effectiveness of the grants to individual organisations, nor the effectiveness of grants overall in particular sectors (such as the Community Development Program). And this Inquiry is a one off, and the information provided on the public record will quickly be out of date.

As an aside it is clear, as this recent post to the ANU’s Development Policy Blog demonstrates, that these issues extend beyond Indigenous affairs.

There is a strong case for improving the information on grant investment by government which is made publicly available, and in particular, for establishing a publicly accessible data base of both previous and current grant funding for all Government programs incorporating a capability for interrogation and sorting of the data by citizens and the media. The technical capacity exists.

In our much more complex digital age, the notion of ‘open government’ needs to be expanded if citizens are to be in a position to exercise their democratic rights to understand and effectively express their views in relation to government activities. This is particularly relevant in areas such as Indigenous policy where the challenges are huge and government’s role is crucial. Greater transparency of government investment decision-making will assist in improving program effectiveness and thus reduce ‘waste’.

In summary, the capacity of citizens external to government to assess program and grant effectiveness in a timely fashion is at the moment extremely limited. This is not an argument for greater transparency as ‘citizen voyeurism’, but for establishing mechanisms which incentivise government to invest more internal resources in ensuring programs are effective.

Under current arrangements, and notwithstanding the rhetoric on ‘open government’, it is only much later (if ever) – when problems emerge – that ineffective program results become apparent. By then it is too late for any accountability mechanism to have an impact.

Fraud

Turning to issues of financial mismanagement and fraud in Indigenous organisations, we need to disentangle a number of threads. While arguably an extremely small proportion of overall funding and thus of lesser significance (at least in objective terms), fraud has the potential to gain substantial political and public attention.

Moreover, for Indigenous interests, being subjected to fraud can be catastrophic for the legitimate operations of community organisations, and can undermine community and organisational cohesion.

Community members can be severely disadvantaged and office bearers shamed and humiliated. The Four Corners program made this point very effectively, demonstrating the trauma and shame which community members felt at being ripped off by individuals they had trusted.

While fraudulent activities and financial mismanagement can occur anywhere, and is not by any means limited to the Indigenous sector, there appear to be strong intuitive grounds for concluding that Indigenous organisations are particularly vulnerable. Their office bearers are often appointed for their community based links, and not for their financial or organisational skills; organisational membership is often drawn from groups with low levels of educational attainment and low levels of financial literacy; and importantly, Indigenous cultural mores which emphasise and prioritise kin based relationships over externally imposed rules can lead to poor governance and oversight in the absence of governance training and development.

The structural tension public policy-makers face is to maximise Indigenous ownership and involvement in managing their own affairs including in the delivery of programs to the Indigenous community while minimising the adverse consequences of poor governance, defective program implementation or poor financial oversight and management.

A key point in considering the policy significance of these issues is to note that Indigenous organisations increasingly have access to their own sources of revenue, through business activities or from various land and native title related financial agreements. It is not just taxpayers’ funds which are at risk from poor financial management. The capacity for Indigenous commercial and economic development is also placed at risk from deficient financial management practise within Indigenous organisations.

Governments have been aware of these issues for decades, and from time to time have focussed on one or another of the elements underpinning the effective financial management of Indigenous organisations.

For example, in recent decades there have been from time to time efforts to improve governance in Indigenous organisations, to strengthen the original purpose of the CATSI legislation, to roll out financial literacy programs, to strengthen remote community access to banking services, and to strengthen government’s capacity to audit and evaluate Indigenous programs through the now defunct Office of Evaluation and Audit. Each of these initiatives has faded in profile and priority, and there appears to be no overall strategy focussed on managing the risk of fraud or misappropriation within Indigenous organisations.

Under the new IAS, the present Government has strengthened the requirement for funded organisations to be incorporated under CATSI or the Corporations Act (rather than under state based Associations Acts designed for tennis clubs and the like). The Government has also encouraged greater use of independent directors on the boards of organisations with complex or substantial financial responsibilities. I support both of these initiatives.

Following the Four Corners program, the ABC reported that the Registrar of Aboriginal Corporations issued a statement to the ABC:

The Registrar of Indigenous Corporations, Anthony Beven, declined to be interviewed but provided the ABC with a statement.

"The registrar takes allegations of wrongdoing seriously and has a strong track record of taking action where there is evidence of wrongdoing," the statement said.

"In the last six years the registrar has taken action in the courts against more than 140 corporations and individuals.

"If you or any person has any evidence of any wrongdoing by any person or corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 please refer it to the registrar's office (ORIC)."

ORIC has launched more than 140 criminal prosecutions since 2011 and supported hundreds of Indigenous organisations to improve their governance.

