Bills Digest No. 40 1999-2000
Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 1)
1999
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Aboriginal and Torres Strait Islander Commission
Amendment Bill (No. 1) 1999
Date Introduced: 11 August
1999
House: Senate
Portfolio: Aboriginal and
Torres Strait Islander Affairs
Commencement: Formal provisions
will commence on Royal Assent. Commencement of the substantive provisions
is related to the commencement of Schedule 2 of the Aboriginal and
Torres Strait Islander Commission Amendment Act 1996 (see below).
The Aboriginal and Torres Strait Islander Commission
Amendment Bill (No.1) 1999 amends provisions of the Aboriginal and
Torres Strait Islander Commission Act 1989 (ATSIC Act) relating to
the election of the Chairperson of the Aboriginal and Torres Strait Islander
Commission (ATSIC).
What is ATSIC?
ATSIC is the principal Commonwealth agency concerned
with Aboriginal and Torres Strait Islander affairs. It serves the role
of a government department, being responsible for policy formulation and
the development and implementation of a wide range of programs. It also
acts as an independent agency, representing the interests of Aboriginal
and Torres Strait Islander people to governments and government agencies.
ATSIC has a representative arm. This arm consists of
35 Regional Councils throughout Australia.(1) Regional Councils are elected
by Indigenous Australians according to Regions and Zones established under
the ATSIC Act. Regional Councils represent and advocate the interests
of Indigenous residents in their Region and formulate regional plans for
their social, economic and cultural advancement. The Regions are grouped
into 16 Zones.(2) The representative arm also consists of the Torres Strait
Regional Authority. There is a single zone for the Torres Strait.
At a national level the representative arm consists of
the Board of Commissioners. The Board is the main policy making body and
allocates funding to national priorities and budgets.
Composition of the Commission
As originally passed, the ATSIC Act provided for a Board
of 20 Commissioners appointed by the Minister. Regional Councils elected
16 Commissioners.(3) Another Commissioner was elected by the Torres Strait
Regional Authority. A further two Commissioners and the Commission Chairperson
were chosen by the Minister. Regional Council elections must be held every
three years.(4) The first Regional Council elections were held in November
1990.
In 1993 the ATSIC Act was amended to reduce the Board
to 19 members.(5) The Minister no longer chose the Chairperson separately
but was required to appoint the Chairperson from the 19 Commissioners.
The second round of Regional Council elections was held in December 1993.
Late in 1993 the ATSIC Act was further amended to reduce
the Board to 17 members and to increase its level of autonomy.(6) The
Minister would no longer choose two Commissioners. The Board of Commissioners
would choose the Chairman.(7) But the amendments would not commence until
the 1996 round of Regional Council elections.(8)
Prior to the 1996 Regional Council elections, further
amendments were made to postpone the changes made in 1993 and to increase
the Board to 18 members. For the 1996 elections, the Minister retained
a power to choose one Commissioner and to appoint the Commission Chairperson.(9)
The changes would commence in time for the 1999 elections.(10) The third
round of elections was held in October 1996. On 9 July 1999 the Minister
announced the fourth round of elections for 9 October 1999.
Role of the Minister
A key issue in the above amendments has been the role
of the Minister in selecting and appointing Commissioners and the Commission
Chairperson. The amendments to the ATSIC Act which were passed in late
1993 were originally proposed by the Labor Government earlier that year.
They were based on the rationale that appointments were inconsistent with
the ethos of self-determination and empowerment that underpinned the ATSIC
Act.(11)
However, they were abandoned after opposition from the
Coalition and Democrats. The Coalition expressed concern about accountability.
It also felt that, in relation to the choice of Commission Chairman, Ministerial
involvement provided an opportunity for wider consultation with a range
of indigenous groups and might increase the chance of securing a person
with appropriate qualifications.(12) The Democrats cited Indigenous concerns
that ATSIC was not quite ready for the change.(13)
The amendments were reintroduced in late 1993 following
structural changes to ATSIC. The Democrats supported the amendments on
the basis that the changes had improved financial and representative accountability.
Indeed there were references to the recurring argument that, among all
Commonwealth funded agencies, ATSIC was the most highly regulated and
accountable.(14) The Bill was passed in late 1993.
