Chapter One - Introduction
Background to the inquiry
On 16 July
2004 the Senate resolved to appoint a Select Committee on the
Administration of Indigenous Affairs, to report by 31 October 2004, into the following matters:
- the provisions of the Aboriginal and Torres Strait
Islander Commission Amendment Bill 2004;
- the proposed administration of indigenous programs and
services by mainstream departments and agencies; and
- related matters.
The Committee ceased activities upon the prorogation of
the 40th Parliament in September 2004, and was reconstituted on 17 November 2004, with the terms of
reference unchanged and a new reporting date of 8 March 2005. Amendments to membership took place on 18 November 2004, with Senator
McLucas and Senator O'Brien
replaced by Senator Carr and Senator
Overview of Government reforms to the
administration of Indigenous affairs
The Government's reforms fall within two categories:
those requiring legislative change to the ATSIC Act, and administrative
changes. These administrative changes represent much more than routine
consequences of a legislative change. The majority, which have pre-empted the
abolition of ATSIC in that they have already been effected, go to the 'mainstreaming'
of programs previously operated under the aegis of ATSIC. They are driven by a
government policy approach that has been termed by witnesses to the inquiry as
“assimilationist”: they involve the shifting of ATSIC’s program
responsibilities into larger, generalist
Commonwealth departments. The
Committee notes that this move is regarded by many as extremely controversial.
A large amount of evidence was presented to the Committee on this issue, and is
discussed at length and in detail in this report.
and Torres Strait Islander Commission Amendment Bill 2004
The ATSIC Amendment Bill was first introduced into the
Parliament on 27 May 2004,
and following the election, was reintroduced largely unchanged onto the notice
paper on 1 December 2004.
The ATSIC Amendment Bill repeals or amends large parts
of the ATSIC Act 1989, as well as
making consequential amendments to a range of other legislation. Its effect is
essentially to do away with ATSIC as an elected representative body with
specific powers and responsibilities and to distribute its program functions
among other Commonwealth departments. ATSIC’s international representative
role, in particular, is not replaced or paralleled in the new arrangements. The
- effectively abolish ATSIC, repealing the
sections governing its functions, constitution, administration and operations;
- leave the Torres Strait Regional Authority
intact, but abolish the Torres Strait Islander Advisory Board (as there will no
longer be an ATSIC for it to advise);
- transfer oversight of Regional Councils from
ATSIC to the Minister, and provide for the abolition of Regional Councils from
- preserve the Office of Evaluation and Audit,
changing its functions to evaluate or audit ‘relevant programs administered by
Australian Government bodies; and ... the activities of any individual or
organisation that has received funding under any relevant program’. Relevant
programs are defined as those that use resources to further ‘the social,
economic or cultural development of Aboriginal persons or Torres Strait
- transfer the Regional Land Fund to the
Indigenous Land Corporation; and
- transfer the Housing Fund and Business
Development Program to Indigenous Business Australia.
The Bill also contains
consequential provisions that remove references to ATSIC from other legislation.
More substantively, this includes:
- The transfer of the role of ATSIC under the Native Title Act 1993 to DIMIA, giving
the Government the power to both decide which Native Title organisations it
will fund (and therefore which land claims will be funded), while also, through
the Attorney-General’s department, opposing such claims;
- ATSIC's right to be consulted pursuant to the Environment Protection and Biodiversity
Conservation Act 1999 and the Human
Rights and Equal Opportunity Commission Act 1986; and
- ATSIC's right to nominate an ATSIC member to the
National Health and Medical Research Council under the NHMRC Act 1992, or for the Torres Strait Islander Advisory Board
under the Australian Institute of
Aboriginal and Torres Strait Islander Studies Act 1989.
The main changes in the reintroduced Bill
- The date for the abolition of ATSIC has been
changed from 1 July 2004 to a date to be proclaimed.
- The date of the abolition of the Regional
Councils remains at 1 July 2005 unless the abolition of ATSIC occurs after that
date in which case the Regional Councils would be abolished on the day after
ATSIC is abolished.
- A minor change has been made to a provision
concerning secrecy of information to ensure that former ATSIC staff who
transfer to other agencies can continue to pass on appropriate information in
the course of their duties.
