Streets paved with gold?

   

An apt cartoon from NT News cartoonist and Troppo blogger Colin Wicking

As Colin Wicking acutely observes, the debate about  responsibility for appalling conditions in remote indigenous communities has degenerated into a predictable  federal/NT slanging match

A similar divide is evident in the discussion about causation amongst op-ed pundits.   The right (e.g. Christopher Pearson in today’s Oz) emphasise the need for strong law and order policies and the malign influence of customary law.   They make some  good points.   I don’t share the latte left belief in the sanctity of customary law as an element of “self-determination”.   That especially applies to practices in relation to “promised” brides, but my objection is wider than that.   Even in  their original traditional guise, most forms of customary law “payback” “justice” were  dreadfully barbaric and contrary to basic norms of international law.   Degraded by alcohol and substance abuse as they are today,  these practices are  little more than licences for intimidation and indiscriminate mayhem.   Alcohol-fuelled violent crime followed by equally alcohol-fuelled “payback” often gives rise to an endless cycle of retribution and counter-retribution.

Left-leaning pundit Adele Horin makes an even stronger point.   She points to a recent joint Commonwealth/NT study into government spending at Wadeye/Port Keats which showed significant underspending per capita compared with the NT average. The most seemingly blatant example was education, where the NT government only spent 46 cents for every dollar spent on average elsewhere.

The problem with that figure is that the discrepancy occurs because NT school funding formulae, not only in Wadeye but throughout the Territory, are based on average school attendance rather than either enrolments or total number of school age children.   Because attendances at Wadeye  are even lower than the depresssing record of most other indigenous communities (it sems that less than 100 out of 650 kids attend school regularly), they don’t get much funding.   It isn’t at all obvious that there would be any point in simply putting more teachers and classrooms out there without ensuring kids attended school, but there is no valid excuse for failing to implement effective policies to drastically boost attendances.   The sorts of policies discussed in my previous post.

On the other hand, Territory politicians exhibit a bipartisan determination to deny that they are short-changing Aboriginal communities at all:

Treasurer Syd Stirling said yesterday the NT Government had spent the full $90 million allocated on Aboriginal housing last year. Opposition Leader Jodeen Carney said the NT Government spent 49.7 per cent of its annual budget on delivering services to Aborigines.

She said $19,069 per year was spent on every indigenous Territorian and $7873 on non-Aboriginal people.

 The Commonwealth/NT report on Wadeye reached a different conclusion:

Contrary to expectations and to hype, the study found that governments had spent far less per head on an Aboriginal person in Wadeye than on the average Territorian – almost $2000 a year less.

How can both sets of figures be correct?   I suspect they can’t. Horin ventures a guess:

Any visitor to Darwin can see it is well-equipped with modern amenities and pleasant housing – and that is partly because the Northern Territory under Commonwealth grants funding receives almost 5 ½ times per person what NSW or Victoria receives. As Bowden says, the generous Commonwealth funding flows untied to the territory on the basis it labours under problems of disadvantage and distance. But the funds appear to be distributed lavishly to the northern suburbs of Darwin in order to retain eight vital Legislative Assembly seats.

A Commonwealth Grants Commission working paper also shows that, compared with spending by other states, the territory underspends on “services to indigenous communities”. It should have spent $161.1 million on Aborigines in 2004-05. It spent just over half that.

In other words, successive NT governments have spent somewhat more on indigenous Territorians (hence Jodeen Carney’s figure of 49% of the NT budget spent on delivering services to Aborigines), but nowhere near as much as they should be spending having regard to how much they receive from the Commonwealth for redressing indigenous disadvantage.  

Where Horin gets it wrong is in her assumption that the missing money is spent on providing lavish services to Darwin’s northern suburbs.   She seems to imagine that Darwin’s streets are paved with gold.   In fact, although Darwin’s services and infrastructure are very good, they’re no better than any other capital city, and Commonwealth Grants Commission formulae are designed to achieve exactly that result.

So where did the money go?   It disappeared in a welter of extravagant publicly funded capital works projects over the last 20 years, the interest bill from which remains a huge drain on the NT budget.   Territory net debt is currently running at $1.776 billion, where some other states have managed to almost eliminate state debt with GST revenue.   The interest bill on this debt more than accounts for the annual shortfall of $80 million in spending on indigenous affairs.  

The debt was run up progressively to fund a succession of ill-advised loss-making projects over the last 20 years, including the Yulara resort, Darwin and Alice Springs Sheratons, the Douglas-Daly farms project, the Trade Development Zone, Darwin-Alice Springs railway and the current convention centre/Darwin Waterfront project.   All of these with the arguable exception of the railway are essentially private sector projects in which government had no business being involved.  The total cost to NT taxpayers from these projects was much more than the current  $1.776 billion net debt; that’s just the residue that  the current Martin government hasn’t yet  managed to pay back.  

