Building a sustainable National Indigenous
Representative Body – Issues for consideration
An Issues Paper prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner, in accordance with section 46C(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
July 2008
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Contents
Section 1: National Indigenous Representative Bodies in Australia-A History
Text Box 1 – Overview of national Indigenous representative and advocacy
bodies in Australia
The Federal Council for the Advancement of Aborigines and Torres
Strait Islanders (FCAATSI)
National Indigenous Representative Bodies in Australia, 1972-2008
1) National Aboriginal Consultative Committee (NACC), 1972-1977
2) National Aboriginal Conference (NAC), 1977-1985
3) The Aboriginal and Torres Strait Islander Commission (ATSIC)
Text Box 2 – Overview of Key findings and recommendations of the Hannaford Review of ATSIC (2003)
Autonomy, Resilience and Vulnerability
i) Clarity about powers and functions
ii) Tension between policy development and program delivery
iii) Relationship between regional councils, the Board and the bureaucracy
Lessons learnt from previously existing National Indigenous Representative Bodies
National Indigenous Peak Bodies
Text Box 3 – Overview of existing National Indigenous Peak Bodies
Land Councils and Native Title Representative Bodies
Regional Authorities – Torres Strait Regional Authority (TSRA)
Regional Indigenous representative arrangements post-ATSIC
a) Ngaanyatjarra Regional Partnership Agreement.
b) Murdi Paaki Regional Assembly
c) Post-ATSIC regional representation for Torres Strait Islanders on the mainland
State and Territory Government representative arrangements, post-ATSIC
Text Box 4 – ACT Government’s Aboriginal and Torres Strait Islander Elected Body (ATSIEB) – 2008
Section 3: National Indigenous Representative Bodies in other countries-some comparisons
The National Congress of American Indians: United States of America
Nature and Extent of Mandate and Decision Making Authority
Relationship with State Governments
How the Organisation is Funded
The Assembly of First Nations – Canada
History of the Assembly of First Nations
Effectiveness of Representation and in Promoting the Rights and Interests of Indigenous Peoples
The Assembly of First Nations Renewal Commission
Maori Representation – New Zealand
Maori Electorates
Ministry of Maori Development, Te Puni Kokiri
Maori Trust Office
Treaty of Waitingi and the Waitingi Tribunal
Treaty of Waitingi Fisheries Commission
Lessons to be learnt from overseas experiences of Indigenous Representative Bodies
Section 4: Key issues in establishing a sustainable National Indigenous Representative Body
Issue for discussion: Role and functions of a National Indigenous Representative Body
Government service delivery
Advocacy
Policy Formation and Advice
Contributing to Legal Reform
Review and Evaluation of Government Programs
Clearing House Role
International Role
Research
Facilitation and Mediation
Issue for discussion: Structure of a National Indigenous Representative Body
Mechanisms for representing Indigenous peoples at the regional level
Mechanisms for representing Indigenous peoples at the state or territory level
The National structure of the National Indigenous Representative BodyRepresentatives chosen by election or delegation?
Representation of distinct Indigenous groups of the national body’s executive
Traditional Owners
Stolen Generations
Youth
Torres Strait IslandersGender balance and ensuring equal participation and representation for Indigenous women at the national level
The role of non-Indigenous organisations
Issue for discussion: Resourcing the National Indigenous Representative Body
Conclusion: Scoping a National Indigenous Representative Structure
EXTRACT
Budget 2008-09: Ministerial Statement on Closing the gap between Indigenous and non-Indigenous Australians
The Hon Jenny Macklin MP, Minister for Families, Housing, Community Services and Indigenous Affairs
The Policy Challenge
The Australian Government's reform agenda — both in Aboriginal and Torres Strait Islander affairs and across governments — is to address the structural and systemic problems that are producing appalling outcomes for Aboriginal and Torres Strait Islander people.
A generation of Aboriginal and Torres Strait Islander children — Australian children — is at stake. Time is fast running out. This fact is acknowledged by Indigenous elders and leaders, as well as by government...
Indigenous Australians must be involved in developing and driving solutions. Actions like the National Apology are working to build the trust needed to work together on getting results.
Our 'closing the gap' commitments require effective engagement with Aboriginal and Torres Strait Islander people at all levels. Government needs to involve Indigenous people in the design and delivery of programs locally and regionally, and share responsibility for outcomes. Solutions developed on the ground must be driven by the communities that will ultimately determine their success or failure...
The Government went to the election with a commitment to set up a national representative body to provide an Aboriginal and Torres Strait Islander voice within government. We will soon begin formal discussions with Indigenous people about the role, status and composition of this body.
May 2008
Note – Use of the terms ‘Aboriginal and
Torres Strait Islander peoples’ and ‘Indigenous
peoples’
The Aboriginal and Torres Strait Islander Social Justice Commissioner recognises the diversity of the cultures, languages, kinship structures and ways of life of Aboriginal and Torres Strait Islander peoples. There is not one cultural model that fits all Aboriginal and Torres Strait Islander peoples.
Aboriginal and Torres Strait Islander peoples retain distinct cultural identities whether they live in urban, regional or remote areas of Australia.
Throughout this issues paper, Aboriginals and Torres Strait Islanders are referred to as ‘peoples’. This recognises that Aboriginals and Torres Strait Islanders have a collective, rather than purely individual, dimension to their livelihoods.
Throughout this report, Aboriginal and Torres Strait Islander peoples are also referred to as ‘Indigenous peoples’.
The use of the term ‘Indigenous’ has evolved through international law. It acknowledges a particular relationship of Aboriginal people to the territory from which they originate. The United Nations High Commissioner for Human Rights has explained the basis for recognising this relationship as follows:
Indigenous or aboriginal peoples are so-called because they were living on their lands before settlers came from elsewhere; they are the descendants – according to one definition – of those who inhabited a country or a geographical region at the time when people of different cultures or ethnic origins arrived, the new arrivals later becoming dominant through conquest, occupation, settlement or other means... (I)ndigenous peoples have retained social, cultural, economic and political characteristics which are clearly distinct from those of the other segments of the national populations.
