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By Zrinka Lemezina.
While there are currently many Indigenous organisations responsible for advocating Indigenous interests, none is sufficient to address the range of issues required of a National Indigenous Representative Body (‘NIRB’).[1] Building a Sustainable National Indigenous Representative Body, an Issues Paper prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner (‘the Paper’), outlines some key issues fundamental to the construction of such a body. The Paper does not endorse any particular model for the proposed NIRB. Instead, it raises central themes requiring further discussion; these matters must be properly addressed to ensure that the new Body is sustainable and does not repeat the mistakes of its predecessors.[2]
This article outlines some of the major themes discussed in the Issues Paper.
Historically, Indigenous representative bodies have focussed on specific campaign objectives rather than systemic issues of Indigenous representation.[3] It was not until 1972 that the focus shifted towards Indigenous representation within the mechanisms of Government.[4] Since that time, four recurring structural issues have undermined the effectiveness and sustainability of national Indigenous representative bodies:[5]
• Failure to adequately define key relationships between Government, the representative body and other stakeholders in Indigenous affairs, particularly at the State, Territory and Regional levels;
• Confusion as to powers and functions;
• Inadequate representation of diverging interests between different Indigenous groups;
• Lack of independence to pursue priorities as identified by the Indigenous people.[6]
The Paper stresses that the Body must be more than simply a ‘consultation mechanism’ for Government; it must also ‘outline a clear vision for a positive future for all Indigenous Australians, and inspire action and partnerships for change.’[7] The Paper foreshadows the following as possible responsibilities that may fall to the proposed NIRB:
• Forging partnership between all levels of Government and Indigenous people;
• Ensuring Indigenous peoples contribute and lead policy development on Indigenous issues;
• Ensuring that an Indigenous perspective is provided on broader current issues across all levels of Government;
• Advocating for recognition and protection of Indigenous rights;
• Ensuring that adequate and appropriate accountability mechanisms exist for the performance of Governments on Indigenous issues;
• Ensuring that commitments such as ‘closing the gap’ are supported by comprehensive, long-term action plans targeted to need, are evidenced-based and are capable of addressing the existing inequities experienced by Indigenous peoples.[8]
The Paper identifies ten possible functions that the Body may pursue as part of its operations:
• Delivery of Government programs;
• Advocacy;
• Policy formulation and advice;
• Coordinating long term planning processes at the regional level;
• Contributing to legal reform;
• Review and evaluation of Government programs;
• Clearing house role;
• International role;
• Research; and
• Facilitation and mediation.[9]
It is important to ensure that the ‘narrow’ leadership of the national Body retains strong links with the ‘broader’ base of Indigenous people.[10] The Paper considers how this might be achieved at regional, State and Territory levels.
The Paper notes that Indigenous peoples could be represented at a regional level through either formal or informal interaction with the NIRB.[11] This could be achieved by:
• Formally incorporating regional representative mechanisms into the NIRB structure. This relevant regional boundaries might be determined by reference to existing boundaries used by the Indigenous Coordination Centres network, or perhaps by reference to boundaries determined by Indigenous people; or
• Convening informal but regular regional forums. Such forums may be conducted by the NIRB directly, or in conjunction with government at local, State, Territory and Federal levels.
Since the 1967 Constitutional referendum, States and Territories have largely withdrawn from their responsibilities towards Indigenous programs.[12] The Commonwealth has assumed responsibility for the development, funding and administration of Indigenous initiatives.[13]
The Paper notes that, administratively, it is logical to reincorporate States and Territories into the development and implementation of Indigenous programs: States are constitutionally responsible for the welfare of Indigenous people.[14] To properly partake in such administrative reforms, the NIRB may incorporate State and Territory mechanisms by drawing on:
• State-based mechanisms as a feature of a new Body, potentially drawing on representatives from regional representative mechanisms;
• State-based mechanisms that are constituted through other means, such as direct election and/or representation of organisations such as the ACT Government’s Aboriginal and Torres Strait Islander Elected Body;
• The conduct of State-wide policy forums conducted on a regular, cyclical basis to inform the Body’s ongoing operation.[15]
The Report further outlines several key issues for consideration, namely whether (and how) the NIRB should:
• draw nominated delegates directly from regional and State/Territory mechanisms, or whether it is more appropriate to carry out direct elections at the Federal level;
• allow communities and organisations to join the body, or whether such groups would be better represented according to ordinary governance processes;
• determine membership by merit selection presided by panel of eminent Indigenous peers;
• involve other Indigenous bodies in the national structure or, alternatively, allow for their participation directly or in an advisory capacity;
• allocate specific positions for certain sectors of the Indigenous community, or whether it would be more effective to set up specific working groups to assist the National Body;[16]
strive for gender balance;
ensure broad-based participation of Indigenous peoples in national decision making processes such as annual policy congresses open to all Indigenous peoples;