Full details of the prosecution outcomes from the registrar's action are available on the website.

This led the Chair of the National Congress of Australia’s First Peoples, Dr Jackie Huggins, to comment there was still an endemic problem with misuse of Indigenous funds:

"It's still not getting any better, in fact it's getting worse," Dr Huggins said.

"We are sick and tired of all the money that gets ripped out of Aboriginal and Torres Strait Islander organisations."

The Minister responded:

Federal Indigenous Affairs Minister Nigel Scullion on Tuesday backed the regulator and said he was aware that it was operating under budgetary constraints.

Senator Scullion said a review of the ORIC and the CATSI Act was currently underway.

"Some elements of the CATSI Act may have to be amended to ensure we can ... get further transparency for organisations," Senator Scullion said.

"Of course everyone will be able to make a submission and that review will be public."

But Senator Scullion said the investigations that were taking place into compliance at 44 Indigenous organisations would not be made public.

In the light of the recent revelations on Four Corners, and the considerable quantum of the grant funding currently being allocated to Indigenous affairs, there appear to be grounds for concluding that Government should do more. A first step would be to acknowledge that Governments, not regulators, are responsible for the policy and program frameworks which determine how fraud with Indigenous organisations is dealt with.

The response of the Minister, apparently on the run, ‘announcing’ a pre-existing review of the CATSI Act will not get the root of the issues. His focus on the regulator neatly sidestepped his own broader responsibility for the current policy frameworks which are clearly facing considerable challenge.

As a corporate regulator, the Registrar can investigate the compliance of Corporations with the legislation, and under the current Registrar ORIC has an admirable record of pursuing financial mismanagement within CATSI Act corporations. But his remit is only partial, and he has limited capacity to pursue individuals outside CATSI corporations who engage in illegal behaviour. This appears to be the case at the Warmun community covered in the Four Corners program.

A Broader Review

To respond to the plea of the National Congress Chair, the Government should in my view commit to establishing a comprehensive policy framework addressing the risk of financial mismanagement in Indigenous organisations. Such a policy framework should not involve more punitive and intrusive grant oversight and management, but should focus on a stronger and more streamlined approach to investigation and prosecution of offences.

In this context, it is worth noting that the current Commonwealth grant management processes in Indigenous affairs are arguably over-engineered, and reducing their complexity would be consistent with the Government’s red tape reduction strategy. The notion of ‘earned autonomy’ under the current IAS Grant Guidelines (refer section 12) meaning that funded organisations which can demonstrate lower risk profiles can ‘earn’ more streamlined grant management processes sounds plausible, but would be better framed in terms of a minimalist default, which is ramped up as risks increase.

A first step in developing the policy framework suggested here would be to initiate a broader review of financial management issues affecting Indigenous organisations, with a positive remit focussed on identifying structural opportunities and developing an ongoing policy response.

Such a Review needs to extend to the capabilities and operations of all Indigenous organisations, not just those incorporated under the CATSI Act, and should encompass the need for new policy measures and responses, and the effectiveness of current policies and programs related to Indigenous corporate governance, financial literacy, management training, and the like.

While there are legitimate constraints in making the outcomes of the 44 reviews currently underway public, the broader review I am proposing here should also assess the effectiveness of Government responses to defective grant management and in particular, the extent to which past internal reviews have led to prosecutions and remedial action. There is a strong case for greater transparency in relation to the results of internal reviews undertaken (while protecting the legitimate privacy concerns of organisations and individuals). Without it, the risk is that reviews take the easy course, avoid prosecutions, and send a signal that accountability is optional.

Finally, the proposed Review should examine the record of state and federal police in pursuing cases of fraud within or in relation to Indigenous organisations. My experience over three decades has been that in most cases of fraud, the quantum of funds misappropriated does not exceed the risk based thresholds used by police in allocating serious investigatory resources. There is a strong argument in my view for a smarter approach to risk based assessments by police and law enforcement bodies, where they allocate a small proportion of their resources to investigation frauds and thefts which fall below their normal thresholds. This would send a clear signal to potential perpetrators that they are not immune from investigation and potential prosecution.

I am not holding my breath on the establishment of such a broader Review, nor of a new policy framework on financial management for Indigenous organisations. However, in the absence of a coherent and comprehensive effort by Government to bring greater rigour to financial management within Indigenous organisations, theft, fraud and misappropriation will continue to be problems in Indigenous Affairs. Unfortunately, if this is the case, Indigenous interests will continue to wear an undeserved level of public opprobrium, and the deep-seated public perception that Indigenous affairs is characterised by wholesale waste and inefficiency will – unfairly in my view - continue to permeate the Indigenous domain.