Throughout human history, whenever dominant neighbouring peoples have expanded their territories or settlers from far away have acquired new lands by force, the cultures and livelihoods – even the existence – of indigenous peoples have been endangered. The threats to indigenous peoples’ cultures and lands, to their status and other legal rights as distinct groups and as citizens, do not always take the same forms as in previous times. Although some groups have been relatively successful, in most part of the world indigenous peoples are actively seeking recognition of their identities and ways of life.[1]
The Social Justice Commissioner acknowledges that there are differing usages of the terms ‘Aboriginal and Torres Strait Islander’, ‘Aboriginal’ and ‘indigenous’ within government policies and documents. When referring to a government document or policy, we have maintained the government’s language to ensure consistency.
© Human Rights and Equal Opportunity Commission.
This work is copyright. Apart from any use permitted under the Copyright Act 1968 (Cth), no part may be reproduced without prior written permission from the Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission. Requests and inquiries concerning the reproduction of materials should be directed to the Executive Director, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney, NSW, 2001.
Acknowledgements
This paper has been prepared in accordance with section 46C(1)(b) and (c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
It has been prepared by staff of the Human Rights and Equal Opportunity Commission (Alison Aggarwal, Tom Calma, Kirsten Cheatham, Marissa Chorn, Darren Dick and Katie Kiss) incorporating research commissioned from the National Centre for Indigenous Studies at the Australian National University (Professor Mick Dodson, Tim Goodwin, Patrick Sullivan, Professor Peter Veth and Jo-Anne Weinman).
Introduction
Issues of Indigenous disadvantage and dysfunction are before our eyes more frequently and more prominently than ever before.
Barely a day goes by without another chilling and heartbreaking story of abuse, violence or neglect; or of demonstrations of the impact of entrenched poverty and despair among our communities.
Without proper engagement with Aboriginal and Torres Strait Islander peoples, (Indigenous peoples) governments will struggle in their efforts to make lasting progress in improving the conditions of Indigenous people and in our communities.
A National Indigenous Representative Body is a fundamental component of any future action if we are to achieve positive change.
At present, there is not a transparent, rigorous process for engaging with Indigenous peoples in determining the policy settings and to hold governments accountable for their performance.
The new Australian Government has acknowledged the importance of addressing this. In the Apology speech, the Prime Minister stated that:
Our challenge for the future is to embrace a new partnership between Indigenous and non-Indigenous Australians. The core of this partnership for the future is closing the gap between Indigenous and non-Indigenous Australians on life expectancy, educational achievement and employment opportunities. This new partnership on closing the gap will set concrete targets for the future.
In furtherance of this commitment, in March 2008 the Australian Government and federal Opposition also signed a Statement of Intent to work in partnership with Indigenous people and their representative organisations to achieve equality in health status and life expectancy between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians by the year 2030. This statement provides bipartisan support to:
- develop a comprehensive, long-term plan of action, that is targeted to need, evidence-based and capable of addressing the existing inequities in health services, in order to achieve equality of health status and life expectancy between Aboriginal and Torres Strait Islander peoples and non- Indigenous Australians by 2030.
- ensure the full participation of Aboriginal and Torres Strait Islander peoples and their representative bodies in all aspects of addressing their health needs.
- respect and promote the rights of Aboriginal and Torres Strait Islander peoples... and
- measure, monitor, and report on our joint efforts, in accordance with
benchmarks and targets, to ensure that we are progressively realising our shared
ambitions.
These are welcome commitments and ‘first steps’ to a new partnership in Indigenous affairs.
It is now time for us to flesh out these commitments to ensure the full participation and input of Indigenous peoples into government decision making at the national level.
And this, ultimately, is what the discussion about a new National Indigenous Representative Body is about.
It is about our place at the table in making the decisions that impact on our communities, on our men, our women and our children.
It is about creating a genuine partnership with government and across society:
- With shared ambition, so we are all working towards the same
goals and not at cross purposes.
- With mutual respect, so we are part of the solutions to the
needs of our communities instead of being treated solely as the problem.
- With joint responsibility, so that we can proceed with an
honesty and an integrity where both governments and Indigenous people accept
that we each have a role to play, and where we each accept our responsibilities
to achieve the change needed to ensure that our children have an equal life
chance to those of other Australians.
- With respect for human rights, that affirms our basic dignity
as human beings and provides objective, transparent standards against which to
measure our joint efforts.
To this end, in 2007 I initiated research to identify the key considerations that will need to be addressed in establishing a new National Indigenous Representative Body.[2]
This paper sets out the findings of that research. It addresses a series of
issues for consideration in the process of establishing a new National
Indigenous Representative Body. Namely:
- First, what lessons can be learned from mechanisms for representing Aboriginal and Torres Strait Islander peoples at the national, State/ Territory or regional level that have previously existed or that are currently in place?
- Second, what lessons can be learned from mechanisms for representing Indigenous peoples that have been established in other countries?
- And third, what options are there for ensuring that a National Indigenous
Representative Body is sustainable?
The research does not substitute for broad-based consultation with Indigenous communities. Indeed, the research does not state a preference for a particular model for a National Indigenous Representative Body – it merely identifies the many and varied issues that need to be considered in the formulation of the new Body.
The paper raises challenges for both the federal government and for Indigenous people.
For the government, it will be of critical importance that you articulate what you are not prepared to support in a new National Indigenous Representative Body.
I encourage the Minister for Families, Housing, Community Services and Indigenous Affairs to articulate what the government sees as the major benefits of a national representative body and accordingly, what roles the government hopes it will fulfill.
I am not suggesting that the government should be prescriptive and close off debates that may need to be had. But ultimately, we need to minimise the differences between what the Indigenous community expects of its representative body and what government is prepared to support.
If we don’t ‘close this gap’ between the expectations of government and the Indigenous community, then a new body may face the same credibility difficulties that have beset previous representative bodies. This will limit the ability for the representative body to have influence with government. It may limit the representative body’s ability to be an effective agent for change for the Indigenous community.
The responsibilities of a new National Indigenous Representative Body are two way – to government and to Indigenous people.
And for Indigenous people, the challenges that exist in establishing a new National Indigenous Representative Body are many.
