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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
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