Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Frank Brennan, S.J.
The ATSIC legislation finally passed all stages on 2 November 1989 after 40 hours of Senate debate and more than 100 amendments. On 5 March 1990 five interim commissioners nominated by Mr Gerry Hand, the then Minister for Aboriginal Affairs, took office for a year. Ms Lois O'Donoghue, the first Chairperson, said ATSIC is the "voice of Australia's Aboriginal and Torres Strait Islander people". She sees the commencement of ATSIC as the beginning of "a unique and productive partnership with the Government". If ATSIC is to become the voice of Aboriginal Australia, it has much to do to win that accolade. Reporting early in 1989, the Senate Select Committee on the Administration of Aboriginal Affairs had found that "virtually no consultation occurred between the Minister or the ATSIC Task Force and the Aboriginals and Torres Strait islanders on the ATSIC bill". It will be some time before ATSIC wins acceptance and understanding. Whatever the politics, what does this legislative model provide for a national Aboriginal voice and a partnership with Government? Is it a forward step on the path to Aboriginal self-determination?
After the first ATSIC elections are held before 5 March 1991, there will be 60 regional councils with up to 20 members each elected for three years by the local Aboriginal community. Each council will:
It remains to be seen how effective regional councils can be in representing local interests. Most regions include discrete communities which have little in common traditionally. It is inevitable that some regions will include local communities harbouring strong antipathies to each other. Also many prominent Aboriginal activists claim to have been isolated from the ATSIC consultation process and are wary of seeking election through the ATSIC process. It will be very difficult for a new regional model to earn its spurs. But now that ATSIC is a reality these difficulties may be manageable if people become convinced of the need for a unified voice.
At the national level, the country's 60 regions are divided into 17 zones. The regional councillors in each zone will elect one of their members as a commissioner. The 17 elected commissioners will be joined by three other commissioners nominated by the Minister, one of whom will be the full time Chairperson. The Commission has the task of developing policy proposals to meet the needs and aspirations of Aborigines and to advise the Minister on matters relating to Aboriginal affairs. It remains to be seen how the Commission will relate to the land councils, the National Coalition of Aboriginal Organisations, and the other state sponsored Aboriginal groupings such as community councils and the Queensland Aboriginal Co-ordinating Council.
The powerful N.T. land councils have long been very critical of the system of community government in the NT because they see the Territory structures as culturally inappropriate and undermining of land council authority. They supported the original ATSIC proposal though it was hard to see how the ATSIC regional councils could be more culturally appropriate than local community councils. In addition the scope of economic power for the regional councils was intended to be greater than that enjoyed by community councils.
More recently the land councils have qualified their support for the heavily amended legislation claiming that "the legislation had now been diluted to such an extent that it no longer empowered Aboriginal people to directly manage their affairs." Mr. John Ah Kit, Director of the Northern Land Council was quoted in the Council's own Land Rights News as saying that, "the legislation no longer resembled the original intention of ATSIC which had been conditionally endorsed by the Northern Territory Land Councils." To pass the legislation through the Senate by the end of the 1989 parliamentary session, the Government had to agree to a swag of amendments proposed by the Coalition and the Democrats. This trade-off process resulted in the withdrawal of unqualified support for ATSIC by some key Aboriginal leaders and organisations.
If regional councils are to work effectively, there will have to be federal-state co-operation across the board such as we have not seen previously in the administration of Aboriginal Affairs. There will also have to be acceptance of the regional councils as being the peak bodies in each region. This will depend on the calibre of the regional councillors and their proven ability to deliver resources efficiently and fairly. If voter turn out is low, the standing of the councils will be no greater than that of previous NAC members.
At the Treaty of Waitangi celebrations, Mr. Hawke spoke of treaty consultations and negotiations in Australia and said that "via ATSIC we're going to have a better way of getting the views of the Aboriginal community". Predictably this drew a strong response from Mr. Geoff Clark, the co-ordinator of the National Federation of Land Councils, who said that ATSIC's function was to administer government services, not to negotiate a treaty. He seems to exclude even the primary use of the ATSIC structure for consultations, saying, "Nor should ATSIC fund treaty discussions. A Treaty Commission needs to be completely separate. It should be funded from a special appropriation similar to royal commissions." The national voice through an ATSIC structure will be a long time in coming.