provide for participation of non-Indigenous organisations in an advisory capacity.[17]
Since 1972, it has been assumed that any national Indigenous organisation should form part of the formal advisory mechanisms of Federal Government.[18] Certainly, the Paper recognises that, to properly represent Indigenous interests, the NIRB will need to work closely with Government.[19] However, it also foreshadows that the NIRB may be established as an extra-Governmental organisation.[20]
The Paper considers that, as a statutory commission, the NIRB could improve the quality of governance because it would operate at arms length from Government.[21] Arguably, it would be able to carry out its functions independently, while also enjoying privileged access to Government. In principle, the Paper considers that, if established by Government charter, the Body should be able to direct areas of public policy.[22]
However, the Paper notes that this has not been the case in practice; the National Aboriginal Consultative Committee (‘NACC’), National Aboriginal Conference (‘NAC’) and Aboriginal and Torres Strait Islander Commission (‘ATSIC’) all experienced difficulties in asserting and maintaining political independence while part of Government.[23] In the case of ATSIC, the Federal Government rarely sought or followed any advice proposed.[24]
The Paper stresses that the NIRB must enjoy a closer relationship with Government than has been the case to date.[25] This can be achieved through policy advice and review of Government performance functions.[26] The Paper also raises the possibility of:
• Ex officio membership / advisory role to the Ministerial Taskforce on Indigenous Affairs and Secretaries Group on Indigenous Affairs;
• Better participation in Council of Australian Government discussions, particularly before the Ministerial Council on Aboriginal and Torres Strait Islander Affairs.[27]
Further, the Paper suggests that the NIRB could establish a direct relationship with Federal Parliament by participating in Parliamentary committee systems. This could either be through a formal role in Budget estimates, or perhaps on parliamentary committees of review, such as a Parliamentary Committee on Indigenous Affairs.[28] The Paper also indicates that it might be useful to allow the Body to table reports and advice in Parliament.[29]
Alternatively, the NIRB might take the form of a regular committee of review on Indigenous issues.[30] One option is the creation of a Senate Standing Committee to monitor the Federal Government’s effectiveness in delivery of Indigenous services.[31] Another option is to replace the current House of Representatives Standing Committee on Indigenous Affairs with a Joint Parliamentary Committee of both the House of Representatives and Senate.[32]
The Paper notes that both proposals are limited, potentially presenting symbolic rather than meaningful Indigenous input.[33] That is because each is an essentially political option and therefore subject to dominant party preferences. Accordingly, a more robust committee, such as the Public Accounts and Audit Committee and the Public Works Expenditure Committee, may be preferable. However, the Paper notes that it remains unresolved how the NIRB could effectively influence such committees.[34]
To ensure sustainable independence, the Body may need to raise independent income to supplement any financial support received from the Federal Government.[35] This could be in the form of a foundation fund, such as that used by the Indigenous Land Corporation and the NSW Land Council, donations, membership fees, selling products and services.[36] The NIRB might seek status as a charity so that donations would be tax deductible.[37] Alternatively, the Commonwealth Grants Commission could fund the Body by way of Special Purpose Grants and General Purpose Payments such as those allocated to States and Territories.[38]
Further, the NIRB could secure funding by selling its services to private organisations and various levels of government. This would include research, consultation over policy proposals, development of policy papers, as well as facilitation and mediation services between Indigenous peoples and private interest groups.[39]
The Issues Paper considers the establishment of an NIRB is an essential step in ‘closing the gap’ between Indigenous and non-Indigenous people in Australia.[40] However, it recognises that the new Body will not be born into an ‘historical vacuum’;[41] accordingly, it is concerned not to ‘reinvent the wheel’[42] or ‘slip back into old habits.’[43]
The Issues Paper recognises that significant structural matters require further discussion. The submissions presented are not concerned to resolve these outstanding issues, or replace extensive consultation with Indigenous communities.[44] Instead, they seek to stimulate and channel ‘Indigenous energy towards a strong and effective new national voice’.[45]
Zrinka Lemezina is the Editor of the Indigenous Law Bulletin. She is currently completing an LLM at the University of New South Wales.
[1] Human Rights and Equal Opportunity Commission, Building a Sustainable National Indigenous Representative Body – Issues for Consideration (2008), 24-26.
[2] Ibid 9-10.
[3] Ibid 12.
[4] Ibid 12.
[5] These bodies are considered in detail, ibid 12-23.
[6] Ibid 24.
[7] Ibid 64.
[8] Ibid 69-70.
[9] Ibid 70-81.
[10] Ibid 82-3.
[11] Ibid 83.
[12] Ibid 85.
[13] Ibid.
[14] Ibid.
[15] Ibid 86.
[16] For example, members of the Stolen Generation, traditional owners, youth and Torres Strait Islanders.
[17] Human Rights and Equal Opportunity Commission, above n 1, 88.
[18] Ibid 98.
[19] Ibid 97.
[20] Ibid 97.
[21] Ibid 98.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid 98-99.
[28] Ibid 99.
[29] Ibid.
[30] Ibid 100.
[31] Ibid.
[32] Ibid 134.
[33] Ibid 100.
[34] Ibid.
[35] Ibid 101-2.
[36] Ibid 102-4.
[37] Ibid 104.
[38] Ibid.
[39] Ibid.
[40] Ibid 11.
[41] Ibid 70.
[42] Ibid 88.
[43] Ibid 10.
[44] Ibid.
[45] Ibid 105.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2008/39.html