WARNING:
This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 18 June 1996
CONTENTS
Date Introduced: 23 May 1996
House: Senate
Portfolio: Aboriginal and Torres Strait Islander
Affairs
Commencement: Apart from Item 55 of Schedule 1,
the Act will commence on Royal Assent. Item 55 commences 28 days
after Royal Assent.
The Aboriginal and Torres Strait Islander Commission Amendment
Bill 1996 (the Bill) has four major purposes:
- to reduce the size of Regional Councils established under the
Aboriginal and Torres Strait Islander Commission Act 1989
(Cwlth) (the ATSIC Act);
- to provide for a Chairperson of the Aboriginal and Torres
Strait Islander Commission (ATSIC) who is chosen by the
Minister;
- to amend accountability provisions for Regional Councils;
- to provide for the appointment of an ATSIC Administrator and
for the appointment of a Torres Strait Administrator in certain
circumstances.
The Background information provided below relates to the
establishment of ATSIC, its functions and some of the major areas
covered by the Bill.
In 1967, the Commonwealth Constitution was amended to give the
Commonwealth Government power to make laws for the Aboriginal
people of Australia.(1) An Office of Aboriginal Affairs was
established within the Prime Minister's Department and, until 1973
was attached to various other Government departments. In 1973, a
Department of Aboriginal Affairs was established.
In 1987, the then Minister for Aboriginal Affairs, Gerry Hand,
made a statement to Parliament in which he announced his proposal
to establish the Aboriginal and Torres Strait Islander Commission
(ATSIC). In 1988, an Aboriginal and Torres Strait Islander
Commission Bill was introduced into Parliament. The Bill was
referred to the Senate Select Committee on the Administration of
Aboriginal Affairs. The report of the Select Committee was tabled
in February 1989. A new Aboriginal and Torres Strait Islander
Commission Bill was introduced in May 1989 into the House of
Representatives. It was passed on 24 May 1989 and introduced into
the Senate on 27 May 1989 - leading to a lengthy debate and
numerous proposals for amendment.
The ATSIC Act commenced on 5 March 1990. Its objects are set out
in section 3. They include:
- ensuring maximum participation of indigenous people in the
formulation and implementation of government policies that affect
them; and
- promoting the development of self-management and
self-sufficiency among indigenous people.
The ATSIC Act establishes an independent statutory authority -
ATSIC which combines representative, administrative and policy
making elements. It is the principal policy making body for
indigenous affairs and is responsible for administering a wide
range of Commonwealth programs for indigenous Australians. Its
functions are set out in subsection 7(1) of the ATSIC Act. They
include:
- the formulation and implementation of programs for indigenous
people;
- monitoring the effectiveness of programs for indigenous
people;
- development of policies to meet the needs of indigenous
people;
- advising and assisting indigenous communities, organisations
and individuals; and
- advising the Minister on indigenous matters.
The Commission may make grants and loans to individuals, bodies
corporate, unincorporated bodies, the States and the Territories
for the purpose of furthering the social, economic or cultural
development of indigenous people (sections 14 & 16 of the ATSIC
Act).
The Commission's Board is composed of 17 Commissioners elected
by Regional Councils established under the ATSIC Act (see below). A
further two ATSIC Commissioners are chosen and appointed by the
Minister for Aboriginal and Torres Strait Islander Affairs. The
Minister then selects one of these 19 Commissioners to be the ATSIC
Chairperson.
ATSIC is not the only organisation providing services to
Aboriginal people. Other Commonwealth agencies provide financial
assistance either directly through grants to organisations or
through grants to State and Territory Governments. State and
Territory Governments also fund indigenous programs.
Under the ATSIC Act, Australia is divided into a number of
regions. Aboriginal and Torres Strait Islander people in each
region are entitled to elect the members of their Regional Council.
These Regional Councils are the representative arm of ATSIC. When
the ATSIC Act was originally passed in 1989, it provided for 60
Regional Councils. In 1993, following amendments to the ATSIC Act,
the number of Regional Councils was reduced to 36 (and then to 35
following the creation of the Torres Strait Regional
Authority).
Elections for Regional Councils are held every three years. At
present, the number of members of Regional Councils varies - from
between 10 and 20 members.
The functions of Regional Councils are set out in section 94 of
the ATSIC Act. They include:
- the formulation and revision of regional plans for improving
the economic, social and cultural status of Aboriginal and Torres
Strait Islander people in the region;
- assisting, advising and co-operating with ATSIC, the Torres
Strait Islander Regional Authority and other Commonwealth, State
and local Government authorities in the implementation of the
regional plan;
- making proposals for ATSIC expenditure in relation to the
region;
- communicating to the Commission and the TSRA, the views of
indigenous people about activities in their region of ATSIC, other
Commonwealth, State and local government bodies; and
- representing and acting as advocates for indigenous people in
their region.