We should resist the temptation to slip back into old habits. This is not about reviving ATSIC. The ATSIC Review of 2003 did not recommend the abolition of ATSIC but instead proposed a restructure and close adherence to a series of key principles. I am confident that Indigenous people will draw on the lessons from the ATSIC Review while also looking beyond the ATSIC model when setting out their hopes and expectations for a new National Indigenous Representative Body.
I consider that perhaps the greatest problem that ATSIC faced was that it was ‘blamed’ for the lack of progress in addressing Indigenous disadvantage, despite the simple fact that it had few responsibilities for service delivery that could contribute to achieving this goal. This was a key finding of the ATSIC Review in 2003.
I see significant benefits for a new National Indigenous Representative Body to not exercise the service delivery responsibilities of government. As for all other Australians, let government be responsible for delivering services to Indigenous citizens. We don’t want to take the blame for second class treatment by government anymore.
Let the new Representative Body set the vision for our people’s future, provide the guidance to achieving this and advocate for understanding for the consequences that flow from our status as the First Peoples of this nation.
A new National Indigenous Representative Body will also have to operate in a
vastly changed environment from when ATSIC existed. This is one with:
- concrete commitments from government to closing the gap, with a partnership approach at the centre of this process;
- a renewed focus on reconciliation, following from the National Apology to the stolen generations;
- a whole of government system for delivering services to Indigenous people where the primary responsibility resides with mainstream government departments; and
- significant environmental challenges facing all Australians, and where the
traditional knowledge, practices and land use of Indigenous peoples will have a
significant role to play in preserving the quality of life of all
Australians.
A new National Indigenous Representative Body will also be created within the context of rapid advances internationally in the recognition of the rights of Indigenous peoples – developments which the new Australian government has indicated it supports and respects.
It is essential that as Indigenous peoples we have a seat at the table and are involved in the big debates that affect our communities. It is not credible to suggest that we should not have such involvement.
My hope is that we can, in partnership with government, develop a new National Indigenous Representative Body that engages with different sections of the pan-Aboriginal and/ or Torres Strait Islander community – be it women, men, our youth and children, communities in different geographical locations, traditional owners or stolen generations members.
And I hope that a representative body will operate in such a way as to inspire and support our people, while also holding governments accountable for their efforts, so we may ultimately enjoy equal life chances to all other Australians.
The first step on this road is mutual respect and a partnership. A National Indigenous Representative Body is an essential component of achieving the long overdue commitments to closing the gap.
Tom Calma
(signature)
Section 1: National Indigenous Representative Bodies in Australia – A History
Indigenous Australians have often organised themselves in an attempt to effect political and social change. Many Indigenous organisations were created as a result of this, particularly over the past century. These organisations were independent of government and were often defined by their specific objectives. Such organisations became focused on particular campaigns rather than systemic issues of Indigenous representation.
When the federal government became heavily involved in Indigenous affairs following the election of the Whitlam government in 1972, more focus was given to how Indigenous peoples could be represented within the mechanisms of government.
Text Box 1 below provides an overview of developments relating to national Indigenous representative bodies in Australia over the past fifty years.
This section will make brief mention of the activities of the Federal Council for the Advancement of Aborigines & Torres Strait Islanders (FCAATSI) and then focus on the three organisations that have been involved in national Indigenous representation:
- the National Aboriginal Consultative Committee (NACC);
- the National Aboriginal Conference (NAC); and
- the Aboriginal and Torres Strait Islander Commission (ATSIC).
This section describes their structure as well as the problems and challenges that were faced by these organisations during their lifetime. It is fair to say that each new body learnt from the lessons of its predecessor. Many concrete outcomes emerged, not the least of which was the capacity building and advocacy development that emerged amongst the Indigenous polity. This is available to be tapped again in a new National Indigenous Representative Body.
The Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI)
Founded in 1957, in its early years the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) was a successful alliance of Indigenous and non-Indigenous organisations.
Its main purpose was to agitate for civil and political rights, the rights of citizenship, equality of pay and conditions, universal education and the retention of existing reserve lands in Aboriginal hands.[3]This led to significant involvement by trade unions. It was able to leverage widespread community support following the 1967 referendum into a groundswell of acceptance for the principle of land rights.
Its membership base was in organisations rather than individuals. Its 1975 constitution allowed for two categories of member organisations. Category ‘A’ organisations were required to agree to the five basic principles of FCAATSI and were exclusively concerned with Aboriginal affairs, or had a standing committee so concerned.
Category ‘B’ organisations were those that supported the objectives of FCAATSI but could not qualify for category ‘A’ membership. Category ‘A’ organisations could send up to five delegates to the Annual General Meeting. Category ‘B’ organisations could send two. Voting for the Executive was limited to the Aboriginal delegates of these organisations, but nomination and election to the Executive committee was open to non-Indigenous peoples.[4]
Debate over the principle of Aboriginal control of the Executive split the Council at its 1970 annual meeting.[5] Debate continued at least until the 1977 meeting, when a revision to its Constitution was proposed, but by that time it representative functions had been taken over by the National Aboriginal Consultative Committee (NACC).
Many of the principles of both equality and particular Indigenous rights that FCAATSI fought for have been widely recognised, with attention now turning to their effective implementation.
In the period since FCAATSI existed, the principle of self-determination has supported national bodies being comprised exclusively of Indigenous members. There are, however, existing organisations which are Indigenous/non-Indigenous alliances. Australians for Native Title and Reconciliation (ANTaR) works with an Indigenous Reference Group. Reconciliation Australia (RA), a not-for-profit corporation, has Indigenous and non-Indigenous people on the Board. Nevertheless, they are widely perceived as non-Indigenous organisations. Their effectiveness could perhaps be enhanced by the existence of a National Indigenous Representative Body that could act as an external point of reference for their programs.
National Indigenous Representative Bodies in Australia, 1972 – 2008
1) National Aboriginal Consultative Committee (NACC), 1972 - 1977
The NACC was the first unified national Indigenous organisation that represented Indigenous views. Prior to the NACC, the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) had evolved as the major organisation promoting Indigenous interests from the 1950s. While FCAATSI played a central role in the success of the 1967 referendum, its leadership was largely non-Indigenous.[6] Following the election of the Whitlam government the Minister for Aboriginal Affairs, Gordon Bryant, created the NACC.
