Foundation for Aboriginal and Islander Research and Action (Qld) Ltd --- "ATSIC: A Limited Step Forward?" [1990] AboriginalLawB 13; (1990) 1(43) Aboriginal Law Bulletin 7

• Atsic: A Limited Step Forward?

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ATSIC:

A Limited Step Forward?

by Foundation for Aboriginal and Islander Research Action (Qld) LTD (FAIRA)

After two years of protracted consultations, discussions and debate the ATSIC legislation is at last in operation.

Over two years ago an enthusiastic and genuine Gerry Hand set out to provide a good foundation for Aboriginal and Torres Strait Islander control of the Administration. His primary role as Minister was to establish a system which put the community 'in the drivers seat' on decision making. To the chagrin of DAA and the delight of the community he actually began his term as Minister directly consulting with communities and despite lingering criticisms that there was not enough consultation there can be no doubt that liaison was extensive.

However, the minister was to learn that in Aboriginal Affairs public servants and politicians are adept at weathering newcomers, new ideas and proposed radical changes. The lengthy delay in presenting the legislation, the bureaucratic nature of the ATSIC Task Force, and the amendments forced by non-Labor parliamentarians have all been factors to weaken the final effectiveness of the ATSIC Act.

Having waited years for this legislation to be enacted the community might expect a significant advancement by Government towards recognition of, and implementation of, Aboriginal rights incorporating self-determination. But in reality any accolade of the ATSIC legislation as a milestone in Labor Government achievements would be hard to justify.

The ATSIC Act is only the second complete Aboriginal Affairs legislation passed by the Government during its three terms or seven years in office. Although it may, or may not, be a personal reflection on the efforts of Minister Hand the entire Labor Government has done little during its three terms of office to improve Aboriginal and Torres Strait Islander control of their own affairs. The legislation provides means to undertake Government administrative reshuffles, saves the Aboriginal Affairs portfolio from anonymity in the super-departments and creates a representative but advisory structure for the community, however, it does not do quite enough to establish reasonable powers of Aboriginal and Torres Strait Islander decision-making.

Whether in its final assessment ATSIC is seen as a significant forward step in Aboriginal development (it could hardly be taken to be a backward step after the DAA-ADC experience) the ATSIC legislation can only be of limited importance because the legislation primarily concentrates upon structures and procedures for bureaucracy in Government terms.

The most positive aspect of ATSIC is the establishment of community representation through sixty regional councils, collected in seventeen zones. The regional councils elect seventeen of the twenty national Commissioners of ATSIC. The general arrangements for the election of regional councils, with some exceptions identified later in this article, are likely to be accepted around Australia. The use of preferential voting overcomes problems raised in previous National Aboriginal Conference elections, which used a 'first past the post' system to elect one representative. The legislation is innovative in establishing and reviewing regional boundaries. As can be expected these provisions are well-constructed, because the Minister's consultations concentrated upon the representation issues.

The new Commission has a broader function than the former Aboriginal Development Commission(ADC). ATSIC assumes the programs and functions of the Department of Aboriginal Affairs (DAA) and has the power to undertake any additional roles conferred upon ATSIC by the Federal or State Governments. While this gives an impression of greater responsibilities there are specific controls placed on the Commission by the legislation. The Minister has power to give general directions to the Commission and there are extensive requirements for accountability to the Minister and Parliament, such as independent audits by the Minister. These restraints, which are examples of overkill arrangements applied for political rather than practical reasons, limit the flexibility and autonomy of ATSIC.

Another restriction upon the Commission is the inability to make staff appointments. The Chief Executive Officer (CEO) of ATSIC is appointed by the Minister, although the Commission must agree to the appointment. By comparison the General Manager of the Aboriginal and Torres Strait Islander Commercial Development Corporation (ATSICDC) can be appointed by the Board without reference to the Minister. The distinction in responsibilities between the appointed ATSICDC and the elected Aboriginal Commission is ironic. Section 55 of the ATSIC Act stipulates that employees be employed under the Public Service Act 1922 and another Section confers powers of a departmental Secretary upon the CEO. This arrangement effectively prevents direct Commission control of staffing arrangements. The Commission will be as ineffective as the DAA and ADC staffing strategies to establish a 'representative bureaucracy' reflecting the client group. This basic and self-evident principle, a cornerstone of decision making powers, is not widely understood or practiced in the Australian Public Service.