Since the ATSIC Act was passed in 1989, there has been an
increasing devolution of powers to Regional Councils. Details about
the activities of Regional Councils can be found in the ATSIC
Annual Report.
Under the ATSIC Act, regions are grouped into zones. The members
of Regional Councils in each ATSIC Zone elect one of their number
to represent the zone. The 17 people thus elected become ATSIC
Commissioners.
The ATSIC Act, as originally passed, provided for the
appointment by the Governor-General of an ATSIC Chairperson, Deputy
Chairperson and three other Commissioners. All these Commissioners,
except the Chairperson, were to hold office for no more than 12
months after the commencement of the ATSIC Act.
The first elections for ATSIC's Regional Councils were held in
November 1990. Following the election, Regional Councillors in each
ATSIC Zone elected a person to represent their zone. Under the
ATSIC Act, the Minister for Aboriginal Affairs then appointed these
17 elected persons as ATSIC Commissioners. The Minister also chose
and appointed the Chairperson and two other Commissioners. The
Commission thus consisted of 20 people.
In 1993, the ATSIC Act was amended to provide for a Commission
consisting of 19 people - a Chairperson and 18 other members.
Seventeen members were the persons elected by Regional Councils,
one for each ATSIC Zone. Two Commissioners were chosen by the
Minister who then selected the Chairperson from the 19
Commissioners.
Further amendments to the role of the Minister were made by the
Aboriginal and Torres Strait Islander Commission Act (No.3)
1993 (see below). However, at the date of writing the relevant
part of the Aboriginal and Torres Strait Islander Commission
Amendment Act (No.3) 1993 has not commenced operation.
The question of whether the ATSIC Chair should be chosen by the
Minister or elected has been a subject of controversy for some
time. As originally formulated, the Aboriginal and Torres Strait
Islander Commission Amendment Bill 1993 provided that the Minister
would no longer chose two Commissioners and the ATSIC Chairperson.
However, these amendments encountered opposition in the Senate and
were abandoned.
The Aboriginal and Torres Strait Islander Commission Amendment
Bill 1993 was based on the rationale that appointments were
inconsistent with the ethos of Aboriginal self-determination and
empowerment which underpinned the ATSIC Act. However, the Coalition
(the present Government) had concerns about financial
accountability. The Australian Democrats supported the Coalition's
position as an interim measure. The view of the Australian
Democrats, based on consultations with Aboriginal people including
the ATSIC Commissioners, was that the time had not come for ATSIC
to appoint its own Chairperson.
Later in 1993, when the Aboriginal and Torres Strait Islander
Commission Amendment Bill (No.3) was introduced into the
Parliament, the Australian Democrats moved amendments which
provided that the election of the ATSIC Chair would take effect
from 1 July 1996. The former Government and the Greens supported
the amendments. The amendments create a Commission consisting of 17
elected Commissioners. The Commissioners elect one of their number
to be Chairperson.
The TSRA is established by the ATSIC Act and commenced operation
on 1 July 1994. The Authority consists of 20 elected
representatives who are Torres Strait Islanders and Aboriginal
people living in the Torres Strait. There is a Chair, Deputy Chair
and alternate Deputy Chair - all these people are elected by
members of the TSRA. In addition, one of the Commissioners is
elected by Authority members to represent the area on the
Aboriginal and Torres Strait Islander Commission.
The Torres Strait Regional Authority was established in
recognition of the separate and distinct nature of Torres Strait
Islanders and because it was:
... felt that the time was right for
the Torres Strait to assume greater autonomy in managing the
affairs of Torres Strait Islanders and Aboriginal people living in
the area.(2)
The Aboriginal and Torres Strait Islander Development
Corporation was established on 5 March 1990 under the ATSIC Act.
According to the Corporation's Annual Report for 1994-95:
The Corporation assists and enhances
Aboriginal and Torres Strait Islander economic advancement and
primarily undertakes this through facilitating Aboriginal and
Torres Strait Islander equity involvement in medium to relatively
large scale, mainstream commercial ventures. Such involvement is
normally on the basis of three-way joint ventures.(3)
Under section 115(1) of the ATSIC Act each Regional Council
consists of the 'prescribed number' of members (regional
councillors) elected in accordance with the provisions of Division
4 of Part 3.