Structure
The NACC was an advisory body made up of 41 nationally elected Aboriginal people who advised the Minister for Aboriginal Affairs on Aboriginal policy.[7] It was envisaged that the structure of the NACC would be detailed by the first elected representatives of the body. There appears to have been little structural development of the organisation before it first met.
The Department of Aboriginal Affairs (DAA), under the leadership of Charles Perkins, held 16 regional consultations to promote the idea of the NACC and to mobilise the Indigenous population to vote in the subsequent NACC elections. To a large extent these consultations were successful, with approximately 78% of Indigenous peoples voting in November 1983.[8] The constitution developed by the NACC gave it executive, or policy-making, and administrative powers, contrary to the government’s desire that it remain simply advisory. Throughout its short life, the NACC remained organisationally under-developed.
Autonomy, Resilience and Vulnerability
The NACC was ultimately vulnerable for a variety of reasons.[9] It is helpful to categorise these reasons as both internal and external.
Regarding external vulnerabilities, firstly there were major tensions between the NACC, the Department of Aboriginal Affairs (DAA) and the Minister. Minister Bryant often gave preference to the advice of NACC over that of the DAA. This led to hostility between the DAA and the NACC. This situation reversed when Minister Bryant was replaced by Senator Jim Cavanagh as Minister for Aboriginal Affairs. No clear relationship between all stakeholders appears to have been clearly articulated.
Secondly, the NACC desired greater independence and did not wish to simply act as an advisory body. Without the support of the government in this aim for autonomy, the public were unsupportive of such a move.
Regarding internal vulnerabilities, firstly the NACC was unable to develop a coherent organisational structure that could deliver for its constituents. This situation was almost certainly at least partly due to the under-resourcing of the organisation by government. However, the limited capacity of the organisation was also due, in part, to the lack of clarity members had about their roles, the relative inexperience of the secretariat and a lack of focus by the members on internal structures rather than external advocacy.
Furthermore, the NACC is seen to have lacked cohesion as an organisation. The elected members often failed to agree among themselves on issues of importance. A constant tension was seen to exist between the interests of Aboriginal people living in more rural and remote ‘traditional’ lifestyles and urban Aboriginal people. This tension was fuelled by the opinions of non-Indigenous advisors to the government at the time.[10]
Ultimately, the NACC did not have the capacity to develop into an independent, agenda-setting policy organisation due to a lack of government support for such a function and the NACC’s unmet need to develop coherent policy position regarding its functions and structure.
2) National Aboriginal Conference (NAC), 1977 - 1985
Following the election of the Fraser government in 1975, the new Minister for Aboriginal Affairs, Ian Viner, established an inquiry into the role of the NACC. Reporting in 1976, the inquiry found that the NACC was restricted in its role due to the lack of clarity given by the previous government about its aims and functions and the desire of the NACC to be more than purely a consultative body.[11] As a result, the NACC was effectively abolished, and the NAC was created in 1977, with the first elections held in November of that year.
Structure
The NAC was created as a government consultative body comprising 35 full-time salaried members. The NAC had state branches and territory branches and a national executive of 10 members. The Executive represented these branches and was chosen by the branch representatives rather than a broader national membership. An annual meeting of interested Indigenous constituents was held, to ensure that the elected representatives might be accountable to their constituents. None of the three tiers of the organisation were bound by any decisions of the others. Ultimately, the organisation was a further entrenchment of the government view that a national Indigenous representative body should be merely consultative in nature, without executive authority or guaranteed ministerial access.
Autonomy, Resilience and Vulnerability
The NAC, like the NACC, was unable to consistently develop coherent national policy positions on matters of national importance in Indigenous affairs. Successful positioning was often based on the efforts of particular executive members, a state/territory branch or other Indigenous organisations who were members of the NAC.
The structure of the organisation as created by government also led to what has been characterised as an inherently cautious organisation.[12] This was partly based on the fact that the government’s intention that the organisation not be controlled or heavily influenced by urban activists succeeded in limiting the voice of that constituency in the NAC. Tensions between the NAC and the bureaucracy remained as a legacy of the DAA’s relationship with the NACC, contributing to the destabilisation of the organisation.
Two reports into a replacement structure for the NAC were commissioned following the election of the Hawke government in 1983. The O’Donoghue report concluded that the NAC produced “politicians” rather than advisors, had not adequately represented the diversity of Indigenous interests and had not realised coherent policy positions. Further, the body was unable to work with other Indigenous organisations or government departments.[13] The report recommended that a more regionalised organisation be created to give greater voice to the broader Indigenous constituency.
The other report, the 1984 Coombs report, suggested that a new organisation be based on regional representative structures and that it make provisions for the representation of existing Indigenous organisations. The Coombs report suggested that a new body should have significant responsibility over Indigenous expenditure.[14]
3) The Aboriginal and Torres Strait Islander Commission (ATSIC), 1989 - 2005
ATSIC was established following the Coombs and O’Donoghue reports on the principle that the new organisation should be built around regional mechanisms. In 1986 the Minister for Aboriginal Affairs, Gerry Hand, recommended that a new organisation replace the NAC. Following the introduction of enabling legislation, major consultations were conducted with the Indigenous community. This significantly changed the basis of the legislation and greatly regionalised its structure. The new organisation, ATSIC, was ultimately created in 1989 and began operation in 1990.
Structure
The ultimate structure of ATSIC resulted from various political compromises which were required to ensure the realisation of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). The Bill was significantly amended to address concerns from the Opposition and minor parties that ATSIC was not adequately accountable, either administratively or financially, to the public or the Minister for Aboriginal Affairs.[15]
As a consequence, the Minister remained at the top of the legislative structure, and retained significant power over decisions made by elected representatives. Consequently, there were inevitable tensions between ATSIC’s responsibilities to the Minister and its duties to Indigenous constituents. The organisation was given a broad mandate to formulate and implement programs for Indigenous peoples and to monitor the effectiveness of its own and other nominated programs.