The commencement of the substantive provisions is tied
to the commencement of Schedule 2 to the Aboriginal and Torres Strait
Islander Commission Amendment Act 1996. This Schedule will commence
after the fourth round of Regional Council elections in October 1999 following
the appointment of the first Commissioner by the Minister.
Section 27 of the ATSIC Act provides that the Commission
consists of 17 members elected under the Act and appointed by the Minister.
Section 31A provides for the election of a Commission Chairperson by the
Board. Section 39 provides for the resignation of the Chairperson.
Item 1 of Schedule 1 repeals section 27
of the ATSIC Act and replaces it with proposed subsections 27(1)
and 27(2). Proposed subsection 27(1) removes the current
reference to 17 members. Proposed subsection 27(2) clarifies that
the Minister must appoint as Commissioners those persons elected by Regional
Councils. Item 2 of Schedule 1 inserts proposed subsection
31A(3) which provides that a person elected as Commission Chairperson
forfeits his or her position as a Regional Councillor and as a Zone Commissioner.
Item 3 inserts proposed subsection 39(1A) which provides
that, when the Commission Chairperson resigns, he or she is taken to have
resigned as a member of the Commission.
These provisions complement the changes discussed above.
They have the effect that when the Board elects its Chairperson, a position
becomes vacant within the relevant Regional Council, the Zone and the
Board itself. This position could be filled without a fresh election or
by-election, by virtue of the rules relating to casual vacancies in Regional
Councils and the Board of Commissioners. They resolve a long-standing
difficulty that the Board of Commissioners had in electing the Chairperson:
the Board effectively forfeited a Zone Commissioner.(15) They would allow
the Board to elect an 'ambassador at large' without compromising the need
for each Zone to have its own Commissioner.
To
some extent proposed subsection 27(2) creates more flexibility
for further alterations in the number and composition of the ATSIC Board.
By removing the reference to 17 members, there is no upper or lower limit
to the size of the Board. The numbers and composition could easily vary
with a change in the number of ATSIC Zones and/or representation of the
Torres Strait Regional Authority.
- Aboriginal and Torres Strait Islander Commission Act 1989,
Schedule 1.
- Ibid.
- Ibid., s 27.
- Ibid., s 104.
- Aboriginal and Torres Strait Islander Commission Amendment Act
(No.2) 1993, s 4(1).
- Aboriginal and Torres Strait Islander Commission Amendment Act
(No.3) 1993, s 113.
- Ibid., Schedule 4.
- Ibid., s 115.
- Aboriginal and Torres Strait Islander Commission Amendment Act
1996, s 7.
- Ibid., s 2.
- Senator the Hon. John Faulkner stated: '[t]he changes are based on
the Government's commitment to Aboriginal and Torres Strait Islander
self-determination and our confidence in indigenous people managing
their own affairs. They are fundamentally about shifting greater decision-making
power to the Aboriginal and Torres Strait Islander people themselves.
They are also in line with the thrust of the report of the Royal Commission
into Aboriginal Deaths in Custody': Aboriginal and Torres Strait Islander
Commission Amendment Bill 1993, Second Reading Speech, Senate, Parliamentary
Debates, 18 May 1993, p 662.
- Senator Baden Teague, Senate, Parliamentary Debates, 18 May
1993, p 864.
- Senator Cheryl Kernot, Senate, Parliamentary Debates, 18 May
1993, p 865.
- Senator Cheryl Kernot referred to a debate on this issue which began
prior to the establishment of ATSIC and concluded: '[w]here is there
any organisation under this government or any other government which
will be as accountable as ATSIC?': Aboriginal and Torres Strait Islander
Commission Amendment Bill (No. 3) 1993, Senate, Parliamentary Debates,
28 October 1993, p 3387.
- This problem was highlighted by Senator Cheryl Kernot during the debate
on the Aboriginal and Torres Strait Islander Commission Amendment Bill
(No.3) 1993: Senate, Parliamentary Debates, 28 October 1993,
p 3382.
Nathan Hancock
25 August 1999
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
IRS staff are available to discuss the paper's contents with Senators
and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 1999
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
systems, without the prior written consent of the Parliamentary Library,
other than by Members of the Australian Parliament in the course of their
official duties.
Published by the Department of the Parliamentary Library, 1999.
|
