Barnes, Damien --- "After ATSIC - Which Way?" [2004] AUIndigLawRpr 3; (2004) 8(4) Australian Indigenous Law Reporter 13

• After Atsic-Which Way?
• Introduction
• The Atsic Bill And The Government
• A Brief History Of National Indigenous Representation
• A New National Indigenous Representative Body
• Possible Future Directions
• Conclusion

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Extraordinary Forum - The Future of Australian Indigenous Governance

After ATSIC - Which Way?

Damien Barnes^[∗]

Introduction

The proposed abolition of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) has sparked much debate about the way forward for Indigenous Australia. At this junction in our history, it is important that we step back and make an honest and objective assessment of ourselves, where we are, where we have come from, and where we want to go in terms of national representation. A thorough consideration and understanding of these issues will allow us to see the way forward more clearly. Towards this end, I argue for the formation of a non-governmental national Indigenous representative body (‘NIRB’) in accordance with Indigenous Australia’s wishes to provide a more stable foundation for a strategic and coordinated utilisation of Indigenous Australia’s energies and resources.

The ATSIC Bill and the Government

The Federal Coalition Government introduced the Aboriginal and Torres Strait Islander Commission Amendment Bill 2004 ('ATSIC Bill’) on 27 May 2004. The ATSIC Bill is currently under review before the Senate's Select Committee on the Administration of Indigenous Affairs (‘Senate Committee’), which is required to report its findings to the Senate on 31 October 2004. The ATSIC Bill has attracted considerable comment from politicians, academics and the public since its introduction. Of particular concern is the haste with which the Government has acted to abolish ATSIC (without proper consultation with Indigenous Australians and Australians generally) and its willingness to act contrary to the findings and recommendations of its own review of ATSIC.

ATSIC was not without its faults, although it shouldered a disproportionate amount of blame for failures which were outside of its responsibilities and obligations. In other cases its responsibilities and obligations were inadequately resourced to facilitate proper performance. The proposed ATSIC Bill is of no real surprise, and reflects the Government's overall approach towards Indigenous affairs since coming to power in 1996. The Government has simply capitalised on the opportunity to abolish ATSIC while it is in a considerably weakened state.

The ATSIC Bill proposes the abolition of the nationally elected representative Indigenous body and would replace it with an appointed board of advisors. The Advisory Board would ensure that the Government would only deal with Indigenous people by consulting with and seeking advice on Indigenous affairs from a selected group of Indigenous people on its own terms. Of course, this criticism was also directed at ATSIC. However the crucial difference is that the appointment, rather than the election, of Advisors to the Advisory Board will only act to discredit the Advisory Board in the eyes of Indigenous and non-Indigenous Australians. Notwithstanding these criticisms, I see no harm in utilising the Advisory Board (if created) to advance Indigenous Australia's aims in conjunction with an independent NIRB (discussed below).

In practical terms, the ATSIC Bill (if implemented) would weaken the voice of Indigenous Australians in advising and consulting with the Government in relation to Indigenous affairs. This is of grave concern, as it moves away from the generally accepted beneficial practice of increasing Indigenous participation in the delivery of government services to Indigenous Australians.

A Brief History of National Indigenous Representation

The likely demise of ATSIC has prompted discussion about the need for a new NIRB. I think it is generally accepted within Indigenous Australia that there should be an elected NIRB which consults with, advises and lobbies the Government in relation to Indigenous affairs. The main debate within Indigenous Australia would centre on the framework within which the NIRB would operate, and how its representatives would be elected.

At this point, it may be of assistance to consider the history of the national indigenous representative bodies which preceded ATSIC at the federal government level. In 1973, the Whitlam Government created the National Aboriginal Consultative Committee (‘NACC’). The NACC was assertive and, at times, confrontational. In 1977, the Fraser Government dispensed with the NACC and replaced it with the National Aboriginal Conference (‘NAC’). The NAC was a representative body which was more compatible with government policy. In 1987, the NAC was abolished under the Hawke Government and replaced by ATSIC. The new commission was essentially a combination of existing government organisations and took on the functions of the Federal Departments of Aboriginal Affairs, the Aboriginal Development Commission, and Aboriginal Hostels.