Further, ATSIC was empowered to develop policy proposals at all levels, to advise the Minister on all matters and to undertake research necessary to enable it to perform its functions. The Commission controlled and managed a budget to create and implement programs. For the first time, a national Indigenous representative body had the power to both advise government and to fund and deliver programs.
Along with establishing unique functions, the Parliament created a unique organisational structure to deliver ATSIC’s mandate. Central to this structure was a separation of power between elected representative and administrative arms.
The elected representative arm consisted of regional councils grouped into regional zones – including, for the first time, Torres Strait Islanders. In each zone, regional councillors would elect one of their own members to the national Board of Commissioners. The Board was legally responsible for determining financial priorities, developing budget estimates and reports, and ensuring the organisation acted in accordance with its powers.
Regional Councils were given the power to formulate a regional plan for the improvement of the economic, cultural and social status of Indigenous peoples and to assist ATSIC and other bodies in its implementation. In addition, regional councils were tasked to prepare budgets for approval by the central organisation, and to act as a local advocate for the views of regional communities.
The administrative arm was staffed by public servants and was given the task of implementing the policy and program priorities determined by the elected representatives.
As the created structure was untested for a statutory authority, the legislation that created ATSIC was subject to regular review.
ATSIC was given the power to review the operation of its own legislation and make recommendations for its amendment. Two reviews conducted in 1993 and 1998 raised somewhat similar concerns. Firstly, both highlighted shortfalls in the legislation itself, stating that while an object of the legislation was to coordinate the formulation and implementation of policies, ATSIC did not have the power to act in a specific co-ordinating role, or enforce the cooperation of the Commonwealth, State and Territory governments.[16]
Secondly, the reviews aimed to provide less onerous funding arrangements between ATSIC and State and Territory governments[17] and increase government accountability through an annual monitoring and reporting function for ATSIC.[18]
Unfortunately the majority of recommendations emanating from these reviews were never implemented.
The Howard Government announced the first comprehensive external review of ATSIC in November 2002. In April 2003, it further announced a separation of powers between ATSIC’s policy making and service delivery roles as an interim measure to remove the potential for conflicts of interest in decision-making over funding. ATSIC was subsequently stripped of all resources and funding superfluous to administrative requirements ostensibly to free its elected arm to focus on larger policy issues and these were transferred to a new body, the Aboriginal and Torres Strait Islander Services (ATSIS).
The Hannaford review produced its Report in November 2003. Among its terms of reference was consideration of the adequacy of representation and advocacy of Indigenous views, the role of Regional Councils in service and program delivery, and the establishment of a Ministerial veto power over ATSIC’s decisions.
After wide national consultation the final Report, titled In the hands of the regions, recommended urgent structural reform enabling greater regional control and a permanent division of ATSIC’s administrative and elected representative roles (to be achieved through a single body - i.e. by reunifying ATSIS and ATSIC). The national body would then become responsible primarily for developing policy and reviewing a national plan, informed by regional plans and specifically-tasked national committees.
The review team also recommended that ATSIC be given greater ability to develop more effective relationships with State and Territory governments through multilateral agreements.[19]
The then Minister for Indigenous Affairs pledged to consider the issues which were raised in the Report and deliver a reform package in 2005. Before any of these recommendations could be considered, let alone implemented, the organisation was abolished.
An overview of the findings of the Hannaford review of ATSIC is contained in Text Box 2 below.
Text Box 2 – Overview of key findings and recommendations of the Hannaford review of ATSIC (2003)
In the hands of the regions - a new ATSIC found that ATSIC was in
urgent need of structural change.
The report of the Review Team particularly emphasised the need to improve
the connection between ATSIC's regional representative structures and national
policy formulation processes. The Review Team state that:
As it currently operates, the review panel sees ATSIC as a top down body.
Few, if any, of its policy positions are initiated from community or regional
levels. The regional operations of ATSIC are very much focused on program
management. To fulfil its charter, engage its constituency and strengthen its
credibility, ATSIC must go back to the people. The representative structure must
allow for full expression of local, regional and State/Territory based views
through regional councils and their views should be the pivot of the national
voice.
In terms of capacity building, this identifies a challenge to develop a
'cultural match' between the structures of ATSIC and Indigenous peoples at the
local level to ensure that ATSIC is representative and participative.
Significantly, the Review Team note that public perceptions of how ATSIC
have performed have been burdened by unrealistic expectations, with the
organisation blamed for failures which lie outside its control. They also noted
that ATSIC had also not lived up to unrealistic expectations of what it can
achieve:
ATSIC was intended to be a supplementary funding body and was never
intended, or funded, to be the provider of all programs and services to
Aboriginal and Torres Strait Islander people. Its establishment did not absolve
mainstream agencies from their responsibility to meet their obligations to
Indigenous citizens. The hopes pinned on the organisation - that it could and
would effect instant change were not realistic
They state that these unrealistic expectations have also operated to shield
governments from being accountable, and that ‘this avoidance of
accountability and responsibility must be overcome with the new ATSIC.’
The Review Team recommends a revised structure for ATSIC that includes the
following features:
Overall, the ATSIC Review Team made 67 recommendations which
broadly address issues of the relationship between ATSIC and Indigenous peoples,
the federal government, the States and Territories, and between its elected and
administrative arms.
See further: www.atsicreview.gov.au/ATSIC%20Review%20report.pdf. |
Autonomy, Resilience and Vulnerability
Since the demise of ATSIC, there has been much analysis of the problems experienced by the organisation and the weaknesses of its legislatively determined framework. Four organisational structural issues were identified:
- Firstly, there was confusion surrounding ATSIC’s broad powers and functions.
- Secondly, tension existed between policy development and program delivery.
- Thirdly, the relationship between regional councils, the Board of Commissioners and the bureaucracy required clearer definition.
- Fourthly, the Parliament failed to define the relationship between ATSIC and
the different governments, or grant ATSIC the power to hold these governments
accountable.
i) Clarity about powers and functions
While ATSIC was given a broad mandate, it did not capitalise on its functions and was simultaneously blamed for problems that were the responsibility of other agencies.
