Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Canberra, 1998.
This review, published in February 1998, was conducted under s 26 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the Act). Section 26 allows the Commission to draw up terms of reference for the purpose of reviewing the Act and reporting to the Minister. The Board of Commissioners of ATSIC decided in April 1997 that a s 26 review should be undertaken. This was the second such review of the Act, the first being in 1993. The terms of reference for the review, which are found in Attachment 1 of the Report, were broad, allowing review of any aspect of ATSIC or Regional Councils but not other bodies established under the Act. Bodies excluded from the review included the Torres Strait Regional Authority, the Aboriginal and Torres Strait Islander Commercial Development Corporation, the Indigenous Land Corporation and Aboriginal and Torres Strait Islander Land Fund, and Aboriginal Hostels Limited. The review invited submissions from these bodies. Specific matters to which the terms of reference directed the review's attention included: functions and powers of the Commission and Regional Councils; the relationship between ATSIC, the Minister and the Government; whether regional authorities should be explicitly provided for; staffing issues and resourcing of Commissioners; the relationship between the elected and administrative arms of ATSIC; and the changed environment since the previous s 26 review. The review's executive summary which includes recommendations is reproduced below.
Section 26 of the Aboriginal and Torres Strait Islander Commission Act 1989 (the Act) allows the Commission to review such aspects of the operation of the Act as it determines in writing, and report to the Minister accordingly. The report may include suggestions for amendments of the Act.
In April 1997, the Board of Commissioners of ATSIC determined that a review of the operation of the Act, in accordance with s 26, should be undertaken. Terms of reference for the review are at Attachment 1.
In making its decision, the Board noted that the only other review of the Act under s 26 had been completed over four years previously, and that much had changed since that time. These changes encompassed the Native Title Act 1993 (Cth) following the High Court's Mabo decision and the Court's subsequent decision in the Wik case; the establishment (under the Act) of the Torres Strait Regional Authority, the Indigenous Land Corporation and the Land Fund; transfer of primary responsibility for Aboriginal and Torres Strait Islander health policies and programs, at the Commonwealth level, from ATSIC to the Department of Health and Family Services and the change of Federal Government.
Accordingly, the terms of reference required the review to have regard to developments, since the previous review of the Act, in the overall operating environment, and the changes, if any, to the structure and functions of ATSIC and the Regional Councils that might better serve the interests of Aboriginal and Torres Strait Islander people over the ensuing five years.
A Steering Committee was established to oversight the conduct of the review. Its membership comprised:
Chairperson:
Members:
The terms of reference for the review enabled the Steering Committee to consider any aspect of the Act relating to the Commission and the Regional Councils, but not other bodies established under the Act. In addition, matters mentioned in s 141 of the Act may not be included in a review under s 26. Section 141 requires the Minister to convene a Review Panel after each round of zone elections, to review and make draft recommendations on changes to the boundaries of regions, zones or wards, and report to the Minister on such matters relating to electoral systems as it determines in writing. Such a Review Panel was established in early 1997 and completed its report by November of that year.
The Steering Committee saw as fundamental to the review processes that as many people and organisations as possible, both indigenous and non-indigenous, should have opportunity to have input to it. To this end it advertised the review widely in the national, regional and indigenous media, and wrote to Aboriginal and Torres Strait Islander organisations and communities, State and Territory governments, and relevant Commonwealth agencies. Regional Councillors, and ATSIC staff, were informed about the review and invited to contribute.
A discussion paper was then prepared. Reflecting the terms of reference, the paper contained sections dealing with:
(1) the functions and powers of the Commission and Regional Councils;
(2) relationships between ATSIC and the Minister and Government;
(3) the possibility of establishing regional authorities, or entering into regional agreements;
(4) provisions relating to Torres Strait Islanders (other than the Torres Strait Regional Authority);
(5) the financial provisions of the Act;
(6) relationships between ATSIC's elected and administrative arms;
(7) staffing issues;
(8) administrative and legal problems that may have arisen with the Act as it is currently expressed; and
(9) other issues, including whether the Act could be made more user-friendly.