- Minor changes have also been made to provisions
governing the Office of Evaluation and Audit to allow the Minister for Finance
and Administration to provide reports to other Ministers and to table them in
Mainstreaming of services
The Australian Government implemented changes in the
administration of Aboriginal and Torres Strait Islander affairs on 1 July 2004. The aim was to enable a
'whole of government' approach by building partnerships with Indigenous
Australians at the local and regional level to tailor the delivery of
More than $1 billion of former ATSIC/ATSIS programs,
including some 1300 staff, were transferred to mainstream Australian Government
agencies. A Ministerial Taskforce on Indigenous Affairs was established to
provide strategic direction and monitor outcomes of those mainstream agencies
and will be supported by a Secretaries Group comprising the heads of the
Commonwealth agencies responsible for program delivery. As noted, this move
pre-empted the formal abolition of ATSIC by means of legislation and in effect
created a fait accompli in policy
terms. In taking these steps, the Government has acted precipitously to
implement its policy agenda. The
Committee, in the course of the current inquiry, heard evidence from representatives
of many Indigenous organisations, as well as individuals, expressing dismay and
anger at the manner in which the Government has sought to implement a set of
radical changes in Indigenous affairs policy, representing a complete
about-face in terms of overall policy approach from that which has obtained for
the last twenty years.
Government will also be advised by the National
Indigenous Council, an appointed body of Indigenous experts from various fields
that will meet directly with the Taskforce up to four times yearly. This body,
it must be stressed, is neither elected nor representative in any other sense,
and is not formally answerable to Indigenous people. The Office of Indigenous
Policy Coordination (OIPC) has been established within DIMIA to drive policy
development and service delivery.
Thirty Indigenous Coordination Centres (ICC) have
replaced the ATSIC/ATSIS offices in regional and remote areas, offering a whole
of government response to issues identified by Indigenous communities. Service
delivery will be guided by partnership agreements at the regional level and
shared responsibility agreements at the local and community level. The ICCs
will lead and coordinate the negotiation of these agreements.
The Regional Councils will remain in operation until
July 2005, in anticipation of the passing of the ATSIC Amendment Bill. While the Government has asserted that it
intends to invite Indigenous people and organisations to form representative
bodies of some form or another, to perform the functions now carried out by
ATSIC regional structures, no provisions relating to such an intention are
contained in the legislation before the Parliament. Nor are there any other material signs of the
Government’s plans in this regard.
Below is a table illustrating the transfer of programs
and funding to mainstream departments and agencies that occurred on 1 July 2004.
Table 1.1 – Transfer
of ATSIS-ATSIC functions from 1 July 2004
Community Development and Employment
(CDEP); Business development and assistance; Home ownership
Employment and Workplace
Community Housing and Infrastructure;
Family and Community Services
culture and language; Broadcasting services; Sport and recreation;
Maintenance and protection of Indigenous heritage
Technology and the Arts
Legal and preventative;
Family violence prevention legal services
Access to effective family
tracing and reunion services
Health and Ageing
International issues; Native title and
land rights; Repatriation; Indigenous land fund; Community participation
agreements; TSI on the mainland; Planning and partnership development; Public
and Indigenous Affairs
of Aboriginal and Torres
Strait Islander Studies
Technology and the Arts
Aboriginal Hostels limited
Family and Community Services
Indigenous Business Australia
Employment and Workplace
Indigenous land Corporation;
Torres Strait Regional Authority; Registrar of Aboriginal Corporations
and; Indigenous Affairs
Office of Evaluation and
Amanda Vanstone, Minister for Immigration
and Multicultural and Indigenous Affairs & Minister Assisting the Prime
Minister for Reconciliation, ‘Australian Government Changes to Indigenous
Affairs Services Commence Tomorrow’, Media Release, 30
Criticism of government processes
In the context of the introduction of the report, it is
appropriate to make several comments on the process by which the Government has
effected what are the most significant changes to Aboriginal affairs in a
decade. Leaving aside the merits of these changes, which are the subject of the
remainder of this report, the Committee is critical of the speed with which the
Government has forced through these changes. The Committee also shares the
concerns of the many Indigenous organisations which have expressed grave
disquiet about the complete lack of consultation with Indigenous people about
the changes. They have been effected without adequate information being
provided to Aboriginal and Torres Strait Islander people.
Dodson referred to this lack of consultation
during evidence given to the Committee in Canberra.
made the comment that the decisions were made as if Indigenous people were
It was like we did not exist. ... political figures ... talking
about our future without any reference to us ... seemed to deal with us as
totally irrelevant and to ignore us.
His colleague reinforced this sentiment, saying that:
...the people who have most to lose out of this process are the
ones who have greatest corporate knowledge ... [but] they are being ...
deliberately left out of the process. Yet the documents provided publicly that
describe the process sets them up as primary participants in the process.