ATSIC’s function of monitoring the effectiveness of programs required the “active cooperation and involvement” of Commonwealth, State and Territory governments, who remained the major Indigenous service providers.[20] The legislation that established ATSIC was silent on how this relationship was to be developed and failed to provide ATSIC with executive authority to require effective cooperation.
Instead, public confusion existed, often fuelled by political rhetoric, about the nature and scope of the organisation’s powers. The Howard government often blamed the organisation for failing to make major progress in ending Indigenous disadvantage, even though ATSIC administered less than 50% of Indigenous-specific Commonwealth funding.[21] Clearer legislative provisions to give fuller expression as to how ATSIC was to realistically achieve its mandate were required.
ii) Tension between policy development and program delivery
Confusion about ATSIC’s broad mandate led to a disproportionate focus on program delivery. As the organisation developed, it became increasingly difficult for it to negotiate its dual policy and program roles. Eventually, program delivery became the focus at the expense of policy development. As a result, the organisation became hostage to government grants and funding cycles, increasing financial accountability and constant cycles of reporting, audit and evaluation.[22]
This occurred at the expense of policy development that could have actually informed governments as how to better run the majority of Indigenous programs. This effectively led to a failure to hold government accountable for program delivery.[23]
The desired effective relationship transformed instead into one between the government as ‘funder’ and ATSIC as the ‘contracted service provider’.[24] Under-resourcing of policy development led to a lack of Indigenous participation in government policy and program development. In 2003, the Minister for Indigenous Affairs, Philip Ruddock, split the administrative and funding arm from the representative arm of ATSIC in an attempt to resolve this problem. The abolition of ATSIC occurred soon after, so there was no effective evaluation of this separation.
iii) Relationship between regional councils, the Board and the
bureaucracy
While it prescribed broad functions, the legislation governing ATSIC failed to define key relationships, leading to tension and conflict between these three key stakeholders. The Chief Executive Officer (CEO) of ATSIC was directly accountable to both the Board and the Minister. This limited the ability of the bureaucracy to support conflicting agendas between the Board and the government. Recommendations to change the structure of the organisation to allow the Board to appoint the CEO were ignored.
Also, while the Act established the respective functions of the Board of Commissioners and the regional councils, it was to a large extent silent on the interrelationship between the two. While regional councils were given the capacity to advise on national funding priorities, in practical terms they became focused on program management.[25] Instead, a top-down approach resulted regarding funding decisions and policy development, resulting inevitably in the centralisation of power in the national organisation.[26] Indigenous peoples were therefore less able to affect the processes of the organisation.
iv) Relationship with governments
ATSIC was further incapacitated by having limited power to compel the Commonwealth, State or Territory governments to act on its policy advice. While the organisation was given the task of monitoring the effectiveness of Indigenous programs, ATSIC had no executive authority to persuade governments to cooperate with its scrutiny. As the organisation focused on program delivery, various governments were able to escape criticisms about their own unproductive Indigenous policies and programs.[27]
This was especially the case for State and Territory governments, who remained responsible for the majority of Indigenous expenditure. The Commonwealth government had the ongoing problem of holding other governments accountable for tied grants, leaving ATSIC unable to track government expenditure on Indigenous programs and forcing them to attempt to plug the gaps in State and Territory services through the capacity of the regional councils.[28]
In a sense this relieved the Commonwealth, State and Territory governments from as stringent accountability as ATSIC necessarily focused more on program delivery. Consequently, ATSIC was hampered in its ability to contribute to long-term policy debate or innovative policy development.
ATSIC’s focus on program delivery meant it could not contribute adequately to government policy formulation. Although ATSIC had a monitoring function, the organisation had no coercive power to hold governments accountable or guarantee that they would act on their advice. Consequently, various levels of government and within government acted without Indigenous involvement and were able to escape criticism for their own shortcomings in Indigenous affairs.
Lessons learnt from previously existing National Indigenous Representative Bodies
The strengths and shortcomings of previous representative organisations created by government are complex and depend often on the political and social environment of the nation at any given time. However, there are some key and recurring factors as to why representative bodies have not been sustainable and have been hampered in their effective operation – often despite major investments by individuals, groups and Boards.
Firstly, there has been a recurrent failure to adequately define the key relationships between governments, the representative body and other stakeholders in Indigenous affairs. In this regard there was a lack of clarity in the relationships between national representative bodies and State and Territory governmental structures. There were also inadequate links and processes between the national body and other regional structures and processes.
Secondly, there has been a failure to clearly articulate and detail the functions of the representative body in accordance with the stated aspirations of Indigenous Australians. This has manifested as incoherent organisational structures that were unable to meet the multiple objectives of a representative body. There was a lack of clarity both internally within bodies and externally on the roles and functions of the body, and hence there arose competing and unmet expectations of representative bodies. This caused problems particularly where the representative body was not provided the authority and resources to fully undertake functions such as program delivery, but was nonetheless expected to fulfil these functions. There were also tensions that arose from having a single body being responsible for advocacy, policy development, program delivery and evaluation – which created conflicting responsibilities. The lack of clarity was accompanied by inadequate resourcing that limited the capacity of a representative body to fulfil its multiple objectives.
Thirdly, past representative bodies have also been plagued by tensions arising from the need to represent a diversity of Indigenous interests, including interests of both urban and rural/ remote communities as well as interests of specific members of the community including, Indigenous women and youth.
Finally, each organisation has to varying degrees been constrained by government and the bureaucracy in pursuing their own priorities as galvanised from the wishes of its Indigenous constituents. Underlying this has been a lack of government support for a strong independent agenda setting policy organisation, as opposed to a mere advisory body. Therefore, each organisation has been unable to act with sufficient independence from government, a core and repeatedly asserted desire of Indigenous peoples throughout Australia.
These lessons learned from previous mechanisms for national Indigenous representation can help identify what issues need to be discussed when considering the scope of a new National Indigenous Representative Body, particularly in relation to the roles and functions of the body, its level of independence and its relationships with government at the national, State/ Territory and regional levels.
