Club Troppo

New post by me at CDU Law and Business Online.

Last night Jen prevailed on me to watch an episode of the doco series The First Australians.  Such programs tend towards the irritatingly sanctimonious and question-begging in my experience, and that may well be true of many of the episodes of this series too.  However the one Jen had me watch (see YouTube video above – also see part 2, part 3, part 4, part 5) was really excellent.  It emphasised dramatically just how adaptable Aboriginal culture once was to to the dominant culture of the White invaders.  Simon Wonga and William Barak of the Wurundjeri clan near Melbourne were truly heroic figures about whom all Australians should know more.

Those same features of adaptability (and in particular willingness to move and work to take advantage of economic opportunity) were also evident in the initial responses of Northern Territory Aboriginal people to European encroachment.  Among other things they became the economic backbone of the pastoral industry.

Eventually the relentless racism of individual and systemic responses to Aboriginal people suppressed that inherent adapability and reduced most Aboriginal people to a state of sullen, despairing  passivity.   Even when racist responses began to be replaced by entirely benignly-motivated self-determination policies over the last three or four decades, the results were anything but positive.  In fact the conditions of Aboriginal people in Australia’s north have continued to deteriorate on just about all objective measures.  Attempting to understand why, and what might be done to change the situation for the better, is a question that has obsessed me for much of the 28 years I’ve lived in Darwin.  I can’t comprehend how that would not be the case for anyone of conscience surrounded by the evident misery, violence and despair of so many Aboriginal people.

I’ve observed in previous posts that the answers are unlikely to be simple or short term, and that they will certainly involve Aboriginal people themselves in taking responsibility and confronting and adapting aspects of their own culture which militate against successful adaptation.  What the story of Wonga and Barak brought home for me, though, was the extent to which Aboriginal society once did possess the necessary adaptive qualities.  Moreover, and despite the appalling health and educational outcomes for two successive generations of contemporary Aboriginal adults, there is no reason why those qualities of adaptability should not manifest themselves again, if we remove the perverse incentives in our education and welfare systems which create and perpetuate welfare dependency.  Although, as I say, solutions will be both multi-faceted and long-term, thinking about Wonga and Barak convinces me that Noel Pearson’s identification of welfare dependence as the key issue may well be correct.  On the other hand, ANU’s David Martin persuasively argues that Pearson overstates the extent to which Aboriginal people will succeed in achieving the necessary adaptation unaided, and underestimates the extent to which co-ordinated but respectful government interventions will continue to be necessary.

Retiring senior NT bureaucrat Bob Beadman outlines the welfare dependency syndrome succinctly, as The Australian‘s Nicolas Rothwell writes:

(Continued)

Traditional Culture and the Wellbeing of Indigenous Australians: An analysis of the 2008 NATSISS (pdf)

Dr A.M. Dockery
Centre for Labour Market Research, Curtin University

Research based on data from the 2002 National Aboriginal and Torres Strait Islander Social Survey found evidence of a positive link between Indigenous Australians’ attachment to their traditional culture and a range of mainstream socio-economic indicators, contrary to the common assumption that traditional culture is a barrier to achievement. This paper uses data from the 2008 NATSISS to further explore the concept of ‘cultural attachment’, breaking it down into four constituent elements: participation in cultural events and activities, cultural identity, language and participation in traditional economic activities. The positive effects of cultural attachment on mainstream socio-economic indicators are confirmed, and now found to extend to subjective wellbeing. This is important as subjective measures of wellbeing are based on Indigenous peoples’ own values and preferences. Indigenous Australians who identify more strongly with their traditional culture are happier and display better mental health, but at the same time experience more psychological stress due to stronger feelings of discrimination. The findings suggest that traditional cultures should be preserved and strengthened as a means to both improving the wellbeing of Indigenous Australians and to ‘closing the gap’ on mainstream socio-economic indicators.

I have distinctly ambivalent views about Statehood for the Northern Territory, as long-time readers will have noted.  I even mused not so long ago about whether the existing grant of self-government should be revoked and other governance models explored instead.  More recently I recanted from that view, but I still have significant doubts about Statehood (explored over the fold).  This still makes me several degrees keener about Statehood than most Territorians, who as far as I can tell don’t give a rat’s backside (and who can blame them?).