In response to last year's parliamentary purge of Aboriginal Affairs, Aboriginal supporters in the Hawke Government found themselves with no option but to tighten up on accountabilty. No one in the opposition begged to differ. Clipping the wings of the A.D.C. which had been set up by the Fraser Government, Mr Hawke said his Government, like his predecessors, had been prepared in the past to accept an element of risk in allowing the A.D.C. to operate "with a less than conventional level of ministerial oversight for a statutory authority". But the picnic was over. In May last year, Mr Hand told the Parliament: "We have made changes to the original concept and the question of accountability is one of the main ones. That is the trade off for participation - Let us participate but do not set us up to fail." Bringing no joy to the heavily scrutinised Queensland Councils, Mr Hand said, "There is no other department or statutory authority in existence in the Commonwealth which will be as accountable as ATSIC. I defy Honourable Members opposite to find me any organisation under this Government or any other Government that will be as accountable as this structure". It was at this time that people started to follow the Minister's lead in describing ATSIC as a partnership between Government, administration and Aboriginal people.
Aborigines are to have greater power to set priorities and to administer their affairs but they are to be more closely scrutinised in their expenditure of Commonwealth Government funds. This trade off reveals the underlying philosophy of the legislation which is accountable self-management rather than self-determination. Aborigines will have a greater say in Commonwealth Government decisions which affect their lives. But they will be more subject to scrutiny from government accountants in their spending than was the case with the old A.D.C.
The Commission will draw up a corporate plan in consultation with the Minister and has to perform its functions in accordance with any general directions given and duly tabled in Parliament by the Minister. The Commission replaced D.A.A. and the A.D.C. but not other Commonwealth departments and agencies which provide services to Aborigines. ATSIC does not impinge on state structures, no matter how duplicated. One of the objects of the legislation is "to ensure co-ordination in the formulation and implementation of policies... without detracting from the responsibilities of State, Territory and local governments to provide services" to their residents.
Some programmes such as housing loans, loans and grants for businesses, and C.D.E.P. will be administered by ATSIC regional offices according to uniform national guidelines independent of the regional councils. The budget for national programmes will be handled by the Commission. The budget for all other programmes will be drawn up by the regional councils once the Commission has set the budget limit for each council. After last year's parliamentary debacle, the Government agreed to an Office of Evaluation and Audit which will report to the Commission and the Minister every three months. Every programme and every office of the Commission is to be evaluated and audited at least once every three years.
Putting aside the government scrutiny of Commission finances, the Commission has broad powers and great potential. Funds can be allocated to a Housing Fund and to the Regional Land Fund for the purchase of land on the open market in accordance with the wishes of regional councils. Consultants can be employed and advisory committees set up. The Prime Minister can confer other departmental functions on the Commission and the states can confer their functions on the Commission if the Minister approves.
Despite optimistic predictions of reduced staffing levels resulting from the amalgamation of regional DAA and ADC offices, there will be a need for competent, patient and dedicated public servants in ATSIC offices with proper staffing levels, especially during the first months of uncertainty. Mr Hand has said that he did not want to set up ATSIC to fail. Having assured full financial accountability, he wanted to provide maximum potential for ATSIC in time to become the voice and the primary conduit for the delivery of government services, but without picking any fights over state rights.
After well timed secession threats in January 1988, the Torres Strait Islanders were recognised in Canberra as a force to be reckoned with. They did not want their interests overridden by a national Commission in which they would be aminority. So the Government agreed to a number of special provisions for Torres Strait Islanders living on the mainland as well as those in the Torres Strait. There is to be an Office of Torres Strait Islander Affairs within the Commission and a Torres Strait Islander Advisory Board with members from each state. To avoid undermining the authority of the existing councils set up under Queensland legislation, the Islanders wanted their local council chairmen to constitute the Torres Strait Regional Council. The Commonwealth agreed.