Continuing his criticism, Professor
Dodson paused to explain the difference
between what the Government means by consultation and what Indigenous people
expect it to be:
In my experience, what the Government means by consultation is,
'We, the government, have an agenda. Let's go out and run that agenda past the
Indigenous community organisation.' ... In that model, there is no place for
Indigenous decision making. It [government consultation] is a process by which
the government or bureaucratic agenda gets some sort of legitimisation.
then Acting Chairman of ATSIC, made the following observation, which was
consistent with other feedback collected during the Inquiry:
...[T]he Government's decision announced on 15 April 2004 to abolish ATSIC was devoid of
any consultation with those who would be affected; Aboriginal and Torres Strait
Islander peoples. In making the decision, the Prime Minister blatantly ignored
the findings of his own Government's report [the ATSIC Review] and the views of
the Indigenous people who had contributed to its findings.
Firstly, and a major source of resentment for many in
the Indigenous community, is the fact that having commissioned the ATSIC
Review, which presented the Government with a model to reform ATSIC based on
extensive consultation, the Government suddenly announced the complete
abolition of ATSIC. This was done with
limited explanation and no discussion. A large number of people, organisations
and communities participated in this review in good faith, with a commitment to
a process of honest critique and reform. Abolition of ATSIC was never
mentioned: rather, there was a legitimate expectation that the Government would
proceed with at least the general direction of the Review's findings.
The Government, having decided to radically depart from
the Review findings, should have provided some opportunity for comment. In his
opening statement to the Committee in February 2005, the ATSIC Review Panel
Convenor, Hon John
Hannaford, made the following comment, which
clearly questions the integrity of the Government's intent with the Review
findings. Mr Hannaford
addressed the Committee, saying:
Thank you very much for the opportunity to speak to you. This is
the first opportunity I have had to speak to anyone in government about the
The Chair later clarified this point with Mr
Hannaford, asking whether, since handing the
report to the Minister in November 2003, he had been given a chance to debrief
the Minister; Mr Hannaford
I have spoken to no-one since then.
Rather than hold even perfunctory consultations with
the Review Panel, the Government adopted what can only be described as a
'crash-through' approach to reform, using surprise and momentum to carry
through changes it knew would be unpopular.
Furthermore, in so doing, it ignored the major findings of the ATSIC
Review – an exercise which, according to the Government’s own admission has
cost the taxpayer $1.4 million.
Secondly, as indicated, the Committee is critical of
the manner in which the Government acted immediately to give effect to its
revised administrative arrangements well before the Parliament had actually
abolished ATSIC. While the abolition of ATSIC was announced by the Minister on 15 April 2004, the majority of ATSIC/ATSIS
programs and services were transferred to mainstream departments on 1 July 2004. In addition, most of ATSIC's
resources, including staff, budgets and travel entitlements were removed,
leaving elected ATSIC officials with only the barest statutory entitlements.
The extent of this process is evidenced by the fact
that both the Chairman and Deputy Chairman of ATSIC were even refused funding
by the Minister to travel to Canberra
to give evidence to this Committee. Mr Geoff
Clarke was also refused permission to obtain
legal advice under the terms of the ATSIC/ATSIS agreements. In the view of this Committee, this
was quite inappropriate. ATSIC officials were legitimately elected under an Act
that is still in force, and should retain their full entitlements including
staff – not just the bare minimum of pay and conditions – until the ATSIC Act
Instead, this hasty change was implemented arbitrarily,
evicting duly elected Commissioners and Regional Councillors in the midst of
their three-year term. These people were elected with the reasonable
expectation of serving their constituents for the usual three year term, and
being paid and supported to do so, as any elected official or parliamentarian
would anticipate. They have been denied their expectation that any plans and
aspirations they were in the midst of implementing would be allowed their
natural course of time.
Further, the decisions formally made by ATSIC since
1 July 2004, until ATSIC is
actually abolished, must be recognised by the Government as legitimate and
The Committee accordingly recommends that the
government affirms formally that ATSIC’s powers remain in force until the date
of proclamation of the relevant legislation, and that decisions taken in
accordance with the law up to that date are recognised and implemented.
The Secretary of the Department of the Prime Minister
and Cabinet, Dr Shergold
defended the Government’s approach:
Do I think that commissioners should only be paid what is
actually necessary to undertake their role? The answer, I have to say, is yes.
And the role of commissioners now is extraordinarily limited compared with the
role that they had in the past.