Despite this, Statehood is a dream that NT politicians cannot afford not to profess to support, even though it was rejected by referendum as recently as 1998.  After a long and somnolent period of gestation in the Statehood Steering Committee (SSC), the NT government is apparently about to announce within days that there will be a Constitutional Convention before the end of this year.  Its job will be to produce a draft state constitution in about 7 days flat (with the assistance of a couple of draft documents whipped up by the SSC).  The draft constitution will then be circulated for public consultation over 12 month before the Convention reconvenes to adopt a final constitution which will then be put to the federal government of the day in an endeavour to convince it to enact it under Constitution s 121 (new States).

However, despite deep personal ambivalence, I’ve decided that as an academic constitutional lawyer, I really should take the process rather more seriously, even though I suspect it will fail again as it did in 1998.  There hasn’t been a new State established or admitted to the Australian federation since it began in 1901, so the process itself will be a fascinating one from numerous viewpoints.

Accordingly, and in a bid to open up the constitution-making process beyond the rather stodgy steps recommended by the SSC (and about to be announced),  I’ve set up a People’s Northern Territory Constitutional Convention wiki containing a draft constitution fairly closely based on the Constitution of Queensland 2001 (although with some significant changes). The wiki also contains numerous links to relevant constitutional resources, and a discussion section where I canvas a range of key issues for Statehood.

This post is an effort to stimulate reader interest in participating in the conversation and even the process of creating a draft NT State Constitution.  I’m fairly sure I can ensure that it will at least get tabled at the actual Constitutional Convention (although whether anyone takes it seriously is another question).  Apart from anything else, this is a textbook example of a citizens’ Gov 2.0 initiative, so no doubt Nicholas Gruen will be watching it with interest. Of course, whether it will generate enough interest to create real conversation or a real collaborative constitutional drafting effort is much more questionable. Still it can’t hurt to try.

Anyway, my candid appraisal of the merits and difficulties of the Statehood push are over the fold.

(Continued)

This year is the centenary of the handover of control of the Northern Territory to the Commonwealth by South Australia in 1911.  It’s a fascinating but not very well known story with many dimensions.

I was recently asked to deliver a paper to the Northern Territory Historical Society about sundry legal, constitutional and political aspects of the handover and their relevance to subsequent political history and governance.  I took the opportunity of making a multimedia recorded version of the presentation for CDU students.  However I thought I might also share it with any interested Troppo readers.  Apart from being a really interesting story in itself, the presentation will give you some idea of how we go about delivering lecture material to our students at CDU Law School (a topic recently discussed here).

Warning - the presentation lasts a bit over an hour but you can pause it whenever you like and navigate freely to sub-topics that interest you.

Long-time readers may note that the introductory music is from Jen’s and my wedding album and was performed by a Melbourne-based band led by a veteran pseudonymous Troppo commentator who should remain nameless for similar reasons to the Dark Lord of Mordor.

I am hoping one or more of the economics and public policy gurus who read and write for Troppo might be be able to help me with the following question:

Does the Commonwealth Grants Commission analyse and report on the way States and Territories actually spend their untied grant (GST) funding i.e. whether and to what extent they actually spend it on the areas in respect of which the State/Territory’s level of need for funding purposes was calculated? Or does it just assess the State’s notional revenue-raising capacity and the amount that would notionally be needed for that State to provide its residents with roughly the same level of government services and infrastructure as other States, but not assess whether untied funds are then spent on remedying the services and infrastructure deficiencies on which the funding formula is based?

I should explain the reason for my query.  I’m researching a paper dealing with contemporary NT governance and related issues in the light of the centenary of the handover of the Northern Territory from South Australian to Commonwealth control in 1911. One of the assertions that is frequently made about NT governments of both political persuasions is that the NT is generously funded by the Commonwealth in large measure to remedy Aboriginal disadvantage, but in fact successive NT governments have diverted much of that money to “pork-barrelling”urban electorates where government is won and lost.  This recent article by veteran NT-based Murdoch correspondent Nicolas Rothwell puts the case eloquently:

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The Hatfield clan circa 1897

I had a long chat recently with an old mate from my politics days who I hadn’t seen for some time.  The conversation turned to Aboriginal affairs issues, as it does when you’ve both worked with and for Indigenous groups for the best part of thirty years.