The term 'prescribed number' is defined in section 4 of the
ATSIC Act to mean the number determined by reference to the
estimated population of the region concerned in accordance with the
following table:
| Estimated population of
region |
Prescribed number (regional
councillors) |
| less than 1,000 |
10 |
| 1,000-1,999 |
11 |
| 2,000-2,999 |
12 |
| 3,000-3,999 |
13 |
| 4,000-4,999 |
14 |
| 5,000-5,999 |
15 |
| 6,000-6,999 |
16 |
| 7,000-7,999 |
17 |
| 8,000-8,999 |
18 |
| 9,000-9,999 |
19 |
| 10,000 or more |
20 |
|
|
Proposed
law
Item 3 of Schedule 1 of the Bill substitutes a
new table in the definition of 'prescribed number.' The proposed
table provides as follows:
| Estimated population of
region |
Prescribed
number |
| not more than 1,000 |
8 |
| more than 1,000 but not more than
4,000 |
9 |
| more than 4,000 but not more than
7,000 |
10 |
| more than 7,000 but not more than
10,000 |
11 |
| more than 10,000 |
12 |
The effect of the substituted table is to reduce the number of
Regional Councillors representing a region on a Regional Council.
At present, section 38 of the ATSIC Act provides that each ATSIC
Commissioner (or acting Commissioner) is to make a disclosure of
his or her financial interests and the financial interests of his
or her immediate family 'equivalent to the disclosure of financial
interests required to be made by officers of the Australian Public
Service who are members of the Senior Executive Service.' The
disclosure must be made to the Minister and must be up-dated.
Item 12 of Schedule 1 repeals section 38 of the
ATSIC Act and inserts new section 38 which will
require a Commissioner or acting Commissioner who is not a member
of a Regional Council to comply with new section 119A 'as if he or
she were a Regional Councillor.'
New section 119A is inserted by Item 32
of Schedule 1. It establishes a publicly accessible
register of direct and indirect pecuniary interests. Each member of
a Regional Council must make written disclosures of the member's
direct and indirect pecuniary interests in accordance with a
Ministerial determination made under new subsection
119A(4). Ministerial determinations will specify:
- the kinds of interests to be disclosed;
- when and how disclosures are to be made; and
- the form in which the register is to be kept.
Ministerial determinations under new subsection
119A(4) will be disallowable instruments under the
Acts Interpretation Act 1901. In other words, they must be
tabled in each House of Parliament and may be disallowed by either
House.
Under the ATSIC Act, the Minister may suspend a Commissioner for
misbehaviour, physical or mental incapacity. Before suspending the
Commissioner, the Minister must:
- serve a show cause notice on the Commissioner. The 'show cause'
period is 7 days; and
- have consulted with the Commission [subsection 40(2)].
The Minister must table a statement in each House of Parliament
within seven days after the suspension setting out the reasons for
the suspension [subsection 40(4)]. Either House of Parliament may
then, within 15 days, resolve that the Commissioner should be
restored to office. If no such resolution is passed then the
Minister may terminate the Commissioner's appointment [subsections
40(4) & (5)].
Item 14 of Schedule 1 repeals subsection 40(2)
and substitutes a new subsection 40(2). This new
subsection changes the provisions relating to suspension. The
Minister must still issue a 'show cause notice' with a 7 day period
before suspending a Commissioner from office. However, the Minister
need not consult with the Commission.
Item 15 of Schedule 1 adds new
subsection 40(6A) which provides that if a person is taken
not to have been duly elected as a result of an order of the
Federal Court of Australia, then the person ceases to be a
Commissioner.
The Office of Evaluation and Audit is established under section
75 of the ATSIC Act. Paragraph 76(1)(a) of the ATSIC Act provides
that a function of the Office is evaluating and auditing of the
operations of ATSIC, the Aboriginal and Torres Strait Islander
Development Corporation, Aboriginal Hostels Ltd and the Torres
Strait Regional Authority.
Among other things, section 76 also provides that the Office
evaluates and audits particular aspects of the operation of
authorities such as ATSIC, Aboriginal Hostels Ltd, the Commercial
Development Corporation and the Indigenous Land Corporation when
requested to do so by those organisations or by the Minister.
Item 17 of Schedule 1 inserts new
paragraph 76(1)(db) into the ATSIC Act. This provision
enables the Office of Evaluation and Audit to evaluate or audit
particular aspects of the operation of the TSRA when the TSRA
requests it to do so.
Item 19 of Schedule 1 inserts new
Division 9A into the ATSIC Act. New Division
9A deals with the appointment of a Commission
Administrator.
There is no provision in the ATSIC Act for the appointment of an
Administrator. However:
- the Minister has power to issue general directions about how
the Commission is to perform its functions and exercise its powers
[section 12].(4) Directions are to be laid before each House of
Parliament but are not disallowable instruments;
- the Minister also has power to issue Ministerial Finance
Directions under section 74 about the administration of the
Commission's finances.
