October 8, 2007
New Directions: Law and Development At Home
At the Law and Society Meeting in Berlin in August 07, we talked about new directions for LAD research. One topic that we didn't canvass was the connection between international law and development and that which is done 'at home'. On a sabbatical visit home to Australia this month I encountered some rather muscular LAD of the national kind: Prime Minister Howard has declared an emergency in our least-developed State, the Northern Territory, and has appointed Maj Gen David Chalmers of the Australian Army to coordinate dramatic governance reforms in 70 remote Aboriginal communities.
The trigger for the federal government 'intervention' was a June 15 Report by the NT State Government Inquiry into child sexual abuse in Aboriginal communities (the Little Children are Sacred Report). The findings were not new - the links between poverty, destruction of traditional life, welfare, alcohol, drugs, family violence and sexual assault in many Aboriginal communities have been well documented. What was a surprise was that the Prime Minister, who is facing a federal election and probable defeat before year's end, announced a dramatic policy shift on June 22.
This new federal policy - which does not adopt the Report recommendations - bans alcohol and pornography in specified Aboriginal settlements and makes welfare payments conditional on children's school attendance and health checks. For a period of five years, it also allows the federal government to seize Aboriginal land and homes, and dispatch interstate police, troops and managers into settlements. The first considered analysis is from the Center for Aboriginal Economic Policy Research at the Australian National University: Jon Altman (ed) Coercive Reconciliation: Stabilize, Normalize and Exit Aboriginal Australia (Arena Publishing, 2007).
What does all this have to do with law and development? Four interesting research threads stand out. First is the similarity to post-conflict state-building, which Per Bergling reminds us often involves coercive or didactic law-making. I'm immediately reminded of the Provincial Reconstruction Teams (PRTs) in Afghanistan and Iraq, controversial because they blend military peace-keeping with humanitarian aid - and rule of law initiatives. If a problem is a national 'emergency' this justifies the military intervention and an underscoring of risk that permits regular law to be suspended. For five years the federal government can set aside the existing rights of Aboriginal Australians - including property rights - without having ever delivered their entitlements as citizens of one of the world's richest countries: health, education, housing and personal safety.
Second, without using the word, the intervention models some of the worst practices of 'development'. New, government-mandated experts are arriving in communities to 'consult' on problems that in local minds have been identified for decades. But the experts are treated politely because this is the first tangible sign that the (donor) government is paying attention. Housing is being built rapidly - for the advisors, not for the local residents. Community leaders are reluctant to criticize because a great deal of money is at stake, however ill-conceived the policies may be. Interestingly, a consistent request has been for policing, either because it has never existed, or because it is ineffective to respond to community violence.
Third is the myth of sequencing. I used to think that the LAD mess that is created in some places was a function of donor competition and lack of historical sensitivity to how law-making should proceed. What the Aboriginal example shows is that you can live in geographic center of a very sophisticated legal system, but still end up with law-making that tries to take on child welfare, education, sanitation, transport, employment, nutrition, literacy and local governance simultaneously, with predictably chaotic results.
Fourth, and most surprisingly, is the moving budget target. When announced, the Prime Minister estimated the 'intervention' would cost 'in the tens of millions'. By August the figure was revised to $500m and Jon Altman puts it much higher. The puzzle here is that Australian federal and State governments have been funding the administration of Aboriginal and Torres Strait Islander affairs for decades. Moreover, Australia scores high on the World Bank's Doing Business indicators for the leanness and speed of its bureaucracy. To paraphrase Mike Dowdle, poor countries have development and rich countries have regulation. So why, three months later, do we not have an estimate of what it costs to deliver basic services to a defined population, and why have none of the projected services been delivered? (The Australian, 4 October, 2007:13)
So here is the paradox. Australia presents itself internationally as a sophisticated law and development donor, albeit that our development record in the immediate neighborhood has produced mainly fragile states (Papua New Guinea, Fiji, the Solomons, Timor Leste). But if we are doing law and development at home, with a familiar cast of players, and the recipients are our own citizens, can we realistically expect better outcomes? Is our 'export quality' law and development in any way related to our 'domestic use only' product? Should it be?
This is a story from a remote place in a far away country, but for me it provokes questions about other 'domestic' law and development projects, like the ones that China has underway in Tibet and Xinjiang and the potential scenario that may unfold between South and North Korea. I'm sure there are many more examples. What do you think?
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