In some respects, therefore, it’s unfair to blame Clare Martin for failing to spend more in Aboriginal communities.  She’s saddled with the legacy of 23 years of CLP fiscal mismanagement, and if she diverted much more money to services to Aboriginal communities it would be at the expense of delivering lesser standards of service to Darwin and Alice Springs than other parts of Australia enjoy.   Mind you, that argument would have more force if the Martin government wasn’t currently spending $150 million or so of taxpayer’s money on the Darwin Waterfront project, which will push the budget back into deficit for the next 2 years.   It’s eerily reminiscent of a CLP “big bucks” project from the bad old days of the  1980s.   What Labor under Clare Martin has done is to adopt fiscal and general policies essentially indistinguishable from those  employed by  the CLP over 23 years!

Nevertheless, you don’t need to be a political genius to realise that for the Martin government to  substantially increase NT government spending to Aboriginal communities at present  would be an almost  certain recipe for electoral annihilation.   And the Feds are very  unlikely to force them to do so, because that would equally certainly  be sentencing their local CLP colleagues to permanent opposition status.   That’s why the whole  disgraceful fiasco  has instantly degenerated into the usual pointless feds versus NT blame game charade.

So what’s the answer?   Abolish self-government and appoint an Administrator to distribute federal funding equitably?   Hardly an  idea that  anyone in the Territory, including indigenous people, would happily embrace.   The NT was very badly neglected until we obtained political representation in the early 1970s and then full  self-government in 1978.   There must be another answer, but I have no idea what it is.   Meanwhile, the situation in indigenous communities continues to deteriorate, driven by decades of  government underspending and mismanagement, and exacerbated by gross irresponsibility on the part of Aboriginal people themselves.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Cameron Riley
15 years ago

Good article. Thanks for explaining the issues.

Nicholas Gruen
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Nicholas Gruen(@nicholas-gruen)
15 years ago

Great post Ken.

Eleri
Eleri
15 years ago

Thanks for a thoughtful article Ken.

The problems exist around Australia, although are more visible in the NT because of the nature of the population. I can’t claim recent direct knowledge of Cape York Peninsula Aboriginal communities but 15 years ago when I did some work up there there was evidence in the of the breakdown of many social structures – what Durkheim described as anomie. Indeed this was the view of my (then) anthropology lecturer at uni that the community he had worked with over many years and written his doctoral thesis on, was a prime example. Wadeye sounds very similar as much as one can interpret the news.

I think it’s instructive for all of us to imagine ourselves in a Wadeye and what we would do or want to happen. I’m sure there is no one answer whether it be police, housing or the end of customary law. Although I’m sure the last one is reactionary and a straw argument.

I think I now know enough about working with communities to believe that all those things have to be addressed. There’s also plenty of evidence that the way Australia has addressed infrastructure including housing in these communities is unsustainable. The work that groups like Health Habitat have done has shown the inadequacy of putting in, for example, plumbing in houses in remote communities. Putting in systems designed for use by a family of four in a suburban setting with easy access to a plumber just isn’t suitable in a house with 20 occupants and no plumber within coo-ee. Yet that’s exactly what has happened. Houses need robust and easily fixable plumbing. And that’s just a start. We have used the available dollars (and they are declining over time btw) if we had invested more in location appropriate designs and infrastructure. The evidence is there.

And we need to invest in community development – I know it sounds hackneyed and 70s but the sort of community engagemetn that builds community is what is required in communities where norms have broken down. But it’s a long haul and won’t be solved overnight. So we need a plan, it needs to be worked through with Aboriginal leaders and it needs sustainable funding. It has to address employment and meaningful activit for people. I don’t see alot of this happening, but I do see a lot of talk. Maybe I’m wrong though and this doesn’t make the news – in which case I’ll be pleased to be corrected.

Mark Bahnisch
15 years ago

Ken, I’d be interested in your comment on the government’s reported proposal to extend their prohibition of customary law to “the cultural beliefs of all ethnic minorities”…

Andrew Bartlett makes some good points on this:

http://www.andrewbartlett.com/blog/?p=232

And I totally fail to see how they could legislate to alter sentencing practices in State criminal courts.

Mark Bahnisch
15 years ago

How often are adulterers stoned to death in Australia though?

Surely the point of mitigation in sentencing is to get to the motivations/intentions of the criminal in committing the crime?

Mark Bahnisch
15 years ago

I think you’re right about the probable failure to address issues in a holistic way, though, Ken, and I agree that you’ve made some excellent suggestions. I’m not sure whether Brough is just playing politics (the performance in Question Time the other day suggests that he certainly is to some degree) or whether he can’t get his head around this issue in anything other than a “law and order” way.

Obviously perpetrators of these crimes should face the full weight of the law. But the impetus for the issue coming to prominence, the prosecutor’s report, suggested first that the problem has been that it’s been difficult to apply the law due to witnesses not coming forward, and secondly, that the scale of the problem is such that it goes beyond isolated acts of criminality. Clearly to ensure that it doesn’t keep recurring you need to do more than prosecute the offenders (though you should certainly do that) and get to the systemic/structural causes.