New section 78B in new Division
9A provides that the Minister can appoint an Administrator
if satisfied that:
- the Commission's administration of its monies has involved
fraud or gross mismanagement;
- the Commission has intentionally failed to comply with a
direction in force under section 12 or section 74 of the ATSIC Act;
or
- the Commission has not taken reasonable steps to prevention a
contravention of a section 12 or section 74 direction.
The effect of new sections 78C and 78CA is that
the Administrator steps into the Commission's shoes, carries out
all of the Commission's functions, and that the Commission cannot
perform any of its usual functions, exercise its powers or hold any
meetings. Further, ATSIC Commissioners cannot perform functions or
powers as Commissioners nor are they entitled to any remuneration
or allowances during the period in which there is a Commission
Administrator, unless the Minister determines otherwise
[new subsection 78CA(2)].
New section 78D provides that the Commission
Administrator may review any audits and evaluations that have been
made of the Commission, its grantees and those to whom the
Commission has made loans. The Commission Administrator may also
initiate audits or evaluations [new subsection
78D(2)].
New section 78E provides that the Commission
Administrator may report to the Minister on changes that should be
made to the structure and operations of the Commission.
As a result of new subsections 78B(2) &
(3), the Commission cannot be under an Administrator for
more than 18 months.
Under section 102 of the ATSIC Act a person is not qualified to
stand for election, or be elected, as a member for a Regional
Council ward in specified circumstances, including if:
- the person is not entitled to vote at the relevant Regional
Council ward election [section 102(1)(a)];
- the person does not live in the relevant ward [paragraph
102(1)(b)];
- the person is a member of the staff of, or a consultant to, the
Aboriginal and Torres Strait Islander Commission or the TSRA
[paragraph 102(1)(c)];
- subject to subsection (2) the person has been convicted of an
offence against a Commonwealth, State or Territory law and
sentenced to imprisonment for one or more years [paragraph
102(1)(d)];
- subject to subsection (2) the person has been convicted of an
offence against a Commonwealth, State or Territory law involving
dishonesty and sentenced to imprisonment for three or more months
[paragraph 102(1)(e)]; or
- the person is bankrupt [paragraph 102(1)(f)].
Subsections 102(1A) and 102(2) provide exceptions to paragraphs
102(1)(b), 102(1)(d) and 102(1)(e).
Subsection 102(1A) provides that paragraph 102(1)(b) [see above]
does not apply to a person who is the Commission Chairperson.
Item 28 of Schedule 1 substitutes a new
paragraph 102(1)(c) in the ATSIC Act which provides, when
read in conjunction with subsection 102(1), that a person is not
qualified to stand for election, or be elected, as a member for a
Regional Council ward if they:
- are a member of the staff of the Commission or the TSRA;
- are a consultant to the Commission or the TSRA; or
- are a director of, or have a controlling interest in, a company
that is a consultant to the Commission or the TSRA.
Item 29 of Schedule 1 adds at the end of
subsection 102(1A) the terms 'or to the Chairperson of a
Regional Council covered by a determination in force under
subsection 121(1B)'. [Subsection 121(1B) is an exception
to subsection 121(1) which effectively provides the Commission with
power to declare a member of a Regional Council to have resigned
where they do not live in the relevant ward and have not lived in
the preceding six month in the relevant ward. The exception
operates in relation to the Chairperson of a Regional Council where
the Commission is satisfied the Chairperson lives within reasonable
daily commuting distance of an office of the Commission that serves
the region concerned.]
The effect of item 28 of Schedule 1 is to add a
new circumstance to those which provide that a person is not
qualified to stand for election, or be elected, as a member for a
Regional Council ward, namely, where they are a director of, or
have a controlling interest in, a company that is a consultant to
the Commission or the TSRA.
The effect of item 29 of Schedule 1 is to
extend the exception provided under subsection 102(1A) to the
Chairperson of a Regional Council.
Section 104 of the ATSIC Act deals with the timing of Regional
Council elections and provides, amongst other matters, that
Regional Council elections shall be held every three years and that
the Minister must fix a day or days for the polling in each round
of Regional Council elections.
Item 30 of Schedule 1 inserts a new
subsection 104(5) in the ATSIC Act which provides that
where a Commission Administrator has been appointed for a term
expiring on or after 31 December in an election year for Regional
Councils, the Minister may set a day or days for polling that fall
after 31 December in that year but on or before 31 December in the
following year.
The effect of proposed subsection 104(5) will
be to accord the Minister a discretion to delay for twelve months
Regional Council elections where a Commission Administrator has
been appointed for a term expiring on or after 31 December in an
election year.