ATSIC shares a number of features with its predecessors which impacted on their independence and their ability to represent issues on behalf of Indigenous Australians. Specifically, these organisations:

• were created by the government by way of their enabling legislation with minimal input from Indigenous Australia;

• were rigidly constrained by their enabling legislation and could not represent Indigenous Australia outside the scope of this legislation;

• were subject to alteration by parliament by amendment of their enabling legislation and regulations. Such amendments tended to be driven by the political climate of the day, and reflected only minor input from Indigenous Australians;

•	were, in varying degrees, inadequately funded by the government; and

•	reported directly to the government and had their performance monitored by the government.

Broadly speaking, the success or failure of these organisations was largely dependent upon the policies and constraints imposed upon them by the government. In addition, the government has always been free to disregard the advice, findings or recommendations of these organisations. This has placed the organisations in a precarious position, and it is abundantly clear that the federal government does not hesitate to alter or abolish the organisations it funds to suit its own agenda.

Further, while ATSIC and its predecessors have delivered many benefits to Indigenous Australians, these organisations have also stifled the development of independent voices and growth in Indigenous Australia.

A New National Indigenous Representative Body

For these reasons, it is important that Indigenous Australia has a national representative body which is as far beyond the reach of the government as possible. The best method of ensuring the NIRB is not able to be abolished, amended, interfered with or influenced by the government is by ensuring that the NIRB is an independent body which is not a creature of statute. The NIRB would have a better chance of continued existence if it were incorporated as a non-government organisation. For example, an NIRB may be a corporation or association incorporated under the corporations law. The corporate constitution of the NIRB would form the basis of the framework for the operation of the NIRB with Indigenous Australians as its members. It may also have other organisations and companies as members, with varying voting rights.

The NIRB should not be directly involved in providing service delivery, which would continue to be the government's responsibility. Rather, the NIRB should consult with and advise the government by acting as an advocate for Indigenous Australia on issues of service delivery to Indigenous Australians.

This concept is not new and effective working models exist. For example, the Australian Medical Association and the National Farmers Federation both consult, advise and advocate for their members with the government in relation to issues within their agenda. Imagine the strength of an independent NIRB which has as its members all Indigenous Australians, all Indigenous organisations, and all associated and interested non-Indigenous organisations.

A further alternative is that the NIRB does not have to be incorporated or recognised under any Australian law at all. Indigenous Australia’s systems of government and laws existed long before the current legal system was established. Indigenous Australia could simply agree on the framework for the NIRB and abide by that framework. The legitimacy of the body would be drawn from its members agreement to be bound by it. This would also avoid the potentially culturally inappropriate intervention of the Australian legal system into disputes between Indigenous Australian members of the NIRB. Furthermore, the NIRB’s framework for operation does not have to be contained in a written document. One possible complication associated with this alternative is that a trustee arrangement would need to be put into place to undertake business on behalf of the NIRB.

Importantly, the NIRB would attain its credibility and legitimacy through its transparency, accountability and consultation with Indigenous Australia. The NIRB should evolve upwards from the grassroots level. It would be inappropriate for the NIRB to dictate its framework to the grassroots communities and organisations. The challenge for the current Indigenous leadership is to ensure that the NIRB moulds and adapts to the wishes and needs of Indigenous Australians. Importantly, the financial independence of the NIRB would underpin its structure. Funding may be derived from government funding, donations, sponsorship and membership fees. Membership fees could be based on a proportion of the income of the individual, Indigenous organisation or corporation.

Once the NIRB achieves credibility and legitimacy, it would be inappropriate for the government not to consult with it and seek its advice. In effect, the Government would have no alternative but to consult with and seek advice from the NIRB. Government funding should flow once the NIRB achieves legitimacy and is recognised as the supreme NIRB in Australia.