Somewhat surprisingly for an aging lefty, my old mate’s attitude was quite similar to mine (and that of another old lefty in Bob Durnan who I often mention in posts like this).  The former left-liberal approach to Aboriginal affairs, based as it was on “self-determination” and symbolic issues like treaties, apologies and recognition of customary law, just didn’t work.  The plight of Aboriginal people actually became progressively worse by just about any measure.  Of course, some supporters of that approach continue to argue that self-determination was only ever tried in a half-hearted, piecemeal, stop-start fashion.  There’s probably some truth in that , but you still can’t argue that those policies even remotely resembled a raging success.

Similarly, the Howard Intervention  and its relabelling by the ALP government as “Closing the Gap” has also enjoyed underwhelming success to date despite multi-billion dollar spending, as a recent article by Indigenous legal academic Larissa Behrendt highlights.  Part of the problem, as Behrendt argues, is the “top-down”, prescriptive, paternalistic nature of the federal programs.  As Behrendt observes, successive Productivity Commission reports (hardly a bleeding heart, left-leaning organisation) have found that the programs that work in Aboriginal communities are those based on consultation, partnership, mutual respect and communities “taking ownership” of initiatives.  That must not obviate acountability or efficiency, but the two are not incompatible.

However, I strongly suspect after nearly 30 years of observation that the lack of a  “partnership” approach per se isn’t the main problem.   The principal and possibly insoluble problem is that key central aspects of traditional Indigenous culture are simply fundamentally incompatible with a contemporary, post-industrial, western capitalist individualistic culture like that of the dominant Australian community.  However, as soon as you make such a statement, other than privately and sotto voce, you end up being howled down as a “racist” (or at the very least an arrogant xenophobe).  Even undeniably well-motivated, knowledgeable experts like veteran anthropologist Peter Sutton have experienced this backlash after daring to critique aspects of Aboriginal culture.  Here is Sutton talking about the inherent extreme violence of Aboriginal society:

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I admire SA independent senator Nick Xenophon hugely. He’s a rare combination of brains, enterprise and principle. I knew him at Adelaide University; he had all those qualities then, and he seems to have kept them intact over the quarter-century since.

But I have wondered for weeks why he is so keen to have the states insure against natural disasters.

Today I may have found the answer to my puzzle. Xenophon is being advised by former insurance industry executive John Tsouroutis. When Malcolm Farr profiled Tsouroutis in a recent article for The Punch, the picture emerged of a bloke who thinks outside private insurance is always good.

This seems to me exactly wrong. At a government level, outside private insurance is almost always bad.

Before we go any further, it pays to remember that insurance only spreads risk rather than eliminating it. Remember also that private insurers need to make profits.  (I make these obvious points here only because they seem to have disappeared in the debate over state insurance.) Insurance is likely to cost you more than not being insured.  You don’t insure to save money. You insure to avoid unlikely episodes that would cause you too much stress to fund yourself when they happened. For instance, you insure your family against the chances of its principal breadwinner being killed or disabled, because your savings won’t cover the costs of this sort of unlikely but potentially devastating blow.

So I was startled to hear that many state governments currently take out natural disaster insurance. As a general principle, governments should not insure against Bad Things, be they floods, bushfires or earthquakes – or, for that matter, recessions. Not only should Queensland not take out such insurance, but the other states should stop doing so.

And here’s why: (Continued)

I should concede that the analogy drawn in this post between Dave Tollner and Tony Abbott is an imperfect one (image from NT News)

Northern Territory politics is nearly always very silly but equally unfailingly highly entertaining.  It was the inspiration for the “Troppo” in this blog’s name and is best explained or at least described by the combination of heat, humidity, rotting mangoes and associated insouciant mañana lifestyle that makes Territorians behave very strangely at times especially in the buildup and wet season. What with a very long wet buildup and an even wetter wet season, the opposition Country Liberal Party’s latest bout of infighting is a vintage example of the phenomenon.