Section 119 of the ATSIC Act deals with the disclosure of
pecuniary interests, both direct and indirect, of members of a
Regional Council. Under subsection 119(1) a member of a Regional
Council who has pecuniary interest in a matter being considered, or
about to be considered, by the Regional Council must, as soon as
the relevant facts have come to their knowledge, disclose the
interest at a meeting of the Regional Council.
Subsection 119(2) provides that a disclosure of a pecuniary
interest must be recorded in the minutes of the meeting and the
member must not, unless the Minister determines otherwise, be
present or take part in any decision making with respect to that
matter.
Item 31 of Schedule 1 inserts a new
subsection 119(2A) in the ATSIC Act which provides that
the Minister must publish in the Gazette a copy of
determinations made under subsection 119(2).
The effect of proposed subsection 119(2A) is to
require the Minister to put on public record his/her decision to
allow a member of a Regional Council with a pecuniary interest in a
matter being considered or about to be considered by a Regional
Council to be present or take part in any decision making with
respect to that matter.
The ATSIC Act does not contain provisions providing for a
register of Commission, Regional Council or TSRA member pecuniary
interests.
Item 32 of Schedule 1 inserts a new
section 119A in the ATSIC Act which requires members of
Regional Councils to disclose certain direct or indirect pecuniary
interests to the Commission. The types of interests to be disclosed
will be determined by the Minister. In addition, the Minister may
determine the way in which, and the times at which, disclosures are
to be made and the form in which the register of interests is to be
kept. The Commission is required to keep a register of disclosed
interests. The register will be open to the public at no cost.
Ministerial determinations made under proposed section
119A will be subject to disallowance by Parliament.
The principal effect of proposed section 119A
is to accord the Minister a fettered discretion, subject to
disallowance by Parliament, to require the public disclosure of
specified pecuniary interests of members of Regional Councils.
Subsection 121(3) of the ATSIC Act accords the Commission power
to declare that a member of a Regional Council has become an
employee of, or a consultant to, the Commission or the TSRA. Where
such a declaration is made, the member is taken for all purposes to
have resigned on the date of the declaration from the Regional
Council of which they are a member [subsection 122(4)].
A new subsection 121(3) is substituted in the
ATSIC Act by item 33 of Schedule 1 which accords
the Commission power to declare, where so satisfied, that a member
of a Regional Council:
- has become staff of the Commission or the TSRA;
- has become a consultant to the Commission or the TSRA;
- has become a director of, or acquired a controlling interest
in, a corporation that is a consultant to the Commission or the
TSRA; or
- is a director of, or acquired a controlling interest in, a
corporation that has become a consultant to the Commission or the
TSRA.
Proposed subsection 121(3) extends the
circumstances in which the Commission can make a declaration which
may result, under subsection 121(4), in a member of a Regional
Council being taken to have resigned as a member of a Regional
Council. The new circumstances are:
- where the Commission is satisfied a member of a Regional
Council has become a director of, or acquired a controlling
interest in, a corporation that is a consultant to the Commission
or the TSRA; and
- where the Commission is satisfied a member of a Regional
Council is a director of, or acquired a controlling interest in, a
corporation that has become a consultant to the Commission or the
TSRA.
Subsection 122(1) of the ATSIC Act specifies eight circumstances
in which the Commission may make a declaration which may result,
under subsection 122(2), in a member of a Regional Council being
taken to have resigned. The circumstances specified under
paragraphs 122(1)(a) and 122(1)(b) are where a member of a Regional
Council has:
- been convicted of an offence against a Commonwealth, State or
Territory law and sentenced to imprisonment for one or more
years;
- been convicted of an offence against a Commonwealth, State or
Territory law involving dishonesty and sentenced to imprisonment
for three months or more.
The circumstance specified under paragraph 122(1)(c) is where a
member of a Regional Council has failed, without reasonable excuse,
to comply with section 119. Section 119 requires the disclosure by
a member of a Regional Council of a direct and indirect pecuniary
interest in a matter being considered or about to be considered by
a Regional Council
Item 34 of Schedule 1 repeals paragraphs
122(1)(a) and 122(1)(b) and inserts new paragraphs
122(1)(a), 122(1)(aa), 122(1)(b) and 122(1)(bb). The
proposed paragraphs specify four circumstances in which the
Commission may make a declaration which may result, under
subsection 122(2), in a member of a Regional Council being taken to
have resigned. The four circumstances specified are where a member
of a Regional Council has:
- been convicted of an offence against a Commonwealth, State or
Territory law and sentenced to imprisonment for one or more
years;
- been convicted of two or more offences against a Commonwealth,
State or Territory law and sentenced for all the offences to a
single penalty of imprisonment for one or more years;
- been convicted of an offence against a Commonwealth, State or
Territory law involving dishonesty and sentenced to imprisonment
for three months or more; and
- been convicted of two or more offences against a Commonwealth,
State or Territory law involving dishonesty and sentenced for all
the offences to a single penalty of imprisonment for one or more
years.