The discussion paper was circulated to the persons and organisations originally contacted, to all Senators and Members of the Federal Parliament, and to other interested persons. The discussion paper's availability was advertised nationally, and contributions and inquiries were invited.
A program of consultations with the indigenous community was organised. Aboriginal and Torres Strait Islander organisations and communities, Regional Councils, and ATSIC staff, were encouraged to hold meetings to discuss the review and to make submissions. To this end, a consultation kit was developed and circulated widely. Steering Committee members attended a program of meetings in each State and the Northern Territory, and held discussions with representatives of the Torres Strait Islander Advisory Board. To round up the consultative processes and to assist the Commission in firming up its proposals, Commissioners and the Steering Committee met with a National Focus Group of indigenous leaders in January 1998.
A list of the organisations and individuals who made submissions, and of the major consultative meetings attended by members of the Steering Committee, is at Attachment 3, while a summary of the views expressed during the consultative processes is at Attachment 4.
Executive summary (including recommendations):
1. The community view: ATSIC in the future;
2. Functions and Powers of the Commission and Regional Councils:
3. Relationships between ATSIC and the Minister and Government;
4. Strengthening the regional focus;
5. Torres Strait Islanders living on the mainland;
6. Financial provisions of the Act;
7. Relationships between ATSIC's elected and administrative arms, including staffing issues;
8. Administrative and legal problems with the Act; and
9. Other issues.
ATSIC came into being in March 1990, with an all-appointed Board of five members. Within a year, the elected Regional Councils, and a full Commission of predominantly elected members, were in place. It was, and remains, a bold and innovative concept, drawing together the Commonwealth's involvement in indigenous affairs and the goal of greater empowerment, through democratic processes, for Aboriginal and Torres Strait Islander people.
Under the Act, ATSIC has many roles. It is the Commonwealth Government's principal policy adviser on Aboriginal and Torres Strait Islander issues. It is expected to monitor the effectiveness of programs for indigenous people, including programs conducted by other bodies, and to develop policy proposals to meet the needs and priorities of Aboriginal and Torres Strait Islander people at national, state/territory and regional levels. It administers a large proportion of the Commonwealth's special programs for Aboriginal and Torres Strait Islander people.
In carrying out its functions, ATSIC is charged with advancing the interests of Aboriginal and Torres Strait Islander people by:
To remain vibrant and relevant, an institution must constantly re-examine and redefine its goals. It must look to its constituency - in ATSIC's case, the Aboriginal and Torres Strait Islander community - to inform it whether it is doing as well as it should in addressing their aspirations and needs.
In s 26, the Act provides an important mechanism for this process of renewal, by empowering the Commission to review the operation of the Act from time to time and to report to the Minister. The only other review of the Act under s 26 was completed in early 1993.
Much has changed since that time. The Native Title Act 1993 (Cth) (the NTA) has come into being in response to the High Court's Mabo decision, as have the Indigenous Land Corporation and the Land Fund; the Torres Strait Regional Authority has been established; there has been a change of Federal Government; and the High Court has made its decision in the Wik case about native title on pastoral leases. Primary responsibility for indigenous health policies and programs, at the Commonwealth level, has been transferred from ATSIC to the Department of Health and Family Services. In developing the proposals in this report, the Commission placed particular emphasis on the views of the Aboriginal and Torres Strait Islander community. It encouraged Aboriginal and Torres Strait Islander communities, organisations and individuals to make submissions to the inquiry, and undertook consultations in each State and the Northern Territory. Input from other sources, both public and private and including ATSIC staff, was also encouraged.
The outcome of these consultative processes has been both instructive and heartening. While there was no lack of comment about perceived shortcomings and the need for ATSIC to improve its performance in a number of areas, it was also clear that there is overwhelming support for the fundamental principles on which it is based.
A major underlying theme at the meetings was concern about the impact of funding cuts on the capacity of the Commission and the Regional Councils to carry out their statutory functions, as well as their impact on the wider community. Such cuts, combined with the actual or possible loss of program responsibilities, are reducing indigenous self-empowerment and capacity for self-management - the reverse of what Aboriginal and Torres Strait Islander people want to see.