Just 18 months ago most observers would have put the CLP at short odds-on to win government in a canter at the next election due in 2012.  Labor appeared to be dead men walking to almost as great an extent as their NSW counterparts.  Chief Minister Paul Henderson had opportunistically deposed the extraordinarily successful and popular Clare Martin by riding on the coat-tails of John Howard’s equally opportunistic attempt to create an electoral wedge by announcing the Indigenous Intervention on the patently spurious excuse that Martin had failed to move promptly to implement the Little Children Are Sacred recommendations which Howard and Mal Brough then proceeded to completely ignore anyway.

Hendo then narrowly survived the 2008 NT election that he had been expected to win easily, ending up governing with the narrowest possible majority of 13/12. Mild-mannered CLP Opposition Leader Terry Mills had almost led his party to a totally unexpected victory, a bit like Tony Abbott at federal level but without the bombast or budgie smugglers.

Then, after a bewildering series of soap opera Ministerial and Party resignations and temper tantrums, Hendo’s attenuated Labor team was reduced to just 12 rather puzzled and shell-shocked pollies in minority government with Independent and former chook farmer Gerry Wood.

Most people saw it as only a matter of time until Mills and the CLP took over.  But they were wrong.  Gerry Wood, despite an image as a conservative-leaning eccentric, proved to be a much more reliable ally for the ALP than most had expected. Probably more importantly, Hendo fluked on a master-stroke by appointing wise old apparatchik and senior public servant Dennis Bree as Secretary to Cabinet then seconding him as Chief of Staff.  Bree imposed a sense of discipline and purpose that the Cabinet and Caucus hadn’t previously possessed even in Clare Martin’s halcyon days, although he has no doubt been helped by the party’s near death experience and the certain knowledge that one major slip means instant electoral annihilation.

However, this discipline born of desperation seems to have done the trick.  Although the NT hasn’t been without ongoing public fiascos since then, most have been unresolved hangovers from the pre-Bree era.  Since Bree was appointed Ministers have mostly stayed disciplined and on-message and previous cock-ups like the SIHIP program (a massive federally funded indigenous housing scheme under the post-Intervention Closing the Gap concept) have been progressively put back on track; a chaotic power system seems to have become more reliable; and the economy has largely recovered from the GFC, although tourism remains fairly subdued under the impact of a strong Australian dollar.

All in all, if the massive INPEX LNG project gets the final go-ahead later this year, you’d cautiously favour Labor to actually win the 2012 election fairly comfortably, an unimaginable outcome only a few short months ago.  If a week is a long time in politics then 18 months is an eternity.

(Continued)

Recent NT News discussion on the perennial topic of crime and punishment seems to have generated more heat than light.  Chief Justice Trevor Riley wrote an excellent piece pointing out basic facts about the NT criminal justice system, not least the fact that NT judges and magistrates are actually tougher on crime than any other part of Australia.  However, that hasn’t stopped a succession of subsequent correspondents from asserting that judges are “out of touch” and adopting an excessively lenient approach.

Former Chief Minister Shane Stone even weighed into the debate with a piece advocating re-adoption of an expanded mandatory sentencing regime, ignoring the fact that crime in relevant categories actually increased while the last version of mandatory sentencing was in force and fell when it was repealed.

Territorians are justified in being worried about crime.  Crime rates are twice as high here as the Australian average in most categories; in some they are significantly higher.  Moreover, things are getting worse in some categories.  Crime rates for homicides, house break-ins and sexual assaults have not changed over the last 6 years, but non-sexual assaults have increased by a disturbing 73% from already high rates, armed robberies by 58% and commercial break-ins and vehicle thefts by 71%.

There are limits to the extent any NT government can reduce crime rates, because we have a very young population with a high indigenous component and high levels of alcohol consumption.  All are factors associated with higher crime rates.  However that doesn’t deny that we can do better than at present.

Research and practical experience indicate that crime is not deterred by longer and longer prison sentences, but that increasing the certainty of being caught and meaningfully punished has a measurable crime-reducing effect.  On the other hand, imprisoning young first offenders for short periods tends to increase crime rates.  Most first offenders never commit another crime, but for some the “school for crime” effect of prison may outweigh any deterrent effect.  That’s why judges view imprisonment as a last resort for young first offenders, even where the offence committed may seem one that warrants imprisonment.  It depends whether you view crime reduction or “just deserts” as the main aim of sentencing.

(Continued)