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Bills Digest 100 1995-96
Aboriginal and Torres Strait Islander Commission Amendment Bill 1996

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

  • Passage History
  • Purpose
  • Background
  • Main Provisions
  • Remarks
  • Endnotes
  • Contact Officer and Copyright Details

    Passage History

    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.

    Purpose

    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.

    Background

    The Background information provided below relates to the establishment of ATSIC, its functions and some of the major areas covered by the Bill.

    The Establishment of ATSIC

    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 Objects of the ATSIC Act

    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.

    What is ATSIC?

    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.

    Regional Councils

    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.

    ATSIC Zones

    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 Chairperson

    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.

    Torres Strait Regional Authority (TSRA)

    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)

    Aboriginal and Torres Strait Islander Development Corporation

    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)

    Main Provisions

    Reduction in the Number of Regional Councils

    Current law

    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.

    ATSIC Commissioners and Disclosure of Interests

    Current law

    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.

    Proposed law

    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.

    Suspension of the Appointment of a Commissioner

    Current law

    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)].

    Proposed law

    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.

    Office of Evaluation and Audit

    Current law

    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.

    Proposed law

    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.

    The Commission Administrator

    Item 19 of Schedule 1 inserts new Division 9A into the ATSIC Act. New Division 9A deals with the appointment of a Commission Administrator.

    Current law

    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.

    Proposed law

    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.

    Persons Qualified to be Elected to Regional Councils

    Current law

    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.

    Proposed law

    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.

    Timing of Regional Council Elections

    Current law

    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.

    Proposed law

    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.

    Disclosure of Interests by Regional Council Members

    Current law

    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.

    Proposed law

    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.

    Register of Interests - Members of Regional Councils

    Current law

    The ATSIC Act does not contain provisions providing for a register of Commission, Regional Council or TSRA member pecuniary interests.

    Proposed law

    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.

    Persons Taken to Have Resigned From Regional Councils

    Current law

    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)].

    Proposed law

    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.

    Circumstances in which Persons Cease to be Members of Regional Council

    Current law

    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

    Proposed law

    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.

    Meeting of Regional Councils to be Open to the Public

    Current law

    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.

    Proposed law

    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.

    Injunctions

    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)].

    Amendments Relating to the Torres Strait Regional Authority

    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.

    Aboriginal and Torres Strait Islander Commercial Development Corporation

    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.

    The ATSIC Chairperson

    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.

    Remarks

    The ATSIC Chairperson

    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.

    Appointment of an Administrator

    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?

    Membership of Regional Councils

    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.

    Regional Councils - Public Access to Meetings and Documents

    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.

    Injunctions

    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.

    Endnotes

    (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.

    Contact Officer and Copyright Details

    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
    Parliamentary Research Service

    This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

    PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

    ISSN 1323-9032
    © Commonwealth of Australia 1996

    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, 1996.

    This page was prepared by the Parliamentary Library, Commonwealth of Australia
    Last updated: 18 June 1996



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