Following the Islanders' lead, the Aborigines on the larger Queensland communities of Cherbourg, Woorabinda, Palm Island and Yarrabah negotiated the right to set up their own regional councils. However their regional councillors will have to face election and thus may be different personnel from the local councillors elected under state law. This anomaly highlights the problem of a regional model being superimposed on a local model.
By June last year, the Government had abandoned the ADC as unworkable. Even Mr Warren Snowden, a great Aboriginal supporter in the Government told Parliament: "In every place we have been, there has been almost unanimous condemnation of the ADC and the way it has performed over the years". So in the restructuring, ADC functions are divided between ATSIC and the Aboriginal and Torres Strait Islander Commercial Development Corporation. Individual grants and loans are to be administered by ATSIC. The ATSICDC will provide capital funding for commercially viable Aboriginal enterprises. The nine member board of directors is appointed by the Minister, a majority of whom must be Aboriginal. Up to 3 directors may be ATSIC Commissioners.
In the early days of the legislation's drafting, much attention was given to a lengthy preamble which espoused lofty sentiments about Aboriginal history and aspirations. There were protracted discussions between the Government and the Democrats about the preamble and the Democrats' insistence on a separate Aboriginal electoral roll. The government would not agree to a separate roll, and the Democrats would not agree to the preamble being included in the Bill. The preamble had enunciated "the aims of self-determination and self-management for the Aboriginal and Torres Strait Islander peoples within the Australian nation". The Democrats and Coalition joined forces in rejecting the preamble and this meant the loss of any reference to self determination. A further two amendments proposed by the Opposition and accepted by the Government resulted in three mentions of self-management and self-sufficiency which are the present buzz words in the Coalition's policy. Though amending the Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 and the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987, the Government would not agree to amending the offensive preambles in those Acts which stipulate that the Commonwealth does not acknowledge "the occupation of Victoria by the Aboriginal people before the arrival of the Europeans" nor the "importance to the Aboriginal people and to the wider community of the Aboriginal culture and heritage".
In the Senate, the Democrats had proposed a resolution which repeated the original preamble of the ATSIC bill dealing with European occupation and Aboriginal dispossession and which called for "an instrument of understanding and reconciliation with the Aboriginal and Torres Strait Islander People". The resolution was carried in the Senate with support from the Government. The understanding was that it would be proposed by the Government in the House of Representatives. Senator John Coulter, the Democrat Spokesman on Aboriginal Affairs, had closed his remarks in the mammoth Senate session with: "I make a plea to the Prime Minister of Australia: a motion dealing with this matter was moved by the Prime Minister in the House of Representatives on the first day of sitting in this new Parliament House, and it would be very appropriate, when this resolution goes down to the House of Representatives, that it be put to the House not by the Minister for Aboriginal Affairs, Gerry Hand, but by the Prime Minister of Australia. That would elevate it to the importance that it should have." His plea went unheeded. The Government did not proceed with the resolution at all. In the end, the House of Representatives passed neither the preamble nor the resolution. Self-determination, the Treaty proposal, and even the modest suggestion of an instrument of understanding went on to the back burner. During the election campaign, the ALP said that consultations on a treaty had been delayed by problems with ATSIC.
Ms O'Donoghue launched ATSIC saying, "Today we embark upon a journey which will provide both opportunity and challenge. The opportunities include bringing greater strength and unity to our people. We have the chance to convince everyone that we can direct the course of our lives and our destiny on both the local and national scale." ATSIC is by no means perfect. But now that it is in place, the structure ought to be used to allow local communities to exercise their entitlement to self-management and self-determination under the Constitution and laws of the Commonwealth of Australia. It would be a tragedy if Aboriginal energies were exhausted on bartering and carving up the national and regional cakes and not exercised in utilising the local share of the cake efficiently and equitably obtained. The test of the pudding will be in the eating, not in measuring out the ingredients. If ATSIC is to work, local communities will have to own it as theirs - their voice and their partnership.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1990/12.html