To assist in clarifying these issues, this paper reproduces at Text Box 2 the proposed principles and vision for a representative body as articulated by the 2003 Hannaford Review of ATSIC. Due to the abolition of ATSIC there was not an opportunity at the time to consider the usefulness of these principles assisting to define the key features of a new National Indigenous Representative Body.
Section 2: Current mechanisms for representing Indigenous peoples at the national, State/ Territory and regional levels
Despite the absence of a National Indigenous Representative Body, there
exists a range of organisations that advocate for the interests of Indigenous
peoples. This includes through:
- an extensive array of national peak bodies that represent the different sectoral interests of Indigenous service delivery organisations;
- land councils, native title representative bodies and prescribed bodies corporate established through the native title and land rights and native title systems;
- regional mechanisms for representing Indigenous people that exist in some parts of the country; and
- mechanisms established by State or Territory governments to represent
Indigenous peoples in policy making processes.
Some of these organisations or mechanisms are representative of different communities or sectors of Indigenous peoples, whereas others base their advocacy on their service delivery role.
This section of the paper identifies the key features of a range of different organisations and mechanisms that currently exist across Australia. While none of these organisations or mechanisms is capable of addressing the sheer breadth of issues required from a National Indigenous Representative Body, they do provide a substantial base on which to build.
Each of these organisations or mechanisms, therefore, has a role to play either in contributing to the operations of, or through their relationship with, a new National Indigenous Representative Body.
This section of the paper concludes by considering what issues are raised for the operation of a new National Indigenous Representative Body in light of these existing mechanisms, as well as in relation to the post-ATSIC arrangements for delivery of services to Indigenous peoples at the federal level, which have substantially changed the operating landscape for Indigenous Affairs.
Any National Indigenous Representative Body will need to be alert to how it can effectively work with the regional and State/ Territory representative bodies, and the current administration arrangements in place for Indigenous affairs.
National Indigenous Peak Bodies
There exists an extensive array of national Indigenous peak bodies. A critical issue in the development of a new National Indigenous Representative Body will be deciding how these peak bodies will interact and inform the work and decision making of the new National Indigenous Representative Body.
Generally speaking, existing Indigenous peak bodies represent the different sectoral interests of Indigenous service delivery organisations. In other words, they deal with a particular professional area or service delivery role. This differentiates the role of these peak bodies from those of a National Indigenous Representative Body. The National Body would need to consider all different perspectives in developing a clear vision of how to advance the overall wellbeing and priorities for indigenous peoples at a national level.
Many of these peak bodies are also elected, some with direct representation from the community level. Peak Indigenous bodies offer significant expertise and experience that should be drawn on by the new National Indigenous Representative Body.
Text Box 3 below provides an overview of a number of existing national Indigenous peak bodies and how they are constituted.[29]
Text Box 3 – Overview of existing National Indigenous Peak Bodies
| Organisation |
Function & Structure (purpose and elections/composition) |
|---|---|
Aboriginal Tourism Australia (ATA) |
Primary Objectives
Structural Organisation
|
Australian Indigenous Doctor’s
Association (AIDA) |
Primary Objectives
Structural Organisation
|
Congress of Aboriginal and Torres Strait Islander
Nurses
(CATSIN) |
Primary Objectives
Structural Organisation
|
Federation for Aboriginal and Torres Strait Islander
Languages (FATSIL) |
Primary Objectives
Structural Organisation
|
Indigenous APS Employees Network (IAPSEN)
|
Primary Objective
Structural
Organisation
|
Indigenous Dentist’s Association of
Australia
(IDAA) |
Primary Objectives
Structural Organisation
|
National Aboriginal Community Controlled Health
Organisation (NACCHO) |
Primary Objectives
Structural Organisation
|
National Aboriginal Justice Advisory
Committee (NAJAC) |
Primary Objectives
Structural Organisation
Note: NAJAC was intended to consist of the Chair of each state
and territory AJAC. However, as a result of changes in the state and
territory based AJACs in recent years, along with administrative changes in
Indigenous affairs more broadly, the Australian Government is considering the
establishment of a different type of expert advisory group in Indigenous law and
justice. The Government is proposing that it comprise a group of high
profile experts in a variety of fields, able to comment across key issues
relevant to Indigenous law and justice. The Government is planning a
consultation process to engage Indigenous Australians and organisations in the
establishment of the peak advisory body in the near future. |
National Aboriginal and Torres Strait Islander Ecumenical
Commission (NATSIEC) |
Primary Objectives
Structural Organisation
|
National Coalition of Aboriginal and Torres Strait Islander
Social Workers Association
(NCATSISWA) |
Primary Objective
Structural Organisation
|
National Indigenous Higher Education Network (NIHEN) |
Primary Objectives
Structural Organisation
|
National Indigenous Postgraduate Association Aboriginal
Corporation (NIPAAC) |
Primary Objectives
Structural Organisation
|
National Indigenous Youth Movement of
Australia (NIYMA) |
Primary objectives
Structural Organisation
|
National Native Title Council
|
Primary Objectives
Structural Organisation
|
National Sorry Day Committee (NSDC) |
Primary Objective
Structural organisation
|
Ngalaya Aboriginal Corporation |
Primary objective
Structure
|
Positive Aboriginal Torres Strait Islander Network
(PATSIN) |
Primary Objective
Structural organisation
|
Secretariat of National Aboriginal and Torres Strait
Islander Child Care (SNAICC) |
Primary Objective
Structural Organisation
|
Stolen Generations Alliance
|
Primary Objective
Structural Organisation
|
Land Councils and Native Title Representative Bodies
Nationwide, there are 17 Native Title Representative Bodies (NTRBs) and Native Title Services (NTSs), established under the Native Title Act 1993 (Cth). NTSs do not have a representative role. Many NTRBs emerged out of local ‘land councils’, which were established under State and Territory land rights legislation which predated the native title system. Many of these land councils have a long history of representing Indigenous interests at a regional or State/Territory-wide level.
The first land councils were established in the Northern Territory under the Aboriginal Land Rights Act 1976 (Cth) with a range of responsibilities to run land claims and manage existing land trusts by taking instruction from traditional owners on development issues. Since the introduction of the Native Title Act 1993 (Cth), these land councils effectively operate under two statutes and as a result have two sets of operational responsibilities.