Possible Future Directions

Indigenous Australians have a number of distinct needs and concerns, which should be recognised for both moral and legal reasons, and which must be recognised, accepted and addressed by all levels of Government. Indigenous Australians make up the most disadvantaged group in Australia, and rightly claim the high moral ground. However, this does not automatically mean that the needs of Indigenous Australia will be recognised, accepted and addressed by Australia. These issues are at the heart of calls for Indigenous participation in the delivery of Government services.

Indigenous Australians constitute approximately two percent of the Australian population. Given our limited numbers we have fought above our weight by exerting considerable political clout. Although Australia's recognition of Indigenous Australia's moral and legal rights has been below par when compared with other first nation peoples, Indigenous Australia has made considerable headway in light of the opposition it has endured throughout the history of Australia.

The political achievements of Indigenous Australia are the result of our (and our supporters) exercise of political power within the political system. Most of Indigenous Australia's political power is based on moral claims. We have achieved our political goals by appealing to the morality of the government of the day and the Australian people. Our moral legitimacy was strengthened by the recognition of native title rights in the decision of Mabo v State of Queensland (No 2) [1992] HCA 23; (1993) 175 CLR 1 (although these rights have subsequently been watered down by successive amendments to the Native Title Act 1993 (Cth) and by subsequent judgments). It should also be noted that there are limits to what can be achieved within the Australian political system considering:

• the moral basis of our political power;

• Indigenous Australia’s tenuous grip on native title rights;

• the small number of Indigenous Australians and their supporters, relative to the total size of the Australian electorate; and

• the limits of the Government’s power to affect the lives of Indigenous Australians.

I do not seek to relieve the Government of its obligations towards Indigenous Australians. I simply point out that Indigenous Australia has spent too long attempting to overcome ignorance, selfishness, greed and oppression by pulling on the weak moral heart strings of Australia. This course of action alone has not, and will not, allow Indigenous Australia to find its rightful place in Australian society.

Since the Coalition Government came to power in 1996, there has been a steady decline in the power of Indigenous Australia at the Federal Government level. This has reduced Indigenous Australia's ability to engage with the Government, and has thus shifted our focus away from the federal sphere and towards Indigenous regions and communities.

Several Indigenous communities and regions have concentrated on commercial solutions to improve the economic situation of individuals and communities. This has alleviated some of the dependence of Indigenous Australia on Government welfare. It is no coincidence that the move towards commercial solutions to address communities and regions needs has been strengthened by the recognition of native title rights. The ownership of land is fundamental to building an economic base from which income can be derived. Further significant inroads can be achieved to alleviate dependency and achieve a level of self-determination that is unlikely to be reached through government means. Economic and commercial development of Indigenous Australia is an additional string to the bow that will reinforce Indigenous Australia's ability to achieve its aims.

In this regard, it is apparent that most of Indigenous Australia's intellectual and professional talent is employed in government, political and academic positions. Good commercial training, education and experience would greatly assist and is something that is lacking within Indigenous Australia.

Conclusion

The ATSIC Bill is a move away from the beneficial practice of increasing Indigenous participation in the delivery of government services. Indigenous Australia should go about its business, and organise itself at a national level by creating an independent elected NIRB without government involvement or interference. Once the NIRB achieves legitimacy and credibility, the Government will be compelled to consult with it and seek its advice. It is ironic that the Government's proposal to abolish ATSIC may lead to the formation of a more stable, independent and representative Indigenous Australian voice.

From this more stable and independent structure, Indigenous Australia would be more able to strategically and efficiently utilise the political, academic and commercial sectors of Australian society. In particular, the commercial sector has traditionally been under-utilised by Indigenous Australia and proactive steps should be taken to expand Indigenous Australia’s skills, experience and involvement in this area.

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^[∗] Damien Barnes is a Pitjara mardi who obtained a Bachelor of Laws degree from UNSW in 2000. Damien is now working as a solicitor specialising in projects, infrastructure and development with a commercial law firm in Sydney. Damien also obtained a Bachelor of Engineering (Civil) degree from Sydney University in 1994 and practised as a civil engineer for a period of four years.