In 1984 Dr. 'Nugget' Coombs was commissioned by the former Minister, Clyde Holding, to review the role of the National Aboriginal Conference. Dr Coombs recommended that a National Aboriginal Service be created to 'be responsible for the recruitment, training, selection, promotion and general conditions of employment of the staff of the (National Aboriginal) Congress and other Aboriginal organisations which decide or are required by their statutes or Charters to employ members of the (National Aboriginal) Service. He believed that mobility between organisations and semi-Government agencies, encompassing training and promotion arrangements, would improve Aboriginal representation in the administrative structures, thus improving efficiencies.

The decision to apply the Public Service Act 1922 to ATSIC staff effectively limits the desirable two-way flow of employees between ATSIC and Aboriginal organisations. ATSIC is likely to continue the traditional methods of selecting employees from the large but inadequately-qualified pool of Australian public servants and this has been the experience to date with the senior appointments to ATSIC. Aboriginal groups which should be regarded as a source of talented Aboriginal personnel and a resource to orientate, train and re-train ATSIC staff, continue to operate without access to managerial experience or career paths. The gulf between ATSIC administrative structure and Aboriginal community structures is unnecessary, unwise and costly.

The ATSIC legislation does provide better opportunities for Aboriginals to appeal administrative decisions made by the Commissioner or the Minister. Section 196 of the Act sets out some bases for appeal through The Administrative Appeals Tribunal. The Administrative Decisions Judicial Review Act 1977 provides further means to challenge ATSIC decisions. Of course the usefulness of provisions for appeal, depend mostly upon community awareness and ability to initiate the required procedures.

There are many negative comments which can be made about ATSIC legislation. The obvious deficiency is the lack of reference to inherent indigenous rights, political rights, compensation or self determination. The Prime Minister's support for a 'compact' is difficult to accept on the terms indicated by ATSIC legislation.

There is growing opposition to the rule that voters and candidates for the regional council elections must be on the Commonwealth Electoral Roll. This provision, which has not been applied in the NACC or NAC elections since 1974, cannot be justified by past experience. Aboriginal sovereignty, which has been strongly pursued in recent years by the National Federation of Land Councils, may be challenged if Aboriginals follow the rules and consciously seek to enrol on the Commonwealth Electoral Roll. (Aboriginals could not vote prior to 1967, and are still not compelled by law to enrol.) The land councils are advising Aboriginals that they should avoid any actions, such as enrollment, which could be interpreted by the Government or judiciary as concessions of sovereignty.

The Government has not justified the provisions requiring enrolment. While the Minister has the power to make special rules to allow voting by persons not currently on the Roll, he is required by Section 113(6), in making such rules to have regard to 'increasing Aboriginal and Torres Strait Islander understanding of, and participation in, elections for the Parliament'. The use of Commonwealth Electoral Rolls for ATSIC elections could constitute an invasion of privacy, as it is possible that the Australian Government, through the records of the Electoral Office, will be able to subsequently identify persons on the Roll as Aboriginals or Torres Strait Islanders.

The National Federation of Land Councils vigorously opposes any suggestions that ATSIC be able to negotiate a 'compact' or any agreements on behalf of Aboriginals and Torres Strait Islanders with the Government. While there are obvious legal difficulties because ATSIC, as a semi-Government body, cannot negotiate from a position of sovereignty there is at least sufficient scope for a regional council to be political in its activities (although financial controls by the Minister could effectively cripple any political upsurge). Section 94 (e) provides that regional councils 'represent Aboriginal and Torres Strait Islander residents of the region and act as an advocate of their interests'.

The Land Councils do not believe that ATSIC structures would supersede them. But there are no assurances that any existing regional or 'peak' structures, such as the Aboriginal Coordinating Council of Queensland would not be seriously affected by regional councils. The Islander Coordinating Council (ICC) may have anticipated such future conflicts by ensuring that the legislation, under Section 116, includes an option for ICC representatives, at the discretion of the Minister, to be appointed to the Torres Strait Regional Council. No other region in Australia has provision for alternative means of selecting the Councillors except by elections, although it once was intended that existing, traditional or customary representation be accommodated in ATSIC.

Torres Strait Islanders have displayed further vision in ensuring that programs and policies which effect Torres Strait Islanders are monitored, evaluated and reported independently to the Minister by the Office of Torres Strait Islander Affairs, an office established within ATSIC under section 80. Comparable provisions for an independent office to constantly review ATSIC policy and program effectiveness for all clients should have been prescribed in legislation.