Chapter 1 of the report provides a summary of the community views.
This report proposes a number of substantive changes to the Act to improve its operation and to strengthen ATSIC's capacity to address the aspirations and needs of indigenous people over the next five years and beyond. It also proposes a number of technical changes to address administrative and legal problems that have arisen with the Act in its current form.
The recommendations are:
1. The proposal put forward by ATSIC in 1993 for replacing s 3 (the objects of the Act) should be adopted, with the following changes:
2. Section 4 of the Act should be amended to include a definition of 'Aboriginal and Torres Strait Islander peoples', and this definition should replace the terms 'Aboriginal person' and 'Torres Strait Islander' wherever appropriate throughout the Act. Where the need remains for references in the singular, the terms used should be 'Aboriginal person' and 'Torres Strait Islander person'.
3. The function of the Commission in para 7(1)(b) should be amended to read:
in co-ordination with bodies other than the Commission which provide such programs, monitor and report at least annually to the Minister and the Parliament on the effectiveness of programs for Aboriginal and Torres Strait Islander peoples.
4. The following additional functions for the Commission should be added to s 7:
to represent Aboriginal and Torres Strait Islander peoples at the national level and to act as an advocate of their rights and interests;
and
to assist, advise and co-ordinate with Commonwealth, State and Territory governments in recognising, promoting and protecting Aboriginal and Torres Strait Islander cultures, traditions and heritages, including customary laws.
5. Section 14 of the Act should be amended to empower the Commission, at its discretion, to enter into contracts with service providers.
6. The Act should provide:
7. Where the person elected to represent a zone is subsequently elected as Commission Chairperson, the person should cease to hold office as the member representing the zone and as a Regional Councillor, with these offices to be refilled
through the normal electoral processes.
8. The Act should provide that an additional Councillor be elected to supplement the resources of the Council from which a Commissioner has been chosen.
9. The provisions of the Act relating to suspension and removal from office of Commissioners, Regional Council Chairpersons and Deputy Chairpersons and Regional Councillors for misbehaviour or physical or mental incapacity, or other matters where a judgement as to fitness to hold office is required, should be amended to vest the decision-making power in an independent tribunal. Decisions of the tribunal should be subject to review under the Administrative Decisions (Judicial Review) Act 1977.
Further, s 4A, which enables the Minister to make a determination specifying the forms of behaviour which are taken to be misbehaviour for the purposes of the Act, should be repealed. The Act should instead specify that, where a judgement is to be made concerning misbehaviour, physical or mental incapacity, such judgement is to be made on the basis of the fitness of the office holder to continue to hold office.
10. There should be no change to the current number and distribution of zones.
11. The Board and the Regional Councils should continue to be involved in decision-making for the funding of individual projects.
12. The Act should be amended to provide:
13. The Government is asked to note that the Commission confirms its desire to build a co-operative and constructive relationship with the Minister and the Government, without compromise to its responsibilities to represent and advance the interests of indigenous Australians.
14. In considering its funding arrangements for programs benefiting indigenous people, the Government should take into account that the high standards of accountability and transparency required of, and maintained by, ATSIC provide a cogent reason for directing funding for such programs through it.
15. The Government should note the high levels of concern in the Aboriginal and Torres Strait Islander community about the adverse impact of cuts in ATSIC's overall funding levels and of government directions about how these funds should be spent, and take these concerns into account in future Budgets.
16. In relation to the Act:
17. The Act should be amended to strengthen the functions of Regional Councils, through:
18. The personal staffing support for Regional Council Chairpersons should be strengthened.
19. In addition to providing specific authority for Regional Councils to enter into agreements, on a regional or sub-regional basis, with other service providers, and to co-ordinate and reach agreements with Native Title Representative Bodies on native title issues (recommendation 17), the Act should be amended to:
20. The Government is asked to reaffirm the principle that structures of indigenous self-management and self-governance must be sufficiently flexible to accommodate diversity and allow people to have a real say in how they organise their affairs, and to note that:
21. As recommended by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, the interests of Torres Strait Islanders living on the mainland should continue to be represented by ATSIC.