New South Wales also has a land rights system, which is established under the Aboriginal Land Rights Act 1983 (NSW). The NSW Aboriginal Land
Council network operates as a two –tiered structure, comprising the peak
statutory authority – the New South Wales Aboriginal Land Council (NSWALC)
– and 121 Local Aboriginal Land Councils (LALCs). The objectives of both
NSWALC and the LALCs is generally to “improve, protect and foster the best
interests of Aboriginal persons” within their respective
jurisdictions.
Both the NSWALC and LALCs are governed by elected Boards. The
9 Councillors that make up the NSWALC Board are elected to represent each of the
regions that the 121 LALCs are grouped into across the state.
Although native title advocacy, agreements, claims and determinations are a central focus of NTRBs, NTSs and land councils under State and Territory land rights legislation, these bodies increasingly undertake roles in related areas of land management, community development and employment and training programs. Land management units have developed into significant resource centres receiving support from a range of government and non-government agencies to run programs from ranger groups to Indigenous ecological knowledge maintenance.
The range of support services and programs, their structure and election procedures and the increased regionalisation of some land councils or NTRBs have contributed to imbuing these institutions with some degree of representativeness for Indigenous communities in certain parts of Australia.
However, their legitimacy, authority, resources and effectiveness is not uniform. They are usually governed by a membership that has achieved land rights grants, or has achieved or asserts native title. They are not usually representative of those Indigenous groups that cannot demonstrate traditional ownership of areas covered by the land council or NTRB, nor do they always have close ties to existing Indigenous community service organisations. They are, nevertheless, important bodies in the wider landscape of Indigenous representation, particularly at the local and regional level.
There are a further range of organisations that are beginning to operate through the native title system. These are Prescribed Bodies Corporate (PBC). The prime object of prescribed bodies corporate is to hold the native title rights and interests granted by a determination of native title on trust or as an agent for native title holders. Once the determination is made a PBC is then registered on the National Native Title Register as a Registered Native Title Body Corporate (RNTBC). The primary roles of PBCs are to:
- Protect and manage determined native title, in accordance with the native title holders’ wishes; and
- Provide a legal entity through which native title holders can conduct
business with government, and others, interested in accessing or regulating
native title lands and waters.
As at 30 June 2008, there were 57 RNTBCs, and 12 determinations of
native title currently awaiting determination to become Registered Native Title
Body Corporates. While funding support is limited for such bodies, and they are
differently constituted, they are emerging as a new organisational structure
that has representative responsibilities in relation to traditional owners who
have had their native title recognised.
There are a further 12
determinations of native title currently awaiting determination of a Prescribed
Body Corporate, to become the Registered Native Title Body Corporate.
Regional Authorities – Torres Strait Regional Authority (TSRA)
The Torres Strait Regional Authority (TSRA) began as an ATSIC Regional Council in 1990 and became an independent statutory authority by amendment to the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) in 1994.
It consists of two parts: a Board of 20 Indigenous elected members resident in the region and an Administration staffed by Australian government public servants headed by a General Manager appointed by the Minister for Indigenous Affairs.
The Board includes 18 representatives from the island communities of the Torres Strait plus two more elected under the Aboriginal and Torres Strait Islander Act 2005 (Cth), that replaced the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Considered to be the political arm of the TSRA, the Board determines budget allocations and policy, sometimes within the parameters of portfolios.
Unified regional Indigenous governance structures have existed in the Torres Strait for decades.[30] The TSRA is currently the principal Commonwealth agency co-ordinating Indigenous affairs in the region. Its predecessor was the Torres Strait Regional Council (TSRC) that existed in the late 1980s, and which drew its membership predominantly from another regional representative Islander body, the Island Co-ordinating Council[31] (ICC). The councils have powerful responsibilities under the Community Services (Torres Strait) Act 1984 (Qld) which establishes 17 Island Councils and the Local Government Act 1993 (Qld) which establishes the Torres Shire Council, both of which come together in the Island Coordinating Council (ICC).
As well as being responsible for formulating, administering and monitoring the effectiveness of programs to individuals, councils and community organisations in key development areas (such as economic, employment and training, housing and environmental, social and cultural, policy co-ordination), the TSRA is the regional representative body for native title and land and sea management. It advises the Minister for Indigenous Affairs on matters relating to Torres Strait Islander and Aboriginal Affairs in the Torres Strait.
The TSRA therefore combines representative, policy-making and administrative elements within the one body.
The current functions of the TSRA include:
- Recognising and maintaining the special and unique Ailan Kastom of Torres Strait Islanders living in the Torres Strait;
- Formulating and developing programs for Torres Strait Islanders and Aboriginal people living in the Torres Strait, and monitoring the effectiveness of its own and other bodies’ programs for them in the region;
- Developing policy proposals to meet their national, State/ Territory and regional needs and priorities;
- Assisting, advising and cooperating with their communities, organisations and individuals at these levels;
- Advising the Minister for Families, Community Services and Indigenous Affairs on matters related to Torres Strait Islander and Aboriginal affairs in the area;
- Taking necessary action to protect sacred or significant Torres Strait Islander or Aboriginal cultural material and information; and
- Collecting and publishing statistical information as requested by the
Australian Bureau of Statistics (Aboriginal and Torres Strait Islander Act
2005 (Cth) s142A).
Elections are held every four years. While voting is open to both Indigenous and non-Indigenous residents, there are fewer of the latter in most island communities. All prospective candidates must, inter alia, reside for at least two years prior to an election within the ward they wish to represent and be Indigenous peoples. It should be noted that Torres Strait Islanders living in the Torres Strait are outnumbered by those resident on mainland Australia, who nonetheless share a “common sense of history and identity”.[32]
Chairs of Community Councils contribute 17 Board members. One elected ICC member represents five constituencies on Thursday Island on the Board (Tamwoy, Rosehill, Aplin, Waiben and Quarantine [TRAWQ]) and the remaining two members represent Port Kennedy (Thursday Island), as well as Horn and Prince of Wales Islands.
The Queensland g