It is certainly the case that the removal of the program
delivery functions from ATSIC certainly reduced the role of the ATSIC
Commissioners. However, at a time of such significant changes in Indigenous
policy, and a time at which the Government itself had sought the advice of
ATSIC in devising new representative organisations, the work of the full-time
ATSIC Commissioners in their core role of consultation with their Indigenous
communities has perhaps never been greater – especially given the limited
capacity of the part-time Regional Councillors to perform this role. The
changes have created major uncertainty and confusion in many communities, and
instead of the Government treating the ATSIC Board as an obstruction, it would
have been more appropriate to enlist their assistance in managing a
Thirdly, the Committee is strongly of the view that the
actions of the Government have pre-empted Parliament's decision on the future
of ATSIC. ATSIC was created through a lengthy and thorough debate in the
Parliament. ATSIC is a creation of Parliament, and as such, it is for
Parliament to decide what, if any, changes are to be made to it. As the Government
pointed out, the immediate changes were administrative in nature and did not
require legislative amendment by Parliament. However whilst legally accurate,
this is disingenuous, since the Government's changes dismantled ATSIC in all
Not content with these actions, the Minister repeatedly
criticised the Senate for delays in passing the Government's Bill
and the wastage of taxpayers' money associated with the salaries and
entitlements of the ATSIC Board members.
told the Committee:
It is certainly true that the government is understandably
frustrated that there is continued significant payment for commissioners –
money that could otherwise be directed to other programs.
The Committee rejects this view, which is based on the
agreement by the then Leader of the Opposition to the abolition of ATSIC. An
important caveat to Mr Latham's
agreement was that were ATSIC to be abolished, it should be replaced by a
national Indigenous representative organisation of some form yet to be decided.
On these grounds, ATSIC should not be dismantled until consideration of a
replacement is decided. To do so is likely to risk the loss of much that has
been achieved by ATSIC, and to complicate the creation of its successor.
Conduct of the inquiry
During the life of the inquiry during both the 40th
and 41st Parliaments, the Committee published over two hundred and forty
submissions (a full list of submissions is at Appendix 1).
Prior to the Federal election, the Committee conducted
public hearings in Alice Springs, Broome, Darwin,
Gove, Thursday Island and Cairns
and also received a briefing from the Department of Immigration, Multicultural
and Indigenous Affairs, prior to tabling an Interim report on 31 August 2004.
After its reconstitution by the 41st
Parliament, the Committee held further public hearings in Brisbane,
and Canberra, full details of which
are listed in Appendix 2.
The Committee is mindful that due to the tight
reporting deadline, it has not been able to consult as widely as it might have
wished. In particular, the Committee regrets that it had to cancel its planned
hearing in Melbourne,
and was unable to meet with communities in locations such as Adelaide,
Perth, Geraldton, Kalgoorlie
or Tasmania. The Committee
regrets that the tight reporting timeframe has also allowed limited opportunity
to discuss the new arrangements with the various State and Territory
governments. This is especially regrettable in the light of the importance
placed on 'whole of government' responses, and that changes to the Australia-wide
consultative arrangements have considerable implications for these governments.
Structure of the report
Chapter two of the report provides a brief background
to the history of the administration of Aboriginal and Torres Strait Islander
affairs in Australia,
followed by a description of the proposed amendments to the ATSIC Act. The
chapter concludes with an examination of the effectiveness of ATSIC over its
ten years of existence and whether it can be said to have 'failed'.
Chapter three deals with a number of administrative
issues contained in the Bill, including the
removal of statutory consultation mechanisms contained in a range of other
Commonwealth legislation, as well as changes to the operation of the Indigenous
Land Corporation and Indigenous Business Australia.
Chapter four discusses the issue of Indigenous
representative mechanisms, including their role at local, regional, national
and international level. In the context of this discussion, the chapter
considers how these representational functions will operate under the Government's
new arrangements. In particular, this discussion addresses the central questions
of whether representative bodies should be legislated or funded by government.
Chapter five then examines the policy of 'mainstreaming'
of Indigenous programs and services. It examines the theory of what the Government
sees as a new style of 'mainstreaming' that focuses on whole of government
integration of services, with mainstream departments delivering Indigenous
Assistance with the inquiry
In the course of the Inquiry, the Committee received a
large number of submissions from a range of organisations and private
individuals, often accompanied by supporting documentation. Others gave freely
of their time in appearing before the Committee in public hearings, and in many
cases undertook additional work to provide follow up information to the
Committee in response to questions raised during the discussions. Officers from
the Office of Indigenous Coordination were kept particularly busy with requests
from the Committee, and their efforts are appreciated.
The Committee wishes to thank the Parliamentary
Library, particularly Scott Bennett,
and Dr Angela
Pratt, for providing advice and for allowing
the Committee to draw extensively on Library publications relevant to ATSIC.
Finally, the Committee would like to thank the officers
of the Secretariat team who administered the Inquiry, and assisted with the
research and drafting of the report.
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