Eleri
Eleri
15 years ago

I claim no special expertise in this area, but I thought customary law had broader application than just criminal law. The debate in the NT is about criminal law issues but getting rid of all customary law undermines the native title system surely? How’s that going to work? Ownership of and access to land is pretty fundamental to any legal system. Yet the talk is over getting rid of all customary law.

I find it hard to believe that if more people get put in gaols that the problem is fixed. Mal Brough is taking decisive action and isolating the problem to a sole factor because it’s politically expedient for him. And he’s even doing to the extent that he is prepared to stop funding for housing until law and order is sorted out. It’s exactly the kind of knee-jerk reaction that will show a short term fix at the expense of a long term solution.

But I think there is a wider game afoot to completely reshape Indigenous Affairs and I’d be surprised if this was all his own work.

The reality is that customary law has only been recognised fairly recently in Australia for criminal matters. Yet violence in Aboriginal communities has been present for much longer than that. I remember working with Judy Atkinson in Qld and seeing her relentlessly working to raise the issues of domestic violence in Aboriginal communities. And that was well before customary law was recognised.

Mark Bahnisch
15 years ago

Ken, I certainly don’t support “payback” as I agree with you that what it amounts to is assault. However, I’m not sure that the reasons for an offender’s actions shouldn’t be able to be pleaded in mitigation, though I’m most reluctant to accept that they should make any difference in the kind of case you mention. It seems to me the problem lies with the judiciary here.

Mark Bahnisch
15 years ago

In sentencing, obviously. That’s what I’m talking about, as should be clear, not the problem in general.

Rob
Rob
15 years ago

Like Ken, I don’t know what the answer is. Maybe we need to put away politics and focus on what common sense would suggest. The Aborigines need precisely what everybody else needs: education, literacy in English, marketable job skills. If the means of getting them those things looks paternalistic — well, that’s too bad.

The worst cases you see on the streets of Alice are beyond hope. They are the walking dead. We need to retrain the younger generations to mainstream values and expectations. That should be possible in Alice. How you get to the remote communities is another matter.

If that’s assimilation by another name, so be it. Self-determination, at least as presently implemented, has not worked.

I sometimes think — and maybe I’m wrong — that one of the tragedies of the failed polices of the last 30 years is that the Aborigines lost the class of people who really cared about them, morally and emotionally as opposed to politically: the missionaries and patrol officers. Many of them gave evidence during the Gunner-Cubillo case, and Justice O’Loughlin, in his judgement, repeatedly lauded the men and women who worked tirelessly and for virtually nothing to advance, aid and comfort those in their charge, and whose work was devalued, de-funded and dismantled under the Coombs-inspired regime.I don’t think the new generation of activists and lobbyists have filled the gap left by their departure.

Maybe they were paternalistic, and maybe we’d look askance, these days, at what often motivated them (reclaiming the heathen for Jesus). Nonetheless, it’s interesting that many of the older Aboriginals have very fond memories of the era of the mission stations.

Noel Pearson said recently that his generation’s grandparents could read and knew the Bible backwards. Now the kids can’t write their own names.

We need to remember too how much great anthropological work was done by the missionaries at Hermannsberg and Finke River, the songs they collected, the languages they catalogued.

Peter Kemp
Peter Kemp
15 years ago

Ken

“And for the NT a least, the Commonwealth can do just about whatever it likes under section 122.”

Peter Kemp
Peter Kemp
15 years ago

Ken
Re: “Territories are not States and section 117 does not constrain the scope of section 122.”

That’s why I said “spirit” but in any event I still believe that were the Cth to try, it could be subjected to a constitutional challenge. (As well as such interference being politically stupid)

“I think it would be both possible and appropriate to frame legislative provisions that would provide some reasonable guidance to judges in matters involving “customary law”

Mark Bahnisch
15 years ago

jen, sorry, but I think you’ve been misreading what I’ve had to say. For instance, on the issue about offenders getting to trial or conviction in the first place, I wrote:

But the impetus for the issue coming to prominence, the prosecutor’s report, suggested first that the problem has been that it’s been difficult to apply the law due to witnesses not coming forward, and secondly, that the scale of the problem is such that it goes beyond isolated acts of criminality.

My rationale for asking the question about sentencing was that this has been prominent in Costello and Brough’s rhetoric over the last week, and I was interested to know Ken’s opinion.

When I said the judiciary was the problem, what I meant was that it’s always been open, I’d have thought, to judges not to give much weight to pleas in mitigation about customary law. That was in reference to sentencing. I’m not asserting that the judicial process is at the heart of what’s going on here, or of the solutions. Quite the opposite.

Peter Kemp
Peter Kemp
15 years ago

Ken Re:
“I can bash and fuck her whether she likes it or not because [she’s a slut who wears a miniskirt][she’s my promised bride]”