Item 35 of Schedule 1 substitutes a new
paragraph 122(1)(c) in the ATSIC Act which specifies two
circumstances in which the Commission may make a declaration which
may result, under subsection 122(2), in a member of a Regional
Council being taken to have resigned. The two circumstances are
where a member of a Regional Council has failed without reasonable
excuse, to comply with section 119 or 119A of the ATSIC Act.
The amendments proposed by item 34 insert two
new circumstances in which the Commission can make a declaration
which may result, under subsection 122(2), in a member of a
Regional Council being taken to have resigned. The two new
circumstances are where a member of a Regional Council has:
- been convicted of two or more offences against a Commonwealth,
State or Territory law and sentenced for all the offences to a
single penalty of imprisonment for one or more years; and
- been convicted of two or more offences against a Commonwealth,
State or Territory law involving dishonesty and sentenced for all
the offences to a single penalty of imprisonment for one or more
years.
The effect of the amendments proposed by item 35 of
Schedule 1 is to insert one new circumstance in which the
Commission can make a declaration which may result, under
subsection 122(2), in a member of a Regional Council being taken to
have resigned. The circumstance is a failure, without reasonable
excuse to comply with section 119A. Section 119A, is a proposed
section, dealing with the register of interests.
While the ATSIC Act does not contain comparable provisions to
proposed sections 128A-128C, it may be noted that it is open to
Regional Councils under section 128 to formulate their own rules
for the conduct of Regional Council meetings.
New sections 128A-128C, dealing with public
access to Regional Council meetings and certain Regional Council
documents, are inserted in the ATSIC Act by item 42 of
Schedule 1.
Under proposed section 128A any person is
entitled to attend a meeting of a Regional Council except in the
following circumstances:
- the Regional Council has passed a resolution stating that the
person is to be excluded;
- the Regional Council has passed a resolution authorising the
presiding member to direct a person/s to be excluded from the
meeting and the presiding member has given such a direction;
- the Regional Council is considering an 'excludable matter' (see
proposed section 128C) and has resolved that the meeting be closed
to the public while the matter is being considered.
Under proposed section 128B a Regional Council
is to allow any person to inspect, at any reasonable time, without
charge, any of the following documents:
- a code of conduct to be observed by the Regional Council or its
members;
- rules for the conduct of proceedings at meetings of the
Regional Council;
- a regional or other plan devised by the Regional Council;
- a determination of, or any other document relating to, pay or
allowances of Regional Council members;
- a document identifying any facilities provided for Regional
Council members;
- the minutes of proceedings of Regional Council meetings other
than relating to an 'excludable matter' (see proposed subsection
128C);
- a determination made under subsection 119(2). (Subsection
119(2) provides that a disclosure of a pecuniary interest must be
recorded in the minutes of the meeting and the member must not,
unless the Minister determines otherwise, be present or take part
in any decision making with respect to that matter.); and
- any other document to which the person is entitled to have
access under the Freedom of Information Act 1982.
Proposed subsection 128C defines the term
'excludable matters.' Excludable matters include:
- a matter involving personal hardship to a person;
- information having commercial value the disclosure of which
could reasonably be expected to affect a person adversely in their
business, profession, commercial or financial affairs;
- information which could reasonably be expected to confer a
financial advantage on a competitor of a Regional Council;
- a proposal for a grant or loan, or guarantee by a Regional
Council;
- any matter the divulging of which is prohibited by section 90
of the ATSIC Act. Section 90 imposes secrecy requirements on
certain persons, including members of a Regional Council, in
relation to an application for, or the giving of, a loan, grant or
guarantee under the ATSIC Act;
- information the disclosure of which could reasonably be
expected to prejudice the enforcement or proper administration of
the law; and
- a motion to close the meeting to the public.
Proposed sections 128A and 128B have the effect
of statutorily imposing requirements of public access on Regional
Council meetings and with respect to certain Regional Council
documents. This is in contrast to the current position under
section 128 where Regional Councils may formulate it own rules for
the conduct of Regional Council meetings.
The requirements of public access to Regional Council meetings
will not apply where:
- the Regional Council has passed a resolution stating that the
person is to be excluded;
- the Regional Council has passed a resolution authorising the
presiding member to direct a person/s to be excluded from the
meeting and the presiding member has given such a direction;
or
- the Regional Council is considering an excludable matter and
has resolved that the meeting be closed to the public while the
matter is being considered.