Some Aboriginal organisations have expressed annoyance over recent letters from the DAA requesting that they apply to be recognised as 'Aboriginal corporations ' under the ATSIC legislation. The letters prompted indignation that Government should choose to decide which are 'Aboriginal corporations', or declare that organisations are no longer 'Aboriginal corporations'. The purpose of defining 'Aboriginal corporations' is to eliminate non-Aboriginal organisations from certain funding arrangements. The DAA letter was inappropriate as most Aboriginal organisations can be automatically recognised (without any need to apply) as Aboriginal corporations if they are incorporated under the Aboriginal Councils and Associations Act 1976 , or were recognised as Aboriginal corporations by the ADC, or received DAA or ADC funding during the past three years. The DAA letter was thoughtless, provocative and unnecessary. Organisations should be careful not to over-emphasise the relevance of this definition and the associated Sections of the Act.

The three non-elected Commissioners appointed by the Minister can be appointed on full-time or part-time basis. Regional Councillors are entitled to remuneration, presumably sitting fees, travel allowances and expenses as determined by the Remuneration Tribunal. The employment status of elected Commissioners and Councillors may deter persons from standing for such positions unless their employers can accommodate the demands of ATSIC duties. Presumably only those persons employed in Aboriginal organisations or without employment commitments will be in a position to seek representative status, and this may exclude many talented Aboriginals and Torres Strait Islanders who must choose between current full-time employment commitments and part-time or unpaid work.

One significant deficiency of the ATSIC legislation is the limitation placed on loans and grants to Aboriginal enterprises. Section 17 of the Act stipulates that ATSIC cannot provide loans or grants to Aboriginal business unless the enterprise is to become commercially successful. On the surface this may seem a reasonable requirement, however it overlooks a significant recommendation of the Report of the Committee of Review' of Aboriginal Employment and Training Programs (the 'Miller Report') which recommended that the ADC should provide capital grants to enable communities to exploit any economic or productive activities which have the potential to generate income 'even though they may not be considered as commercially viable in the strictest sense ... or able to sustain profit without some on-going subsidisation'. Although the legislation states objectives of promoting self-sufficiency and furthering the economic development of Aboriginals and Torres Strait Islanders it fails to adhere to sound advice to Government that long-term economic viability of communities should be the major criterion of enterprise and economic development programs.

Another deficiency of ATSIC, which draws final comment, is the pre-occupation with financial year expenditure programs. Although few persons in Aboriginal affairs would disagree that the major obstacle to development financing is the pressure placed upon under-developed communities by the Government annual budgetary cycle little is done to alter the arrangements. It is imperative that legislation which sets out provisions for Aboriginal affairs administration makes provision for project funding which remains unaffected by annual budget cycles. Additionally there is little sense in imposing certain financial responsibilities of Government budgetary procedures on regional councils when their skills, energy and enthusiasm should be directed towards long-term development plans, not annual estimates. The time and energy spent on the design of other less important provisions of the legislation could have been more usefully employed restructuring Government funding arrangements and identifying more innovative ways of ensuring public accountability without withholding decision-making responsibilities.

If ATSIC is to be widely accepted and supported by the community as an effective structure for Aboriginal and Torres Strait Islander development some minor but immediate amendments to the legislation are required. Commitment by Government to real self-determination must be seen and recognised by the community. The Government should commence by taking immediate steps to:

• Pass a resolution in both Houses of Parliament supporting self-determination, prior ownership of land and compensation, the subject of the original preamble to the ATSIC Bill. (The Senate passed such a resolution see ATSIC - Seeking a National Mouthpiece for Local Voices p6).

• Allow Aboriginals and Torres Strait Islanders to vote without enrolment on the Commonwealth Electoral Roll.

As a longer-term strategy drafting should commence as soon as possible on further amendments in particular to confer real decision-making powers and responsibilities upon the Commission, to establish a formula for regular Government payments to ATSIC, and to emphasise the economic development functions of ATSIC.

A former Minister once accused the NAC and the Coalition of Aboriginal Organisations of 'ignoring political reality' in pursuing certain legislative reforms, however politicians are quick to forget that in Aboriginal affairs, 'political reality' is not determined by the short-term whims of parliamentarians but is often thrust upon them by community agitation.