Nettheim, Garth --- "New DAA Funding Rules" [1986] AboriginalLawB 8; (1986) 1(18) Aboriginal Law Bulletin 6

• New Daa Funding Rules

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New DAA Funding Rules

by Garth Nettheim

Sometime toward the end of 1985 the Department of Aboriginal Affairs (DAA) introduced, without any outside consultation, a revised set of "Rules Relating to Grants for Assistance to or for Aboriginals and Torres Strait Islanders". Any organisation to which the DAA agrees to provide funding must agree to the rules. They are prefaced by a letter over the signature of the Minister for Aboriginal Affairs, The Hon Clyde Holding. The letter contains the following two sentences:

"The Government and the Department promote the concept of Aboriginal self management, but with self management must go responsibility for decisions.

"I hope that through the responsible management of grants, the self determination and self sufficiency of Aboriginal organisations will become more evident."

In the rules themselves appear the following new conditions:

13 General Conditions
(i) An organisation shall not appoint as an officer or engage as an employee, or permit to remain in office or continue to employ, a person who, in the opinion of the Minister or his delegate is not fit for that office or employment.

(ii) Where the Minister believes, on reasonable grounds, that a person holding an elected office of an organisation has conducted the affairs of the said organisation in a manner prejudicial to its interests, or is not a fit and proper person to hold that office, he may give notice to the organisation, and upon the giving of such notice the organisation shall not be entitled to the payment of any further grant funds for so long as that person remains in office.

The National Aboriginal and Islander Health Organisation (NAIHO) reports that it accepted an offer of funding for the balance of the 1985-86 financial year subject to a statement that it did not agree to conditions 13 (i) and (ii), and has since been told that funds will not be released until it agrees to the new Rules without exception. NAIHO and its affiliated bodies (and, possibly, other Aboriginal organisations) plan to oppose the imposition of the new conditions as giving the Minister subjective discretionary power to override the electoral choices and the employment decisions of Aboriginal communities and their organisations.

The conditions do not sit easily with the Minister's references to self management and self determination. The goals that the conditions are meant to achieve - presumably in the interests of the Aboriginal organisations - could be achieved by more carefully tailored conditions; the present language seems to give unfettered arbitrary power to require organisations to get rid of anyone who the Minister may happen to dislike.

There do already exist more carefully tailored provisions designed to provide a means of ensuring that the affairs of organisations are properly conducted. indeed, condition 2 of the DAA rules requires that, to be eligible to receive a grant, an organisation must be incorporated under appropriate Commonwealth, State or Territory legislation. Such legislation provides principles and procedures for the disqualification of persons or for the supervision of the affairs of the organisation.

As far as Commonwealth legislation is concerned, the Aboriginal Councils and Associations Act, 1976 (Cth), as amended, would seem to offer adequate powers for the supervision of the conduct of councils and associations under that Act. indeed, in relation to such councils and associations, the DAA rules may, arguably, be invalid as inconsistent with the provisions of the Act.