Item 43 of Schedule 1 inserts new
section 139A which deals with injunctions in relation to
elections held under the ATSIC Act. It enables the Australian
Electoral Commission (AEC) to:
- apply to a prescribed court for an injunction restraining a
person's behaviour or requiring the person to do something, if a
person has engaged, is engaging or proposes to engage in conduct
that would contravene or be an offence against the ATSIC Act in
relation to an election [new subsection 139A(1)];
and
- apply to a prescribed court for an injunction requiring a
person to do something that the person has refused or failed to do
where the refusal or failure would be an offence under the ATSIC
Act in relation to an election held under the Act [new
subsection 139A(2)].
A 'prescribed court' means the Supreme Court of a State or
Territory [new subsection 139A(11)]. These Supreme
Courts are vested with federal jurisdiction by new
subsection 139A(8).
An appeal from a judgment or order or a prescribed court lies to
the Federal Court of Australia [new subsection
139A(9)].
Item 45 of Schedule 1 provides that a TSRA
election may be deferred in certain circumstances if a Commission
Administrator or Torres Strait Administrator has been appointed
[new section 142Y].
Item 46 of Schedule 1 inserts new
Division 12 into the ATSIC Act. New Division
12 relates to the appointment of a Torres Strait
Administrator.
Item 47 of Schedule 1 inserts new
section 172A into the ATSIC Act. New section
172A requires the Commercial Development Corporation
Manager to give notice to the Minister or the Chairperson of the
Commercial Development Corporation Board of certain direct or
indirect pecuniary interests held by the Manager.
Item 1 of Schedule 2 repeals Part 31 and
Schedule 4 of the Aboriginal and Torres Strait Islander
Commission Amendment Act (No.3) 1993. Among other things, Part
31 and Schedule 4 provide that all ATSIC Commissioners, including
the ATSIC Chairperson, are to be elected.
Part of the reason for debate about the ATSIC Chairperson comes
from the dual roles that the Commission and its Chairperson play.
The Commission performs both representative and executive
functions. In the words of a 1992 ATSIC report:
In many ways, the Chairperson is the
primary link and source of day-to-day advice between the Commission
and the Government. The Chairperson must, therefore, be a person in
whom the Government may have total confidence at the same time as
having the confidence, trust and ability to represent all members
of the Aboriginal and Torres Strait Islander community. The
Commission believes that the time has come for the Commission to
elect its own Chairperson. The Commission is aware of some of the
difficulties this might cause.(5)
The Aboriginal and Torres Strait Islander Elections Review Panel
report presented in 1995, noted that its jurisdiction was limited
to matters relating to ATSIC electoral systems, but added 'the
Review Panel feels it is important to draw the Minister's attention
to the considerable concern expressed in consultation meetings
across the country regarding future arrangements for the selection
of a Commission Chairperson.'(6)
The report went on to say that many people opposed the
arrangement of electing 17 ATSIC Commissioners who would then elect
one of their number as the ATSIC Chair. The report went on:
They questioned whether it was
appropriate that 17 people, most of whom may be unknown to each
other at the first meeting of the newly elected Commission, would
be required, at that meeting, to elect someone to undertake the
crucial role of chairing the Commission for the subsequent 3 year
period. People considered that the Chairperson needed to be someone
with appropriate leadership and management qualities who could
operate effectively with the government of the day and not be
affected in their important role by their own agendas of
self-interest. Many saw the selection of an appropriate Commission
Chairperson as crucial to the existence and continued forward
progress of the organisation.(7)
... By the same token, there were
those who strongly held to the view that selection of a Chairperson
by a democratic vote was the only acceptable method for Aboriginal
people who were seeking maximum self determination and empowerment.
Many of these people, though, supported widening the voter base for
the selection of Chairperson to overcome the concerns, which they
shared, about whether selection by only the 17 members of the
Commission was appropriate.(8)
The Review Panel also canvassed the options for the position of
Commission Chair. These were:
- having the 17 Commissioners elect one of their number as the
Chair (the position as a result of the Aboriginal and Torres
Strait Islander Commission Amendment Act (No.3) 1993);
- having the Chair elected from a voter base comprising all
Commissioners and all Regional Council Chairs;
- having the Chair elected from a voter base consisting of all
Regional Councillors;
- having an election at large for the Chair where all people
eligible to vote in Regional Council elections would be eligible to
vote for the Commission Chair; and
- having a person with appropriate skills appointed by the
Government.
The Minister's Second Reading Speech states: 'This power [to
appoint an Administrator] will enable the Government to oversee the
administration of public money by ATSIC and the TSRA and to act
quickly to stop any misuse of taxpayers' money.' Accountability is,
of course, important both in relation to indigenous and
non-indigenous Australians.
The following comments can also be made:
- Do current auditing provisions or provisions for Ministerial
directions already provide for sufficient controls and oversight of
ATSIC?