22. The members of the Torres Strait Islander Advisory Board should continue to be appointed by the Minister, but the Board should elect its Chairperson, and there should also be provision for a Deputy Chairperson. As recommended by the Standing Committee, there should be an additional representative for Queensland on the Advisory Board.
23. There should be no change to existing arrangements for the representation of Torres Strait Islander interests in the Commission and Regional Councils.
24. The Act should be amended to:
25. The Commission should have the power to delegate authority to Regional Councils for approving expenditure of their administrative allocations.
26. A review of the financial provisions of the Act should be undertaken, involving the Commission and the Minister's Office with the assistance, as appropriate, of the Department of Finance, to identify how to streamline and simplify the budget process to provide greater flexibility without detriment to desirable standards of accountability.
27. The Act should be amended to specifically authorise the Commission to develop and promulgate guidelines for fostering appropriate and fruitful relationships between members of the elected and administrative arms of ATSIC.
28. The Act should be amended to provide that ATSIC staff are employed directly by the Commission and not under the Public Service Act, on a basis that provides for contemporary best practice in relation to personnel management, industrial relations and other related matters.
29. Commissioners should be entitled to a senior adviser, on a basis to be determined.
30. The proposed amendments in Attachment 2 [2] for dealing with administrative and legal problems should be made to the Act.
31. The existing provision in s 141 for regular reviews of electoral boundaries and electoral systems should be retained.
32. Urgent consideration should be given by the Government to simplifying the legislation relating to ATSIC.
33. The Act should be amended to provide that:
34. Sections 41 and 41A relating to removal of a Commissioner on petition should be repealed.
35. Section 127A of the Act should be amended to provide that, if a Commissioner is elected as the Chairperson of a Regional Council, the person immediately ceases to hold office as a Commissioner.
36. Section 123 relating to the removal of Regional Councils should be repealed.
37. Sections 141A and 141S of the Act should be amended to provide that the review panels mentioned in those sections are to chaired by a suitable Aboriginal or Torres Strait Islander person chosen by the Minister, not being someone who is the Chairperson of the Commission, a Commissioner, a member of the TSRA or a Regional Councillor.
38. The Commission should be empowered to appoint the Aboriginal and Torres Strait Islander Commercial Development Corporation to act as its agent in managing some of ATSIC's economic programs, on terms and conditions to be determined by the Commission and agreed to by the Corporation.
The Commission commends these proposals as sensible and workable ways of strengthening ATSIC's capacity to undertake the important role the Act entrusts to it. They represent an evolutionary approach that will enable ATSIC to build on past achievements and to meet new challenges, without compromise to the need to sustain the highest levels of accountability both to the general community and to the Aboriginal and Torres Strait Islander people themselves.
1 [Attachment 5 includes issues which should be given consideration when investigating possibilities for regional authorities. It includes matters such as the relationship between a regional authority and other bodies such as regional councils, government departments, ATSIC and portfolio agencies such as the Commercial Development Corporation and the Indigenous land Corporation, and bodies established under other legislation such as Native Title Representative Bodies. Attachment 5 also lists matters relating to the powers and functions of regional authorities, accountability arrangements for regional authorities, election of boards for such authorities and their funding.]
2 [Attachment 2 includes 24 recommendations and an additional 11 matters which were considered in a prior discussion paper but which did not progress for further consideration in the final Review Report. Many of the recommendations in attachment 2 are of a technical nature correcting inadvertent limitations on powers or obsolete powers which pertained to the transition between the former DAA and ATSIC. Some of the proposed amendments have important implications including impacts on: the capacity of regional councils to fund land purchases (rec 2), delegation of powers to regional councils and others (recs 7 and 16), payment by the Commission for incidental program-related costs (rec 13), capacity to appoint committees and sub-committees (recs 1 and 17), powers to legally transfer programs to other agencies (rec 24), amongst other matters.]
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/2.html