- How will the Minister be satisfied that fraud, gross
mismanagement etc have occurred?
- Might a Ministerial direction be made in relation to a
relatively minor matter? If so, it appears that breach of the
Ministerial direction either by intention or by failure to take
reasonable steps to prevent a contravention of the direction, would
enable the Minister to appoint an Administrator who will exercise
the Commission's powers and functions for a period of up to 18
months?
- Ministerial directions under sections 12 or 74 of the ATSIC Act
are not subject to disallowance by either House of Parliament.
- What happens at the end of an 18 month period if ATSIC's
affairs are still not functioning satisfactorily?
The central focus of the amendments relating to Regional
Councils is financial and political accountability.
The amendments providing for the reduction in the number of
members of Regional Councils (item 3 of Schedule
1) gives effect to a recommendation of a report of the
Aboriginal and Torres Strait Islander Elections Review Panel (the
Review Panel) into aspects of the Regional Council, Zone and Torres
Strait Regional Authority electoral systems (presented to the
former Minister for Aboriginal and Torres Strait Islander Affairs
on 6 April 1995). This amendment is of fundamental importance as it
represents a trade-off between facilitating effective performance
and seeking to maximise direct representation.
The Review Panel recommended that the ATSIC Act be amended to
provide for Regional Councils to be comprised of eight members for
regions of less than 1,000 people, up to a maximum of 12 members
for regions with over 10,000 people. The Review Panel considered
that this would provide for adequate levels of representation
across regions as well as facilitating improved effectiveness of
Regional Councils. It was the Review Panel's view that the
facilitation of effective Regional Council performance of their
functions takes:
... precedence over any desire to
attempt to satisfy those who seek direct representation on Regional
Councils for the maximum number of communities. Whilst the desire
for direct representation for communities is understood, the Review
Panel considers that the absence of this will not, in any way, be a
liability if Regional Councils of appropriate size are comprised of
members committed to taking a regional view and applying the ATSIC
philosophy of adopting a "needs based" approach to decision making.
The choice of the appropriate people to fill this role will, of
course, be in the hands of the voting population.
It is unclear how the power accorded to Regional Councils under
section 128 of the ATSIC Act, to formulate rules for the conduct of
Regional Council meetings and proposed sections
128A-128C dealing with public access to Regional Council
meetings and certain Regional Council documents, will operate
together.
The rationale given by the Government in the Second Reading
Speech to the Bill for the amendments proposed by item 42
of Schedule 1, dealing with public access to certain
Regional Council documents, is greater public accountability. It
may also be noted that it is foreseeable that the Regional Council
meetings may relate to culturally sensitive matters. The proposed
definition of 'excludable matter' does not provide for the
non-disclosure of minutes or documents containing such material.
In April 1995, the Aboriginal and Torres Strait Islander
Electoral Review Panel presented its report to the then Minister
for Aboriginal and Torres Strait Islander Affairs. The report
referred to the injunctive power in section 383 of the
Commonwealth Electoral Act 1918. Section 383 enables the
AEC to seek an injunctions in relation an offence in relation to
the Commonwealth Electoral Act 1918 or another
Commonwealth law applying to elections. The report continued:
The Attorney General's Department
[sic] doubts whether the injunctive power under the Commonwealth
Electoral Act can be applied to elections other than federal
elections.(9)
The Panel recommended that the ATSIC Act be amended to enable
the AEC to exercise injunctive powers in relation to ATSIC
elections.
(1) Constitution, section 51(xxvi).
(2) Torres Strait Regional Authority, Annual Report
1994-95, p.16.
(3) Aboriginal and Torres Strait Islander Commercial Development
Corporation, Annual Report 1994-95, p.5.
(4) On 10 April 1996, the Minister for Aboriginal and Torres
Strait Islander Affairs issued a direction pursuant to section 12
of the ATSIC Act. The direction related to the appointment of a
Special Auditor to oversee ATSIC grants and loans.
(5) Aboriginal and Torres Strait Islander Commission, Review
of the Aboriginal and Torres Strait Islander Commission Act 1989.
Report to the Minister for Aboriginal and Torres Strait Islander
Affairs, AGPS, Canberra, 1993, p.13.
(6) Aboriginal and Torres Strait Islander Elections Review
Panel, Report, 6 April 1995, p.38.
(7) Ibid.
(8) Ibid.
(9) Ibid, p.37.
Ian Ireland (Regional Councils - Major Provisions and
Remarks)
Ph. 06 277 2438
Jennifer Norberry (Background, Other Provisions and
Remarks)
Ph. 06 277 2430
14 June 1996
Bills Digest Service
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ISSN 1323-9032
© Commonwealth of Australia 1996
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